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§ 5596. Back pay due to unjustified personnel action

Version history — every release point where this text changed

Release point 115-73 · current through 10/26/2017

§ 5596.

Back pay due to unjustified personnel action

(a)

For the purpose of this section, “agency” means—

(1)

an Executive agency;

(2)

the Administrative Office of the United States Courts, the Federal Judicial Center, and the courts named by section 610 of title 28;

(3)

the Library of Congress;

(4)

the Government Publishing Office;

(5)

the government of the District of Columbia;

(6)

the Architect of the Capitol, including employees of the United States Senate Restaurants; and

(7)

the United States Botanic Garden.

(b)
(1)

An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee—

(A)

is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect—

(i)

an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through other employment during that period; and

(ii)

reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title, or under chapter 11 of title I of the Foreign Service Act of 1980, shall be awarded in accordance with standards established under section 7701(g) of this title; and

(B)

for all purposes, is deemed to have performed service for the agency during that period, except that—

(i)

annual leave restored under this paragraph which is in excess of the maximum leave accumulation permitted by law shall be credited to a separate leave account for the employee and shall be available for use by the employee within the time limits prescribed by regulations of the Office of Personnel Management, and

(ii)

annual leave credited under clause (i) of this subparagraph but unused and still available to the employee under regulations prescribed by the Office shall be included in the lump-sum payment under section 5551 or 5552(1) of this title but may not be retained to the credit of the employee under section 5552(2) of this title.

(2)
(A)

An amount payable under paragraph (1)(A)(i) of this subsection shall be payable with interest.

(B)

Such interest—

(i)

shall be computed for the period beginning on the effective date of the withdrawal or reduction involved and ending on a date not more than 30 days before the date on which payment is made;

(ii)

shall be computed at the rate or rates in effect under section 6621(a)(1) of the Internal Revenue Code of 1986 during the period described in clause (i); and

(iii)

shall be compounded daily.

(C)

Interest under this paragraph shall be paid out of amounts available for payments under paragraph (1) of this subsection.

(3)

This subsection does not apply to any reclassification action nor authorize the setting aside of an otherwise proper promotion by a selecting official from a group of properly ranked and certified candidates.

(4)

The pay, allowances, or differentials granted under this section for the period for which an unjustified or unwarranted personnel action was in effect shall not exceed that authorized by the applicable law, rule, regulations, or collective bargaining agreement under which the unjustified or unwarranted personnel action is found, except that in no case may pay, allowances, or differentials be granted under this section for a period beginning more than 6 years before the date of the filing of a timely appeal or, absent such filing, the date of the administrative determination.

(5)

For the purpose of this subsection, “grievance” and “collective bargaining agreement” have the meanings set forth in section 7103 of this title and (with respect to members of the Foreign Service) in sections 1101 and 1002 of the Foreign Service Act of 1980, “unfair labor practice” means an unfair labor practice described in section 7116 of this title and (with respect to members of the Foreign Service) in section 1015 of the Foreign Service Act of 1980, and “personnel action” includes the omission or failure to take an action or confer a benefit.

(c)

The Office of Personnel Management shall prescribe regulations to carry out this section. However, the regulations are not applicable to the Tennessee Valley Authority and its employees, or to the agencies specified in subsection (a)(2) of this section.

Source(Added Pub. L. 90–83, § 1(34)(C),
Sept. 11, 1967
, 81 Stat. 203; amended Pub. L. 94–172, § 1(a),
Dec. 23, 1975
, 89 Stat. 1025; Pub. L. 95–454, title VII, § 702,
Oct. 13, 1978
, 92 Stat. 1216; Pub. L. 96–54, § 2(a)(14),
Aug. 14, 1979
, 93 Stat. 382; Pub. L. 96–465, title II, § 2306,
Oct. 17, 1980
, 94 Stat. 2165; Pub. L. 100–202, § 101(m) [title VI, § 623(a)],
Dec. 22, 1987
, 101 Stat. 1329–390, 1329–428; Pub. L. 101–474, § 5(l),
Oct. 30, 1990
, 104 Stat. 1100; Pub. L. 105–261, div. A, title XI, § 1104(a),
Oct. 17, 1998
, 112 Stat. 2141; Pub. L. 107–68, title III, § 309,
Nov. 12, 2001
, 115 Stat. 592; Pub. L. 113–235, div. H, title I, § 1301(b),
Dec. 16, 2014
, 128 Stat. 2537.)
Notes
Historical and Revision Notes
Section of title 5
Source (U.S. Code)
Source (Statutes at Large)
5596(a)
5596(b)
5596(c)
5 App.: 652a.
5 App.: 652b.
5 App.: 652c.
Mar. 30, 1966, Pub. L. 89–380, §§ 2–4, 80 Stat. 94, 95.
In subsection (a)(1), the term “an Executive agency” is substituted for “executive department of the Government of the United States”, “agency or independent establishment in the executive branch of such Government”, “corporation owned or controlled by such Government”, and “the General Accounting Office” to conform to the definition in 5 U.S.C. 105.
In subsection (b), the word “employee” is substituted for “civilian officer or employee” and “such officer or employee” to conform to the definition in 5 U.S.C. 2105. The words “on or after the date of enactment of this Act” and “taken prior to, on, or after the date of enactment of his Act” are omitted as executed and unnecessary, since title 5 is restated prospectively and as any existing rights are preserved by section 7 of this bill.
In subsection (c), the word “employees” is substituted for “officers and employees” to conform to the definition in 5 U.S.C. 2105.

References in Text

The Foreign Service Act of 1980, referred to in subsec. (b)(1)(A)(ii), is Pub. L. 96–465,
Oct. 17, 1980
, 94 Stat. 2071. Chapter 11 of title I of the Act is classified generally to subchapter XI (§ 4131 et seq.) of chapter 52 of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 3901 of Title 22 and Tables.
Section 6621(a)(1) of the Internal Revenue Code of 1986, referred to in subsec. (b)(2)(B)(ii), is classified to section 6621(a)(1) of Title 26, Internal Revenue Code.
Sections 1101, 1002, and 1015 of the Foreign Service Act of 1980, referred to in subsec. (b)(5), are classified to sections 4131, 4102, and 4115, respectively, of Title 22, Foreign Relations and Intercourse.

Amendments

2001—Subsec. (a)(6), (7). Pub. L. 107–68 added pars. (6) and (7).
1998—Subsec. (b)(4), (5). Pub. L. 105–261 added par. (4) and redesignated former par. (4) as (5).
1990—Subsec. (a)(2). Pub. L. 101–474, § 5(l)(1), substituted “Courts, the Federal Judicial Center, and the courts named by section 610 of title 28” for “Courts”.
Subsec. (c). Pub. L. 101–474, § 5(l)(2), substituted “employees, or to the agencies specified in subsection (a)(2) of this section” for “employees”.
1987—Subsec. (b)(2) to (4). Pub. L. 100–202 added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively.
1980—Subsec. (b)(1). Pub. L. 96–465, § 2306(1), inserted in subpar. (A)(ii) “or under chapter 11 of title I of the Foreign Service Act of 1980” after “chapter 71 of this title,”.
Subsec. (b)(3). Pub. L. 96–465, § 2306(2), inserted “and (with respect to members of the Foreign Service) in sections 1101 and 1002 of the Foreign Service Act of 1980” after “section 7103 of this title”, and “and (with respect to members of the Foreign Service) in section 1015 of the Foreign Service Act of 1980” after “section 7116 of this title”.
1979—Subsec. (c). Pub. L. 96–54 substituted “Office of Personnel Management” for “Civil Service Commission”.
1978—Subsec. (b). Pub. L. 95–454 substituted provisions relating to corrective measures applicable to an employee who, on the basis of a timely appeal or an administrative determination, including a decision relative to an unfair labor practice or grievance, is found by an appropriate authority under applicable law, rule, regulation, or collective bargaining agreement to have been affected by an unjustified or unwarranted personnel action, for provisions relating to corrective measures applicable to an employee who, on the basis of an administrative determination or a timely appeal, is found by an appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action.
1975—Subsec. (b)(2). Pub. L. 94–172 struck out in introductory clause provision relating to prohibition on leave credit cumulated in excess of maximum allowed under law or regulations, and added subpars. (A) and (B).

Change of Name

“Government Publishing Office” substituted for “Government Printing Office” in subsec. (a)(4) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents.

Effective Date of 2001 Amendment

Pub. L. 107–68, title III, § 309,
Nov. 12, 2001
, 115 Stat. 592, provided that the amendment made by section 309 is effective for all personnel actions taken on or after
Nov. 12, 2001
.

Effective Date of 1987 Amendment

Pub. L. 100–202, § 101(m) [title VI, § 623(b)],
Dec. 22, 1987
, 101 Stat. 1329–390, 1329–429, provided that:
“(1)

Generally.—

Except as provided in paragraph (2), the amendments made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [

Dec. 22, 1987
], and shall apply with respect to any employee found, in a final judgment entered or a final decision otherwise rendered on or after such date, to have been the subject of an unjustified or unwarranted personnel action, the correction of which entitles such employee to an amount under section 5596(b)(1)(A)(i) of title 5, United States Code.

“(2)

Exception.—

“(A)

Cases in which a right to interest was reserved.—

The amendments made by subsection (a) [amending this section] shall also apply with respect to any claim which was brought under section 5596 of title 5, United States Code, and with respect to which a final judgment was entered or a final decision was otherwise rendered before the date of the enactment of this Act [

Dec. 22, 1987
], if, under terms of such judgment or decision, a right to interest was specifically reserved, contingent on the enactment of a statute authorizing the payment of interest on claims brought under such section 5596.

“(B)

Method of computing interest.—

The amount of interest payable under this paragraph with respect to a claim shall be determined in accordance with section 5596(b)(2)(B) of title 5, United States Code (as amended by this section).

“(C)

Source.—

An amount payable under this paragraph shall be paid from the appropriation made by section 1304 of title 31, United States Code, notwithstanding section 5596(b)(2)(C) of title 5, United States Code (as amended by this section) or any other provision of law.

“(D)

Deadline.—

An application for a payment under this paragraph shall be ineffective if it is filed after the end of the 1-year period beginning on the date of the enactment of this Act [

Dec. 22, 1987
].

“(E)

Limitation on payments.—

Payments under this paragraph may not be made before

October 1, 1988
, except that interest shall continue to accrue in accordance with [section] 5596(b)(2)(B) of title 5, United States Code.”

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–465 effective
Feb. 15, 1981
, except as otherwise provided, see section 2403 of Pub. L. 96–465, set out as an Effective Date note under section 3901 of Title 22, Foreign Relations and Intercourse.

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–54 effective
July 12, 1979
, see section 2(b) of Pub. L. 96–54, set out as a note under section 305 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–454 effective 90 days after
Oct. 13, 1978
, see section 907 of Pub. L. 95–454, set out as an Effective Date note under section 1101 of this title.

Effective Date of 1975 Amendment

Pub. L. 94–172, § 1(b),
Dec. 23, 1975
, 89 Stat. 1025, provided that:
“The amendment made by subsection (a) [amending this section] shall apply to any employee found, on or after
March 30, 1966
, to have undergone an unjustified or unwarranted personnel action the correction of which entitled or entitles such employee to the benefits provided under section 5596 of title 5, United States Code.”

Lump-Sum Payments for Former Employees not on the Rolls on
December 23, 1975

Pub. L. 94–172, § 2,
Dec. 23, 1975
, 89 Stat. 1025, provided that:
“With respect to former employee (except a former employee referred to in section 3 of this Act) [set out as a note below] who is not on the rolls on the date of the enactment of this Act [
Dec. 23, 1975
], annual leave, which was not credited under section 5596 of title 5, United States Code, because it was in an amount that would have caused the amount of leave to the employee’s credit to exceed the maximum amount of the leave authorized for the employee by law or regulation, is subject to credit and liquidation by lump-sum payment only if a claim therefor is filed within three years immediately following the date of the enactment of this Act with the agency by which the employee was employed when the lump-sum payment provisions of section 5551 of title 5, United States Code, last became applicable to such employee. Payment shall be by that agency at the salary rate in effect on the date the lump-sum payment provisions became applicable.”

Lump-Sum Payments for Postal Employees not on the Rolls on
December 23, 1975

Pub. L. 94–172, § 3,
Dec. 23, 1975
, 89 Stat. 1025, provided that:
“(a)

With respect to a former employee of the Post Office Department or a former employee of the United States Postal Service who had prior civilian service with the Post Office Department or other Federal agency, who is not on the rolls on the date of the enactment of this Act [

Dec. 23, 1975
], annual leave which was accrued before
July 1, 1971
, but was not credited under section 5596 of title 5, United States Code, because it was in an amount that would have caused the amount of leave to his credit to exceed the maximum amount of the leave authorized for the employee by law or regulation, is subject to credit and, liquidation by lump-sum payment only if a claim therefor is filed within 3 years immediately following the date of enactment of this Act with the Postal Service. Payment shall be by the Postal Service at the salary rate in effect on the date the lump-sum payment provisions of section 5551 of title 5, United States Code, or comparable provisions of regulations of the Postal Service, as appropriate, last became applicable to the former employee.

“(b)

With respect to a present employee of the Postal Service who had prior Federal civilian service with the Post Office Department or other Federal agency, annual leave which was accrued before

July 1, 1971
, but was not credited under section 5596 of title 5, United States Code, because it was in an amount that would have caused the amount of leave to the employee’s credit to exceed the maximum amount of the leave authorized for the employee by law or regulation, is subject to credit and liquidation by lump-sum payment only if a claim therefor is filed with the Postal Service within three years immediately following the date of the enactment of this Act [
Dec. 23, 1975
]. Payment shall be by the Postal Service at the salary rate in effect on the date of the enactment of this Act.”

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