
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document affected by Public Law 107-68 Section 309]
[Document affected by Public Law 107-68 Section 309]
[CITE: 5USC5596]

 
             TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
 
                           PART III--EMPLOYEES
 
                      Subpart D--Pay and Allowances
 
                     CHAPTER 55--PAY ADMINISTRATION
 
                SUBCHAPTER IX--SEVERANCE PAY AND BACK PAY
 
Sec. 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 Printing Office; and
        (5) the government of the District of Columbia.

    (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.

(Added Pub. L. 90-83, Sec. 1(34)(C), Sept. 11, 1967, 81 Stat. 203; 
amended Pub. L. 94-172, Sec. 1(a), Dec. 23, 1975, 89 Stat. 1025; Pub. L. 
95-454, title VII, Sec. 702, Oct. 13, 1978, 92 Stat. 1216; Pub. L. 96-
54, Sec. 2(a)(14), Aug. 14, 1979, 93 Stat. 382; Pub. L. 96-465, title 
II, Sec. 2306, Oct. 17, 1980, 94 Stat. 2165; Pub. L. 100-202, 
Sec. 101(m) [title VI, Sec. 623(a)], Dec. 22, 1987, 101 Stat. 1329-390, 
1329-428; Pub. L. 101-474, Sec. 5(l), Oct. 30, 1990, 104 Stat. 1100; 
Pub. L. 105-261, div. A, title XI, Sec. 1104(a), Oct. 17, 1998, 112 
Stat. 2141.)

                      Historical and Revision Notes
------------------------------------------------------------------------
                                                    Source (Statutes at
 Section of title 5       Source (U.S. Code)               Large)
------------------------------------------------------------------------
5596(a)............  5 App.: 652a.                 Mar. 30, 1966, Pub.
5596(b)............  5 App.: 652b.                  L. 89-380, Secs.  2-
5596(c)............  5 App.: 652c.                  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 
(Sec. 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

    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, Sec. 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, Sec. 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, Sec. 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, Sec. 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).


                    Effective Date of 1987 Amendment

    Section 101(m) [title VI, Sec. 623(b)] of Pub. L. 100-202 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

    Section 1(b) of Pub. L. 94-172 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

    Section 2 of Pub. L. 94-172 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

    Section 3 of Pub. L. 94-172 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.''

                  Section Referred to in Other Sections

    This section is referred to in sections 5307, 7118, 7121, 7122, 7371 
of this title; title 22 sections 4116, 4137.
