Sonnabend v. United States

175 F. Supp. 150, 146 Ct. Cl. 622, 1959 U.S. Ct. Cl. LEXIS 174
CourtUnited States Court of Claims
DecidedJuly 15, 1959
DocketNo. 438-57
StatusPublished
Cited by4 cases

This text of 175 F. Supp. 150 (Sonnabend v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sonnabend v. United States, 175 F. Supp. 150, 146 Ct. Cl. 622, 1959 U.S. Ct. Cl. LEXIS 174 (cc 1959).

Opinions

Jones, Chief Judge,

delivered the opinion of the court:

The plaintiff seeks to recover a widow’s survivor annuity for the period from December 1, 1953, to the date of judgment.

The facts, which are not in dispute, are as follows: The plaintiff’s husband, Henry F. Sonnabend, was retired on June 24, 1950, from his classified position, grade GS-12, in the Income Tax Division of the Bureau of Internal Kevenue on the ground of physical disability. He had accumulated more than 33 years as a civil service employee. At the time of his retirement he was suffering from a heart condition which rendered him a semi-invalid. He applied for and received a reduced annuity effective June 20, 1950, having [624]*624designated the plaintiff as the recipient of the annuity upon his death.

A medical examination was conducted on August 2, 1951, in accordance with the civil service regulations. The Government medical examiner concluded that Sonnabend was able to return to his former work- and that he was no longer totally disabled for useful and efficient work.

As a result, on October 1,1951, Sonnabend was reinstated to the identical grade, salary, position, office, and desk in the Bureau of Internal Revenue from which he retired some 18 months before. He returned to the same supervisor and some of the cases which he had previously worked on were reassigned to him in 1951. His reinstatement, however, was classified as an indefinite appointment. On August 20,1953, Sonnabend was advised of his proposed separation from the Bureau of Internal Revenue in a reduction-in-force effective September 20, 1953. He was placed in retention Subgroup II-B, which he claimed was an error. He appealed the proposed action to the Civil Service Commission claiming that a career employee with 33 years’ service prior to a short break in service due to illness should not be rated lower for purposes of retention than a fellow employee with but five years of continuous service. The appeal was denied by the Commission on October 30, 1953, with the explanation that indefinite appointment and placement in retention Subgroup II-B was in accordance with the regulations. At the time of such separation Sonnabend had accumulated over 35 years of satisfactory Government service.

On account of his heart condition becoming worse during 1953, and his hospitalization in connection therewith, Sonna-bend, on the advice of his physician, decided to accept the annuity benefits rather than seek further employment in the Government.

He decided to apply for a reduced annuity in order to provide for plaintiff to receive a widow’s annuity in the event of his death. He disclosed his intention to accept a reduced annuity to his personal physician, his family, and his fellow employees. He completed the application in his own handwriting, had it in his possession awaiting a certificate from his physician, which was promised for Novem[625]*625ber 7,1953. His application referred to bis previous retirement on a reduced annuity basis, giving tbe number of bis previous annuity claim. Sonnabend died from a heart attack a few days after bis appeal was denied and before his physician’s signature bad been received and before bis application was actually filed.

Plaintiff’s application for ber widow’s annuity was denied on March 3,1954, and a check in tbe amount of $1,066.69 as a lump sum payment for accumulated deductions was tendered plaintiff. Plaintiff has not cashed this check. Plaintiff appealed to the Civil Service Commission and the Board of Appeals and Eeview, which appeal was denied and which plaintiff asserts was in error.

Plaintiff asserts two grounds for recovery. First, that plaintiff (and her late husband) acquired a title in an annuity under the Civil Service Eetirement Act upon his involuntary separation from the service on September 20, 1953. In the alternative, the plaintiff asserts that her husband’s separation on September 20, 1953, was made in violation of civil service rules and regulations and that therefore plaintiff is entitled to survivor benefits as the widow of a civil service employee who died while employed in a position subject to the Civil Service Eetirement Act of 1930, as amended.

Sections 1 to 17 of the Civil Service Eetirement Act of May 29, 1930, as amended to July 16, 1952 (46 Stat. 468, as amended (codified in scattered sections of 5 U.S.C.)), are involved.

-These statutes in substance provide that any officer or employee who has rendered 25 years of service, upon involuntary separation from the service where such removal was not for cause, misconduct or delinquency, shall be paid an immediate life annuity; that any such officer or employee may at the time of retirement elect to receive a reduced annuity so that the surviving marital partner might receive an annuity following the death of the employee making the designation.

The statute also provides that if an employee is retired for disability before the regular age of retirement he should be reexamined from time to time.

[626]*626The plaintiff calls attention to regulation R-5-55 of the Federal Personnel Manual as found in Transmittal Sheet 279, effective November 7, 1949. Both the statute and the regulation provide that a surviving widow or widower who had been designated by the employee at the time of retirement, after involuntary separation not for cause after at least 25 years of service, should be entitled to an annuity to continue during the survivor’s lifetime. Regulations R-5-55, Federal Personnel Manual, Transmittal Sheet 279, effective November 7, 1949; R-5-58, Federal Personnel Manual, Transmittal Sheet 308, effective October 1, 1950; R-5-59, Federal Personnel Manual, Transmittal Sheet 305, approved June 16, 1950.

The regulations also provide that every effort should be made to take back a former employee even, if necessary, to make way by separating a war service or temporary employee.

The defendant calls attention to section 1302 of the Supplemental Appropriation Act of 1951 (64 Stat. 1066), which provides that reinstatements, transfers or promotions to positions in the Federal Civil Service shall be temporary and for positions subject to the Classification Act of 1949 shall be made with the condition and notice to the individual reinstated, transferred or promoted that the classification is subject to postaudit and correction.

There is not the slightest doubt under the applicable statute and regulations that if Henry F. Sonnabend had actually filed his application after his involuntary separation from the service the plaintiff would be entitled to an annuity. He had prepared the application in his own handwriting, had declared to various people his intention to file the application, but died before it was actually filed. No one questions his intention to file it, nor his purpose in preparing the application.

In fact, upon his retirement for disability after 33 years’ service he, in May 1950, applied for a reduced annuity and accepted this reduced basis of payment until June 24, 1951, when he was again placed to work. This original application and designation was never canceled. When he was [627]*627restored to work it was designated as a temporary or indefinite appointment. Manifestly this course was taken because of the uncertainty as to whether his condition would permit his receiving a permanent assignment.

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Bluebook (online)
175 F. Supp. 150, 146 Ct. Cl. 622, 1959 U.S. Ct. Cl. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sonnabend-v-united-states-cc-1959.