Fancher v. United States, 451-75.

• Decision Date: 13 December 1978
• Docket Number: No. 451-75.,451-75.
• Parties: Alvin A. FANCHER, Sr. v. The UNITED STATES.
• Court: U.S. Claims Court

588 F.2d 803

Alvin A. FANCHER, Sr. v. The UNITED STATES.

No. 451-75.

United States Court of Claims.

December 13, 1978.

Neil B. Kabatchnick, Washington, D.C., attorney of record, for plaintiff.

Robert M. Hollis, Washington, D.C., with whom was Asst. Atty. Gen., Barbara Allen Babcock, Washington, D.C., for defendant.

Before FRIEDMAN, Chief Judge, and KASHIWA and KUNZIG, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT

KASHIWA, Judge.

This civilian pay case is before the court on cross motions for summary judgment. There are no material facts in dispute. After fully reviewing the briefs and arguments presented by the parties, we hold in favor of defendant.

The pertinent facts as set forth in the briefs are as follows. Plaintiff, a former civilian employee with the Department of Air Force, was employed as a staff car operator, WG-5, Step 3, at Griffiss Air Force Base, New York, beginning on December 8, 1959. At the time of his initial employment, plaintiff was rated by the Veterans Administration as 30 percent disabled¹ as a result of various disabilities, including a hernia condition. However, no such disability or physical limitation was noted on plaintiff's personnel records at the time.²

Plaintiff served continuously as a staff car driver until June 19, 1970, when as a result of a reduction-in-force (RIF) at Griffiss AFB, plaintiff was notified that in lieu of separation he was being offered the position of mess attendant effective August 23, 1970. On June 25, 1970, plaintiff underwent a physical examination to determine whether he was physically qualified for the position of mess attendant. The examination resulted in a medical report that plaintiff was not physically qualified for the position due to his inability to perform the lifting duties required of a mess attendant.

Anticipating the adverse results of the physical examination, plaintiff filed for disability retirement on June 30, 1970, based upon the following medical conditions:

Right side & left side inernia sic hernia repair. Right side had testicle removal. Cartilage of the left knee causing it to locke sic & swell, left ankle cut, left elbow was broken. Removed varicose veins of right leg but not of left leg. Plaintiff's Exhibit 21.

On the bases of the June 25, 1970, physical examination, plaintiff's disqualification for the mess attendant position, and plaintiff's pre-employment medical records, the Civil Service Commission (CSC), Boston Region, rejected plaintiff's disability request on the grounds that he had never held the mess attendant position and that he was not disabled from the staff car operator position.

Notwithstanding the rejection by the Boston Region of plaintiff's application for disability, the CSC Bureau of Retirement, Insurance and Occupational Health by inadvertence submitted to the commanding officer of the headquarters unit at Griffiss AFB a notice of approval of plaintiff's request for disability retirement (dated August 22, 1970). It also sent plaintiff a letter signifying approval (dated August 19, 1970). Contemporaneously, plaintiff was notified that the effective date of his RIF reassignment in lieu of separation was changed to September 6, 1970, rather than August 23, 1970.

Later, on September 3, 1970, when plaintiff's disability retirement was supposedly to go into effect, the RIF reassignment notice of June 19, 1970, was canceled and plaintiff was informed he would remain in the position of staff car operator. Simultaneously, the Air Force officials determined that plaintiff was physically unfit for the position of staff car operator (his old position) for the same reasons he could not hold a mess attendant position (inability to perform the lifting duties associated with the staff car operator position). Thus, in spite of plaintiff's request that he be allowed to resume his position as a staff car operator, he was cleared from Griffiss Air Force Base on the morning of September 3, 1970.

Soon after plaintiff was cleared from the air base, he was notified that the notice of approval of his disability retirement request had been inadvertently sent in August and, instead, that his request had been rejected. Accordingly, the subject disability retirement would not go into effect. Plaintiff's application was resubmitted to the CSC, however, for consideration based upon the fact that plaintiff had been found physically unfit for the position of staff car operator on September 4, 1970.

On October 7, 1970, plaintiff was notified by the CSC Bureau of Retirement, Insurance and Occupational Health that his application for disability retirement based on his physical disqualification for the position of staff car operator was disallowed.

On October 21, 1970, plaintiff appealed the disapproval of his application for disability retirement to the CSC New York Regional Office. After an examination of the medical records that were before the CSC Bureau of Retirement, Insurance and Occupational Health and the additional statement and examination report submitted by plaintiff, the New York Regional Office denied plaintiff's appeal on February 3, 1971. The New York Region found that to the extent plaintiff's application was based on claimed disabilities involving his left knee, left ankle, left elbow, and varicose veins, "the file fails to show evidence establishing substantial physical disabilities in those respects sufficient to constitute total disability for useful and efficient service." With respect to plaintiff's hernia condition which restricted his lifting or carrying heavy weights, the New York Regional Office found it was a condition which had been present since 1956, predating his employment at Griffiss Air Force Base as a staff car operator.

Plaintiff's subsequent appeal to the CSC Board of Appeals and Review was rejected also on May 17, 1970, on the grounds that the hernia condition predated his employment at Griffiss Air Force Base.

Plaintiff was notified on June 10, 1971, that pursuant to a second reduction-in-force (RIF-II) he was to be separated from the position of staff car operator effective August 13, 1971. The RIF-II notice informed plaintiff of his appeal rights and also of the fact that he was not being allowed to bump employees with less retention rights due to his physical disability to perform the duties of a staff car operator. Plaintiff was separated from the position of staff car operator on August 13, 1971. Plaintiff did not appeal the RIF-II action to the CSC.

On December 24, 1975, plaintiff filed the present petition seeking review of the CSC denial of his disability retirement claim and of the Air Force action of not allowing him to return to the staff car operator position on September 3, 1970, and eventually separating him from that position.

Plaintiff's petition presents the court with the alternative contentions that either (1) the CSC erred in denying plaintiff's disability retirement application which was based upon the staff car operator position or (2) the Air Force acted arbitrarily, capriciously, and without substantial evidence in separating plaintiff from his staff car operator position due to physical disability. Plaintiff argues he is entitled to recover under at least one of the contentions. We do not agree.

The CSC is initially charged with the task of determining disability retirement and dependency questions and its decisions "concerning these matters are final and conclusive and not subject to review." 5 U.S.C. § 8347 (1976). In Scroggins v. United States, 184 Ct.Cl. 530, 533-534, 397 F.2d 295, 297, cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968), we noted that "this is a special and unusual restriction on judicial examination, and under it courts are not as free to review Commission retirement decisions as they would be if the `finality' clause were not there." In the past we have followed the rule that at best a court can set aside the CSC determination "only where there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error `going to the heart of the administrative determination.'"³ Gaines v. United States, 158 Ct.Cl. 497, 502, cert. denied, 371 U.S. 936, 83 S.Ct. 309, 9 L.Ed.2d 271 (1962); Scroggins v. United States, supra; McFarland v. United States, 207 Ct.Cl. 38, 48-49, 517 F.2d 938, 944 (1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 776, 46 L.Ed.2d 638 (1976).

Plaint...