B-148845, JUL. 9, 1962

B-148845: Jul 9, 1962

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YOU REQUESTED OUR DECISION CONCERNING STATUTORY AUTHORITY FOR PAYMENT OF BACK PAY IN THE CASES OF CERTAIN MEMBERS OF THE DISTRICT OF COLUMBIA FIRE DEPARTMENT AND THE METROPOLITAN POLICE DEPARTMENT WHO WERE SEPARATED BECAUSE OF PHYSICAL UNFITNESS. ARE REQUIRED TO BE APPOINTED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND REGULATIONS WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE. IN THREE OF THE CASES THE MEMBERS WERE GIVEN A REQUIRED PHYSICAL EXAMINATION BY A MEMBER OF THE BOARD OF POLICE AND FIRE SURGEONS BEFORE THE COMPLETION OF THE ONE-YEAR PROBATIONARY PERIOD. THE EXAMINATION RESULTED IN A DETERMINATION OF PHYSICAL UNFITNESS AND AT THE SAME TIME THE CHAIRMAN OF THAT BOARD DETERMINED THAT THE UNFITNESS WAS NOT INCURRED IN LINE OF DUTY.

B-148845, JUL. 9, 1962

TO PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA:

ON MAY 2, 1962, YOU REQUESTED OUR DECISION CONCERNING STATUTORY AUTHORITY FOR PAYMENT OF BACK PAY IN THE CASES OF CERTAIN MEMBERS OF THE DISTRICT OF COLUMBIA FIRE DEPARTMENT AND THE METROPOLITAN POLICE DEPARTMENT WHO WERE SEPARATED BECAUSE OF PHYSICAL UNFITNESS.

UNDER SECTIONS 4-103 AND 4-402, D.C. CODE, 1961 EDITION, OFFICERS AND MEMBERS OF THE POLICE AND FIRE DEPARTMENT, RESPECTIVELY, ARE REQUIRED TO BE APPOINTED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND REGULATIONS WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE. SECTION 4-827 PROVIDES THAT THE FIRST YEAR OF SERVICE SHALL BE PROBATIONARY.

IN THREE OF THE CASES THE MEMBERS WERE GIVEN A REQUIRED PHYSICAL EXAMINATION BY A MEMBER OF THE BOARD OF POLICE AND FIRE SURGEONS BEFORE THE COMPLETION OF THE ONE-YEAR PROBATIONARY PERIOD. THE EXAMINATION RESULTED IN A DETERMINATION OF PHYSICAL UNFITNESS AND AT THE SAME TIME THE CHAIRMAN OF THAT BOARD DETERMINED THAT THE UNFITNESS WAS NOT INCURRED IN LINE OF DUTY. THE MEMBERS DID NOT APPEAR BEFORE THE POLICE AND FIREMEN'S RETIRING AND RELIEF BOARD. INSTEAD, THE HEAD OF THE DEPARTMENT CONCERNED, WITH THE CONCURRENCE OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, ACTED TO SEPARATE THE MEMBERS UPON THE BASIS OF THE DETERMINATION OF THE BOARD OF POLICE AND FIRE SURGEONS.

SECTION 4-529, D.C. CODE, 1961 EDITION, PROVIDES AS FOLLOWS:

"SEC. 4-529. INVOLUNTARY SEPARATION FROM SERVICE.

"IF ANY MEMBER IS INJURED OR CONTRACTS A DISEASE DURING HIS FIRST FIVE YEARS OF SERVICE IN HIS DEPARTMENT WHICH, IN THE JUDGMENT OF THE BOARD OF POLICE AND FIRE SURGEONS, DISABLES HIM FROM PERFORMING FURTHER DUTY IN HIS DEPARTMENT, AND IF THE POLICE AND FIREMEN'S RETIRING AND RELIEF BOARD FINDS THAT SUCH INJURY OR DISEASE WAS NOT INCURRED IN THE PERFORMANCE OF DUTY IN HIS DEPARTMENT, SUCH MEMBER SHALL, UPON THE APPROVAL OF SUCH FINDING BY THE HEAD OF HIS DEPARTMENT, AND WITHOUT REGARD FOR THE PROVISIONS OF ANY OTHER LAW OR REGULATION, BE SEPARATED FROM THE SERVICE.'

THE CORPORATION COUNSEL HELD IN HIS OPINION OF NOVEMBER 16, 1961, CONCERNING ONE OF THE MEMBERS, THAT WHEN THE BOARD OF POLICE AND FIRE SURGEONS DETERMINES THAT A MEMBER IS UNFIT FOR THE FURTHER DUTY, WHETHER OR NOT HE IS A PROBATIONER, THE ABOVE-QUOTED PROVISION OF LAW REQUIRES THAT THE MEMBER SHALL APPEAR BEFORE THE POLICE AND FIREMEN'S RETIRING AND RELIEF BOARD "AND SUCH BOARD SHALL MAKE THE FINDINGS REQUIRED PURSUANT TO SAID SECTION;, THEREAFTER, THE MEMBER WAS AFFORDED THE OPPORTUNITY TO APPEAR BEFORE THE RETIRING AND RELIEF BOARD. WE ARE INFORMED THAT THE MATTER STILL IS PENDING BEFORE THAT BOARD. YOU DO NOT SAY WHAT THE STATUS OF THE OTHER TWO CASES IS. TWO OF THE MEMBERS ARE VETERANS; THE OTHER IS A NONVETERAN.

THE STATUTORY AUTHORITY FOR PAYMENT OF BACK PAY ON ACCOUNT OF UNJUSTIFIED OR UNWARRANTED REMOVALS OF PERSONS IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES IS SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS ADDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B). PARAGRAPH (1) OF SUBSECTION (B) APPLIES IN THE CASE OF PERSONS REMOVED UNDER SECTION (A), 5 U.S.C. 652 (A); THAT IS, REMOVED FROM THE SAID CLASSIFIED CIVIL SERVICE. PARAGRAPH (2) APPLIES IN THE CASE OF PERSONS REMOVED UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, 5 U.S.C. 863, WHICH LATTER SECTION HAS REFERENCE TO PREFERENCE ELIGIBLES WHO HAVE COMPLETED A PROBATIONARY OR TRIAL PERIOD.

NONE OF THE THREE MEMBERS UNDER DISCUSSION HAD COMPLETED HIS PROBATIONARY PERIOD AT THE TIME OF SEPARATION. THEREFORE, THE ANSWER TO THE BACK PAY QUESTION, ASIDE FROM OTHER CONSIDERATIONS (SUCH AS WHETHER THE MEMBER WAS READY AND ABLE TO PERFORM DUTY OR WHETHER THERE HAS BEEN A RESTORATION TO DUTY AFTER APPEAL TO PROPER AUTHORITY ON THE GROUND THAT THE SEPARATION WAS UNJUSTIFIED OR UNWARRANTED), IS THAT NONE WAS IN THE CLASSIFIED CIVIL SERVICE SO AS TO BE WITHIN THE PURVIEW OF THE BACK PAY PROVISIONS OF SECTION 6 (B) (1) OR ENTITLED TO THE BENEFITS OF SECTION 14 OF THE VETERANS PREFERENCE ACT SO AS TO BE WITHIN THE PURVIEW OF SECTION 6 (B) (2). NADLEHAFT V. UNITED STATES, 373, 158 F.SUPP. 564, CERT. DENIED, 358 U.S. 855.

THE FACT THAT MORE THAN ONE YEAR (THE PROBATIONARY PERIOD) MAY HAVE ELAPSED BETWEEN THE DATE OF SEPARATION AND THE DATE OF THE CORPORATION COUNSEL'S DECISION AND THE RESULTANT APPEARANCE BEFORE THE RETIRING AND RELIEF BOARD HAS NO BEARING ON THE MATTER.

WE SHOULD SAY FURTHER THAT, IN OUR OPINION, FOR THE REASONS HEREINAFTER STATED THE FAILURE TO REFER THE PHYSICAL UNFITNESS DETERMINATIONS OF THE BOARD OF POLICE AND FIRE SURGEONS TO THE POLICE AND FIREMEN'S RETIRING AND RELIEF BOARD BEFORE THE SEPARATION ACTION WAS TAKEN DID NOT NECESSARILY HAVE THE EFFECT OF INVALIDATING THE SEPARATION ACTIONS.

SECTION 3 OF PUBLIC LAW 85-157, APPROVED AUGUST 21, 1957, 71 STAT. 391 (POLICEMEN'S AND FIREMEN'S RETIRMENT AND DISABILITY ACT), AMENDED SECTION 12 OF THE ACT OF SEPTEMBER 12, 1916, AS AMENDED, TO COMPLETELY OVERHAUL THE POLICE AND FIRE PENSION SYSTEM. THE ABOVE-QUOTED SECTION 4-529, D.C. CODE, IS A CODIFICATION OF ONE OF THREE PROVISIONS OF SAID SECTION 12, AS AMENDED, DEALING WITH THE SEPARATION AND DISABILITY RETIREMENT OF POLICEMEN AND FIREMEN WHO ARE DISABLED BY INJURY OR DISEASE FROM THE PERFORMANCE OF DUTY--- THE OTHER TWO PROVISIONS BEING CODIFIED AT SECTIONS 4-526 AND 4-527. SECTION 4-526 PROVIDES FOR AN ANNUITY WHEN A MEMBER WITH FIVE OR MORE YEARS OF SERVICE BECOMES DISABLED FROM DISEASE OR INJURY NOT INCURRED IN THE PERFORMANCE OF DUTY. SECTION 4-527 PROVIDES FOR AN ANNUITY IN THE CASE OF A MEMBER WHO INCURS A DISABILITY BECAUSE OF INJURY OR DISEASE (OR AGGRAVATION THEREOF) IN THE PERFORMANCE OF DUTY AT ANY TIME AFTER APPOINTMENT. OUR UNDERSTANDING FROM THE TERMS OF REORGANIZATION ORDER NO. 31, AS AMENDED (APPENDIX TO TITLE 1, D.C. CODE, 1961 EDITION), IS THAT THE FUNCTIONS OF THE POLICE AND FIREMEN'S RETIRING AND RELIEF BOARD HAVE TO DO WITH THE MAKING OF FINDINGS OF FACT NECESSARY IN THE DETERMINATION OF ELIGIBILITY FOR RETIREMENT AND SURVIVOR ANNUITIES. CONSEQUENTLY, IN CASES INVOLVING THE QUESTION OF PHYSICAL UNFITNESS OF MEMBERS WITH LESS THAN 5 YEARS OF SERVICE, THE FUNCTION OF THE BOARD WOULD GO TO THE DETERMINATION OF WHETHER OR NOT THE DISABILITY WAS SERVICE- CONNECTED FOR PURPOSES OF AN ANNUITY UNDER SECTION 4-527. THE REFERENCE IN SECTION 4-529 TO THE FINDING OF THE BOARD AS TO THE NON LINE-OF-DUTY CHARACTER OF A DISABILITY ONLY REFLECTS THE NATURAL RESULT OF A NEGATIVE DETERMINATION FOR THE PURPOSES OF SECTION 4-527. THE FAILURE THROUGH MISUNDERSTANDING OR OTHERWISE TO SUBMIT IN THE FIRST INSTANCE A CASE INVOLVING DISABILITY TO THE BOARD WOULD AFFECT ONLY THE RIGHT TO THE BENEFITS OF SECTION 4-527, AND WE SEE NO REASON WHY A SUBSEQUENT CORRECTION OF THE ERROR OR OVERSIGHT BY SUBMITTING THE MATTER TO THE BOARD FOR ITS DETERMINATION AND RETROACTIVE AWARD OF AN ANNUITY IN A PROPER CASE WOULD NOT CONSTITUTE A COMPLETE REMEDY FOR THE WRONG, WITHOUT RESTORING THE MEMBER TO THE ROLLS RETROACTIVELY EFFECTIVE TO THE DATE OF SEPARATION.

WE NOTE THAT THE AMENDMENT TO THE FIRE DEPARTMENT REGULATIONS SUGGESTED BY THE CORPORATION COUNSEL IN HIS DECISION OF NOVEMBER 16, 1961, WOULD REQUIRE THAT CASES INVOLVING THE SEPARATION OF PROBATIONERS ON ACCOUNT OF DISABILITY BE SUBMITTED TO THE POLICE AND FIREMEN'S RETIRING AND RELIEF BOARD "AND SUCH BOARD SHALL MAKE SUCH FINDINGS AS ARE REQUIRED BY SECTION 4-529, D.C. CODE, 1951 EDITION.' AS PREVIOUSLY INDICATED, WE BELIEVE THAT THE PROVISIONS IN SECTION 4-529 CONCERNING THAT BOARD'S FINDING HAS SIGNIFICANCE ONLY WHEN CONSIDERED IN THE LIGHT OF SECTION 4-527. SUGGEST, THEREFORE, THAT ANY AMENDMENT TO THE REGULATIONS BE SO WORDED AS TO MAKE IT CLEAR THAT THE PURPOSE OF THE SUBMISSION TO THE BOARD IS TO DETERMINE THE PROBATIONER'S RIGHT TO AN ANNUITY UNDER SECTION 4-527. AS A TECHNICAL MATTER, WE SUGGEST THAT THE D.C. CODE REFERENCE SHOULD BE TO THE 1961 EDITION RATHER THAN THE 1951 EDITION.

THE OTHER CASE PRESENTED CONCERNS A FIRE DEPARTMENT MEMBER WHO HAD MORE THAN 5 YEARS OF SERVICE WHEN, EFFECTIVE AUGUST 31, 1961, HE WAS RETIRED ON THE BASIS OF A FINDING OF THE POLICE AND FIREMEN'S RETIRING AND RELIEF BOARD THAT HE WAS PHYSICALLY INCAPACITATED FOR DUTY BY REASON OF DISABILITY NOT INCURRED IN THE PERFORMANCE OF DUTY. UPON REVIEW AS THE RESULT OF A TIMELY APPEAL, THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA FOUND ON MARCH 20, 1962, THAT THE MEMBER SHOULD NOT HAVE BEEN RETIRED, AND ORDERED THAT THE ACTION OF THE BOARD BE RESCINDED EFFECTIVE FROM AND AFTER AUGUST 31, 1961, AND THAT THE MEMBER BE RESTORED TO DUTY EFFECTIVE THAT DATE WITH COMPENSATION AT THE RATE RECEIVED AT THE TIME OF SEPARATION.

THE RETIREMENT SYSTEM FOR POLICEMEN AND FIREMEN PRESCRIBED BY PUBLIC LAW 85-157 IS, AS INDICATED IN SECTION 2 OF THAT LAW, SIMILAR TO THE SYSTEM FOR FEDERAL EMPLOYEES. IN CONSIDERING THE MATTER OF AN INVOLUNTARY DISABILITY RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT, THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA HELD IN ELLMORE V. BRUCKER, 236 F.2D 734, CERT. DENIED, 352 U.S. 955, THAT SUCH A RETIREMENT WAS NOT WITHIN THE PURVIEW OF THE PROCEDURAL REQUIREMENTS OF SECTION 6 (A) OF THE 1912 ACT, AS AMENDED, SUPRA. SIMILARLY, IN A COMPANION CASE, MURPHY V. WILSON, 236 F.2D 757, THE COURT HELD THAT THE DISABILITY RETIREMENT WAS NOT SUBJECT TO THE PROCEDURAL PROVISION OF SECTION 14 OF THE VETERANS PREFERENCE ACT, SUPRA. THOSE HOLDINGS ARE EQUALLY APPLICABLE HERE. SINCE, AS PREVIOUSLY NOTED, THE BACK PAY PROVISION OF PARAGRAPHS (1) OR (2) OF SECTION 6 (B) OF THE 1912 ACT, AS AMENDED, APPLY ONLY IN THE CASE OF ADVERSE ACTIONS UNDER SAID SECTIONS 6 (A) AND 14, RESPECTIVELY, IT FOLLOWS THAT BACK PAY COVERING THE PERIOD OF THE SUBJECT MEMBER'S DISABILITY RETIREMENT IS NOT PAYABLE UNDER SAID PARAGRAPHS (1) OR (2). OUR ATTENTION HAS NOT BEEN DIRECTED TO ANY OTHER AUTHORITY FOR THE PAYMENT OF BACK PAY IN SUCH A SITUATION. IN THAT CONNECTION, WE NOTE THAT H.R. 11753 (PR0POSED BACK PAY ACT OF 1962) WHICH PASSED THE HOUSE ON JUNE 18 WOULD, IF ENACTED, PROSPECTIVELY COVER UNJUSTIFIED OR UNWARRANTED RETIREMENTS. SEE HOUSE REPORT NO. 1748, AT PAGE 4.