Entitlement

• By Milt x_Zall
• Jan 20, 2002

A case recently decided by the Merit Systems Protection Board raises some interesting questions about how much back pay a fed is entitled to under the law.

The case in point involved Richard Gillespie, a GS-12 auditor with the Defense Department. Gillespie was fired Oct. 9, 1998, because he was convicted by the state of Massachusetts on a charge of assault and battery with a dangerous weapon and sentenced to two and a half years in prison. Gillespie appealed his removal to the MSPB, but the administrative judge dismissed it because Gillespie was actively pursuing an appeal of his conviction.

Gillespie twice refiled his appeal, with the same disposition. The fourth time Gillespie refiled his appeal, he submitted evidence showing that on July 20, 2000, a judge had vacated his conviction on the assault and battery charge and granted his motion for a new trial. Gillespie requested that DOD reinstate him with no break in service and with retroactive pay and benefits.

DOD filed a motion to dismiss the appeal, saying that Gillespie had been reinstated to his GS-12 position Nov. 6, 2000, and that DOD had agreed to pay Gillespie back pay from July 20, 2000, the day his conviction was vacated. DOD contended that Gillespie was not entitled to back pay from any earlier date because he was in jail and, therefore, not available for duty, and because, until the date his conviction was vacated, he would have been disqualified from access to sensitive information or assignment to sensitive duties.

Gillespie opposed DOD's motion, claiming entitlement to back pay from Oct. 9, 1998, the effective date of his removal. That sounds reasonable to me. If Gillespie was fired because of a conviction and the conviction is vacated, why shouldn't Gillespie be reinstated back to his original date of removal and receive full back pay?

However, the administrative judge went along with DOD's initial back pay calculations and dismissed Gillespie's appeal as moot. Gillespie appealed to the full MSPB, arguing that he was entitled to back pay from the effective date of his removal.

The full board said a case could be dismissed as moot only if an employee is returned to the status he was previously in and not left in a worse position than he would have been in if the matter had been adjudicated. As it is, Gillespie's records reflect a break in service of more than two years. That left him in a worse position than he would have been in had his appeal been adjudicated, so his appeal wasn't moot.

The MSPB said, "An appellant is not restored to the status quo ante where he does not receive all the back pay to which he is entitled." The MSPB said the merits of Gillespie's case "must be addressed and resolved before the appeal may be properly dismissed as moot."

The MSPB remanded the case for further adjudication of Gillespie's appeal of his removal. I think that's fair. Do you?

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at milt.zall@verizon.net.