B-157860, NOV. 23, 1965
Highlights
BECAUSE OF PHYSICAL DISABILITY AND THAT YOU WERE AGAIN HIRED BY THE POST OFFICE DEPARTMENT IN JANUARY 1961 WHEN YOUR PHYSICAL CONDITION IMPROVED. IN ORDER TO COME UNDER THE PROVISIONS OF THIS ACT IT IS NECESSARY TO SHOW THAT THE EMPLOYEE WAS RESTORED TO DUTY AS A RESULT OF A DETERMINATION THAT HIS REMOVAL WAS UNJUSTIFIED. A RESIGNATION CANNOT BE EQUATED WITH A REMOVAL FOR CAUSE UNLESS THE RESIGNATION IS PROCURED BY FRAUD OR DURESS. AN EMPLOYEE WHO FEELS THAT HIS RESIGNATION WAS FORCED AND THAT HIS REMOVAL WAS THEREFORE UNJUSTIFIED MUST SEEK RESTORATION TO HIS FORMER POSITION THROUGH TIMELY APPEAL TO HIS AGENCY OR TO THE CIVIL SERVICE COMMISSION. IF RESTORATION IS DIRECTED BY HIS AGENCY OR THE CIVIL SERVICE COMMISSION ON THE GROUND OF UNJUSTIFIED REMOVAL THEN CONSIDERATION MAY BE GIVEN TO HIS ENTITLEMENT TO BACK PAY UNDER THE ABOVE-CITED ACT.
B-157860, NOV. 23, 1965
TO MR. RAYMOND H. FELDMEIER:
YOUR LETTER OF SEPTEMBER 28, 1965, TO THE PRESIDENT HAS BEEN REFERRED TO OUR OFFICE FOR HANDLING AS AN APPEAL FROM THE DENIAL OF YOUR CLAIM FOR BACK PAY FOR THE PERIOD FROM MARCH 19, 1959, TO JANUARY 23, 1961, BY OUR CLAIMS DIVISION SETTLEMENT OF SEPTEMBER 15, 1965, TO YOU.
THE RECORD INDICATES THAT YOU RESIGNED ON MARCH 19, 1959, BECAUSE OF PHYSICAL DISABILITY AND THAT YOU WERE AGAIN HIRED BY THE POST OFFICE DEPARTMENT IN JANUARY 1961 WHEN YOUR PHYSICAL CONDITION IMPROVED.
THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, PROVIDES FOR BACK PAY IN CERTAIN CASES OF UNJUSTIFIED REMOVAL. IN ORDER TO COME UNDER THE PROVISIONS OF THIS ACT IT IS NECESSARY TO SHOW THAT THE EMPLOYEE WAS RESTORED TO DUTY AS A RESULT OF A DETERMINATION THAT HIS REMOVAL WAS UNJUSTIFIED. A RESIGNATION CANNOT BE EQUATED WITH A REMOVAL FOR CAUSE UNLESS THE RESIGNATION IS PROCURED BY FRAUD OR DURESS. AN EMPLOYEE WHO FEELS THAT HIS RESIGNATION WAS FORCED AND THAT HIS REMOVAL WAS THEREFORE UNJUSTIFIED MUST SEEK RESTORATION TO HIS FORMER POSITION THROUGH TIMELY APPEAL TO HIS AGENCY OR TO THE CIVIL SERVICE COMMISSION. IF RESTORATION IS DIRECTED BY HIS AGENCY OR THE CIVIL SERVICE COMMISSION ON THE GROUND OF UNJUSTIFIED REMOVAL THEN CONSIDERATION MAY BE GIVEN TO HIS ENTITLEMENT TO BACK PAY UNDER THE ABOVE-CITED ACT. THERE APPEARS TO BE NO OTHER PROVISION OF LAW UNDER WHICH YOUR CLAIM MIGHT BE ALLOWED.
YOUR REAPPOINTMENT TO THE POSTAL SERVICE WAS MADE BECAUSE OF YOUR IMPROVED PHYSICAL CONDITION RATHER THAN AS A RESULT OF A DETERMINATION THAT YOUR ORIGINAL SEPARATION WAS UNJUSTIFIED. YOUR CASE, THEREFORE, DOES NOT MEET THE REQUIREMENTS OF THE ACT.
FOR THE ABOVE REASONS THE SETTLEMENT OF OUR CLAIMS DIVISION DISALLOWING YOUR CLAIM MUST BE AND IS SUSTAINED.