Dissenting opinion by Judge Whitaker

154 Ct. Cl.

of the State Department in his discretion, and that a failure to comply with them gave an employee a right of action for his wrongful discharge.2

That decision was not concerned with the LloydLa Follette Act. It was concerned alone with the McCarran Rider and Executive Order 9835, as amended by Executive Order 10241, and the regulations issued pursuant thereto.

The McCarran Rider was applicable alone to the employees of the State Department. It gave to the Secretary of State the "absolute discretion, *** [to] terminate the employment of any officer or employee of the Department of State or of the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States ***" (65 Stat. 581.) The Secretary issued regulations, governing the administration of that Act and others applicable to the State Department employees, just as the Civil Service Commission has done with respect to the Lloyd-La Follette Act. The Court held, with respect to the McCarran Rider, just as it had previously done with respect to the Lloyd-La Follette Act, that a failure to comply with the regulations issued with respect to it gave an employee a right of action for his wrongful discharge.

But it must be borne in mind that these regulations were issued under an Act which gave to this particular Secretary, and to none other, the discretion to discharge the employees in the State Department and only in that Department. The McCarran Rider was applicable to no other department, and it gave to no other department head authority to issue regulations relative to the discharge of its employees. Service v. Dulles does not hold that the head of a department can extend the protection of the Lloyd-La Follette Act to employees not covered by it and the regulations of the Civil Service Commission issued pursuant to it.

That is what the opinion of the majority in the instant case does: It extends the protection of the Lloyd-La Follette Act to employees not covered by it nor by the regulations of the Civil Service Commission issued pursuant to it. This is beyond the power, not only of the head of a department, but also of this court. Only Congress can do so.

Whether or not he had a right of action for loss of pay was not decided.

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The cases of Knotts v. United States, 128 Ct. Cl. 489, and Stringer v. United States, 117 Ct. Cl. 30, are not authority to the contrary. They hold no more than that an employee discharged in violation of the requirements of the LloydLa Follette Act, in one case, and of the Veterans' Preference Act, in the other, gives an employee a right of action against the United States. This is manifestly correct. These Acts were passed for the protection of employees, and, hence, a violation of them gave an injured employee a right of action.

So, also, where the regulations of the Civil Service Commission have been violated, because this Commission was authorized to issue regulations to carry into effect these two Acts enacted for the benefit of employees. But these Acts do not give the various department heads authority to issue additional regulations to carry the Acts into effect; only the Civil Service Commission is authorized to do so.

Therefore, if an employee has no right of action under these Acts or the regulations of the Civil Service Commission, as is conceded in this case, and relies alone on departmental regulations, which go beyond the Civil Service regulations, recovery must be denied, because Congress has given no right to recover in such case. Every right to recover a judgment against the United States must stem from an Act of Congress.

I regret I have been unable to convince my brethren. Perhaps the Supreme Court may be able to do so; or, if not convince them, it may direct them, anyway.

JOHN L. HOSTINSKY v. THE UNITED STATES

[No. 430-59. Decided July 19, 1961]

ON PLAINTIFF'S AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT

Civilian pay; dual compensation restriction; office-officer retired from military service for longevity.—In an action by an officer of the Regular Navy retired for longevity with retired pay, to recover the pay of a civilian position held between October 21, 1956, and August 14, 1957, and recouped from his retired pay on the theory that his appointment to the civilian position of

Opinion of the Court

154 Ct. Cl.

fire and damage control superintendent in the Maritime Administration was in violation of the Act of July 31, 1894, 28 Stat. 162, 205, as amended by the Act of May 31, 1924, 43 Stat. 245, 5 U.S.C. § 62, it is held that a Naval officer retired for longevity "holds an office" within the meaning of the 1894 statute and may not hold any other office with the Government to which pay is attached. Petition dismissed.

Civilian pay; dual compensation restriction; office-what constitutes. A retired officer of the United States (Regular) Navy retired for longevity "holds an office" within the meaning of the Act of July 31, 1894, 28 Stat. 162, 205, as amended by the Act of May 31, 1924, 43 Stat. 245, 5 U.S.C. § 62, and may not hold another office in the civilian Government service entitling him to pay.

Civilian pay; office held illegally-right to pay.-Where a person holds

a Government office illegally, he may not receive the salary of that office even though he performs the duties of the office. Royer v. United States, 59 Ct. Cl. 199, aff'd 268 U.S. 394, distinguished.

United States 39 (1)

Military pay; retired pay-not a pension.-The compensation paid to

a retired member of the military or naval forces is not in the nature of a "pension" but is "pay". Tanner v. United States, 129 Ct. Cl. 792, cert. denied 350 U.S. 842. Armed Services 13.5 (1)

Franz O. Willenbucher for plaintiff. Elmer B. Collins was on the briefs.

Arthur E. Fay, with whom was Assistant Attorney General William H. Orrick, Jr. for defendant.

WHITAKER, Judge, delivered the opinion of the court:

The plaintiff seeks recovery for work performed between October 21, 1956, and August 14, 1957, when his temporary appointment as a fire and damage control superintendent with the Maritime Administration, Department of Commerce, was terminated by resignation. He is a retired officer of the Regular Navy presently receiving longevity retired pay which he was also receiving at the time of the performance of the civilian employment.

Between August 15, 1956, and October 21, 1956, plaintiff was temporarily appointed to the position of tug master, also with the Maritime Administration. In December 1957,

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Opinion of the Court

the Maritime Administration determined that plaintiff had been illegally appointed fire and damage control superintendent and that the pay for this employment had been received by him illegally. The amount of the allegedly illegal payments was recovered by the defendant by withholding amounts otherwise due the plaintiff from his retired pay. In the view of the defendant, the employment of a retired officer like the plaintiff in a position such as he held under the Maritime Administration violates the Act of July 31, 1894, 28 Stat. 162, 205, as amended by the Act of May 31, 1924, 43 Stat. 245, which is found at 5 U.S.C. § 62 and reads as follows:

No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially authorized thereto by law; but this shall not apply to retired officers of the Army, Navy, Air Force, Marine Corps, or Coast Guard whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate. Retired enlisted men of the Army, Navy, Air Force, Marine Corps, or Coast Guard retired for any cause, and retired officers of the Army, Navy, Air Force, Marine Corps, or Coast Guard who have been retired for injuries received in battle or for injuries or incapacity incurred in line of duty shall not, within the meaning of this section, be construed to hold or to have held an office during such retirement.

The plaintiff, of course, denies that his civilian employment was illegal or that the quoted statute is applicable.

More specifically, the plaintiff advances three different theories, as alternatives, to support recovery. First, he contends that the statute is not applicable to a retired officer while in an inactive status. Next, he says that, since the second position involved only temporary employment, the statute is inapplicable. Finally, conceding for the sake of argument that the statute does apply, the plaintiff contends that his appointment as fire and damage control superintendent was valid and effective de facto and that he is entitled to retain the compensation received for services performed under the appointment.

Opinion of the Court

154 Ct. Cl.

If it be conceded that the plaintiff held an office by virtue of being a retired officer in the Regular Navy, then the holding of the office of fire and damage control superintendent with the Maritime Administration, Department of Commerce, was in violation of the Act of July 31, 1894, supra. This statute provides in part:

** * No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate. [Italics supplied.]

Since he held the office in violation of this Act of Congress, he cannot recover the salary of the office.

Plaintiff says a retired officer does not hold an office. We think that an officer in the Navy, though retired, is still an officer. He continues to draw pay as a retired officer; he draws it because he is still an officer. Being an officer, he is subject to recall to active duty at the will of his superiors. He is subject to recall whether he wishes to serve or not. He is still subject to naval discipline.

That he held the office only temporarily is of no moment. The statute makes no such exception. It says a person already holding an office shall neither be appointed to another one nor hold another one. Plaintiff sues for the salary of an office so long as he held it. To hold it at all was illegal. But plaintiff says he is entitled to the compensation of the office because he held it de facto. Whether he held it de facto or de jure, he held it, and to hold it was a violation of the Act.

Plaintiff cites in support of his de facto argument Royer v. United States, 59 Ct. Cl. 199, 268 U.S. 394, 398. That case does not support his argument for two reasons: First, Royer did not hold the office in violation of any statute. The facts in the Royer case were that General Pershing had recommended the promotion of plaintiff, who was then a first lieutenant, to major in the Medical Reserve Corps, but the