Piccone v. United States

• Decision Date: 14 February 1969
• Docket Number: No. 352-62.,352-62.
• Citation: 186 Ct. Cl. 752,407 F.2d 866
• Parties: Albert PICCONE v. The UNITED STATES.
• Court: U.S. Claims Court

186 Ct. Cl. 752, 407 F.2d 866 (1969)

Albert PICCONE v. The UNITED STATES.

No. 352-62.

United States Court of Claims.

February 14, 1969.

Peter A. Galante, Philadelphia, Pa., attorney of record, for plaintiff.

Lawrence S. Smith, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant, Alfred H. O. Boudreau, Jr., Washington, D. C., of counsel.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

OPINION

DAVIS, Judge.^*

Plaintiff, a non-veteran, sues to recover back pay from the date he was separated from his civilian position with the Navy at the Philadelphia Naval Shipyard; his removal was on the ground that he was physically unable to perform the duties of his rating and that his separation would therefore promote the efficiency of the service. He presents several grounds for recovery; we find that an important procedural requirement of the Navy's own regulations was violated in his separation, and do not reach his other contentions.

Piccone had permanent status in the career civil service and held the rating of "Joiner". The typical duties of a joiner at this shipyard were performed on and off ship (with a major part on the ship), consisted of most of the woodwork aboard ship, and required climbing scaffolds, doing overhead work, stooping, bending and lifting weights averaging between 40 and 60 pounds. In December 1954 he suffered an occupational back injury and was off work for 4½ months. For the next six years, while still technically assigned to the Woodworking Shop, he worked primarily for the Electronics Shop, doing strenuous bending and lifting, but no climbing, and no work aboard ship. During 1960 he was returned to shipboard work (including climbing) and in October 1960 suffered a recurrence of his back injury, staying off work in an inactive duty status for more than two months while he underwent out-patient treatment at the Baltimore Public Health Service Hospital. The hospital's report indicated he was fit for light duty, but was to avoid lifting, climbing, and excessive bending. On his return to the job in January he was told there was no "light duty" available, was assigned to shipboard work, and complained that he could not perform this because of his back.

After a number of conflicting physical reports from the shipyard dispensary and the Philadelphia Public Health Service Hospital, the shipyard medical authorities concluded that he was not physically qualified for all the duties of a joiner — specifically, lifting and bending restrictions disqualified him from doing overhead work and climbing a 20-foot scaffold. Efforts to find him work which he could physically perform were not successful, and he voluntarily filed an application for disability retirement on January 23, 1961. None of the shipyard medical personnel supported the application and it was denied by the Bureau of Retirement and Insurance of the Civil Service Commission on April 20, 1961 (with the right to appeal to the Board of Appeals and Review within six months) on the ground that total disability for useful and efficient service had not been shown. Having been informed that plaintiff did not intend to appeal this decision, the head of the Woodworking Shop recommended in June 1961 that he be separated "due to the physical limitations which restrict him from the performance of the duties of his trade and rate." Piccone then changed his mind and on July 13, 1961, filed an appeal from the denial of his disability retirement application. The Shipyard Commander sent him a letter captioned "Proposed Separation-Disability; thirty-day advance notice of", dated July 21, 1961, notifying him of his planned discharge, to become final after a thirty-day notice period and effective (upon completion of all unused sick leave) on September 14, 1961 (later extended to October 6, 1961), and also advising him of his right to reply or request a hearing within ten days. The letter specifically mentioned his pending disability retirement appeal.

The ten-day reply period passed, but on August 21 Piccone requested that the effective date of his separation be postponed until a decision had been reached on the appeal of his application for disability retirement. The Commander, finding "no compelling reason to retain you on Shipyard rolls beyond the date of proposed separation in order to await the outcome of your disability retirement appeal", informed Piccone on August 25 of the final management decision implementing the proposed separation action. According to Piccone's unrefuted testimony, since his separation from the shipyard in October 1961 he has held various positions involving essentially the same duties as his Navy job.

Plaintiff contacted a lawyer on October 26, 1961, who the next day wrote a letter to the Third Civil Service Regional Office acknowledging that plaintiff's appeal was not within the ten days' limitation of the Commission's rules, but requesting it to accept discretionary review of the procedural aspects of the dismissal. The following day he filed an appeal with the Secretary of the Navy, which was within the fifteen working-days' limitation for such review, on both procedural and merits grounds.

On November 9, 1961, the Third Civil Service Regional Office refused to consider the untimely appeal from the decision to remove plaintiff, and this ruling was affirmed by the Board of Appeals and Review on March 20, 1962. About a week before (on March 12, 1962), the Board of Appeals and Review finally rejected plaintiff's appeal from the denial of his application for disability retirement. On August 1, 1962, plaintiff was informed of the Navy Secretary's determination that his separation had been "proper and warranted under the circumstances."

The Government says, first of all, that Piccone is barred from suing in this court because he did not properly exhaust his administrative remedies when he took an untimely appeal to the Civil Service Commission.¹ We have consistently held that a plaintiff's failure to pursue his administrative appeal rights will bar his claim,² and that the Civil Service Commission does not necessarily abuse its discretion in refusing to entertain an untimely appeal.³ However, the exhaustion requirement is not absolute; a court may in its discretion entertain a case where administrative cures have been excusably overlooked.⁴

One situation in which we have found "unusual circumstances" justifying failure to appeal to the Civil Service Commission is where an employee is offered alternative, mutually exclusive, appeal procedures — one through his own agency and the other through the Commission. We have held that he cannot be faulted for choosing the agency grievance procedure.⁵ Piccone was told that he could appeal the procedural aspects of his separation through either the Navy or the Commission, but not both, and the merits of the action only through the Navy.⁶

In the Cuiffo, Morelli and Cunningham cases, supra note 5, the employees were told that review by the Commission of the procedural basis for the adverse action against them would terminate their right to any agency review, effectively requiring them to bypass the Commission or forfeit their right to any scrutiny of the merits of their cases. The Navy regulations allowed plaintiff to appeal the procedural asspects first to the Commission, and within fifteen days after a final decision there, pursue a Navy grievance appeal on the merits of the action. By appealing to the Commission, he would forfeit only his right to have the Navy review the procedures. Nevertheless, we do not feel that the plaintiff can be held at fault for exhausting one of the alternative administrative appeals. He followed one of the two avenues made available to him,⁷ a route which offered review of both procedure and substance. In this way he gave "the executive branch of the Government an opportunity to meet his complaint before resort was had to the judiciary" (Bodson v. United States, supra note 2, 158 F.Supp. at 950, 141 Ct.Cl. at 537), offered it a chance to settle the matter, to apply its expertise, and to render an administrative decision which "would have been enlightening to a court called upon to interpret the statute and the regulations." Martilla v. United States, supra note 2, 118 Ct.Cl. at 180. These are the purposes behind the exhaustion rule, and they have been satisfied here. If the Government wishes all procedural objections to be considered only by the Civil Service Commission, it can so provide. It need not (Doyle v. United States, 158 Ct.Cl. 573 (1962), cert. denied, 374 U.S. 839, 83 S.Ct. 1892, 10 L.Ed.2d 1060 (1963)), and in this instance it did not. Plaintiff was never told that he had to go first to the Commission (on procedure) and then to the Navy (on the merits). On the contrary, he had every reason to believe that, if he wished, he could obtain both procedural and substantive review through the Navy channels alone, and need not go at all to the Commission.

We come then to the validity of plaintiff's separation in October 1961 which occurred before the Board of Appeals and Review of the Civil Service Commission had finally determined (in March 1962) that he was ineligible for disability retirement. He claimed before the Navy, and now urges before this court, that his separation violated the provisions of the Federal Personnel Manual and the Navy Civilian Personnel Instructions (NCPI) forbidding separation-for-disability while a disability-retirement application is pending.⁸ The former, in discussing Separation-Disability reads in part:

This action is used to separate an employee who is physically or mentally incapacitated for continued service in his position, if he does not meet the service requirements for disability retirement, or if neither the agency nor the employee wishes to apply for disability retirement (see Chapter R-5). Separation-Disability should be

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