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Opinion of the Court Surgeon General recommended his promotion only to the grade of captain, and that was ratified by the Secretary of War. However, by inadvertence, the Adjutant General cabled General Pershing that plaintiff had been appointed as major, and the Surgeon General's office in France notified Royer that he had been commissioned as major, and requested him to submit his letter of acceptance and oath of office, which he did. He thereupon entered upon the duties of the office of major in the Medical Reserve Corps, wore the insignia of the office, and received the pay of the office. Some four months later, he was duly promoted to the office of major. Royer did not hold the office in violation of law. Here plaintiff did hold the office in violation of law. Second, in Royer, the United States sought to make Royer refund the salary he still retained. Here plaintiff had been required to refund the money and he sues to recover it. In Royer, the officer was permitted to retain the money paid him by mistake, but the courts will not lend their aid to recover money,

the payment of which is illegal. The court will not be a party to the violation of the law.

Congress thought that the Act of 1894 applied to retired officers because in 1924 it amended the 1894 Act by providing that:

* * * Retired enlisted men of the Army, Navy, Marine Corps, or Coast Guard retired for any cause, and retired officers of the Army, Navy, 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. [Act of May 31, 1924, 43 Stat. 245.] Plaintiff relies on the statement in the case of Geddes v. United States, 38 Ct. Cl. 428, that an officer's retired pay is but "an honorary form of pension.” If it were a pension, this court would have no jurisdiction of suits to recover retired pay (28 U.S.C. $ 1501), and, yet, we constantly take jurisdiction of such suits, and no one questions our authority to do so. The quoted statement is directly contrary to the recent cases of Tanner v. United States, 129 Ct. Cl. 792, cert. denied 350 U.S. 842; and Watman v. United States, 152 Ct. Cl. 769.

154 Ct. Cl. Syllabus Consequently, we conclude that plaintiff is not entitled to the compensation he received as fire and damage control superintendent with the Maritime Administration, because the holding of that office was in direct violation of the mandate of Congress as contained in the Act of July 31, 1894, supra.

It will be noted that plaintiff does not come within the provisions of the Act of May 31, 1924, supra, because he was not retired "for injuries received in battle or for injuries or incapacity incurred in line of duty.” He was retired for longevity.

Plaintiff's motion for summary judgment is overruled; defendant's like motion is granted, and plaintiff's petition will be dismissed.

It is so ordered.

DURFEE, Judge; LARAMORE, Judge; MADDEN, Judge; and JONES, Chief Judge, concur.

SHIRLEY ZAVERL V. THE UNITED STATES

(No. 18–57. Decided July 19, 1961)

ON THE PROOFS

Civilian pay; suspension without pay; recovery-measure of; admin

istrative remedies.-In an action by a veterans' preference employee of the Post Office Department, to recover back pay during periods of suspension when there was no stenographic work for her to do but when she should have been given other work for which she was qualified in preference to other employees with less seniority and qualifications, 140 Ct. Cl. 494, it is held that plaintiff is entitled to recover for the work which she could have done and to which she was not assigned, and her failure to appeal to the Civil Service Commission from the decision of the Regional office was not a failure to exhaust her administrative remedies inasmuch as she had been reinstated under the employing agency's appeal procedure and any appeal

to the Commission was therefore moot. Judgment for plaintiff. Civilian pay; suspension without pay; administrative remedies; ap

peal to Civil Service Commission from reinstatement without back pay.—Where a civilian Government employee who has been wrongfully suspended from her position appeals her suspension to the employing agency authorities and also to the Regional

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Opinion of the Court office of the Civil Service Commission, and where her appeal within the employing agency is successful and she is reinstated in her position but without an award of back pay, her failure to appeal thereafter to the Civil Service Commission does not prejudice her right to recover back pay for the period of suspension because her reinstatement made her appeal to the Commission moot in any event. Under these circumstances there

has been no failure to exhaust administrative remedies. United States On 39(8) Civilian pay; suspension without pay; recovery-measure of.—Where

a civilian Government employee who was improperly suspended from her position without pay is later reinstated and sues to recover the pay she would have earned had she been permitted to work, and where it appears that she would not have been able to do part of the work done during her absence, she is only entitled to recover what she would probably have earned based on the average number of hours per day actually worked

by her during the six-month period prior to her suspension. United States em 39(8)

Joseph Robbie for the plaintiff. Robbie & Hoffman were on the briefs.

Richard R. Molleur, with whom was Assistant Attorney General William H. Orrick, Jr. for the defendant.

MADDEN, Judge, delivered the opinion of the court:

The plaintiff sues to recover back pay for a period during which she claims to have been wrongfully suspended from work in the United States Post Office in Duluth, Minnesota.

In an earlier phase of this case the Government made a motion for summary judgment, which the court denied, with an opinion. 140 Ct. Cl. 494. That opinion recited the facts alleged in the plaintiff's petition. The case was referred to a commissioner for trial, and the plaintiff proved, substantially, the facts alleged in her petition.

The Government urges that the plaintiff should not recover because she failed to exhaust her administrative remedies. The plaintiff, at the same time that she was appealing to the Post Office authorities, appealed to the Ninth Civil Service Region of the United States Civil Service Commission, but was advised by the Ninth Region that any appeal rights which she might have were within the Post Office Department. She was also told that any further appeal from the Ninth Region's decision would have to be made to the Civil

154 Ct. Cl.

Opinion of the Court

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Service Commission within 7 days after the receipt of the Ninth Region's decision.

Some months before the plaintiff received this advice from the Civil Service Commission's Ninth Region, her appeal within the Post Office Department had borne fruit, and she had been put back to work. Her failure to appeal her case, which had been rendered moot by her reinstatement, to the Civil Service Commission, does not prejudice her right to recover back pay.

The plaintiff had the status, throughout the entire period covered by this suit, of an "indefinite substitute clerk.” That meant that she was not entitled to steady employment, but she had to hold herself in readiness to work if a substitute was needed and she was called. It would have been impracticable for her to have taken other employment without forfeiting or at least endangering her status. The only period for which plaintiff was even conditionally advised that there would be no work for her was a period of one month, January 26 through February 28, 1953. Even for that period, the notice only said that there would be no work for her "unless there was extended sick or annual leave of one of the stenographers."

The plaintiff frequently applied to her Post Office for work but was advised that no typing or stenography work was available. She had a right, as the Post Office ultimately decided, to any kind of work, and she so insisted in her requests for work. She made her protests to every Government agency that she thought might help her, and finally succeeded in getting the work to which her status entitled her. There was no time during which she could reasonably have been expected to seek or accept outside employment.

The Government urges that the plaintiff would not have been able to handle all the different kinds of work which was done by the male substitute clerks with less seniority, during the period when the plaintiff was given no work. There was handling of mail bags, loading and unloading trucks, handling and distributing parcels, and, occasionally, working as mail carriers. We think that the Government's contention is well-founded, and that the most dependable way to compute the number of hours of work which the plaintiff lost is to

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Findings of Fact

take, as a measure, the average number of hours per day that she actually worked during the six-month period before she was suspended.

According to this measure, the plaintiff lost pay in the amount of $3,688.53 during her suspension, and judgment in that amount will be entered in her favor.

It is so ordered.

DURFEE, Judge; LARAMORE, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur.

FINDINGS OF FACT

а

The court, having considered the evidence, the report of Trial Commissioner Currell Vance, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff, a resident of Duluth, Minnesota, is a married woman, with veteran's preference, who had completed a trial or probationary period of Federal service prior to the pertinent time in suit. Plaintiff's claim is for back pay for periods during which she was not called to work while employed by the Duluth post office as an indefinite substitute clerk.

2. In September 1952, while working as a full-time employee at the St. Paul, Minnesota post office, as an indefinite substitute clerk with stenographic qualifications, plaintiff applied for a job at the Duluth post office, since her husband had then secured employment in Duluth. At that time plaintiff preferred, if possible, to obtain work for about 6 hours per day rather than full time, in order to enable her to get her daughter ready for school before reporting for work.

3. The Duluth post office was desirous of obtaining the services of a stenographer during this period, primarily to catch up on the typing of new distribution schemes of that office. A bulletin of this position was posted for Duluth post office employees to bid on, if they desired this job and were qualified. This notice, posted at Duluth on September 17, 1952, reads as follows:

Part time stenographic assistance will be needed in the office in the immediate future. Any classified employee, who feels he is qualified, may contact the postmaster, or assistant, on or before September 26th. Knowledge of

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