Mitchell v. District of Columbia

FARRELL, Associate Judge:

Appellant was employed at the relevant time by the Department of Human Services (“DHS”). He filed an administrative complaint seeking payment for 21.5 hours of overtime he was scheduled to work but which DHS had cancelled, and for additional overtime for which he would have been eligible except for what he asserted was an unwarranted employment action by DHS. His entitlement to these payments depended upon application of the Federal Back Pay Act (“BPA”).1 Appellant also sought restoration of his opportunity to work future overtime. The Office of Employee Appeals (“OEA”) ruled that, in the circumstances of this case, the overtime appellant had lost could not be recovered under the BPA. At the same time, it provided prospective relief by ordering that the restriction on overtime be lifted, while noting that the agency was not required to approve future overtime for appellant if it had a “legitimate management reason.” The Superior Court, on further appeal, sustained OEA’s determinations. In this court, appellant challenges the denial of back pay. We uphold the trial court’s decision except that we remand for further consideration of appellant’s claim for back pay as it relates solely to the scheduled 21.5 hours.

*230I.

On March 5, 1987, DHS informed appellant, a Recreation Program Specialist at the District’s Oak Hill Youth Facility, that he was restricted from working any additional overtime. The agency also cancelled 21.5 hours of overtime for which he had already been approved and scheduled. The reasons DHS later asserted for the action were that appellant had not been working diligently during his normal forty-hour work week, and that the agency intended to shift overtime to employees in lower grade levels than appellant. Following appellant’s administrative complaint, an OEA examiner conducted a hearing in May 1991. She found an “absence of proof that management [had] reasonably exercised its discretion [to limit overtime] for a legitimate reason.” However, while thus concluding that DHS’s March 5, 1987 actions were “arbitrary and capricious,” the examiner determined that the BPA afforded appellant no entitlement to back pay because he had not suffered an actual loss of pay, only the lost opportunity to earn additional pay.

On review, the full OEA Board did not disturb the examiner’s finding that DHS had “abused its discretion by barring [appellant] from working overtime,” but agreed that the BPA provided him no entitlement to back pay. On further appeal, the Superior Court initially remanded the case to OEA because it found the record insufficiently developed as to the reasons why the overtime had been curtailed. On remand, the examiner made findings somewhat in tension with her earlier determination of arbitrary and capricious action. In particular, she found that appellant’s supervisor’s “belief that [appellant] did not work during the [normal] forty-hour week was the specific reason for the overtime restriction.” The examiner sent these findings directly to the Superior Court, which issued a written opinion on May 15, 1996. Disregarding the apparent conflict in the examiner’s successive factual determinations, the court framed “the narrow legal issue [as] whether the OEA erred as a matter of law when it sustained the hearing examiner’s conclusion that the Back Pay Act did not provide a monetary remedy for the wrongful overtime restriction in this case because the restriction did not result in a withdrawal or reduction in [appellant’s] pay.” The court concluded:

[W]hile the Back Pay Act does provide a monetary remedy for the wrongful restriction of overtime pay[ ] which is otherwise due a worker by contract, rule, or regulation, ... no such compensatory remedy is recoverable as pay under the Act where the authority to schedule overtime to a particular worker is committed to the sole discretion of the Agency. [Emphasis in original]

II.

We sustain OEA’s conclusion that appellant could not recover under the BPA for the denial of unscheduled future overtime. “To receive compensation under the [BPA], an employee must show that (1) he has undergone an unjustified or unwarranted personnel action as determined by an appropriate authority, and (2) the action resulted in a withdrawal or reduction of all or part of the employee’s pay, allowances, or differentials.” Wells v. Federal Aviation Admin., 755 F.2d 804, 807 (11th Cir.1985); see 5 U.S.C. § 5596(b) (1994). Such “pay” may include overtime pay wrongfully withheld. Id. at 808; see also Summers v. United States, 227 Ct.Cl. 353, 648 F.2d 1324, 1329 (1981). However, courts have consistently held the BPA to be “ ‘merely derivative in application; it is not itself a jurisdictional statute.’ Unless some other provision of law commands payment of money to the employee for the ‘unjustified or unwarranted personnel action,’ the Back Pay Act is inapplicable.” Spagnola v. Stockman, 732 F.2d 908, 912 (Fed.Cir.1984) (emphasis added) (quoting United States v. Connolly, 716 F.2d 882, *231887 (Fed.Cir.1988)).2 In Spagnola, the court held that:

there has been ... no such provision of law mandating payment of ... money to the appellant, and the Back Pay Act itself cannot fill that gap. Consistently with that understanding of the law, the 1978 amendment [to the Act which defined “unjustified or unwarranted personnel action” broadly to include “the ... failure to ... confer a benefit”] was not designed to provide payment for all actions which should or might well have been taken, but only for those payments or benefits which were required by law (a statute or regulation).

Id. (emphasis in original). See also Brown v. Secretary of the Army, 287 U.S.App.D.C. 8, 14 n. 4, 918 F.2d 214, 220 n. 4 (1990) (“[I]n referring to personnel action that is ‘unjustified or unwarranted,’ the legislators meant ‘acts of commission as well as omission with respect to [a] non-discretionary provision of law, Executive order, regulation, or collective bargaining agreement’ ” (citing S. Rep. No. 969, 95th Cong., 2d Sess. 115 (1978) U.S.Code Cong. & Admin. News 1978, 2728, 2837)(empha-sis in Brotan); Wells, 755 F.2d at 809 (Because no regulation required on-duty status pay, “no unjustified or unwarranted personnel action occurred.”))

Wells, supra, applied this reasoning to a denial of overtime pay to a federal flight inspector. After pointing out that the applicable regulation implementing the BPA defined an unjustified personnel action as an act “found to violate the requirements of a nondiscretionary provision,” “ ‘thereby resulting] in a ... denial of ... pay ... otherwise due an employee,’ ” 755 F.2d at 808 (quoting 5 C.F.R. § 550.802(c) (1980)) (emphasis in Wells), the court found that:

[assignment of overtime flight inspection duties was discretionary, according to applicable regulations, and based on circumstances. Since it is undisputed in the record that overtime was discretionary, the district court was correct to [deny] the claim_Applicable regulations indicate that loss of discretionary overtime is not a pay loss. Under the BPA, where a personnel action results in no pay loss, the personnel action may not be deemed unjustified or unwarranted. The removal from flight inspection duties was such a personnel action.

Id.3 (emphasis in original).

Appellant has never alleged that the elimination of his future overtime eligibility violated a statute, administrative regulation, or collective bargaining agreement. He refers only to the District Personnel Manual (“DPM”), but, as the trial *232court pointed out, the Manual contains no language creating an entitlement to overtime. Thus, since DHS was not required by law to afford appellant the opportunity to work overtime, the decision to deny it to him was not an “unjustified or unwarranted personnel action” under the BPA. Cf. also United States v. Testan, 424 U.S. 392, 407, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (The BPA was “intended to grant a monetary cause of action only to those who were subjected to a reduction in their duly appointed emoluments or position ” (emphasis added)); Brown, 287 U.S.App. D.C. at 14, 918 F.2d at 220 (BPA affords retrospective remedy only to those improperly denied a mandatory upgrade/promotion; “[i]f an upgrade is not of that virtually automatic, noncompetitive kind, the Act affords no relief.”). We note that the DPM is consistent with this holding as it provides that “corrective action” for an unjustified or unwarranted personnel action may only be authorized if “consistent with applicable law or regulation.” DPM ch. 11B, Part II, Subpart 8.3(4). Because here the Back Pay Act — the “applicable law” — provides no relief, the DPM alone cannot provide a retrospective monetary remedy.4

Although the BPA thus furnishes no basis for an award reflecting overtime pay which appellant hoped to receive in the future, the answer may be different with respect to the 21.5 hours that had been approved and for which he was scheduled to work, but which were cancelled “arbitrarily and capriciously,” according to the examiner’s original finding. Even where no statute, regulation, or collective bargaining agreement entitles an employee to a personnel action, the Federal Circuit has explained that BPA relief may still be available if the employee can otherwise show “a clear entitlement” to such action. Naekel v. Department of Tramp., FAA, 850 F.2d 682, 683 (Fed.Cir.1988). We are of the view that OEA should consider further whether overtime actually approved and scheduled, then arbitrarily withdrawn, is sufficient to constitute such clear entitlement.5 If OEA concludes that it is, then it needs to resolve the apparent conflict in the hearing examiner’s successive determinations of the reasons for the overtime cancellation. See part I, supra, at 230.

Accordingly, the decision of the Superior Court affirming the denial of back pay for loss of future overtime opportunity is affirmed. As to the 21.5 hours approved and scheduled but then cancelled, the decision is vacated and the case remanded for further proceedings not inconsistent with this opinion.

So ordered.

. See 5 U.S.C. § 5596(b)(1) (1994). The BPA applied to appellant’s claim because he had been hired before January 1, 1980. See Zenian v. District of Columbia Office of Employee Appeals, 598 A.2d 1161, 1163-65 (D.C.1991); District of Columbia v. Hunt, 520 A.2d 300, 303-04 (D.C.1987). Pursuant to D.C.Code § l-633.2(a)(5)(G) (1999), the BPA has been superseded in the District of Columbia by the Comprehensive Merit Personnel Act, D.C.Code §§ 1-601.1 to 1-637.2 (1999).

. As we have done in related contexts, see Dano Resource Recovery, Inc. v. District of Columbia, 620 A.2d 1346 (D.C.1993), we give special respect to the Federal Circuit and the former Court of Claims, "which have particular expertise in this area.” Id. at 1351.

. See also Connolly, 716 F.2d at 887 ("Connolly has failed to show that his separation from the Postal Service violated any relevant statute or regulation covered by the Tucker Act.... The Back Pay act is merely derivative in application; it is not itself a jurisdictional statute.”); Leistiko v. Secretary of the Army, 922 F.Supp. 66, 75 (N.D.Oh.1996) ("The Back Pay Act applies only when a court has jurisdiction to entertain the plaintiff's suit under CSRA or some other statute.”); Allen v. Department of the Air Force, 694 F.Supp. 1527, 1529 (W.D.Okla.1988) (“[Ajbsent a particular allegation of violation of an applicable law or regulation, a plaintiff may not use the Back Pay Act to assert broader harms.”); Maney v. Department of Health & Human Servs., 637 F.Supp. 1128, 1130 (D.D.C.1986) (Grievance Examiner’s implicit finding that personality conflict interfered with supervisor's duty under 5 U.S.C. § 2302 to impartially evaluate plaintiff was sufficient to constitute a violation of a law — rendering the supervisor’s failure to give a better evaluation an "unjustified or unwarranted personnel action.”); Mack v. United States, 653 F.Supp. 70, 72-73 n. 1 (S.D.N.Y.1986), aff'd, 814 F.2d 120 (2d Cir.1987) (district court denied back pay on the merits under the BPA because plaintiff could not "show that the personnel action violated some statute or regulation,” as "an FBI agent has no right to continued employment nor to any pretermination procedures.”).

. In July 1986, a trial judge entered a Consent Decree in the Jerry M. case which required that Oak Hill maintain, among other things, a resident to cottage life staff ratio of ten to one. See District of Columbia v. Jerry M., 571 A.2d 178, 179, 190 n. 27 (D.C.1990). Although the Jerry M. decree did limit the agency’s discretion in determining staffing levels, this court has not been made aware of any provision that rendered overtime mandatory for all current employees. Indeed, to satisfy the demand for increased staffing, the agency could have 1) hired additional temporary or permanent employees, 2) moved current employees to different positions, or 3) directed the bulk of overtime assignments toward employees in lower grade positions (as a July 1986 internal memo purported to do). In short, contrary to our dissenting colleague’s suggestion, post at 235, nothing in the Jerry M. decree created an entitlement to overtime work on the part of any individual Oak Hill staffer.

. This assumes of course, that DHS wishes to litigate further the issue of the 21.5 hours.