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B-152119, AUG. 12, 1963

B-152119 Aug 12, 1963
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YOUR CLAIM WAS ALLOWED PURSUANT TO 5 U.S.C. 652 (B) (1). WHO SUBSEQUENT TO REMOVAL IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL WAS UNJUSTIFIED OR UNWARRANTED. YOU SAY THAT OTHER SUBSTITUTE CLERKS WORKED FROM 10 TO 12 HOURS DAILY FOR 6 OR 7 DAYS PER WEEK DURING THE PERIOD INVOLVED AND THE AMOUNT ALLOWED YOU WAS INSUFFICIENT. THAT NO DEDUCTION SHOULD HAVE BEEN MADE FOR LIFE INSURANCE. THE NUMBER OF HOURS OF BASE PAY AND NIGHT DIFFERENTIAL USED IN THE SETTLEMENT WERE BASED UPON YOUR EARNINGS FOR THE 13 PAY PERIODS (6 MONTHS) IMMEDIATELY PRECEDING OCTOBER 30. THIS IS THE METHOD ADOPTED BY THE COURT IN FRED LEINER V. ON THAT BASIS IT WAS DETERMINED THAT DURING THE PERIOD OCTOBER 31.

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B-152119, AUG. 12, 1963

TO MR. ROBERT L. BLOHM:

BY LETTER OF JULY 11, 1963, YOU QUESTIONED THE CORRECTNESS OF OUR SETTLEMENT OF SEPTEMBER 14, 1962, COVERING BACK PAY DUE YOU FOR THE PERIOD OCTOBER 31, 1961, TO FEBRUARY 26, 1962, DURING WHICH YOU HAD BEEN REMOVED FROM YOUR POSITION AS SUBSTITUTE DISTRIBUTION CLERK IN THE UNITED STATES POST OFFICE, AKRON, OHIO.

YOUR CLAIM WAS ALLOWED PURSUANT TO 5 U.S.C. 652 (B) (1), WHICH PROVIDES, IN EFFECT, THAT AN EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES, WHO SUBSEQUENT TO REMOVAL IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE HE RECEIVED ON THE DATE OF SUCH REMOVAL FOR SUCH PERIOD, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD OF REMOVAL.

YOU SAY THAT OTHER SUBSTITUTE CLERKS WORKED FROM 10 TO 12 HOURS DAILY FOR 6 OR 7 DAYS PER WEEK DURING THE PERIOD INVOLVED AND THE AMOUNT ALLOWED YOU WAS INSUFFICIENT. ALSO, YOU CONTEND THAT THE INCOME TAX DEDUCTION EXCEEDED THE 18 PERCENT SHOWN ON THE SETTLEMENT, THAT THE RETIREMENT DEDUCTION EXCEEDED 6 1/2 PERCENT, AND THAT NO DEDUCTION SHOULD HAVE BEEN MADE FOR LIFE INSURANCE.

THE NUMBER OF HOURS OF BASE PAY AND NIGHT DIFFERENTIAL USED IN THE SETTLEMENT WERE BASED UPON YOUR EARNINGS FOR THE 13 PAY PERIODS (6 MONTHS) IMMEDIATELY PRECEDING OCTOBER 30, 1961. THIS IS THE METHOD ADOPTED BY THE COURT IN FRED LEINER V. UNITED STATES, 143 CT.CL. 806, AND 149 ID. 835, WHICH ALSO PERTAINED TO BACK PAY FOUND TO BE DUE A SUBSTITUTE CLERK. DURING THE 13 PERIODS PRECEDING YOUR SEPARATION ON OCTOBER 30, 1961, YOU WORKED 1,028 HOURS, OF WHICH 683 CARRIED THE NIGHT DIFFERENTIAL RATE. THEREFORE, ON THAT BASIS IT WAS DETERMINED THAT DURING THE PERIOD OCTOBER 31, 1961, TO FEBRUARY 26, 1962, YOU WOULD HAVE WORKED 672 HOURS OF WHICH 447 WOULD HAVE BEEN PERFORMED AT NIGHT. OUR SETTLEMENT ALLOWED YOU 672 HOURS AT THE BASE PAY RATE OF $2.16 ($1,451.52) AND NIGHT DIFFERENTIAL AT ?216 PER HOUR FOR 447 HOURS THEREOF ($96.55) OR A TOTAL OF $1,548.07. FROM THIS SUM THERE WAS DEDUCTED YOUR INTERIM EARNINGS OF $301 LEAVING A BALANCE OF $1,247.07. THIS AMOUNT WAS SUBJECT TO WITHHOLDING TAX OF 18 PERCENT THEREOF AND THE DEDUCTION OF $224.47 FOR THIS PURPOSE WAS PROPER. YOUR BASE PAY (BUT NOT THE NIGHT DIFFERENTIAL) WAS SUBJECT TO RETIREMENT DEDUCTION. WE FIND THAT THE AMOUNT DEDUCTED FOR THAT PURPOSE WAS CORRECTLY COMPUTED (6 1/2 PERCENT OF $1,451.52) AT $94.35. SEE SECTION 723.4 OF THE POSTAL MANUAL.

THE ADMINISTRATION OF THE FEDERAL EMPLOYEES' GROUP LIFE INSURANCE PROGRAM IS VESTED IN THE UNITED STATES CIVIL SERVICE COMMISSION. SEE 5 U.S.C. 2091, ET SEQ. CHAPTER I-3 (PAGE 13) OF THE FEDERAL PERSONNEL MANUAL ISSUED BY THE COMMISSION PROVIDES:

"WHERE AN EMPLOYEE IS RETROACTIVELY RESTORED TO DUTY WITH PAY AFTER AN ERRONEOUS SUSPENSION OR REMOVAL, PAYROLL WITHHOLDINGS FOR THE PERIOD OF SUSPENSION OR REMOVAL WILL BE MADE FROM THE RETROACTIVE PAY ADJUSTMENT.'

THUS THE INSURANCE DEDUCTION ALSO WAS PROPER.

CONCERNING YOUR FINAL QUESTION, THE STATUTE AND REGULATIONS MAKE NO PROVISION FOR PAYMENT OF INTEREST OR PENALTY INCIDENT TO BACK PAY OF EMPLOYEES WHO ARE RESTORED TO DUTY FOLLOWING ERRONEOUS SUSPENSIONS, REMOVALS, ETC. ..END :

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