§ 5596. Back pay due to unjustified personnel action

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1967

   Pub. L. 90–83 § 1(34)(C) · 81 Stat. 195

   Enacted · 5 U.S.C. § 5596

   Added Pub. L. 90–83, § 1(34)(C), Sept. 11, 1967, 81 Stat. 203

   Source evidence

   Code source credit
   Added Pub. L. 90–83, § 1(34)(C), Sept. 11, 1967, 81 Stat. 203

   Enacted provision · exact public law section
   (1) (A) Subchapter I of chapter 5 is amended by inserting the following new section at the beginning thereof: “§ 500. Administrative practice; general provisions “(a) For the purpose of this section— “(1) ‘agency’ has the meaning given it by section 551 of this Definitions. title; and “(2) ‘State’ means a State, a territory or possession of the United States including a Commonwealth, or the District of Columbia. “(b) An individual who is a member in good standing of the bar of the highest court of a State may represent a person before an agency on filing with the agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts. “(c) An individual who is duly qualified to practice as a certified public accountant in a State may represent a person before the Internal Revenue Service of the Treasury Department on filing with that agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts. “(d) This section does not— “(1) grant or deny to an individual who is not qualified as provided by subsection (b) or (c) of this section the right to appear for or represent a person before an agency or in an agency proceeding; “(2) authorize or limit the discipline, including disbarment, of individuals who appear in a representative capacity before an agency; “(3) authorize an individual who is a former employee of an agency to represent a person before an agency when the representation is prohibited by statute or regulation; or “(4) prevent an agency from requiring a power of attorney as a condition to the settlement of a controversy involving the payment of money. “(e) Subsections (b)–(d) of this section do not apply to practice before the Patent Office with respect to patent matters that continue to be covered by chapter 3 (sections 31–33) of title 35. 66 Stat. 795. “(f) When a participant in a matter before an agency is represented by an individual qualified under subsection (b) or (c) of this section, a notice or other written communication required or permitted to be given the participant in the matter shall be given to the representative in addition to any other service specifically required by statute. When a participant is represented by more than one such qualified representative, service on any one of the representatives is sufficient.” (B) The analysis of chapter 5 is amended by inserting the following new item before item 501: “500. Administrative practice; general provisions.”.

2. 1975

   Pub. L. 94–172 § 1(a) · 89 Stat. 1025

   1. Struck · 5 U.S.C. § 5596(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

   2. Added · 5 U.S.C. § 5596(b)(2)

      Pub. L. 94–172 added subpars. (A) and (B)

   Source evidence

   Code amendment note
   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).

3. 1978

   Pub. L. 95–454 title VII § 702 · 92 Stat. 1111

   Substituted · 5 U.S.C. § 5596(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

   Source evidence

   Code amendment note
   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.

   Enacted provision · exact public law section
   Sec. 702. Section 5596(b) of title 5, United States Code is amended to read as follows: “(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, shall Ante, p. 1191. be awarded in accordance with standards established under section7701(g) of this title; and Ante, p. 1138. “(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 5 USC 5551, 5552. title but may not be retained to the credit of the employee under section 5552 (2) of this title. “(2) 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. “(3) For the purpose of this subsection, ‘grievance’ and ‘collective bargaining agreement’ have the meanings set forth in section 7103 of this title, ‘unfair labor practice’ means an unfair labor practice Ante, p. 1192. described in section 7116 of this title, and ‘personnel action’ includes the omission or failure to take an action or confer a benefit.”.

4. 1979

   Pub. L. 96–54 § 2(a)(14) · 93 Stat. 381

   Substituted · 5 U.S.C. § 5596(c)

   Pub. L. 96–54 substituted “Office of Personnel Management” for “Civil Service Commission”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 96–54 substituted “Office of Personnel Management” for “Civil Service Commission”.

   Enacted provision · exact public law section
   (14) Sections 3305(a), 3315(a), 3317(a), 3326(b)(1), 5550a(a), 5596(c), and 7327(b) are each amended by striking out “Civil Service Commission” and inserting in lieu thereof “Office of Personnel Management”.

5. 1980

   Pub. L. 96–465 § 2306(1) · 94 Stat. 2071

   Inserted · 5 U.S.C. § 5596(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,”

   Source evidence

   Code amendment note
   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,”.

   Enacted provision · exact public law section
   (1) in paragraph (1)(A)(ii) by inserting “or under chapter 11 of title I of the Foreign Service Act of 1980,” immediately after “chapter 71 of this title,”; and Ante, p. 2142. 5 USC 7101 et seq.

6. 1980

   Pub. L. 96–465 § 2306(2) · 94 Stat. 2071

   Inserted · 5 U.S.C. § 5596(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”

   Source evidence

   Code amendment note
   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”.

   Enacted provision · exact public law section
   (2) m paragraph (3)— (A) by inserting “and (with respect to members of the Foreign Service) in sections 1101 and 1002 of the Foreign Service Act of 1980” immediately after “section 7103 of this Ante. pp. 2142, 2129. 5 USC 7103. title”; and (B) by inserting “and (with respect to members of the Foreign Service) in section 1015 of the Foreign Service Act of 1980” immediately after “section 7116 of this title”. Ante, p. 2137. 5 USC 7116.

7. 1987

   Department of Commerce Appropriation Act, 1988

   Pub. L. 100–202 § 101(m)(tVI)(s623)(a) · 101 Stat. 1329

   1. Added · 5 U.S.C. § 5596(b)(2)(4)

      Pub. L. 100–202 added par. (2)

   2. Redesignated · 5 U.S.C. § 5596(b)(2)(4)

      Pub. L. 100–202 redesignated former pars. (2) and (3) as (3) and (4), respectively

   Source evidence

   Code amendment note
   Subsec. (b)(2) to (4). Pub. L. 100–202 added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively.

   Enacted provision · exact public law section
   Sec. 101. During the current fiscal year, applicable appropriations and funds available to the Department of Commerce shall be available for the activities specified in the Act of October 26, 1949 (15 U.S.C. 1514), to the extent and in the manner prescribed by said Act, and, notwithstanding 31 U.S.C. 3324, may be used for advance payments not otherwise authorized only upon the certification of officials designated by the Secretary that such payments are in the public interest.

8. 1990

   Administrative Office of the United States Courts Personnel Act of 1990

   Pub. L. 101–474 § 5 · 104 Stat. 1097

   Substituted · 5 U.S.C. § 5596(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”

   Source evidence

   Code amendment note
   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”.

   Enacted provision · exact public law section
   SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS. (a) Section 602(a) of title 28, United States Code, is amended to read as follows: “(a) The Director shall appoint and fix the compensation of necessary Wages. employees of the Administrative Office in accordance with the Administrative Office of the United States Courts Personnel Act of 1990.”. (b) Section 603 of title 28, United States Code, is amended by striking “of the Deputy Director and” and by inserting after the first sentence the following: “Notwithstanding any other provision of law, the Director shall not be deemed to be an ‘employee’ for the Wages. purpose of subchapter I of chapter 63 of title 5. The salary of the Deputy Director shall be 92 percent of the salary of the Director.”. (c) Section 2301(a) of title 5, United States Code, is amended— (1) by inserting “and” at the end of paragraph (1); (2) by striking paragraph (2); and (3) by redesignating paragraph (3) as paragraph (2). (d) Section 2302(a)(2)(C) of title 5, United States Code, is amended by striking “, the Administrative Office of the United States Courts,”. (e) Section 4301(1) of title 5, United States Code, is amended— (1) by inserting “and” at the end of subparagraph (A); (2) by striking subparagraph (B); and (3) by redesignating subparagraph (C) as subparagraph (B). (f) Section 4501(1) of title 5, United States Code, is amended by striking subparagraph (B) and redesignating subparagraphs (C) through (H) as subparagraphs (B) through (G), respectively. (g) Section 4701(a)(1) of title 5, United States Code, is amended by striking “, the Administrative Office of the United States Courts,”. (h) Section 5102(a)(1) of title 5, United States Code, is amended by striking subparagraph (B) and redesignating subparagraphs (C) through (G) as subparagraphs (B) through (F), respectively. (i) Section 5108(c) of title 5, United States Code, is amended by striking paragraph (1) and redesignating paragraphs (2) and (3) as paragraphs (1) and (2), respectively. (j) Section 5349(a) of title 5, United States Code, is amended by striking “the Administrative Office of the United States Courts,”. (k) (1) Section 5595(a)(1) of title 5, United States Code, is amended— (A) by striking “and” at the end of subparagraph (C); and (B) by adding after subparagraph (D) the following: “(E) the Administrative Office of the United States Courts, the Federal Judicial Center, and the courts named by section 610 of title 28; and”. (2) Section 5595(b) of title 5, United States Code, is amended by adding at the end the following: “However, the Director of the Administrative Office of the United States Courts may prescribe regulations to effect the application and operation of this section to the agencies specified in subsection (a)(1)(E) of this section.”. (l) (1) Section 5596(a)(2) of title 5, United States Code, is amended by striking “Courts;” and inserting “Courts, the Federal Judicial Center, and the courts named by section 610 of title 28;”. (2) Section 5596(c) of title 5, United States Code, is amended by striking “employees.” and inserting “employees, or to the agencies specified in subsection (a)(2) of this section.”. (m) Clause (v) of section 8331(1) of title 5, United States Code, is amended to read as follows: “(v) an employee of the Administrative Office of the United States Courts, the Federal Judicial Center, or a court named by section 610 of title 28, excluded by the Director of the Administrative Office under section 8347(o) of this title;”. (n) Section 8347 of title 5, United States Code, is amended by adding at the end the following: “(p) The Director of the Administrative Office of the United States Courts may exclude from the operation of this subchapter an employee of the Administrative Office of the United States Courts, the Federal Judicial Center, or a court named by section 610 of title 28, whose employment is temporary or of uncertain duration.”. (o) Section 8401(11)(i)(I) of title 5, United States Code, is amended by striking “(v),”. (p) Section 8402(c) of title 5, United States Code, is amended by adding at the end the following: “(7) The Director of the Administrative Office of the United States Courts may exclude from the operation of this chapter an employee of the Administrative Office of the United States Courts, the Federal Judicial Center, or a court named by section 610 of title 28, whose employment is temporary or of uncertain duration.”. (q) Section 602(b) of title 28, United States Code, is amended by striking “604(a)(15)(B)” and inserting “604(a)(16)(B)”. (r) Section 402(a)(1) of the Judicial Improvements and Access to Justice Act (102 Stat. 4650) is amended by striking “redesignating 28 USC 604. paragraph (18)” and inserting “redesignating paragraph (19)”.

9. 1990

   Administrative Office of the United States Courts Personnel Act of 1990

   Pub. L. 101–474 § 5 · 104 Stat. 1097

   Substituted · 5 U.S.C. § 5596(c)

   Pub. L. 101–474, § 5(l)(2), substituted “employees, or to the agencies specified in subsection (a)(2) of this section” for “employees”

   Source evidence

   Code amendment note
   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”.

   Enacted provision · exact public law section
   SEC. 5. TECHNICAL AND CONFORMING AMENDMENTS. (a) Section 602(a) of title 28, United States Code, is amended to read as follows: “(a) The Director shall appoint and fix the compensation of necessary Wages. employees of the Administrative Office in accordance with the Administrative Office of the United States Courts Personnel Act of 1990.”. (b) Section 603 of title 28, United States Code, is amended by striking “of the Deputy Director and” and by inserting after the first sentence the following: “Notwithstanding any other provision of law, the Director shall not be deemed to be an ‘employee’ for the Wages. purpose of subchapter I of chapter 63 of title 5. The salary of the Deputy Director shall be 92 percent of the salary of the Director.”. (c) Section 2301(a) of title 5, United States Code, is amended— (1) by inserting “and” at the end of paragraph (1); (2) by striking paragraph (2); and (3) by redesignating paragraph (3) as paragraph (2). (d) Section 2302(a)(2)(C) of title 5, United States Code, is amended by striking “, the Administrative Office of the United States Courts,”. (e) Section 4301(1) of title 5, United States Code, is amended— (1) by inserting “and” at the end of subparagraph (A); (2) by striking subparagraph (B); and (3) by redesignating subparagraph (C) as subparagraph (B). (f) Section 4501(1) of title 5, United States Code, is amended by striking subparagraph (B) and redesignating subparagraphs (C) through (H) as subparagraphs (B) through (G), respectively. (g) Section 4701(a)(1) of title 5, United States Code, is amended by striking “, the Administrative Office of the United States Courts,”. (h) Section 5102(a)(1) of title 5, United States Code, is amended by striking subparagraph (B) and redesignating subparagraphs (C) through (G) as subparagraphs (B) through (F), respectively. (i) Section 5108(c) of title 5, United States Code, is amended by striking paragraph (1) and redesignating paragraphs (2) and (3) as paragraphs (1) and (2), respectively. (j) Section 5349(a) of title 5, United States Code, is amended by striking “the Administrative Office of the United States Courts,”. (k) (1) Section 5595(a)(1) of title 5, United States Code, is amended— (A) by striking “and” at the end of subparagraph (C); and (B) by adding after subparagraph (D) the following: “(E) the Administrative Office of the United States Courts, the Federal Judicial Center, and the courts named by section 610 of title 28; and”. (2) Section 5595(b) of title 5, United States Code, is amended by adding at the end the following: “However, the Director of the Administrative Office of the United States Courts may prescribe regulations to effect the application and operation of this section to the agencies specified in subsection (a)(1)(E) of this section.”. (l) (1) Section 5596(a)(2) of title 5, United States Code, is amended by striking “Courts;” and inserting “Courts, the Federal Judicial Center, and the courts named by section 610 of title 28;”. (2) Section 5596(c) of title 5, United States Code, is amended by striking “employees.” and inserting “employees, or to the agencies specified in subsection (a)(2) of this section.”. (m) Clause (v) of section 8331(1) of title 5, United States Code, is amended to read as follows: “(v) an employee of the Administrative Office of the United States Courts, the Federal Judicial Center, or a court named by section 610 of title 28, excluded by the Director of the Administrative Office under section 8347(o) of this title;”. (n) Section 8347 of title 5, United States Code, is amended by adding at the end the following: “(p) The Director of the Administrative Office of the United States Courts may exclude from the operation of this subchapter an employee of the Administrative Office of the United States Courts, the Federal Judicial Center, or a court named by section 610 of title 28, whose employment is temporary or of uncertain duration.”. (o) Section 8401(11)(i)(I) of title 5, United States Code, is amended by striking “(v),”. (p) Section 8402(c) of title 5, United States Code, is amended by adding at the end the following: “(7) The Director of the Administrative Office of the United States Courts may exclude from the operation of this chapter an employee of the Administrative Office of the United States Courts, the Federal Judicial Center, or a court named by section 610 of title 28, whose employment is temporary or of uncertain duration.”. (q) Section 602(b) of title 28, United States Code, is amended by striking “604(a)(15)(B)” and inserting “604(a)(16)(B)”. (r) Section 402(a)(1) of the Judicial Improvements and Access to Justice Act (102 Stat. 4650) is amended by striking “redesignating 28 USC 604. paragraph (18)” and inserting “redesignating paragraph (19)”.

10. 1998

    Strom Thurmond National Defense Authorization Act for Fiscal Year 1999

    Pub. L. 105–261 div. A title XI § 1104(a) · 112 Stat. 1920

    1. Added · 5 U.S.C. § 5596(b)(4); 5 U.S.C. § 5596(b)(5)

       Pub. L. 105–261 added par. (4)

    2. Redesignated · 5 U.S.C. § 5596(b)(4); 5 U.S.C. § 5596(b)(5)

       Pub. L. 105–261 redesignated former par. (4) as (5)

    Source evidence

    Code amendment note
    Subsec. (b)(4), (5). Pub. L. 105–261 added par. (4) and redesignated former par. (4) as (5).

    Enacted provision · exact public law section
    (a) In General.— Section 5596(b) of title 5, United States Code, is amended— (1) by redesignating paragraph (4) as paragraph (5); and (2) by inserting after paragraph (3) the following new paragraph: “(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.”.

11. 2001

    Pub. L. 107–68 title III § 309 · 115 Stat. 560

    Added · 5 U.S.C. § 5596(a)(6); 5 U.S.C. § 5596(a)(7)

    Pub. L. 107–68 added pars. (6) and (7)

    Source evidence

    Code amendment note
    Subsec. (a)(6), (7). Pub. L. 107–68 added pars. (6) and (7).

    Enacted provision · exact public law section
    Sec. 309. Section 5596(a) of title 5, U.S.C., is amended by deleting “and” at the end of paragraph (4); by deleting the period at the end of paragraph (5) and inserting a semicolon, and by adding the following new paragraphs, which shall be effective for all personnel actions taken on or after the date of enactment of this Act: “(6) the Architect of the Capitol, including employees of the United States Senate Restaurants; and “(7) the United States Botanic Garden.”.

    Effective date note
    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.

12 of 14 references resolved to an enrolled provision · 2 partial