B-157860, DEC. 17, 1965

B-157860, DEC. 17, 1965

TO MR. RAYMOND H. FELDMEIER:

WE REFER TO YOUR LETTER OF DECEMBER 2, 1965, TO THE PRESIDENT OF THE UNITED STATES WHICH WAS REFERRED HERE FOR CONSIDERATION, AND TO YOUR LETTER OF NOVEMBER 30, 1965, TO OUR OFFICE ASKING FURTHER REVIEW OF YOUR CLAIM FOR BACK PAY COVERING THE PERIOD 1959 TO 1961 DURING WHICH YOU CONTEND THAT YOU WERE ILLEGALLY SEPARATED FROM YOUR EMPLOYMENT WITH THE POST OFFICE DEPARTMENT.

YOUR CLAIM APPEARS TO BE BASED UPON TWO STATED PROPOSITIONS, VIZ., (1) THAT YOUR RESIGNATION WAS NOT VOLUNTARY BUT PROCURED BY DURESS AND (2) THAT AT THE TIME OF YOUR RESIGNATION THE POST OFFICE DEPARTMENT REFUSED TO CONSIDER MEDICAL EVIDENCE AVAILABLE AT THE VETERANS ADMINISTRATION TO THE EFFECT THAT YOU NO LONGER SUFFERED FROM THE DISABILITY WHICH CAUSED YOUR ABSENCE FROM DUTY FROM NOVEMBER 21, 1958, UNTIL MARCH 18, 1959, THE EFFECTIVE DATE OF YOUR ALLEGED FORCED RESIGNATION.

AS EVIDENCE BY THE RECORD BEFORE US YOU ARE AWARE THAT THE POST OFFICE DEPARTMENT DENIES THAT YOUR RESIGNATION WAS FORCED OR THAT IN ITS JUDGMENT YOU WERE THEN ABLE TO PERFORM THE DUTIES OF YOUR POSITION. ON APRIL 14, 1965, THE POSTMASTER AT PITTSBURGH, PENNSYLVANIA, INFORMED YOU BY LETTER AS FOLLOWS:

"YOU WERE ABSENT FROM DUTY FROM NOVEMBER 21, 1958, UNTIL THE EFFECTIVE DATE OF YOUR RESIGNATION, MARCH 19, 1959. DURING THIS PERIOD YOU WERE UNDER THE CARE OF YOUR PERSONAL PHYSICIAN, DOCTOR WILLIAM RACZKOWSKI, AND WERE CONFINED TO THE VETERANS ADMINISTRATION HOSPITAL DURING THE PERIOD OF JANUARY 26 THROUGH FEBRUARY 20, 1959. SHORTLY AFTER YOUR DISCHARGE FROM THIS HOSPITAL, YOU WERE INTERVIEWED BY A PERSONNEL SUPERVISOR CONCERNING YOUR DESIRE TO RESUME YOUR FORMER EMPLOYMENT. BECAUSE OF YOUR PAST HISTORY OF BLACK-OUTS, THE STATEMENT OF YOUR PERSONAL PHYSICIAN, AS WELL AS THAT OF THE MEDICAL OFFICER IN CHARGE, PUBLIC HEALTH SERVICE, AND INFORMATION RECEIVED FROM THE VETERANS ADMINISTRATION HOSPITAL INCIDENT TO YOUR CONFINEMENT THERETO, MY PREDECESSOR FELT THAT YOU WERE NOT PHYSICALLY ABLE TO RESUME ACTIVE EMPLOYMENT.'

THE REGIONAL DIRECTOR IN HIS LETTER TO YOU OF MAY 3, 1965, CONCURRED IN THAT VIEW CITING, ALSO, A LETTER CONCERNING YOUR CASE DATED DECEMBER 18, 1963, FROM THE EXECUTIVE ASSISTANT TO THE POSTMASTER GENERAL, TO THE HONORABLE ELMER J. HOLLAND, HOUSE OF REPRESENTATIVES, IN WHICH, AFTER REVIEWING THE FACTS IN YOUR CASE, IT WAS SAID THAT NOTHING FURTHER CAN BE DONE FOR MR. FELDMEIER AT THIS TIME.

IN THE CIRCUMSTANCES, THE GENERAL ACCOUNTING OFFICE HAS NEITHER THE LAWFUL JURISDICTION NOR THE FACILITIES FOR RESOLVING THE ISSUES OF FACT CREATED BY THE DIFFERING ALLEGATIONS OF YOU AND THE DEPARTMENT. THE LAW, HOWEVER, AFFORDED YOU OTHER REMEDIES. IF YOU BELIEVED YOUR SEPARATION FROM THE SERVICE WAS ILLEGAL YOU COULD HAVE FILED A GRIEVANCE APPEAL TO THE POSTMASTER GENERAL. IF THE ACTION OF THAT OFFICER WAS UNFAVORABLE, YOU COULD HAVE APPEALED TO THE UNITED STATES CIVIL SERVICE COMMISSION AND IF THE DETERMINATION OF THAT AGENCY WAS ADVERSE A FURTHER REVIEW WAS AVAILABLE IN THE COURTS.

IN OUR LETTER TO YOU OF NOVEMBER 23, 1965, WE POINTED OUT THAT THE ACT OF AUGUST 12, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652, AUTHORIZES BACK PAY TO THOSE EMPLOYEES WHO ARE RESTORED TO DUTY ON THE GROUND THAT THEIR REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED. IN YOUR CASE, ONLY THE POSTMASTER GENERAL, THE CIVIL SERVICE COMMISSION OR THE COURTS COULD HAVE DIRECTED YOUR RESTORATION TO DUTY UPON THE GROUND THAT YOUR SEPARATION WAS UNJUSTIFIED OR UNWARRANTED. THE POST OFFICE DEPARTMENT DOES NOT REGARD YOUR REEMPLOYMENT IN JANUARY 1961 AS A RESTORATION WITHIN THE MEANING OF THE ABOVE ACT, BUT RATHER REFERS TO SUCH REEMPLOYMENT AS ORIGINATING UNDER A TEMPORARY APPOINTMENT. UNDER THE CIRCUMSTANCES, WE ARE WITHOUT AUTHORITY TO ALLOW BACK PAY FOR THE PERIOD OF YOUR SEPARATION.

THEREFORE, OUR DECISION OF NOVEMBER 23, 1965, SUSTAINING THE PRIOR DISALLOWANCE OF YOUR CLAIM, MUST BE AFFIRMED.