Thomas E. Witter v. Pennsylvania National Guard, B-198202
| Decision Date | 29 December 1980 |
| Docket Number | B-198202 |
| Parties | THOMAS E. WITTER v. PENNSYLVANIA NATIONAL GUARD, 462 F.Supp. 299 (1978) - AVAILABILITY OF FUNDS TO REIMBURSE STATE THE COST OF JUDGMENT: |
| Court | Comptroller General of the United States |
Digest appropriated funds under 31 U.S.C. 724a or otherwise are not available to reimburse the commonwealth of Pennsylvania the cost of judgment in witter v. Pennsylvania national guard where the united states was not a party to the suit. The judgment was against the state as employer which improperly refused to reinstate national guard civilian employee to his former position upon his release from active duty.
By letter dated March 21, 1980, lieutenant general LA vern E Weber, USA, chief, national guard bureau, requested an advance decision as to whether appropriated funds are available to reimburse the commonwealth of Pennsylvania the amount of $5, 326.53 which it paid as damages pursuant to a judgment in the case of thomas C. Witter v. Pennsylvania national guard, 462 F.Supp. 299 (1978). Although the united states was not named a defendant in that case we are asked whether funds are available for reimbursement to the state in view of the fact that the federal government provides the funds for technicians salaries and since an adjutant general of a state national guard has been held to be an agent of the united states pursuant to the national guard technicians act of 1968, 32 U.S.C. 709 in matters concerning the employment of such technicians. See chaudoin v. Atkinson, 494 F.2d 1323 1329 (3d Cir. 1972). The bureau asserts that the united states was an appropriate party to the action and that the judgment would have run against the united states, but for the failure of the adjutant general of the Pennsylvania national guard to request federal representation by the department of justice in the judicial proceeding. The bureau also suggests the judgment could have been satisfied under the back pay act, 5 U.S.C. 5596, rather than out of state funds had payment been made directly to Mr. Witter.
Mr Witter was a full-time civilian employee of the Pennsylvania national guard from July 4, 1965, to July 12, 1967. As a condition of such employment he was required to be a member of the national guard unit for which he worked.
On July 12, 1967, he resigned his position as a staff training assistant with the Pennsylvania national guard so that he could go on active duty in vietnam.
In February and May of 1969, he wrote to the Pennsylvania national guard to request reinstatement to his former position or a similar position upon his anticipated release form active duty and return to the united states in July 1969. Upon his return he again requested reemployment but was denied reemployment on the basis that the position he had occupied had been filled and that there was no similar position available.
In July 1975, Mr. Witter brought suit against the Pennsylvania national guard and the adjutant general of the Pennsylvania national guard for damages for the difference in salary and benefits he would have received had he been reemployed by the Pennsylvania national guard and the salary he actually received for the period August 1969 to January 1974 when his earnings from other employment were no longer less than the pay of the national guard position.
In considering Mr. Witter's claim for back pay the court first considered whether, at the time he left for active duty, he was a state employee or a federal employee to determine whether he would have reemployment rights as a federal employee pursuant to 50 U.S.C. App. 459, or as a state employee under the vietnam ERA veterans readjustment assistance act of 1974, 38 U.S.C. 2021 et seq.
As stated by the court's decision national guard civilian employees or technicians became federal employees pursuant to the national guard technicians act of 1968, 32 U.S.C. 709, effective January 1, 1969. Prior to the effective date of the 1968 act, such technicians were considered to be state employees. Maryland v. United States, 381 U.S. 41, 53 (1965).
Accordingly, the court determined that as Mr. Witter left his position to go on active duty prior to the effective date of the act he was a state and not a federal employee. As such, the court found that Mr. Witter was entitled to reemployment upon his release from active duty pursuant to 38 U.S.C. 2021(a), 2024 which provide for reemployment of state employees after their release from limited periods of military service.
Where a private employer or a state or political subdivision thereof fails or refuses to reemploy an individual as required by these provisions 38 U.S.C. 2022 empowers the federal district courts to "compensate such person for any loss of wages or benefits suffered by reason of such employer's unlawful action". Pursuant to this provision the court held that Mr. Witter was entitled to all the employee benefits he would have enjoyed had he been placed on military leave of absence by the Pennsylvania national guard when he left for active duty and reemployed upon his return. In addition, the court found that under the Pennsylvania military leave of absence act, 5 p.S. 7301 et seq., Mr Witter was entitled to be placed on military leave of absence...
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