Polos v. United States, 6-75

• Decision Date: 30 April 1980
• Docket Number: 405-77.,No. 6-75,6-75
• Citation: 621 F.2d 385
• Parties: George POLOS v. The UNITED STATES.
• Court: U.S. Claims Court

621 F.2d 385

George POLOS v. The UNITED STATES.

Nos. 6-75, 405-77.

United States Court of Claims.

April 30, 1980.

Hermann Ivester, Little Rock, Ark., attorney of record, for plaintiff; Friday, Eldredge & Clark, Little Rock, Ark., of counsel.

Samuel Borzilleri, Washington, D. C., attorney of record for plaintiff in related case, Ct. Cl. No. 547-78, also presented argument.

Stephen G. Anderson, Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, and DAVIS, NICHOLS, KASHIWA, KUNZIG, BENNETT and SMITH, Judges, en banc.

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

BENNETT, Judge.

Plaintiff, George Polos, is a former member of the Arkansas Air National Guard. His membership and connected civilian employment with the Guard was terminated after his discharge from active duty. Plaintiff sues for reemployment in his civilian capacity and back pay or, alternatively, for a civilian disability annuity, plus various employee benefits and attorney's fees. We hold that plaintiff is entitled to back pay and any other employee benefits mandated by law but only for a period of some 80 days after his release from active duty. We further hold that plaintiff is not entitled to a civilian disability annuity on the present record, or to recover attorney's fees. During our consideration of plaintiff's claim for a civilian disability annuity, we have reviewed our prior decision in Allen v. United States, 571 F.2d 14, 215 Ct.Cl. 524 (1978), and have determined that this decision should be overruled.

Plaintiff enlisted in the Arkansas Air National Guard on January 6, 1947, and was employed by the Guard as a civilian technician (then called caretaker) on March 12, 1947. Plaintiff served in this position continuously from that date until January 25, 1968, except for time spent on active duty with the Air National Guard. On January 25, 1968, plaintiff was ordered to active duty along with his Guard unit. While on active duty in Arkansas, plaintiff performed the same duties as he did while serving in his civilian capacity.

During plaintiff's tour of active duty, the National Guard Technicians Act of 1968, Pub.L.No.90-486, 82 Stat. 755 (codified at 32 U.S.C. § 709 (1976)), was passed by Congress and became effective on January 1, 1969. The Act converted federally funded state Guard caretaker positions, such as plaintiff's, to federal positions called civilian technicians. State employees occupying these positions became federal employees. The Act also imposed a mandatory requirement that the technicians be members of the Guard holding the military rank and grade comparable to their civilian duties.¹

Because of problems with his feet, plaintiff underwent a physical examination at Wilford Hall United States Air Force Hospital in October 1968. The Medical Board approved the report of the examining physician that plaintiff was qualified for worldwide service with the Guard and recommending his retention. The Medical Board's report was forwarded to a Physical Evaluation Board, which considered plaintiff physically unable for worldwide assignment because of his intermittent "claudication" or limping.² Plaintiff requested a formal hearing by the board and that he be found temporarily disabled so that he could retain his membership in the Guard and continue his employment as a civilian technician indefinitely. Alternatively, if the board recommended his discharge, plaintiff requested a 60-percent disability rating.³ The final report of the Physical Evaluation Board rated plaintiff's disability at 60 percent and recommended his separation.

On December 18, 1968, the Secretary of the Air Force approved the recommendation of the Physical Evaluation Board and ordered the effective date of plaintiff's retirement to be January 15, 1969. Plaintiff was relieved from active duty on January 14, 1969, and was assigned to the Retired Reserve on January 15, 1969. A written order was issued February 4, 1969, purporting to confirm prior verbal orders for plaintiff's honorable discharge from the Arkansas Air National Guard effective January 15, 1969.

On January 15, 1969, plaintiff wrote the Arkansas Guard seeking restoration to his civilian employment. This request was denied by a letter dated March 6, 1969, from the Adjutant General for the State of Arkansas. The Adjutant General concluded that plaintiff could not be reemployed in his civilian position because he was no longer a member of the Air National Guard and was physically unqualified for such membership. Plaintiff unsuccessfully appealed the decision of the Adjutant General to the Regional Director of the Civil Service Commission and to the Board of Appeals and Review of the Commission. Plaintiff filed suit in the United States District Court for the Eastern District of Arkansas seeking back pay and other ancillary relief. The district court rendered a decision favorable to plaintiff but was reversed by the Court of Appeals for the Eighth Circuit on jurisdictional grounds. Polos v. United States, 556 F.2d 903 (8th Cir. 1977). Pursuant to the Eighth Circuit's order of June 16, 1977, the case was transferred to this court and consolidated with plaintiff's petition filed here on January 9, 1975.

Plaintiff is presently receiving disability pay for his service with the Arkansas Air National Guard. He has never received any back pay or severance pay from the Federal Government because of the position of the Commission that plaintiff was never a federal employee. For the same reason, he was never examined to determine if he qualified for a civilian total disability annuity.

Plaintiff contends that by virtue of either 5 U.S.C. § 3551 (1976) or 50 U.S.C. App. § 459(b) (1970) (current version at 38 U.S.C. § 2021(a) (1976)) he was entitled to reemployment in his civilian position upon his request to the Guard therefor on January 15, 1969. Defendant has changed his position several times before the district court, the Eighth Circuit, and this court as to whether plaintiff was entitled to be restored to his employment as a civilian technician. Its final position was that plaintiff was entitled to restoration and back pay for the period from January 15, 1969, to at least February 4, 1969, when the paperwork was completed to retire plaintiff from the Arkansas Air National Guard. Defendant believes that as a matter of practice plaintiff should have been restored to his civilian duties upon his release from active military duty just as if he had returned from a furlough. While on active duty, plaintiff was performing the same duties as he would in his civilian capacity. Therefore, in defendant's opinion, plaintiff's reemployment rights under 50 U.S.C. App. § 459(b) are wholly irrelevant because such rights are conferred only upon an individual who "leaves a position" to enter military service.

The issues remaining for decision are:

(1) Whether plaintiff is entitled to back pay and any other employee benefits for any period after February 4, 1969;

(2) whether plaintiff is entitled to a civil service total disability annuity from the proper date of the termination of his employment as a civilian technician; and

(3) whether plaintiff is entitled to recover attorney's fees.

I

Plaintiff has requested the court to award him back pay and other employee benefits from January 15, 1969, to date of judgment and to order the United States to restore him to his civilian employment. Defendant's view is that plaintiff can recover back pay for, at most, a period from January 15, 1969, to February 4 or April 5, 1969. The latter date is 30 days after March 6, 1969, when plaintiff was officially notified by the Adjutant General that his request for civilian reemployment was denied.

32 U.S.C. § 709(e)(6) provides:

(6) a technician shall be notified in writing of the termination of his employment as a technician and such notification shall be given at least thirty days prior to the termination date of such employment.

Defendant has adopted a rather ambivalent position as to whether the 30-day notice was required in plaintiff's case. Initially, defendant argued that no notice was necessary because such notice was intended to permit time for an appeal and plaintiff had no right of appeal either internally⁴ or to the courts.⁵ The 30-day notice provision is later admitted by defendant to be an "absolute requirement." A review of the language and structure of the statute indicates that no other interpretation is feasible. 32 U.S.C. § 709(e)(6) is not limited in any way to separations for cause, for which an appeal would clearly be available. The requirement of a 30-day notice applies to all separations from employment as a civilian technician under any clause of 32 U.S.C. § 709(e).⁶

It is therefore necessary to determine the effect of defendant's failure to give plaintiff proper notice on plaintiff's claim for back pay up to the present date. Plaintiff was in fact on notice, more than 30 days prior to the February 4, 1969, order confirming termination of his Guard membership, that the loss of such membership would necessarily result in the loss of his civilian employment as well. At the Physical Evaluation Board hearing, plaintiff exhibited his awareness that a separation for disability from the National Guard would result in the loss of his civilian position. The letter of March 6, 1969, defendant contends, constituted adequate notice even if no action prior to that time could be considered as sufficient. This letter from the Adjutant General of the Arkansas Guard advised plaintiff that he could not be reemployed as a civilian technician because he was no longer a member of the Guard. We agree with defendant that although the letter explains the reasons why plaintiff could not be reemployed, the reasons given would apply equally well to why plaintiff's continuing civilian employment would have to...