Before Steadman and Farrell, Associate Judges and Kern, Senior
The opinion of the court was delivered by: Associate Judge Farrell.
Appeal from the Superior Court of the District of Columbia (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Submitted February 18, 1999
Opinion by Senior Judge Kern, Concurring in part and Dissenting in part, at p. ____.
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"). *fn1 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.
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.]"
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, 648 F.2d 1324, 1329 (Ct. Cl. 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, 887 (Fed. Cir. 1983)). *fn2 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))(emphasis in Brown); 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 non-discretionary provision," "`thereby result[ing] in a . . . denial of . . . pay . . . otherwise due an employee,'" 755 ...