Kleinfelter v. United States

• Decision Date: 07 June 1963
• Docket Number: No. 233-60.,233-60.
• Citation: 318 F.2d 929,162 Ct. Cl. 88
• Parties: Ricker J. KLEINFELTER, Sr. v. The UNITED STATES.
• Court: U.S. Claims Court

162 Ct. Cl. 88, 318 F.2d 929 (1963)

Ricker J. KLEINFELTER, Sr. v. The UNITED STATES.

No. 233-60.

United States Court of Claims.

June 7, 1963.

Albert D. Stuart, Middletown, Pa., for plaintiff.

Edna P. Goldberg, Washington, D. C., with whom was Asst. Atty. Gen. John W. Douglas, for defendant.

Before JONES, Chief Judge, and WHITAKER, LARAMORE, DURFEE and DAVIS, Judges.

WHITAKER, Judge.

Defendant has moved for summary judgment on the question of liability only, based upon the following facts:

At all times material herein, plaintiff, a veterans preference eligible, was employed in a civilian position as a GS-6 Fire Fighter with the Department of the Army. As such, he was required to submit to an annual physical examination. Based upon the results of his physical examination in May 1956, the Post Surgeon advised the Civilian Personnel Office that plaintiff was physically disqualified for work as a fireman because of his cardiac condition and age, in that plaintiff's electrocardiogram showed extra systolic with bigemeny, that he was 61 years old, and 12 pounds overweight. Relying upon this report, the Civilian Personnel Officer placed plaintiff on involuntary sick leave on June 10, 1956.

By letter of June 6, 1956, the employing agency advised plaintiff that it proposed to separate him under section 14 of the Veterans' Preference Act of 1944 for physical disability, selecting the effective date of January 29, 1957 in order to enable plaintiff to utilize sick and annual leave which could not be included in a lump sum payment.

Plaintiff filed written protest of his proposed removal. He received the agency's adverse decision on August 2, 1956, from which he appealed to the Third Civil Service Regional Office. While this appeal was pending, the employing agency withdrew the proposed separation action, under the Veterans' Preference Act, and, instead, on October 11, 1956, it applied for plaintiff's involuntary retirement for physical disability under the Civil Service Retirement Act. Formal notice of this action was transmitted to plaintiff.

The Claims Section, Retirement Division of the Civil Service Commission approved the application, but this decision was reversed on April 2, 1957 by the Retirement Division of the Civil Service Commission, disallowing the retirement because of its finding that plaintiff was not totally disabled within the meaning of the Civil Service Retirement Act. From this decision the agency appealed. The Board of Appeals and Review of the Civil Service Commission, on October 30, 1957, affirmed. Plaintiff was notified to return to work on November 4, 1957.¹

From June 10, 1956 to May 27, 1957 plaintiff was either on sick leave or annual leave, and drew his salary during that time. During the period May 27, 1957 to June 14, 1957 he was in a leave with pay status every other day, and on a leave without pay status on the other days. From June 14, 1957 to December 14, 1957 he was on leave without pay. The General Accounting Office ruled on a claim filed by plaintiff that he was properly carried on annual and sick leave with pay status from June 10, 1956 until April 2, 1957, the date the Retirement Division of the Civil Service Commission disallowed the retirement action, and that he was entitled to back pay from April 2, 1957 to November 1, 1957, less any amounts he was paid for leave during this period, and that any such leave for which he was paid should be recredited to his account as of April 2, 1957. This latter decision was reaffirmed by the General Accounting Office on December 7, 1959.

Between June 10, 1956 and April 2, 1957, plaintiff utilized some 2,000 hours of sick leave, and 1,000 hours of annual leave. Plaintiff seeks to recover "the salary wrongfully withheld during the period June 10, 1956 to April 2, 1957, said salary being an amount equal to the monetary equivalent of the hours of sick and annual leave wrongfully utilized during the aforesaid period, June 10, 1956 to April 2, 1957."

It has been determined by the Civil Service Commission, the body clothed with jurisdiction to determine such matters, that plaintiff was not in fact incapacitated to perform the duties of his office when he was put on sick leave, but was "ready, willing and able" to do so, not only at that time, but from that time on until he was restored to duty. For most of this period he has received his pay, but he has been deprived of the sick and annual leave to which he is entitled under the law and regulations. For a portion of this period he has been deprived of the pay to which he was entitled. The question is, has he a remedy?

Having come to the conclusion that plaintiff's physical condition disqualified him from performing the duties of his office, the agency wanted to remove him. In order to do so, it started proceedings under section 14 of the Veterans' Preference Act, the only Act at that time under which it could accomplish his removal.

That Act is designed to protect veterans from unjustified removals from office, whether on the ground of misconduct, inefficiency, a reduction in force, or incapacity to perform the duties of the office. This man had become, in the opinion of the agency doctor, incapacitated to perform the duties of his office, so it would seem proceedings to remove him were properly brought under the Veterans' Preference Act. At any rate, the agency thought so, and such proceedings were initiated and pursued through the approval of the removal action by the head of the agency, and an appeal therefrom to the Civil Service Commission. Before a decision by the Commission, proceedings under the Retirement Act were substituted for the proceedings under the...