McKenzie

184 Ct. Cl. 807, 1968 U.S. Ct. Cl. LEXIS 144, 1968 WL 2154

• Court: United States Court of Claims
• Decided: June 17, 1968
• Docket: No. 375-66
• Status: Published

Opinion

Civilian pay; dismissal for disability; ready, willing and able to worlc. — Plaintiff, a former employee of the Department of the Navy,- sues to recover back pay for the period from March 25, 1960, to November 28, 1960. Plaintiff had been discharged for disability and, following an appeal and favorable opinion by the Civil Service Commission, was restored to his position from which he thereafter resigned upon being denied the right to have leave without pay in order to continue pursuit of his legal studies. His claim for pay during the period of discharge was denied by the General Accounting Office on the ground that plaintiff had not shown that during that period he was ready, willing and able to assume full-time performance of his duties. The case came before the court on the parties’ cross-motions for summary judgment. Upon consideration thereof, together with responses thereto and oral argument of counsel for defendant, the court found that by documents supporting its motion, defendant had made a prima facie showing that plaintiff was not ready, willing and able to work during the period in question; that plaintiff had filed no affidavit that he was ready, willing and able to work nor had he asked for a trial on that issue, and on June 17,1968, the court ordered that defendant’s motion for summary judgment be granted, plaintiff’s motion be denied, and the petition was dismissed.