Legal Briefs: Resigned to a RIF

Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

In 1993, Richard Starkey resigned his civilian job with the Navy because he expected to be laid off in a reduction-in-force (RIF).

Starkey had previously served in the military for 19 years and 9 months. He was also credited with three months of what is known as "constructive service," which brought his total service to the 20 years required for military retirement.

At the time, retired military personnel with 20 or more years of service could not receive preferential treatment during RIFs, and also had their pay capped. Last year, the pay cap was eliminated, but the RIF rule was left intact. So former military personnel with less than 20 years of service receive preference during RIFs, while those with 20 or more years of service do not.

The Navy and the Office of Personnel Management told Starkey he did not qualify for preference because he had served 20 years in the military. So he resigned.

Starkey now contends that the Navy and OPM misinformed him. OPM regulations say that preference is granted when an "employee's retired pay from a uniformed service is not based upon 20 or more years of full-time active service." Starkey says that his retired pay is based on 19 years of active service, not 20, so he would have received preferential treatment if he had not resigned.

On Jan. 5, the U.S. Court of Appeals for the Federal Circuit ordered the Merit Systems Protection Board, which had previously ruled against Starkey, to reconsider his case.

Lesson: Never give up, never surrender!

Starkey v. Navy (99-3329), U.S. Court of Appeals for the Federal Circuit, Jan. 5, 2000.

Couple's Confusion

Linda Porzio and her husband Thomas F. Finigan, both Social Security Administration employees in Boston, were apart for a time in 1998 while Porzio was sent on a temporary duty assignment to Baltimore, Md.

Porzio was supposed to return to Boston in February, but she found out that her husband was being sent to Baltimore in March. She asked to have her duty extended so that she could be with him in Baltimore, but SSA-Boston said no. Then, SSA-Baltimore offered Porzio a permanent duty assignment in Baltimore.

Meanwhile, Finigan was authorized to go to Baltimore for five months on a temporary assignment. He signed a short-term lease for an apartment when he got there. By that time his wife had been assigned to Baltimore permanently and the couple moved in to the apartment together.

Were Porzio and Finigan eligible for reimbursement for their lodging expenses? SSA officials decided to let the General Services Administration Board of Contract Appeals (GSABCA) decide.

GSABCA said that regulations don't limit lodging reimbursement when an employee's relative also stays in the lodging. Finigan's claim for his lodging expenses while in Baltimore was granted.

Lesson: Sometimes you can get reimbursed for a little togetherness.

In the Matter of Thomas F. Finigan, General Services Administration Board of Contract Appeals (GSBCA 15168-TRAV), January 7, 2000.

A Case of Interest

A few years ago, several thousand Social Security Administration employees were awarded back pay for overtime work the agency hadn't fully compensated them for. But SSA was slow in getting the back pay to employees, so the American Federation of Government Employees argued that the agency should pay interest not only on the back pay, but also on liquidated damages due employees for SSA's errors.

The argument went to the Federal Labor Relations Authority, which ruled in favor of the employees.

But on Jan. 18, the U.S. Court of Appeals for the District of Columbia ruled that "the Back Pay Act does not authorize the FLRA to require an agency to pay interest on liquidated damages awarded under the Fair Labor Standards Act," the law that governs overtime pay. SSA will not have to cough up the extra cash.

Lesson: Employees can't always expect their interest to be served.

Social Security Administration v. Federal Labor Relations Authority (99-1157), U.S. Court of Appeals for the District of Columbia, Jan. 18, 2000.