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Findings of Fact
Rates currently in effect from time to time in TransContinental Freight Bureau Export Tariff 29-series (not subject to land-grant deduction) will be applied by the carriers on traffic shipped by or for account of the various Departments, Bureaus and Agencies of the United States Government, and on which the United States Government assumes the freight charges, moving from origins and to United States Pacific Coast Ports named in said tariff and forwarded overseas from such ports to the destination territory named in TransContinental Freight Bureau Tariff 29-series but without requiring compliance upon the part of the Government with items Nos. 235, 270, 275 and 290 of said tariff.
35. West-Bound Export Tariff No. 29-I, issued by the Trans-Continental Freight Bureau (L. E. Kipp, Agent), was in effect at the time of these shipments. Airplane landing mats were not listed or rated in this tariff.
36. Item 1903-C of Supplement 105 to West-Bound Export Tariff No. 29-I published a rate of 34 cents per 100 pounds on shipments of iron or steel articles from Ogden, Utah, to Oakland, California. The 34-cent rate, increased by the Tariffs of Increased Rates and Charges, produced a rate of 53 cents per 100 pounds on shipments of iron or steel articles.
37. Item 3780-J of Supplement 262 to Pacific Freight Tariff Bureau Tariff No. 260-A published a rate of 63 cents per 100 pounds on domestic shipments of iron or steel articles from Ogden, Utah, to Oakland, California. The 63-cent rate was not subject to the Tariff of Increased Rates and Charges.
38. The list of iron or steel articles in Sections A and B of Item 370-B of Supplement 231 to P.C.F.B. Tariff 260–A, referred to in Item 3780-J, was similar to the list of iron or steel articles in Section 1 of Item 1350, referred to in Item 1903-C of T.C.F.B. Tariff No. 29-I, and the majority of the articles in Item 370-B were covered by and listed in Item 1350.
Finding relative to counterclaim
39. The parties have agreed that the defendant is not entitled to receive anything on its counterclaim.
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40. Under the applicable class tariffs, the transportation charges for the shipments involved in this action would have been much greater than the charges for such shipments under the terms and conditions of the A.A.R. Section 22 Quotation No. 64 series, as interpreted by the plaintiff.
CONCLUSION OF LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and it is therefore adjudged and ordered that plaintiff recover of and from the United States the sum of one hundred twelve thousand four hundred eighty-four dollars and twenty cents ($112,484.20).
CHARLES RUBIN v. THE UNITED STATES
[No. 403-58. Decided June 8, 1960]
ON DEFENDANT'S AND PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT
Civilian pay; dismissal; arbitrary action.-In an action by plaintiff, a veteran preference eligible, to recover back pay lost as the result of his alleged arbitrary dismissal from his civilian employment as a mail handler in the Post Office Department, it is held that despite the fact that plaintiff's personal physician, and physicians in the employ of the Veterans Administration and the Post Office Department had all recommended that the plaintiff not be assigned to night work, plaintiff's failure to report for such night work when assigned to it, without complying with departmental instructions covering sick leave, was a breach of departmental regulations and plaintiff's dismissal for breach of those regulations was neither arbitrary nor capricious, and, from the point of view of the Post Office Department, was for such cause as would promote the efficiency of the service within the meaning of section 14 of the Veterans' Preference Act (58 Stat. 387). Petition dismissed.
Civilian pay; dismissal; cause promoting efficiency of service—what constitutes.-Where plaintiff, a disabled veteran civilian employee of the Post Office, was assigned to a night shift despite medical advice that he could not work the night shift, but
Opinion of the Court
where the assignment was in accordance with the department's seniority system, plaintiff's removal on the ground that he was absent from duty without permission and had refused to return to work, was a removal for such cause as would promote the efficiency of the service within the meaning of section 14 of the Veterans' Preference Act of 1944 (58 Stat. 387) and was not arbitrary.
Mr. Thomas A. Ziebarth for the plaintiff. Mrs. Eloise E. Davies, Mr. Carl L. Shipley, and Messrs. Shipley, Akerman & Pickett were on the brief.
Mr. Sheldon J. Wolfe, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.
LARAMORE, Judge, delivered the opinion of the court:
Plaintiff, a veteran preference eligible, sues for back pay from November 25, 1957, when he was separated from his position in the U.S. Post Office, allegedly in violation of his rights under the Veterans' Preference Act of 1944, 58 Stat. 390. He does not question the procedures invoked, but alleges the separation action was arbitrary and capricious. More particularly, he alleges "Plaintiff's dismissal for failure to violate the instructions of the V.A., P.O., and other doctors and seriously prejudice his health, pending action on his appeal to the Postmaster General, was arbitrary, capricious, unreasonable, and so grossly erroneous as to imply bad faith, and not for such cause as would promote the efficiency of the service."
Since plaintiff has accepted and relied on the statement of facts contained in defendant's brief, the court also accepts the same. The facts as disclosed by the defendant's brief are as follows:
Plaintiff, a veteran preference eligible with a 10 percent disability rating, was employed in the New York City Post Office. From August 17, 1952, to June 1, 1957, his position was that of a substitute mail handler, and on June 1, 1957, plaintiff was appointed as a regular mail handler. Prior to the latter appointment, plaintiff was assigned to the day tour upon the medical advice of the Veterans Administration that night work would cause a complete nervous breakdown. Upon being appointed as a regular mail handler on June 1,
Opinion of the Court
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1957, he was assigned to the night tour despite the advice of Veterans Administration doctors, Post Office doctors, and plaintiff's personal physician.
On September 14, 1957, plaintiff failed to report for duty after his leave of absence had expired on September 13. By letter dated September 17, 1957, plaintiff was directed to report for duty at once or be subject to disciplinary action. On September 14, plaintiff appealed to the Postmaster General concerning his assignment to night duty but received no answer. Subsequently, plaintiff's father wrote to the Postmaster General on September 28, requesting that his son be permitted to work days, and averring that upon being appointed as a regular mail handler, plaintiff had been assigned night duty, that plaintiff refused to work nights upon doctors' advice that it would be detrimental to his health, and that Post Office officials refused to assign plaintiff to a day tour because of seniority considerations.
Again, by a letter of caution dated September 25, 1957, the Superintendent of Grand Central Station, United States Post Office, directed plaintiff to return to duty immediately, or to furnish satisfactory evidence of the reason for his absence, and to comply with the above orders or be subject to disciplinary action. On the back of this letter, plaintiff answered that he had written to the Superintendent previousy requesting assignment to the day tour because of a nervous condition, that the Post Office had already received medical statements from his doctors and that no further correspondence was necessary.
On October 4, 1957, plaintiff was sent a notice of proposed adverse action setting forth the following charges:
Charge No. 1-Failure to comply with instructions governing absence.
You were absent from duty on the 8:00 a.m. tour, January 12, 1957. Although in answer to Forms 3991 you stated that you were ill, you failed to comply with instructions governing absence as no advice was received from you.
Charge No. 2-Continuous absence without leave.
You have been continuously absent from duty without leave since September 14, 1957. You were granted a leave of absence from August 6 to September 13, 1957, inclusive.
Opinion of the Court
On September 17, 1957, an official communication was sent to your address of record by registered mail, endorsed Deliver to Addressee Only, notifying that your leave of absence expired on September 13, 1957, and directing you to report for duty at once.
On September 24, 1957, at 4:00 p.m., your absence was investigated by General Foreman Nicholas DiSarie, who stated that after repeatedly ringing of your bell received
On September 25, 1957, a letter of caution was sent to your address of record by registered mail, endorsed for personal delivery only, reiterating the above facts and directing you to return to duty immediately or submit satisfactory evidence of the reason for your absence. You replied to this letter on September 28, 1957, stating that you had submitted a letter to your superintendent explaining the reason why you must work days. You further stated that there are two letters from your physician and a letter from the Veterans Administration doctor listing your illness. You also declared that you cannot work nights because of a severe service-connected nervous condition.
No further advice has been received from you, nor have you returned to duty.
On October 8, 1957, plaintiff replied denying that he had failed to comply with instructions governing absences in that he had submitted a doctor's certificate for the January 12, 1957, absence. He also denied that he had been absent without leave since September 14, 1957, in that he had submitted a form for leave accompanied by a certificate from his doctor dated on or about September 13, 1957.
Responding to plaintiff's father's letter of September 28, the Regional Director in Charge of the Post Office advised on October 9, that:
Assignments to tours are effected on a seniority basis and in accordance with seniority regulations in effect at this office.
It is regretted that your request cannot be granted, as to do so, would infringe on the rights of senior employees.
Thereafter, by letter dated November 15, 1957, the Post Office informed plaintiff that the two charges had been sustained and that he was to be separated on November 25.