- 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 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
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
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 [email protected].