B-150495, MAY 7, 1963
Highlights
FLUHR'S CLAIM HERETOFORE HAVE BEEN STATED IN PRIOR CORRESPONDENCE AND NEED NOT BE REPEATED HERE. IN VIEW OF THE ARGUMENTS ADVANCED IN YOUR LETTER OF MARCH 5 WE HAVE CAREFULLY RECONSIDERED OUR DECISION OF FEBRUARY 21. WE ARE UNABLE TO FIND A LEGAL BASIS FOR AUTHORIZING BACK PAY IN THIS CASE WHERE REMOVAL FROM ACTIVE SERVICE BY THE POST OFFICE DEPARTMENT WAS UNDER THE CIVIL SERVICE RETIREMENT ACT. IS BY ITS EXPRESS LANGUAGE RESTRICTED TO THOSE EMPLOYEES REMOVED OR SUSPENDED UNDER 5 U.S.C. 652 (A). FLUHR WAS MANDATORILY SEPARATED UNDER 5 U.S.C. 2255. THERE IS NO LAW AUTHORIZING BACK PAY FOR PERIODS OF ABSENCE WITHOUT LEAVE IN SUCH CASES. OUR CONCLUSION IN HIS CASE IS BASED ON SETTLED LAW AND WE CANNOT FIND IN THE FACTS OF HIS SITUATION A SOUND BASIS FOR MODIFYING OUR DECISION.
B-150495, MAY 7, 1963
TO MR. CHADWICK H. SMITH:
YOUR LETTER OF MARCH 5, 1963, REQUESTS RECONSIDERATION OF OUR DECISION OF FEBRUARY 21, 1963, B-150495, WHICH SUSTAINED THE DISALLOWANCE OF THE CLAIM OF MR. WILLIAM H. FLUHR FOR BACK PAY FOR THE PERIOD JULY 1, 1961, THROUGH JUNE 30, 1962, AS POSTMASTER, BELT, MONTANA.
THE FACTS GIVING RISE TO MR. FLUHR'S CLAIM HERETOFORE HAVE BEEN STATED IN PRIOR CORRESPONDENCE AND NEED NOT BE REPEATED HERE.
IN VIEW OF THE ARGUMENTS ADVANCED IN YOUR LETTER OF MARCH 5 WE HAVE CAREFULLY RECONSIDERED OUR DECISION OF FEBRUARY 21, 1963. HOWEVER, WE ARE UNABLE TO FIND A LEGAL BASIS FOR AUTHORIZING BACK PAY IN THIS CASE WHERE REMOVAL FROM ACTIVE SERVICE BY THE POST OFFICE DEPARTMENT WAS UNDER THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED.
AS POINTED OUT IN OUR DECISION OF FEBRUARY 21, 1963, B-150495, TO YOU, THE RELIEF AFFORDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B), IS BY ITS EXPRESS LANGUAGE RESTRICTED TO THOSE EMPLOYEES REMOVED OR SUSPENDED UNDER 5 U.S.C. 652 (A).
MR. FLUHR WAS MANDATORILY SEPARATED UNDER 5 U.S.C. 2255, AND THERE IS NO LAW AUTHORIZING BACK PAY FOR PERIODS OF ABSENCE WITHOUT LEAVE IN SUCH CASES. OUR CONCLUSION IN HIS CASE IS BASED ON SETTLED LAW AND WE CANNOT FIND IN THE FACTS OF HIS SITUATION A SOUND BASIS FOR MODIFYING OUR DECISION.
CONGRESS IS NOT UNAWARE OF THIS SITUATION AND IN THAT REGARD WE DIRECT YOUR ATTENTION TO H.R. 4837, H.R. 4838 AND S. 1134 PENDING BEFORE THE PRESENT CONGRESS, WHICH IF ENACTED INTO LAW MIGHT AFFORD RELIEF IN CASES ANALOGOUS TO THAT OF MR. FLUHR.
THEREFORE, THE PRIOR ACTION TAKEN BY OUR OFFICE IN DISALLOWING MR. FLUHR'S CLAIM MUST BE SUSTAINED.