
    551 F.2d 295
    FRANK P. SILVER v. THE UNITED STATES
    [No. 449-72.
    Decided March 23, 1977]
    
      
      James J. Orlow, attorney of record, for plaintiff. Donnie Hoover, with whom was Acting Assistant Attorney General Irving Jaffe, for defendant.
    Before Cowen, Senior Judge, Davis and Skelton, Judges.
    
   Per Curiam:

This case comes before the court on plaintiffs exceptions to the recommended decision of Trial Judge George Willi, filed May 26, 1976, pursuant to Rule 134(h). Upon consideration thereof, together with the briefs and oral argument of counsel, since the court agrees with the trial judge’s recommended decision, as hereinafter set forth, it hereby affirms and adopts the said decision as the basis of its judgment in this case. It is, therefore, concluded that plaintiff is not entitled to recover and the petition is dismissed.

Opinion of Trial Judge

Willi, Trial Judge:

Plaintiff, a physician who was engaged in the private practice of obstetrics and gynecology at the time that he was ordered to active duty as a Reserve Captain in the U.S. Army Medical Corps, sues to recover the pay and allowances for that grade for the time that he was in active duty status although unable to perform the duties of a Medical Corps physician because of injuries sustained in an auto accident that occurred prior to his being called up. The defendant now agrees that plaintiff is entitled to captain’s pay plus subsistence and quarters allowances totaling $8,359.92 for the period in issue, June 5, 1968 to March 21,1969. This is the amount that plaintiff claims for these items. Defendant denies, however, that plaintiff is equally entitled to an additional amount of $956.78, representing the $100 per month professional pay authorized by 37 U.S.C. § 302(b)(1) (1970) for a reserve officer called to active duty in the Army Medical Corps for a period of more than 1 year, as plaintiff was. Defendant contends that plaintiff is not entitled to such premium pay since it is undisputed that, because of his disability, he rendered the Army no medical service while in active duty status. The difficulty with that argument is that while Congress certainly could have conditioned entitlement on the actual rendition of professional services, it did not do so. Instead, the unambiguous language of the statute predicates eligibility solely on appointed status, which plaintiff admittedly had. It is therefore held for purposes of this decision that plaintiff is due the gross amount of $9,316.70 for his period of active duty. That determination sets the stage for the real and subsisting dispute between the parties, viz, the extent to which, on the facts presented, the gross entitlement is subject to reduction to the extent of plaintiffs earnings from the private practice of medicine during his period of active duty. In that regard, the parties’ differences are primarily legal rather than factual, plaintiff contending that the outside earnings principle has application only to a period of constructive service following a wrongful separation, not to a time of actual employment on active duty as here involved.

This court has uniformly held that a claimant’s outside earnings are to be deducted from an award of back pay if such earnings would not have been received by him had he been rendering the Government the employment services called for by the position for which he is found to have been improperly denied compensation. Jackson v. United States, 121 Ct. Cl. 405, 414 (1952); Jaffe v. United States, 124 Ct. Cl. 755 (1953); Getzoff v. United States, 124 Ct. Cl. 232, 236-38, 109 F.Supp. 712, 714-15 (1953). The test simply recognizes that when the Government has a man on its payroll it is entitled to his undivided attention during working hours. From that standpoint it makes no difference whether the Government is paying for the employee’s time currently or retroactively. In either case it is due his entire productive efforts during the hours for which he receives pay as an employee.

In resisting cognizance of private practice earnings in determining the ultimate amount of his permissible recovery, plaintiff relies on two Supreme Court decisions, United States v. Williamson, 90 U.S. 411 (1874) and Bell v. United States, 366 U.S. 393 (1961). Both announced the general proposition that military service pay is fixed by statute, a matter not here disputed, and neither involved any qualification on the serviceman’s right to such pay by reason of earnings from concurrent outside employment. It is true that in rejecting the Government’s contention in Bell, supra, that by analogy to damage principles governing breach of contract a serviceman guilty of disloyalty forfeited his right to pay, the Court noted that "* * * it is to be observed that common-law rules governing private contracts have no place in the area of military pay.” 366 U.S. at 401. As previously explained, however, a reduction of military pay to take account of earnings received for services that could not have been rendered compatibly with the military service for which pay is otherwise found to be due, implicates no common law contract principles remotely resembling those to which the Court alluded in Bell, supra.

The active duty period here involved is June 6, 1968 to March 21, 1969. In the calendar years 1968 and 1969 plaintiff earned a total of $104,941 from his civilian medical practice. Finding 14, infra. Of that total it has been found on the evidence presented that not less than $9,316.70 was attributable to services rendered by him during regular military duty hours in the period involved. Ultimate Finding of Fact, infra. It is therefore concluded that plaintiff must be denied affirmative recovery.

FINDINGS OF FACT

1. Plaintiff is a physician who received his M.D. degree from the Jefferson Medical College in Philadelphia, Pennsylvania, on June 16, 1961. After completing a 12-month internship at Philadelphia’s Nazareth Hospital in 1962, he served a 36-month residency in obstetrics and gynecology at Episcopal Hospital in Philadelphia. He became licensed to practice in Pennsylvania on July 1, 1965, and thereupon proceeded to establish a private practice in those specialties in the Philadelphia area.

2. Dr. Silver had received a draft deferment in order to complete his medical studies. After completing those studies he was given the choice by his draft board of volunteering to accept a Captain’s commission in the U.S. Army Medical Reserve Corps or taking his chances on being drafted into the service as an enlisted man. Acceptance of the former option rendered plaintiff liable for call-up for a 2-year period of active duty.

3. Plaintiff volunteered to accept a reserve commission and, to that end, underwent a preinduction physical examination on November 8, 1965. He was found physically fit and otherwise qualified for a reserve commission in the Army as a Captain in the Medical Corps.

4. In March 1966 plaintiff was involved in an accident in which he was thrown from an automobile with a resultant injury to his lower back. He was hospitalized for a week or 10 days on this account. The back problem, which was diagnosed as a herniated spinal disc, curtailed his obstetrical practice because of his inability to bend forward without considerable discomfort.

5. By an Army form dated April 1, 1966, plaintiff was notified of his appointment as a Reserve Captain and requested to execute and return an oath of office. He did so on April 4, 1966. Plaintiff does not suggest, and it does not otherwise appear that when he was tendered his reserve commission he informed the Army that since his preinduction physical he had sustained an injury that might render him physically unfit for appointment.

6. Albeit with some discomfort and impairment of activity resulting from his back injury, plaintiff continued to conduct his private medical practice with some part-time assistance from a young doctor named Cogan who was working in an area hospital as a resident in obstetrics and gynecology. Dr. Cogan completed his residency on July 1, 1967, and at that time joined plaintiff as an employee-assistant under an understanding whereby he was to retain that status for 1 year and then, on a progressive basis over the next 4 years, succeed to a full partnership interest in the practice. That timetable was accelerated to 2 years in the summer of 1968 when it became apparent that Dr. Cogan would have to perform the bulk of the work entailed in the partnership practice.

7. During the 2-year period following his automobile accident plaintiff remained under observation by a group of orthopedic surgeons who prescribed various types of therapy and treatment designed to enable him to function without the necessity for surgical intervention; something that plaintiff was extremely anxious to avoid. He slept on a bed board, wore a spinal brace at night, maintained a heat treatment device, called a hydrocolator pack, at his home and received physiotherapy treatments at various area hospitals as an outpatient.

8. In early 1968 plaintiff developed some weakness in his left foot. Although this was a manifestation of progressive neuropathy, a reliable indication of the need for corrective spinal surgery, plaintiff still resisted the surgical approach. Instead, he received cortisone injections in his spine to alleviate nerve swelling and thereby correct the foot drop.

9. Army orders were issued plaintiff on April 9, 1968, directing him to report to Fort Devens, Massachusetts, for active duty as a Captain in the U.S. Army Medical Corps not later than June 1, 1968. He did not so report because on that date he was confined to the Holy Redeemer Hospital in Philadelphia for treatment of an allergy problem that caused coughing so severe that it produced extreme pain in the left leg that had been affected by his back problem. On June 5, 1968, pursuant to his activation, plaintiff was removed from Holy Redeemer and transported by Army ambulance to the U.S. Army Valley Forge General Hospital at Phoenixville, Pennsylvania.

10. At Valley Forge plaintiffs condition was diagnosed as herniated low lumbar disc syndrome, and he was placed on a regimen that consisted primarily of bed rest, physical therapy and moist heat. A clinical report of July 18, 1968, by the Army physician attending the plaintiff, concluded with the following recommendation:

This patient has been under observation and conservative care at Valley Forge General Hospital since his admission and it has become obvious that he has definite disability referable to the low back. On the basis of all of the material gathered including the letter from his attending Orthopedic Surgeon, the Neuro-Surgical consultation obtained here and the findings of physical examination, it is considered that this man could not function effectively as a physician in the Medical Corps.
Under the regulations of AR 635-105, Section 2-14c, this patient should be released from active duty.

11. Plaintiff remained at Valley Forge until July 26, 1968, when he was granted a 30-day convalescent leave to be spent at his home. While at Valley Forge plaintiff was assigned no medical duties and performed none, other than some informal psychiatric counseling of amputees which he undertook purely on his own. During his stay at Valley Forge, for which he was charged only his daily subsistence allowance of $1.75, plaintiff consulted extensively by telephone with Dr. Cogan concerning the treatment of patients under the latter’s care.

12. Plaintiff remained on successive periods of 30-day convalescent leave at all times after July 26, 1968, until his honorable discharge for physical disability on March 21, 1969. By orders of July 31,1968, plaintiffs duty station was changed from Fort Devens, Massachusetts, to the Medical Holding Company at the Valley Forge Hospital. Other than periodically appearing to renew his leave, his only further contact with the military after July 26, 1968, was when he presented himself at Valley Forge General Hospital on January 27, 1969, to undergo a Medical Evaluation Board physical examination. On February 3, 1969, the Board unanimously recommended that the Physical Evaluation Board declare the plaintiff unable to function effectively as a physician in the Medicál Corps.

13. Other than during December 1968 when he went to the Bahamas and Jamaica on a vacation (with the approval of the military authorities) plaintiff was either consulting with Dr. Cogan by telephone from his home or was at their office. During the months of August and September 1968, plaintiffs activities in his practice were largely limited to telephone consultations from his home. Plaintiff testified that all of such professional consultations, as well as those that occurred while he was a patient at Valley Forge, took place during daytime hours. He was back in his office in October and November 1969, and during that portion of 1969 preceding his discharge on March 21. After returning to his office, in addition to treating patients there, plaintiff performed some surgery.

14. According to his federal individual income tax returns plaintiff earned $28,157 from his own medical practice in 1968 and, in addition earned $12,277 from the medical partnership that he had formed with Dr. Cogan in the summer of 1968. Plaintiffs 1969 return disclosed a net profit of $32,458 from his own medical practice and $32,049 as his share of the profits from his partnership with Dr. Cogan. In testifying at the trial about his 1968 and 1969 earnings from the private practice of medicine plaintiff referred only to income that, according to his returns, was derived from his individual practice. He completely overlooked income of more than $44,000 that he received from his partnership with Dr. Cogan during those 2 years.

15. The parties are agreed that plaintiff was on active duty with the Army as a captain from at least June 5, 1968 to March 21, 1969, and that for that period he is entitled to basic pay of $6,659.65, quarters allowance of $1,242.15 and subsistence allowance of $458.12. Although defendant denies plaintiffs entitlement to professional pay under 37 U.S.C. § 302 (1970) for that period, it agrees that if he were found entitled to such pay the amount thereof would be $956.78.

ULTIMATE FINDING OF FACT

On the basis of the evidence adduced at trial, including plaintiffs own account of his activities in the private practice of medicine during the period of June 5, 1968 to March 21, 1969, and the information reflected by his 1968 and 1969 individual income tax returns it is concluded he earned not less than $9,316.70, the gross amount of pay and allowances for which he contends in this suit, for medical services rendered by him during that period.

CONCLUSION OF LAW

Upon the trial judge’s findings and opinion, which are adopted by the court, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed. 
      
       A detailed statement of the facts is set forth in the separately numbered findings of fact, infra. The factual essentials of the decision are contained herein.
     
      
      
        Motto v. United States, 175 Ct. Cl. 862, 360 F.2d 643 (1966); Clackum v. United States, 161 Ct. Cl. 34, 36 (1963); Garner v. United States, 161 Ct. Cl. 73, 75 (1963); Egan v. United states, 141 Ct. Cl. 1, 27, 158 F.Supp. 377, 392 (1958).
     
      
       Unlike Bates v. United States, 197 Ct. Cl. 35, 453 F.2d 1382, (1972), there is here no claim of a service regulation or practice providing against deduction of civilian earnings.
     