About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

B-196107(RLR) 1 (1979-12-31)

handle is hein.gao/gaobabjqj0001 and id is 1 raw text is: COMPTROLLER GENERAL OF THE UNITED STATES WASHINGTON, D.C. 20548 B-196107 (RLR) December 31, 1979 Mr. John Regan Stark 4815 Grantham Avenue Chevy Chase, Maryland 20015 Dear John: This replies to your letter of September 17, 1979, in behalf of Mr. Francis S. Stein. As you are aware, the Department of Labor previously submitted Mr. Stein's case to us and it was decided adversely to him in our decision, B-191495, April 10, 1978, a copy of which is enclosed. The issue is whether a part-time appointment under which Mr. Stein was employed for approximately 5 months in 1973 can be retroactively changed to a full-time appointment with advanced sick leave or leave without pay so as to permit Mr. Stein's retirement annuity to be retroactively recom- puted at a higher rate. Mr. Stein contends that these retroactive changes should be permitted because he was erroneously advised by his personnel office that part-time employment would count as if it were full-time for annuity computation purposes. I sympathize with Mr. Stein and wish GAO could help him. However, the only authority for retroactive changes of this nature is the Back Pay Act, 5 U.S.C. § 5596, and Mr. Stein's situation does not fall within the coverage of this law. To be eliibl. f or relief under the Back Pay Ac as construed by the implementing regulations, 5 C.F.R. 550.801 et seg., an em- ployee must have suffered an unjustified or unwarranted personnel action. Such a personnel action is defined as an act or omission which violates or improperly applies a nondiscretionary, mandatory requirement imposed by law, regulation, established policy, or binding agreement. Since the employing agency had the authority to determine what type of appointment Mr. Stein was given, his part-time appoint- ment did not violate any nondiscretionary or mandatory requirement. It was not, therefore, an unjustified or unwarranted personnel action which could be changed retroactively under the authority of the Back Pay Act. Moreover, while unfortunate, erroneous advice as to the subsequent effect of the part-time appointment upon his retirement annuity was a collateral matter and did not change the nature of the appointment in this regard. Consequently, since GAO

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most