B-133508, OCT. 2, 1957

B-133508, OCT. 2, 1957

TO THE POSTMASTER GENERAL:

BY LETTER DATED AUGUST 19, 1957, THE DEPUTY POSTMASTER GENERAL SUBMITTED THE QUESTION WHETHER RURAL CARRIER C. B. FORD MAY BE PAID BACK PAY AND EQUIPMENT ALLOWANCE FOR THE PERIOD FEBRUARY 2, 1955, TO MAY 12, 1957, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE RECORD SHOWS THAT MR. FORD, UPON THE CONSOLIDATION OF FOUR RURAL ROUTES INTO THREE ROUTES, WAS ASSIGNED TO THE ROUTE FOR WHICH HE HAD APPLIED. THIS ASSIGNMENT WAS FOR ONE DAY, FEBRUARY 1, 1955, AND WAS IN ACCORD WITH THE PROVISIONS OF SECTIONS 216 AND 215, TITLE 39, U.S.C. THE ROUTE APPLIED FOR BY MR. FORD AFTER THE CONSOLIDATION ACTION REPRESENTED THE LONGEST OF THE THREE ROUTES AND CARRIED WITH IT HIGHER GROSS SALARY AND ALLOWANCE FOR EQUIPMENT MAINTENANCE THAN THE OTHER ROUTES. FEBRUARY 2, THE NEXT DAY, HE WAS ADMINISTRATIVELY ASSIGNED TO ANOTHER ROUTE FOR WHICH HE HAD NOT APPLIED. THE REASSIGNMENT WAS MADE UNDER EXISTING DEPARTMENTAL POLICY THAT SINCE THE CONSOLIDATED ROUTE CONTAINED MORE THAN ONE-HALF OF THE MILEAGE OF HIS FORMER ROUTE SUCH REASSIGNMENT WAS BELIEVED GENERALLY MORE BENEFICIAL TO THE CARRIER, THE PATRONS, AND THE POSTAL SERVICE, AS THE CARRIER WOULD BE MORE FAMILIAR WITH THE ROUTE AND THUS BETTER ABLE TO SERVE IT. MR. FORD PROTESTED AGAINST THE REASSIGNMENT UPON THE GROUND THAT UNDER THE ACT OF MAY 18, 1948, 62 STAT. 236, 39 U.S.C. 213-219 (SENIORITY ACT FOR RURAL MAIL CARRIERS), HE HAD THE RIGHT TO BE ASSIGNED TO THE ROUTE FOR WHICH HE HAD MADE APPLICATION. VIEW OF THE ADMINISTRATIVE ACTION HE FILED SUIT IN THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FOR RESTORATION TO THE ROUTE FOR WHICH HE HAD APPLIED AND FOR THE DIFFERENCE IN COMPENSATION CLAIMING SUCH PREFERENCE UNDER THE FOREGOING ACT. THE DISTRICT COURT DECIDED AGAINST HIM. HOWEVER, HE APPEALED AND THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA REVERSED THE DISTRICT COURT AND HELD FOR MR. FORD. YOU POINT OUT THAT IN GIVING DUE CONSIDERATION TO PETITIONING THE SUPREME COURT TO GRANT A WRIT OF CERTIORARI MR. FORD'S REASSIGNMENT WAS DELAYED UNTIL MAY 13, 1957.

THE JUDGMENT OF THE COURT OF APPEALS WAS BASED UPON THE LANGUAGE IN SECTIONS 215 AND 216, SENIORITY ACT FOR RURAL MAIL CARRIERS, READING AS FOLLOWS:

"THE AWARDING OF PROMOTIONS AND PREFERENTIAL ASSIGNMENTS SHALL BE BASED UPON SENIORITY AND ABILITY; IF ABILITY BE SUFFICIENT, SENIORITY SHALL GOVERN.

"EACH NEW ROUTE OR VACANCY SHALL BE BULLETINED AND ALL RURAL CARRIERS ATTACHED TO THE OFFICE SHALL BE GIVEN A CHANCE TO APPLY. THE SENIOR RURAL CARRIER WHO APPLIED SHALL BE ASSIGNED THERETO AS PROVIDED IN SECTION 215 OF THIS TITLE.'

THE COURT HELD THAT THE REASSIGNMENT UNDER THE DEPARTMENTAL POLICY WAS CONTRARY TO THE ABOVE-CITED STATUTORY PROVISIONS.

THERE IS NO LANGUAGE IN THE SENIORITY ACT FOR RURAL MAIL CARRIERS NOR IN THE COURT'S JUDGMENT DIRECTING PAYMENT OF COMPENSATION OR SALARY FOR THE PERIOD OF IMPROPER REASSIGNMENT, FEBRUARY 2, 1955, TO MAY 12, 1957. U.S.C. 1346 (D) (2) PROVIDES THAT THE DISTRICT COURTS SHALL NOT HAVE JURISDICTION OF ANY CIVIL ACTION TO RECOVER FEES, SALARY OR COMPENSATION FOR OFFICIAL SERVICES OF OFFICERS OF THE UNITED STATES. THE ACT OF JUNE 4, 1956, 70 STAT. 246, 28 U.S.C. 1346, SUPPLEMENT IV 1952 EDITION REPRESENTS A SAVINGS CLAUSE FOR THE ACT OF OCTOBER 31, 1951, ONLY AND HAS NO APPLICATION TO THE MATTER HERE INVOLVED. MR. FORD'S REASSIGNMENT ON MAY 13, 1957, FULFILLS THE JUDGMENT OF THE COURT.

FURTHER, WE POINT OUT THAT WE HAVE CONSISTENTLY HELD THAT THE PROVISIONS OF THE ACT OF AUGUST 12, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT, 254, 5 U.S.C. 652, DO NOT APPLY TO DEMOTIONS IN GRADE OR COMPENSATION. THE COURT OF CLAIMS IN THE GREGORY CASE, 123 C.CLS. 794, AFFIRMED THAT VIEW AND THE GOODWIN CASE, 127 C.CLS. 417, SUSTAINED THAT POSITION. BUT, IN THE LATTER CASE THE COURT DID REJECT AS UNWARRANTED DICTUM THE VIEWS EXPRESSED IN THE GREGORY CASE THAT THE AMENDATORY ACT OF AUGUST 4, 1947, TO SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 61 STAT. 723, 5 U.S.C. 863, DID NOT CARRY WITH IT THE RIGHT TO BACK PAY AND HELD THAT THE MANDATORY RESTORATION RECOMMENDATION BY THE CIVIL SERVICE COMMISSION UNDER THE 1947 STATUTE GAVE THE EMPLOYEE A RIGHT TO BACK PAY FOR THE PERIOD OF HIS DEMOTION. SEE 33 ID. 192; 34 ID. 561 AND CASES CITED THEREIN. HOWEVER, MR. FORD IS NOT A VETERAN AND, THEREFORE, WOULD NOT BE ENTITLED TO THE BENEFITS OF SECTION 14.

IN VIEW OF THE FOREGOING WE MUST CONCLUDE THAT NO AUTHORITY EXISTS WHEREBY MR. FORD'S CLAIM MAY BE PAID BY YOUR DEPARTMENT.