B-159325, AUG. 1, 1966

B-159325, AUG. 1, 1966

TO ADMINISTRATOR VETERANS ADMINISTRATION:

WE REFER TO YOUR LETTER OF JUNE 1, 1966, CONCERNING THE DISPOSITION OF AMOUNTS REPRESENTING FINAL SALARY PAYMENT, LUMP-SUM LEAVE PAYMENT AND CIVIL SERVICE RETIREMENT FUND CREDIT OF DR. EMANUEL MARCUS, A FORMER EMPLOYEE OF THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS ADMINISTRATION.

THE FACTS INVOLVED AS SET FORTH IN YOUR LETTER ARE AS FOLLOWS:

"DR. MARCUS WAS INITIALLY APPOINTED AS AN ASSOCIATE MEDICAL OFFICER IN THE MEDICAL SERVICE OF THE VETERANS ADMINISTRATION AT $3,200 P.A. EFFECTIVE AUGUST 1, 1941. ON APRIL 18, 1944, HE WENT ON MILITARY FURLOUGH. HE WAS SEPARATED FROM MILITARY SERVICE EFFECTIVE JUNE 14, 1946. HE RETURNED FROM MILITARY FURLOUGH AND WAS CONVERTED TO AN EXCEPTED APPOINTMENT, PROBATIONAL, PHYSICIAN, FULL GRADE $5,905.20 P.A. EFFECTIVE OCTOBER 29, 1946, UNDER AUTHORITY OF SECTION 6 (B), PUBLIC LAW 293, 79TH CONGRESS. HE SERVED CONTINUOUSLY IN THE DEPARTMENT OF MEDICINE AND SURGERY FROM OCTOBER 29, 1946 UNTIL APRIL 15, 1966, AT WHICH TIME HE WAS SEPARATED AS A PHYSICIAN, CHIEF GRADE $18,235 P.A. DUE TO "FAILURE TO MEET STATUTORY REQUIREMENTS OF 38 U.S.C. 4105. NOT LICENSED TO PRACTICE MEDICINE OR SURGERY IN A STATE, TERRITORY OR COMMONWEALTH OF THE UNITED STATES OR IN THE DISTRICT OF COLUMBIA.'

"AT THE TIME OF DR. MARCUS' INITIAL APPOINTMENT ON AUGUST 1, 1941,THERE WAS NO STATUTORY REQUIREMENT OF LICENSURE AS A PREREQUISITE TO EMPLOYMENT AS A PHYSICIAN IN THE THEN MEDICAL SERVICE OF THE VETERANS ADMINISTRATION. THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS ADMINISTRATION, ESTABLISHED ON JANUARY 3, 1946, UNDER THE PROVISIONS OF PUBLIC LAW 293, 79TH CONGRESS, REPLACED THE MEDICAL SERVICE OF THE VETERANS ADMINISTRATION. SECTION 5 OF SAID ACT PROVIDED IN PERTINENT PART THAT:

"ANY PERSON TO BE ELIGIBLE FOR APPOINTMENT IN THE DEPARTMENT OF MEDICINE AND SURGERY MUST---

"/A) BE A CITIZEN OF THE UNITED STATES.

"/B) IN THE MEDICAL SERVICE---

HOLD THE DEGREE OF DOCTOR OF MEDICINE OR OF THE DOCTOR OF OSTEOPATHY FROM A COLLEGE OR UNIVERSITY APPROVED BY THE ADMINISTRATOR, HAVE COMPLETED AN INTERNSHIP SATISFACTORY TO THE ADMINISTRATOR, AND BE LICENSED TO PRACTICE MEDICINE, SURGERY, OR OSTEOPATHY IN ONE OF THE STATES OR TERRITORIES OF THE UNITED STATES OR IN THE DISTRICT OF COLUMBIA.'

"SECTION 6 (D) OF THE ACT PROVIDED:

"DOCTORS, DENTISTS AND NURSES IN THE PRESENT MEDICAL SERVICE SHALL BE CONTINUED IN THEIR PRESENT POSITIONS UNTIL THE ADMINISTRATOR SHALL HAVE DETERMINED THEIR QUALIFICATIONS AS PROVIDED IN SUBSECTION (A) OF THIS SECTION.'

"SUBSECTION (A) REFERRED TO ABOVE, PROVIDED THAT APPOINTMENTS OF DOCTORS, DENTISTS AND NURSES SHALL BE MADE ONLY AFTER QUALIFICATIONS HAVE BEEN SATISFACTORILY ESTABLISHED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE ADMINISTRATOR, WITHOUT REGARD TO CIVIL SERVICE REQUIREMENTS.

"DR. MARCUS HAS TO OUR KNOWLEDGE, NEVER TECHNICALLY BEEN LICENSED TO PRACTICE MEDICINE OR SURGERY IN A STATE, OR TERRITORY OR THE DISTRICT OF COLUMBIA. HE DID, HOWEVER, DURING 1942, APPLY FOR AND RECEIVE A FEDERAL REGISTRATION CERTIFICATE DATED MARCH 12, 1942, FROM THE COMMISSION ON LICENSURE, HEALING ARTS PRACTICE ACT, DISTRICT OF COLUMBIA WHICH AUTHORIZED HIM TO LEGALLY PRACTICE HIS PROFESSION IN THE DISTRICT. A COPY OF THIS CERTIFICATE IS ENCLOSED.

"SECTION 23 OF THE PUBLIC NO. 831, 70TH CONGRESS (2 D.C. CODE 133), PROVIDED THAT ANY PERSON DESIRING TO PRACTICE THE HEALING ART IN THE DISTRICT OF COLUMBIA SHALL APPLY TO THE COMMISSION ON LICENSURE, IN WRITING, FOR AUTHORITY TO DO SO. SECTION 42 OF THE SAME ACT READ IN PART:

"THE PROVISIONS OF THIS ACT FORBIDDING THE PRACTICE OF THE HEALING ART WITHOUT A LICENSE SHALL NOT APPLY (A) TO COMMISSIONED SURGEONS OF THE UNITED STATES ARMY, NAVY, OR PUBLIC HEALTH SERVICE, OR TO MEDICAL OFFICERS IN ANY OTHER BRANCH OF THE FEDERAL GOVERNMENT WHATSOEVER, IN THE DISCHARGE OF THEIR OFFICIAL DUTIES: * * * PROVIDED, THAT ALL PRACTITIONERS CLAIMING EXEMPTION UNDER THE PROVISIONS OF THIS SECTION, EXCEPT THOSE CALLED INTO THE DISTRICT OF COLUMBIA ON CONSULTATIONS ONLY, SHALL FILE WITH THE COMMISSION, IN SUCH MANNER AS THE COMMISSION MAY PRESCRIBE, EVIDENCE OF THEIR RIGHT TO SUCH EXEMPTION. UPON PROOF OF THAT RIGHT, TO THE SATISFACTION OF THE COMMISSION, THE COMMISSION SHALL ENTER THE NAME OF THE APPLICANT IN A REGISTER KEPT FOR THAT PURPOSE AND SHALL ISSUE TO THE APPLICANT A CERTIFICATE IN EVIDENCE OF SUCH REGISTRATION.'

"IN CONNECTION WITH THE ABOVE-QUOTED STATUTORY PROVISION APPLICABLE TO THE PRACTICE OF MEDICINE IN THE DISTRICT OF COLUMBIA, THE THEN SECRETARY- TREASURER OF THE COMMISSION ON LICENSURE, HEALING ARTS PRACTICE ACT, DISTRICT OF COLUMBIA ADVISED THE CHIEF MEDICAL DIRECTOR IN A LETTER DATED MAY 7, 1946, AS FOLLOWS:

"LATELY, IT HAS COME TO MY ATTENTION THAT PHYSICIANS EITHER IN THE EMPLOY OF THE VETERANS ADMINISTRATION OR CONTEMPLATING SUCH EMPLOYMENT ARE APPLYING FOR D.C. LICENSE. THE REGISTRATION REFERRED TO ABOVE WILL LEGALIZE THEIR LOCAL PRACTICE SO LONG AS IT IS CONFINED TO GOVERNMENT PRACTICE ONLY. WILL YOU BE SO KIND AS TO SEE THAT THE PROPER PARTIES ARE ADVISED OF THE PROVISIONS OF SECTION 42?

"DR. MARCUS, APPARENTLY ASSUMING HE WAS "LICENSED TO PRACTICE MEDICINE" IN THE DISTRICT OF COLUMBIA SO LONG AS HE REMAINED IN THE GOVERNMENT SERVICE, INDICATED THAT HE WAS LICENSED IN THE DISTRICT OF COLUMBIA ON A DEPARTMENT OF MEDICINE AND SURGERY CLASSIFICATION QUESTIONAIRE FOR PROFESSIONAL SERVICE PERSONNEL. THIS FORM WAS EXECUTED ON APRIL 25, 1946, AND SUBSEQUENTLY, A PROFESSIONAL STANDARDS BOARD RECOMMENDED THAT DR. MARCUS BE APPOINTED UNDER APPROVED REGULATIONS. THIS RECOMMENDATION WAS APPROVED BY THE THEN CHIEF MEDICAL DIRECTOR, THE APPOINTMENT BEING EFFECTIVE ON OCTOBER 29, 1946. DR. MARCUS' QUALIFICATIONS WERE REVIEWED PERIODICALLY FOR PROMOTION AND REASSIGNMENT AND APPARENTLY HIS LICENSURE WAS NEVER QUESTIONED.

"ON DECEMBER 30, 1965, A REVIEW OF DR. MARCUS' PERSONNEL FOLDER FAILED TO DISCLOSE POSITIVE EVIDENCE OF HIS LICENSE TO PRACTICE MEDICINE. RESPONSE TO A REQUEST TO PRODUCE SUCH EVIDENCE, DR. MARCUS SUBMITTED THE REGISTRATION CERTIFICATE REFERRED TO ABOVE. PENDING CONSIDERATION OF THIS EVIDENCE, DR. MARCUS WAS PLACED ON ANNUAL LEAVE FROM FEBRUARY 20, 1966 TO FEBRUARY 24, 1966. ON FEBRUARY 25,1966, DR. MARCUS WAS HOSPITALIZED AND PLACED ON SICK LEAVE FROM THAT DATE UNTIL APRIL 15, 1966, AT WHICH TIME HE WAS SEPARATED FROM EMPLOYMENT WITH THE DEPARTMENT OF MEDICINE AND SURGERY. AT THE TIME OF SEPARATION, DR. MARCUS HAD 84 DAYS OF ACCUMULATED ANNUAL LEAVE, 66 DAYS OF SICK LEAVE AND THE TOTAL AMOUNT OF HIS RETIREMENT DEDUCTIONS IN THE CIVIL SERVICE RETIREMENT FUND WAS $13,773.37.'

WE UNDERSTAND THAT DR. MARCUS HAS NOW BEEN REEMPLOYED UNDER AN 18 MONTH CONTRACT IN A NONPHYSICIAN POSITION AT APPROXIMATELY THE SALARY HE WAS EARNING PRIOR TO HIS SEPARATION FROM THE PHYSICIAN POSITION.

SECTION 5 OF THE ACT OF JANUARY 3, 1946, IN FORCE AT THE TIME DR. MARCUS WAS APPOINTED TO A POSITION IN THE DEPARTMENT OF MEDICINE AND SURGERY ON OCTOBER 29, 1946, ESTABLISHED AS ONE OF THE PREREQUISITES OF SUCH APPOINTMENT THAT THE INDIVIDUAL BE LICENSED TO PRACTICE MEDICINE IN A STATE OR IN THE DISTRICT OF COLUMBIA. A SIMILAR PROVISION IS NOW CONTAINED IN 38 U.S.C. 4105. WE FIND NO PROVISIONS OF LAW WHICH AUTHORIZE YOU TO WAIVE THAT REQUIREMENT. FURTHERMORE, THE CERTIFICATE OF REGISTRATION WHICH DR. MARCUS RECEIVED FROM THE DISTRICT OF COLUMBIA UNDER THE PROVISIONS OF SECTION 42 OF THE ACT OF FEBRUARY 27, 1929, 45 STAT. 1339, 2 D.C. CODE 133, MAY NOT BE CONSIDERED A LICENSE TO PRACTICE MEDICINE IN THE DISTRICT OF COLUMBIA FOR THE PURPOSES OF SECTION 5 OF THE ACT OF JANUARY 3, 1946, OR 38 U.S.C. 4105. THIS IS SO BECAUSE THE ACT DOES NOT PROVIDE THAT THE CERTIFICATE IS A LICENSE TO PRACTICE MEDICINE BUT MERELY THAT CERTIFICATES MAY BE ISSUED TO MEDICAL OFFICERS OF THE FEDERAL GOVERNMENT AS EVIDENCE OF THE FACT THAT THE LAW PERMITS THEM TO PRACTICE MEDICINE IN THEIR OFFICIAL CAPACITY IN THE DISTRICT OF COLUMBIA WITHOUT A DISTRICT OF COLUMBIA LICENSE.

ON THE BASIS OF THE FACTS PRESENTED WE MUST CONCLUDE THAT DR. MARCUS DID NOT QUALIFY FOR APPOINTMENT AS A PHYSICIAN IN THE DEPARTMENT OF MEDICINE AND SURGERY BY REASON OF HIS FAILURE TO FULFILL THE LICENSURE REQUIREMENT CONTAINED IN THE GOVERNING STATUTE. IN ACCORDANCE WITH THE DECISION OF OCTOBER 8, 1952, B-111684, WHICH YOU CITE, HIS STATUS WHILE WORKING IN THE DEPARTMENT AS A PHYSICIAN MUST BE CONSIDERED THAT OF A DE FACTO EMPLOYEE AND AS SUCH HE IS ENTITLED TO RETAIN THE COMPENSATION HE RECEIVED WHILE SO EMPLOYED BUT IS NOT ENTITLED TO ANY ADDITIONAL PAYMENTS BY REASON OF SUCH SERVICE.

ACCORDINGLY, AT THE TIME OF HIS SEPARATION ON APRIL 15, 1966, DR. MARCUS WAS NOT ENTITLED TO LUMP-SUM LEAVE OR FINAL SALARY PAYMENTS. FURTHERMORE, HE MAY NOT BE ALLOWED A REFUND OF RETIREMENT DEDUCTIONS MADE DURING HIS DE FACTO SERVICE. SEE 38 COMP. GEN. 175.

A COPY OF THIS DECISION IS BEING FURNISHED TO THE DIRECTOR, BUREAU OF RETIREMENT AND INSURANCE, CIVIL SERVICE COMMISSION FOR HIS INFORMATION.