44 Findings of Fact Army, advised plaintiff that a review of the claim was about completed and it would be forwarded to the General Accounting Office for direct settlement. No part of it, however, has been paid by the consignee or the defendant. 31. The following is a breakdown of the amount now in controversy reflecting adjustments allowed by plaintiff in its previous computations of freight charges and taxes: $875. 09-Freight charges. 6. 44-Switching charges. 188. 10-Demurrage. 11. 38-Tax. 7. 00-Printing of 75 posters announcing the public sale. 71. 82-Expense incurred by plaintiff by advertising the public sale in the Philadelphia Inquirer once a week for three successive weeks. 1, 159. 83-Total. 193. 20-Proceeds of sale. 966. 63-Balance claimed by plaintiff. 32. Mr. King does not deny liability to plaintiff for the shipping charges. He has, however, taken the position that if the court holds the defendant Government liable that such defendant is entitled to an equal judgment against him and that in turn he has a recourse upon Columbia Waste Material Company. This is also the position of the defendant Government. No action of any sort has ever been instituted by King, individually or trading as Aaton Company, against Columbia Waste Material Company nor by plaintiff against King or Columbia. Plaintiff insists that both the Government and King are obligated to pay but that the Government should do so and then be subrogated to plaintiff's right to recover from King. 33. King was not an agent of Columbia Waste Material Company nor was there any ratification or adoption of his acts by that company in connection with the purchase or shipment of the materials involved here. King was at all times acting on his own behalf. The relationships between the defendant Government and the contingent defendants Michael King and Columbia Waste Material Company were all unknown to the plaintiff at the time of shipment. 351930-55-6 Syllabus CONCLUSION OF LAW 131 C. Cls. Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law plaintiff is entitled to recover against the defendant Government in the amount of nine hundred sixtysix dollars and sixty-three cents ($966.63). The Government is entitled to a judgment in the same amount against the third party defendant Michael King. The Government's contingent claim against Columbia Waste Material Company as a third party defendant is dismissed. JOHN CUIFFO v. THE UNITED STATES [No. 199-54. Decided March 1, 1955.] On Motions For Summary Judgment Suit for salary; veteran discharged and restored on appeal; administrative remedies.—Where plaintiff, a veteran, employed at the Brooklyn Navy Yard, sues for salary for the period between his discharge and his restoration to duty, it is held that plaintiff is not precluded from recovery in the Court of Claims by reason of his failure to appeal to the Civil Service Commission. United States 39 (11) Same; failure to follow administrative procedure.-Whether administrative remedies must be followed to completion before suit in the Court of Claims depends on whether the statute permits or requires resort to the administrative remedy. Courts 460 Same; provisions of Veterans' Preference Act.-The Veterans' Preference Act of 1944 does not require an appeal to the Civil Service Commission prior to bring suit for a deprivation of a veteran's rights under that act. The right of appeal under the statute is permissive only. United States 39 (11) Same; requirement in instant case.-Where an Act requires resort to administrative procedure before bringing suit that procedure must be followed to completion, but where an administrative remedy is provided and it is not expressly nor impliedly required that the procedure should be followed before suit is brought, it is at least doubtful that in every case a claimant is required to pursue the administrative remedy as a prerequisite 60 Opinion of the Court to suit. It is held, on the facts, that it is not so required in the instant case. Administrative Law and Procedure 229 Same; restoration to duty recommended by Appeal Board.-In the instant case, plaintiff, accused of taking lumber from the Navy Yard, was discharged on September 18, 1952. He had been given an opportunity to show cause why he should not be discharged but had not done so. On separation he was notified of his right to appeal, either directly to the Civil Service Commission or through military channels. He elected to appeal to the military authorities and his separation was approved on appeal, except that the Grievance Review Board, Civilian Personnel, in view of plaintiff's excellent record, recommended his restoration to duty as of a current date. He was restored to duty August 3, 1953. The instant suit is for pay during the period of his separation, 320 days. United States 39 (11) Same; penalty of separation arbitrary and unfair.—On the showing made, on the motions for summary judgment, where it is determined that the penalty imposed by plaintiff's separation was a departure from fair dealing and tolerable personnel policy, with reference to a veteran with an excellent record, it is held that the action of the Review Board was arbitrary and unfair and should be set aside. Same; recovery allowed.-Where it is found that a suspension of 30 days without pay would have been sufficient punishment for the offense with which plaintiff was charged, it is held that plaintiff is entitled to recover for his wrongful suspense for 290 days. Judgment suspended. United States 39 (8) Mr. Carl L. Shipley for plaintiff. Mr. Samuel Resnicoff was on the brief. Miss Kathryn H. Baldwin, with whom was Mr. Assistant Attorney General Warren E. Burger, for defendant. WHITAKER, Judge, delivered the opinion of the court: Plaintiff was employed as a blocker and bracer at the New York Port of Embarkation, Brooklyn, New York, at an hourly wage of $1.67 for daytime work, and $1.83 an hour for night-time work. He was discharged, effective September 30, 1952, but was restored to duty on August 3, 1953. He sues for his pay in the meantime. Opinion of the Court 131 C. Cls. Defendant defends on the sole ground that plaintiff has not exhausted his administrative remedy. Plaintiff was discharged because he took from the premises for his own use some lumber that had apparently been discarded. Since this case is before us on motions for summary judgment, we do not know all the facts, but we are under the distinct impression that plaintiff did not realize he was doing anything wrong when he took the lumber. He readily admitted he had taken it, and volunteered the information that he had done so on other occasions. He says that on many occasions he had seen similar lumber burned in the incinerator or given away to nearby householders, and that he thought the Government did not want it and, hence, he saw no reason why he should not take it. Before dismissal he was given an opportunity to show cause why he should not be. He did not avail himself of this opportunity and, accordingly, on September 18, 1952, he was notified that he would be separated from the service, effective September 30, 1952. The letter of separation was signed by the Chief of the Civilian Personnel Branch of the Personnel and Administration Division of the Port of Embarkation. He was notified that he had the right to appeal from the decision "by submitting a written request for review to the Commanding General, New York Port of Embarkation ***" He was also advised that "As a veteran, you may file written appeal under section 14 of the Veterans Preference Act of 1944, with the Regional Director, United States Civil Service Commission, *** within ten (10) calendar days after the effective date of your separation." But, after so advising him, he was warned: You may appeal directly to the United States Civil Service Commission; however, a grievance will not be considered under Department of the Army regulations while an appeal on the same subject is pending with the Civil Service Commission, nor will you have the right to further consideration of your grievance under Department of the Army regulations after a decision. has been rendered by the Civil Service Commission. You are also informed that your election to utilize the Department of the Army grievance procedure may pre 60 Opinion of the Court clude your right to appeal to the Civil Service Commission under Section 14 of the Veterans Preference Act of 1944, inasmuch as such appeals must be submitted within ten (10) days after the effective date of the adverse action. Plaintiff elected to appeal to the Commanding General, New York Port of Embarkation. The Commanding General approved the decision of the Chief of the Civilian Personnel Branch. Plaintiff then requested a review by the Chief of Transportation, Washington, D. C. His request was referred to the Civilian Personnel, Grievance Review Board. This Board, in view of plaintiff's "enviable record at the Port" and of his "good reputation for honesty, sobriety, integrity, and veracity," recommended that plaintiff "be restored to duty as of a current date in a position of the same seniority, status, and pay to that which he occupied prior to his removal, and that the intervening period from his removal to his restoration be regarded as a non-pay status and just punishment for his attempt to remove Government property without proper authority." Plaintiff did not appeal to the Civil Service Commission. For his failure to do so, defendant says he is precluded from suing in this court. Under the facts of this case, we do not think plaintiff is so precluded. Wherever the statute prescribes an administrative remedy to be followed before resort is had to the courts, that remedy of course must be followed to its ultimate conclusion. The Veterans Preference Act, however, did not require an appeal to the Civil Service Commission prior to bringing suit for a deprivation of his rights under that Act. The Act said a "preference eligible" should not be discharged "except for such cause as will promote the efficiency of the service," that he should be advised in advance of the reasons for his discharge and be given an opportunity to answer, and “shall have the right to appeal to the Civil Service Commission from an adverse decision of the administrative officer so acting, such appeal to be made in writing within a reasonable length of time after the date of receipt of notice of such adverse decision." (Italics ours.) |