In re Banks

159 F. App'x 995

• Court: Court of Appeals for the Federal Circuit
• Decided: December 1, 2005
• Docket: Misc. No. 807
• Status: Published

Opinion

ORDER

PER CURIAM.

Isadore B. Banks, II petitions for a writ of mandamus to direct the United States Postal Service to allow him to retire.

A party who seeks a writ of mandamus bears the burden of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).

The Office of Personnel Management (OPM) denied Banks’ application for a disability retirement annuity, and Banks appealed to the Merit Systems Protection Board. On July 18, 2005, the administrative judge (AJ) dismissed Banks’ appeal because OPM informed the AJ that it would grant Banks’ disability retirement annuity application. Banks v. Office of Personnel Management, No. DA-844E05-0232-1-1. The AJ informed Banks that he retained the right to refile his appeal if his application was not granted in a timely manner. In September, Banks refiled his appeal, No. DA-844E-05-02321-1.

On October 4, 2005, OPM informed Banks that his disability retirement application had been granted and that it was asking the United States Postal Service (USPS) to separate Banks from service because OPM could not make annuity payments until after Banks’ last day of pay.

Based on the documents submitted by Banks, it appears as though OPM is processing Banks’ disability retirement application and has requested that USPS separate Banks from service. In any event, this court is not the appropriate forum for Banks’ requests. Banks’ recently-refiled case before the Board concerns these issues. Banks should direct his inquiries to the AJ in that proceeding.

* Thus, Banks has failed to demonstrate that he has no other means of attaining the relief he desires and mandamus relief is not warranted.

Accordingly,

IT IS ORDERED THAT:

Banks’ petition for a writ of mandamus is denied.

We note that on September 20, 2004, USPS removed Banks from his position as letter carrier. USPS’ decision was upheld by the Board and Banks’ petition for review of the Board’s decision, Banks v. USPS, No. OS-3363, MSPB No. DA-0752-04-0726-1-1, is pending before the court.