B-146606, SEP. 26, 1961

B-146606: Sep 26, 1961

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WHILE HE WAS SEPARATED FROM HIS POSITION WITH THE DEPARTMENT OF THE NAVY. MCKENZIE'S CLAIM WAS DISALLOWED BECAUSE THE RECORD IN HIS CASE GAVE RISE TO GRAVE DOUBTS CONCERNING HIS WILLINGNESS AND ABILITY TO PERFORM THE REQUIRED DUTIES. IN HIS LETTER HE POINTED OUT THAT HIS REQUEST WAS BEING MADE BECAUSE OF HIS CONTINUING ILL HEALTH AND UPON THE ADVICE AND INSISTENCE OF HIS PHYSICIAN. HIS LETTER FURTHER STATED THAT HIS PHYSICIAN FELT THAT HIS POSITION WAS A CONTRIBUTING FACTOR IN AGGREVATING HIS ILLNESS. MCKENZIE'S REQUEST FOR EXTENDED LEAVE WAS DISALLOWED BY THE ADMINISTRATIVE OFFICE ON SEPTEMBER 24. ACTION ON HIS PROPOSED SEPARATION WAS SUSPENDED AND HE WAS CARRIED IN A LEAVE STATUS. MCKENZIE'S APPLICATION FOR DISABILITY RETIREMENT HAD BEEN REJECTED BECAUSE TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE IN HIS POSITION WAS NOT SHOWN.

B-146606, SEP. 26, 1961

TO MR. HERBERT J. HERMAN:

THIS REFERS TO YOUR LETTER OF JULY 24, 1961, CONCERNING THE CLAIM OF EDWARD J. MCKENZIE FOR BACK PAY COVERING THE PERIOD MARCH 26 TO NOVEMBER 25, 1960, WHILE HE WAS SEPARATED FROM HIS POSITION WITH THE DEPARTMENT OF THE NAVY.

IN OUR SETTLEMENT OF MAY 2, 1961, MR. MCKENZIE'S CLAIM WAS DISALLOWED BECAUSE THE RECORD IN HIS CASE GAVE RISE TO GRAVE DOUBTS CONCERNING HIS WILLINGNESS AND ABILITY TO PERFORM THE REQUIRED DUTIES.

THE RECORD SHOWS THAT BY LETTER OF AUGUST 10, 1959, MR. MCKENZIE APPLIED FOR EXTENDED SICK LEAVE FOR A PERIOD OF ONE YEAR. IN HIS LETTER HE POINTED OUT THAT HIS REQUEST WAS BEING MADE BECAUSE OF HIS CONTINUING ILL HEALTH AND UPON THE ADVICE AND INSISTENCE OF HIS PHYSICIAN. HIS LETTER FURTHER STATED THAT HIS PHYSICIAN FELT THAT HIS POSITION WAS A CONTRIBUTING FACTOR IN AGGREVATING HIS ILLNESS. A MEDICAL CERTIFICATE FROM HIS PHYSICIAN, D. J. RIORDAN, M.D., DATED AUGUST 17, 1959, CORROBORATED MR. MCKENZIE'S STATEMENT CONCERNING HIS ILL HEALTH. MR. MCKENZIE'S REQUEST FOR EXTENDED LEAVE WAS DISALLOWED BY THE ADMINISTRATIVE OFFICE ON SEPTEMBER 24, 1959. ON OCTOBER 7, 1959, MR. MCKENZIE APPLIED FOR DISABILITY RETIREMENT. DURING THE PENDENCY OF HIS APPLICATION FOR RETIREMENT ON DISABILITY, ACTION ON HIS PROPOSED SEPARATION WAS SUSPENDED AND HE WAS CARRIED IN A LEAVE STATUS. ON DECEMBER 22, 1959, THE CIVIL SERVICE COMMISSION ADVISED THE DEPARTMENT OF THE NAVY THAT MR. MCKENZIE'S APPLICATION FOR DISABILITY RETIREMENT HAD BEEN REJECTED BECAUSE TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE IN HIS POSITION WAS NOT SHOWN.

BECAUSE OF MR. MCKENZIE'S INITIAL REQUEST FOR EXTENDED LEAVE HE WAS AGAIN ON JANUARY 7, 1960, ADVISED BY THE DEPARTMENT OF THE NAVY OF ITS INTENTIONS TO SEPARATE HIM FOR DISABILITY. IN REPLY TO THIS COMMUNICATION, MR. MCKENZIE ON JANUARY 12, 1960, ASKED THAT HIS APPLICATION FOR LEAVE BE AMENDED AND REDUCED TO APPROXIMATELY FIVE MONTHS FROM THE DATE OF HIS LETTER. ON FEBRUARY 19, 1960, A GRIEVANCE APPEAL HEARING WAS HELD FOR MR. MCKENZIE. AT THIS HEARING THE EMPLOYEE'S ONLY COUNTER PROPOSAL TO THE DEPARTMENT'S PROPOSED ADVERSE ACTION WAS THAT HE BE GRANTED THE REMAINING LEAVE OF ABSENCE APPLIED FOR AND THAT HE THEN BE PERMITTED TO RETURN TO DUTY.

MR. MCKENZIE'S REQUEST FOR FURTHER LEAVE OF ABSENCE WAS NOT GRANTED AND SUBSEQUENTLY HE WAS SEPARATED FROM THE SERVICE, EFFECTIVE MARCH 25, 1960, ON GROUNDS OF DISABILITY. AS THE RESULT OF AN APPEAL FROM THIS SEPARATION TO THE CIVIL SERVICE COMMISSION HE WAS RESTORED TO THE ROLLS EFFECTIVE AS OF THE DATE OF HIS SEPARATION AND AFTER AN UNSUCCESSFUL DEPARTMENTAL APPEAL REPORTED FOR DUTY ON NOVEMBER 28, 1960. HE IMMEDIATELY REQUESTED A GRANT OF LEAVE WITHOUT PAY FROM DECEMBER 1 TO 31, 1960. THIS REQUEST WAS DENIED AND HE RESIGNED ON DECEMBER 6, 1960.

THE FINDINGS OF THE CIVIL SERVICE COMMISSION ON APPEALS BY EMPLOYEES OF THE GOVERNMENT CONCERNING THE MERITS OF ADMINISTRATIVE ACTIONS ARE CONSIDERED BY THE COURTS AND BY OUR OFFICE TO BE CONCLUSIVE. THEREFORE, WE MUST CONCUR WITH THE COMMISSION'S FINDINGS THAT THE GROUND UPON WHICH MR. MCKENZIE'S SEPARATION WAS BASED WAS NOT PROPER AND ANY LANGUAGE IN OUR OFFICE SETTLEMENT OF MAY 2, 1961, QUESTIONING MR. MCKENZIE'S ABILITY TO PERFORM THE DUTIES OF HIS POSITION IS MODIFIED ACCORDINGLY.

YOU DIRECT OUR ATTENTION TO ZAVERL V. UNITED STATES, 140 CT.CL. 494, AND LARUFFA V. UNITED STATES, 129 CT.CL. 25 IN SUPPORT OF MR. MCKENZIE'S CLAIM. IN THE ZAVERL CASE THERE WAS NO QUESTION AS TO THE EMPLOYEE BEING READY, WILLING AND ABLE TO PERFORM THE ASSIGNED DUTIES. THE COURT HELD THAT THE PLAINTIFF WAS AN EMPLOYEE ON THE ROLLS OF THE POST OFFICE AND HER SENIORITY RIGHTS UNDER THE AGENCY'S ADMINISTRATIVE REGULATIONS WERE VIOLATED WHEN SHE WAS NOT CALLED TO WORK. IN THE LARUFFA CASE THE PLAINTIFF HAD BEEN RETIRED FOR DISABILITY WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION. SUBSEQUENTLY AFTER A PHYSICAL EXAMINATION, IT WAS DETERMINED THAT HE WAS PHYSICALLY QUALIFIED TO PERFORM THE DUTIES OF THE POSITION FROM WHICH HE WAS RETIRED. THE COURT HELD THAT SINCE THE RESTORATION TO DUTY THERE INVOLVED WAS NOT ON THE GROUND THAT THE PLAINTIFF'S SEPARATION WAS UNJUSTIFIED OR UNWARRANTED BUT BECAUSE HIS PHYSICAL CONDITION LATER WAS FOUND TO BE SUCH AS TO ENABLE HIM TO PERFORM HIS DUTIES, THE REQUIREMENTS FOR RECOVERY OF BACK PAY UNDER THE ACT OF JUNE 10, 1948, WERE NOT MET. WE DO NOT FIND EITHER CASE APPLICABLE TO MR. MCKENZIE'S SITUATION.

THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, PROVIDES FOR THE PAYMENT OF SALARY COVERING THE PERIOD OF SEPARATION FROM THE GOVERNMENT SERVICE UPON RESTORATION TO DUTY UPON THE GROUND THAT SUCH SEPARATION WAS UNJUSTIFIED OR UNWARRANTED. THAT STATUTE WAS DESIGNED TO COMPENSATE EMPLOYEES FOR PAY WHICH THEY WOULD HAVE EARNED BUT FOR THE WRONGFUL SEPARATION. IF THE EMPLOYEE WAS NOT READY AND WILLING AS WELL AS ABLE TO PERFORM THE DUTIES FOR WHICH THE PAY WAS TO BE RECEIVED, IT FOLLOWS THAT HE HAS LOST NOTHING WHICH HE WOULD HAVE EARNED BUT FOR THE WRONGFUL SEPARATION. THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, HAS BEEN SO CONSTRUED BY THE COURT OF CLAIMS IN HENRY S. ARMAND V. UNITED STATES, 136 CT.CL. 339, BASED ON THE IMPLICATIONS OF THE SUPREME COURT IN UNITED STATES V. WICKERSHAM, 201 U.S. 390. SEE ALSO EDYTHE M. CORRIGAN V. UNITED STATES, COURT OF CLAIMS NO. 1- 60, DECIDED MAY 3, 1961. ON THE RECORD, IT APPEARS THAT MR. MCKENZIE WOULD NOT HAVE REPORTED FOR DUTY IN ANY EVENT PRIOR TO THE EXPIRATION OF APPROXIMATELY FIVE MONTHS FOLLOWING HIS AMENDED REQUEST FOR LEAVE AND IN THE LIGHT OF THE FACT THAT UPON RE-ENTRY ON DUTY IN NOVEMBER 1960 HE IMMEDIATELY REQUESTED FURTHER LEAVE OF ABSENCE, IT IS HIGHLY SPECULATIVE WHETHER AT ANY TIME SUBSEQUENT TO HIS PURPORTED SEPARATION, UNTIL NOVEMBER 28, 1960, HE WAS READY AND WILLING TO PERFORM THE DUTIES OF HIS POSITION.

IT LONG HAS BEEN THE RULE THAT GOVERNMENT ACCOUNTING OFFICERS SHALL REJECT OR DISALLOW ALL CLAIMS CONCERNING WHICH THEY HAVE REASONABLE DOUBT. BY DOING SO, CONTROVERSIAL MATTERS ARE RESERVED FOR SCRUTINY IN THE COURTS WHERE THE FACTS MAY BE JUDICIALLY DETERMINED UNDER SWORN TESTIMONY AND COMPETENT EVIDENCE. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288; CHARLES V. UNITED STATES, 19 CT.CL. 316, 319; MORRIS DEMOLITION CORPORATION V. UNITED STATES, 99 CT.CL. 336; STANLEY A. JERMAN V. UNITED STATES, 96 CT.CL. 540; CHARLES A. BLUME V. UNITED STATES, 81 CT.CL. 210.

THEREFORE, IN VIEW OF THE FOREGOING, WE MUST SUSTAIN THE ACTION TAKEN IN OUR SETTLEMENT OF MAY 2, 1961.