The U.S. Court of Appeals for the Federal Circuit recently upheld a U.S. Court of Federal Claims decision denying a Department of Defense employee claimed back pay under the Back Pay Act.
After the employee, a former National Guard technician, involuntarily separated, the DoD failed to offer him a competitive service appointment within six months of separation. Nearly one year later, the employee accepted an offered appointment and began work. The employee then successfully sued in the U.S. District Court for the District of Columbia to have his service record amended to reflect an earlier appointment date.
Following that lawsuit, the employee next sued in the U.S. Court of Federal Claims claiming that he was owed back pay for the period between his revised appointment date, and the date he actually began work. The claims court rejected his attempt, finding that he was not an employee within the meaning of the Back Pay Act which defines an employee as one appointed by several listed officials, one who is engaged in the performance of a federal function under executive act, or subject to the supervision of an appointing official while engaged in duty.
The U.S. Court of Appeals upheld the decision rejecting his claim finding his lawsuit an attempt to eradicate the distinction between being appointed and being employed. The court found the decision revising his appointment date limited to just that, and that the decision could not be read as an attempt to reward him pay retroactively. The court noted that the decision to revise his appointment date could not make up for the employee’s failure to meet the statutory definition of an employee for the purposes of the Back Pay Act.
The full text of the decision can be found at:
