B-152119, OCT. 10, 1963

B-152119, OCT. 10, 1963

TO MR. ROBERT L. BLOHM:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 10, 1963, IN WHICH YOU RAISE FURTHER QUESTIONS CONCERNING THE CORRECTNESS OF THE AMOUNT ALLOWED IN 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 A SUBSTITUTE DISTRIBUTION CLERK IN THE UNITED STATES POST OFFICE, AKRON, OHIO.

THE QUESTIONED AMOUNT WAS COMPUTED AS FOLLOWS:

CHART

672 HOURS BASE PAY AT $2.16 $1,451.52

447 HOURS NIGHT DIFFERENTIAL AT ?216 96.55

TOTAL $1,548.07

LESS INTERIM EARNINGS 301.00

BALANCE $1,247.07

DEDUCTIONS

RETIREMENT (6 1/2 PERCENT OF $1,451.52) $94.35

WITHHOLDING TAX (18 PERCENT OF $1,247.07) 224.47

INSURANCE (5 TIMES 25 CENTS TIMES 8) 10.00

LUMP SUM LEAVE PAYMENT 168.48

TOTAL $497.30

AMOUNT CERTIFIED FOR PAYMENT ($1,247.07 MINUS $497.30) $749.77

THE LEAVE PAYMENT WHICH WAS PAID YOU UPON SEPARATION IS DEDUCTED BECAUSE THE LEAVE REPRESENTED THEREBY WAS RECREDITED TO YOUR LEAVE ACCOUNT UPON RESTORATION.

YOUR SECOND QUESTION IS DIRECTED TOWARD THE PROPRIETY OF THE DEDUCTION FOR INTERIM EARNING. THE DEDUCTION WAS BASED UPON YOUR CERTIFICATION OF JULY 9, 1962. THAT STATEMENT SHOWS THAT YOUR HOURS OF SERVICE WITH AKRON GRAVITY COMPANY WERE 7:30 A.M. TO 4:30 P.M., MONDAY THROUGH FRIDAY. NORMALLY THE FACT THAT THOSE HOURS OF DUTY WOULD NOT CONFLICT WITH THOSE OF YOUR POSTAL EMPLOYMENT HAD YOU BEEN SO EMPLOYED, WOULD HAVE NO BEARING ON THE QUESTION. HOWEVER, THE RULE IS OTHERWISE IF YOUR NON-GOVERNMENT WAS NORMALLY SUPPLEMENTAL TO YOUR GOVERNMENT EMPLOYMENT I.E., IF YOU WERE SO EMPLOYED PRIOR TO AND IRRESPECTIVE OF YOUR SEPARATION FROM THE POSTAL SERVICE. IF THE LATTER IS THE CASE, A STATEMENT FROM YOUR EMPLOYER SHOWING THE PERIOD OF YOUR OUTSIDE EMPLOYMENT SHOULD BE FURNISHED. ON THE RECORD BEFORE US WE MUST FIND THAT THE DEDUCTION IS PROPER.

REGARDING THE ESTIMATED AMOUNT OF EARNINGS LOST BECAUSE OF YOUR SEPARATION FROM THE POSTAL SERVICE, YOU SAY THAT LEINER V. UNITED STATES, HOLDS THAT RETROACTIVE PAY IS BASED ON WHAT THE EMPLOYEE WOULD HAVE EARNED HAD HE BEEN WORKING. YOUR STATEMENT IS CORRECT. HOWEVER, SINCE IT IS IMPOSSIBLE TO DETERMINE EXACTLY WHAT A SUBSTITUTE POSTAL EMPLOYEE WOULD HAVE EARNED THE COURT OF CLAIMS HAS APPROVED THE USE OF FORMULAS WHICH ALLOW SUBSTANTIALLY THE CORRECT AMOUNT. IN THAT REGARD WE DIRECT YOUR ATTENTION TO ORDER DATED FEBRUARY 3, 1960, ENTERED IN THE LEINER CASE, REPORTED AT 149 CT.CL. 835. THE ORDER READS IN PART AS FOLLOWS:

"* * * ON OCTOBER 8, 1958, THE COURT RENDERED AN OPINION, 143 CT.CLS. 806, HOLDING THAT PLAINTIFF (LEINER) WAS ENTITLED TO RECOVER, AND ENTERED JUDGMENT TO THAT EFFECT WITH THE AMOUNT OF PAY TO BE DETERMINED IN FURTHER PROCEEDINGS PURSUANT TO RULE 38 (C). FOLLOWING A HEARING, TRIAL COMMISSIONER WILLIAM E. DAY, ON AUGUST 21, 1959, FILED A REPORT IN WHICH HE FOUND THAT ON THE BASIS OF PLAINTIFF'S WORK AND PAY RECORD FOR THE SIX MONTHS' PERIOD JUST PRIOR TO THE DATE OF HIS SUSPENSION PLAINTIFF WOULD IN ALL PROBABILITY HAVE CONTINUED TO WORK THE SAME SCHEDULE AND EARN THE SAME RATES OF PAY DURING THE PERIOD OF SUSPENSION, INCLUDING THE NIGHT DIFFERENTIAL PAY. * * *"

THE METHOD USED BY THE COMMISSIONER IN ESTIMATING THE COMPENSATION THAT WOULD HAVE BEEN EARNED BY LEINER HAD HE WORKED WAS ADOPTED BY THE COURT. THE SAME METHOD WAS USED IN COMPUTING THE BACK PAY IN YOUR CASE.

YOUR LAST QUESTION PERTAINS TO YOUR CLAIM FOR INTEREST WHICH YOU SAY IS BASED UPON ADMINISTRATIVE ACTION WHICH DELAYED THE FILING OF YOUR CLAIM FOR RETROACTIVE PAY. THAT CLAIM IS SUBJECT TO THE GENERAL RULE THAT INTEREST IS NOT PAYABLE ON OBLIGATIONS OF THE UNITED STATES UNLESS EXPRESSLY AUTHORIZED BY STATUTE. THERE IS NO STATUTE AUTHORIZING PAYMENT OF INTEREST OR DAMAGES ON CLAIMS OF THE NATURE TO WHICH YOU REFER.

THEREFORE, ON THE PRESENT RECORD OUR OFFICE SETTLEMENT OF SEPTEMBER 14, 1962, IS CORRECT AND UPON REVIEW MUST BE SUSTAINED.