B-159727, DEC. 20, 1968

B-159727, DEC. 20, 1968

TO MR. JAMES P. GIBBONS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1968, AND SUBSEQUENT CORRESPONDENCE WITH REGARD TO THE ACTION TAKEN BY THE POST OFFICE DEPARTMENT ON OCTOBER 9, 1965, BY WHICH YOU WERE REDUCED FROM LEVEL PFS-7 TO LEVEL PFS-4 AS A RESULT OF THE DISCONTINUATION OF THE RAILWAY POST OFFICE TO WHICH YOU HAD BEEN ASSIGNED.

THE POST OFFICE DEPARTMENT HAS ADVISED US THAT YOUR MEMORANDUM OF SEPTEMBER 25, 1965, TO THE POSTMASTER, MIAMI, FLORIDA, WAS CONSIDERED TO BE YOUR REQUEST FOR THE CHANGE TO A LOWER LEVEL. IN THAT MEMORANDUM YOU DID NOT SPECIFICALLY REQUEST A CHANGE TO A LOWER GRADE BUT REQUESTED REASSIGNMENT TO MIAMI YOUR PREVIOUS ROSTER POINT. ON SEPTEMBER 30, 1965, THE POSTMASTER, MIAMI, ADVISED YOU THAT YOU WOULD BE REASSIGNED TO A LEVEL PFS-4 POSITION WITH CERTAIN SALARY PROTECTION RIGHTS EFFECTIVE OCTOBER 9, 1965. UNDER THE POST OFFICE DEPARTMENT POLICY LETTER TO WHICH YOU REFER, IF YOU HAD NOT CHOSEN TO RETURN TO THE MIAMI ROSTER YOU WOULD HAVE REMAINED IN A SURPLUS STATUS WITHOUT REDUCTION IN LEVEL UNTIL A POSITION AT YOUR LEVEL WAS AVAILABLE. HOWEVER, IF YOU HAD CHOSEN THAT ALTERNATIVE, THE POST OFFICE DEPARTMENT WOULD HAVE BEEN AT LIBERTY TO REASSIGN YOU TO A POST OFFICE OTHER THAN MIAMI.

SINCE YOU REQUESTED REASSIGNMENT TO MIAMI AND WERE ADVISED PRIOR TO THE EFFECTIVE DATE OF THE REASSIGNMENT THAT COMPLIANCE WITH YOUR REQUEST WOULD RESULT IN A CHANGE OF YOUR LEVEL FROM PFS-7 TO PFS-4, THE POST OFFICE DEPARTMENT TREATED YOUR LETTER AS A REQUEST FOR CHANGE TO A LOWER LEVEL IN THE MIAMI POST OFFICE IN LIEU OF REASSIGNMENT TO AN AVAILABLE POSITION AWAY FROM MIAMI.

CORRECTION OF UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTIONS AND PAYMENT OF ANY ADDITIONAL COMPENSATION RESULTING FROM SUCH A CORRECTION IS AUTHORIZED BY THE BACK PAY ACT OF 1966 NOW 5 U.S.C. 5596. UNDER THAT PROVISION THE CORRECTION OF AN ACTION ON THE BASIS THAT IT WAS UNJUSTIFIED OR UNWARRANTED MUST BE THE RESULT OF ADMINISTRATIVE ACTION OR TIMELY APPEAL. SINCE THE POST OFFICE DEPARTMENT HAS NOT DETERMINED THAT THE ACTION BY WHICH YOU WERE DEMOTED WAS UNJUSTIFIED OR UNWARRANTED AND SINCE YOU DID NOT APPEAL THAT ACTION TO THE CIVIL SERVICE COMMISSION IN ACCORDANCE WITH EXISTING PROCEDURES AT THE TIME IT WAS TAKEN, WE HAVE NO AUTHORITY TO REGARD YOU AS ENTITLED TO BACK PAY DURING THE PERIOD OF DEMOTION. MOREOVER, SINCE YOU ARE NOT ENTITLED TO BACK PAY, THERE WOULD BE NO BASIS FOR CREDITING SUCH SERVICE FOR STEP INCREASES IN LEVEL 7.

ACCORDINGLY, THE CORRECTIVE ACTION TAKEN TO REPROMOTE YOU TO LEVEL PFS-7, STEP 8, AS OF JUNE 17, 1967 (ORIGINALLY PLACED IN STEP 6 OF LEVEL 7, BUT CORRECTED IN OCTOBER 1968) ESTABLISHED THE BEGINNING OF YOUR WAITING PERIOD FOR AN ADDITIONAL STEP INCREASE IN THAT LEVEL AND IN LEVEL PFS-8 TO WHICH YOU WERE ASSIGNED PURSUANT TO SECTION 205 (2) OF THE FEDERAL SALARY ACT OF 1967, APPROVED DECEMBER 16, 1967, PUBLIC LAW 90-206, TITLE II, 81 STAT. 630.