B-157539, NOV. 23, 1965
Highlights
DAVIS: THIS IS IN REPLY TO YOUR LETTER OF NOVEMBER 7. THE BUREAU OF MINES WAS NOT ACTING ARBITRARILY IN PLACING YOU IN A LEAVE WITHOUT-PAY STATUS ON JANUARY 8. SINCE THERE WERE ADEQUATE MEDICAL FINDINGS TO ESTABLISH THAT YOU WERE UNABLE TO PERFORM YOUR ASSIGNED DUTIES DURING THAT PERIOD AND YOU HAD NO ANNUAL OR SICK LEAVE TO YOUR CREDIT. THERE IS NO BASIS FOR INVOKING PROVISIONS OF THAT SECTION RESPECTING PAYMENT OF BACK PAY. IN VIEW OF THE FACT THAT YOUR LETTER INDICATES THAT YOU ARE IN COMMUNICATION WITH THE PITTSBURGH LAW FIRM OF STRAUSSBURGER AND MCKENNA. WOULD APPEAR TO HAVE JURISDICTION TO ENTERTAIN SUITS OF THE NATURE HERE INVOLVED.
B-157539, NOV. 23, 1965
TO MR. WILBERT J. DAVIS:
THIS IS IN REPLY TO YOUR LETTER OF NOVEMBER 7, 1965, APPEALING FROM OUR DECISION OF SEPTEMBER 3, 1965, AFFIRMING OUR EARLIER SETTLEMENT OF AUGUST 2, 1965, WHICH DISALLOWED YOUR CLAIM FOR BACK PAY FROM JANUARY 8, 1965, THROUGH MARCH 12, 1965.
AS WE POINTED OUT IN OUR EARLIER LETTER OF SEPTEMBER 3, 1965, THE BUREAU OF MINES WAS NOT ACTING ARBITRARILY IN PLACING YOU IN A LEAVE WITHOUT-PAY STATUS ON JANUARY 8, 1965, SINCE THERE WERE ADEQUATE MEDICAL FINDINGS TO ESTABLISH THAT YOU WERE UNABLE TO PERFORM YOUR ASSIGNED DUTIES DURING THAT PERIOD AND YOU HAD NO ANNUAL OR SICK LEAVE TO YOUR CREDIT. IT FOLLOWS THAT THE ACTION OF THE BUREAU OF MINESNOT BEING UNJUSTIFIED OR UNWARRANTED WITHIN THE MEANING OF 5 U.S.C. 652 (B) (1), (2), THERE IS NO BASIS FOR INVOKING PROVISIONS OF THAT SECTION RESPECTING PAYMENT OF BACK PAY.
IN VIEW OF THE FACT THAT YOUR LETTER INDICATES THAT YOU ARE IN COMMUNICATION WITH THE PITTSBURGH LAW FIRM OF STRAUSSBURGER AND MCKENNA, THIS OFFICE WOULD NOT PRESUME TO ADVISE YOU AS TO THE PROCEDURE FOR ENTERING SUIT IN THIS MATTER. HOWEVER, WE POINT OUT THAT UNDER THE PROVISIONS OF 28 U.S.C. 1346 AND 1491, THE UNITED STATES DISTRICT COURTS AND THE UNITED STATES COURT OF CLAIMS (WASHINGTON, D.C.) WOULD APPEAR TO HAVE JURISDICTION TO ENTERTAIN SUITS OF THE NATURE HERE INVOLVED.
FOR THE REASONS SET FORTH ABOVE THERE IS NO BASIS FOR MODIFYING OUR DECISION OF SEPTEMBER 3, ..END :