noting that “[retroactive] promotion . . . [is] inap- propriate if the employee would have been only one of several qualified candidates for the promotion, but the factual record did not clearly establish that the employee would have been selected for promotion”
How later courts described this case
- noting that “[retroactive] promotion . . . [is] inap- propriate if the employee would have been only one of several qualified candidates for the promotion, but the factual record did not clearly establish that the employee would have been selected for promotion”
- discussing the FBPA’s “requirement that a wrongfully discharged employee make reasonable efforts to mitigate damages”
- noting that "[t]his formula appears to be fair and apt"
- At best, to assume he would have been promoted is speculative.
Written by the judges who cited it.
The opinion
PAULINE NEWMAN, Circuit Judge,
concurring in part, dissenting in part.
I join all aspects of the court’s opinion except that of Part A, to which I respectfully dissent. I concur in the rationale of Part B, but because of my conclusion as to Part A, the calculation of Part B would of course be based on the required progression in grade.
As to the issues of grade and level, I believe that this case fully meets the standards of the Federal Personnel Manual and interpretive decisions, as discussed infra, requiring that Mr. Naekel’s back pay and overtime be calculated at the grade progression set by the “Up or Out Policy” of FAA Form 3300-39 and the Training Agreement, also discussed infra.
The majority holds that Mr. Naekel’s back pay shall be calculated at grade GS-9, including within-grade increases, for the entire four and one half year period between separation and reinstatement. The statute requires payment of back pay calculated as:
(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_
U.S.C. § 5596(b)(l)(A)(i) (1982).
The general rule is that reinstatement will be at the grade and level occupied by the employee at the time of the adverse action, absent special circumstances to justify any other practice; and thus the back pay calculation is normally at the grade at the time of the adverse action, in this case GS-9. Exceptions to this practice are required, however, when some provision of law mandates a promotion or “if it is clearly established by appropriate authority” that the employee would in fact have been promoted, whereupon the back pay is calculated accordingly. Federal Personnel Manual Supp. 990-2, Book 550, Sube. S8, p. 550-61 (1984); Boese v. Department of the Air Force, 784 F.2d 388, 390 (Fed.Cir.1986).
The circumstances here establish that Mr. Naekel would have been promoted, but for the unjustified removal. The Agree *687 ment whereby the FAA employs air traffic controllers requires that the employee, as a condition of continued employment, progress through a training program on a fixed schedule of both achievement and grade: the so-called “Up or Out Policy”, included in FAA Form 3300-39, “FAA Administrative Reassignment and Relocation Policy”, which all entering controllers sign as a condition of employment. See also the agreement between the Federal Aviation Administration and the Office of Personnel Management, entitled “United States Office of Personnel Management Special Training Agreement,” SSP:EDU 5-2 at 2 (approved Aug. 4, 1981), and Order 3330.-30C of the FAA, Employment Program for Developmental Air Traffic Control Specialists, HIT 4-5 (Sept. 27, 1984).
The agency is required by statute to calculate back pay as if the employee had never been excluded. This is in accord with the Supreme Court’s statement that:
The general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.
Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99 , 18 L.Ed. 752 (1867), quoted in Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 , 95 S.Ct. 2362, 2372 , 45 L.Ed.2d 280 (1975). Thus it must be presumed that Mr. Naekel would have gained the contractual progression, for he would have had no alternative as a continuing employee. As discussed in Ciambelli v. United States, 203 Ct.Cl. 680, 687 (1974), the Back Pay Act “entitles a wrongfully dismissed! employee to the pay he ‘normally would have earned’ during the period the action was in effect and ‘for all purposes, [he] is deemed to have performed services for the agency during that period.’” (quoting 5 U.S.C. § 5596 ). See also Gunston v. United States, 221 Ct.Cl. 57 , 602 F.2d 316, 320 (1979) (back pay granted for within grade increases and promotions).
I would reverse the board’s decision to limit Mr. Naekel’s back pay to grade GS-9, and remand for recalculation of back pay and overtime measured at the grades and levels he would have occupied in the normal progression through the required program for air traffic controllers.