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146 O. Ols. Opinion of the Court Contrary to the suggestion of the plaintiff, the record clearly discloses that the Government acted under the LloydLa Follette Act of 1912, as amended, 5 U.S.C. 652(a),* rather than in pursuance of the Peformance Rating Act, 5 U.S.C. 2005.** But, in any event, commencement under the Performance Act was not an irretrievable election ousting subsequent proceedings and judgment according to LloydLa Follette. Moreover, while the plaintiff is accurate in his charge of the omission of the notice prescribed by the Performance Act, a prosecution under Lloyd-La Follette need not satisfy the procedures of the Performance Act. Jones v. Hobby, D.C. cir. 223 F. 2d 345 (1955);

5); Thomas v. Ward, D.C. cir. 225 F. 2d 953 (1955) cert. den. 350 U.S. 958; Hoppe v. United States, 136 C. Cl. 559, 565 (1956) cert. den. 355 U.S. 816; Sells v. United States, decided this date, ante, p. 1.

There was rubrical adherence to the Lloyd-La Follette procedures. Detailed and demonstrative were the charges the agency presented, a full apprisal of the plaintiff of the deficiencies in the quality and quantity of his work during the preceding four months and more. Time to answer was afforded initially, and then enlarged. Access to all pertinent records was granted him and ample opportunity to prepare his replies, even during working hours. Indeed, until this

•The pertinent terms are these :

No person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing. Any person whose removal or suspension without pay is sought shall (1) have notice of the same and of any charges preferred against him; (2) be furnished with a copy of such charges ; (3) be allowed a reasonable time for filing a written answer to such charges, with a fidavits; and (4) be furnished at the earllest practicable date with a written decision on such answer.

No ex amination of witnesses nor any trial or hearing shall be required except in the discretion of the officer or employee directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for removal or suspension without pay, and the order of removal or suspension without pay shall be made a part of the records of the proper department or agency, ••*; and copies of the same shall be furnished upon request, to the person affected and to the Civil Service Commission.

**The pertinent terms are these :

Each performance-rating plan shall provide for ratings representing at least • *; (2) unsatisfactory performance, which shall serve as a basis for removal from the position in which such unsatisfactory performance was rendered ; . No officer or employee shall be rated unsatisfactory without a ninety-day prior warning and a reasonable opportunity to demonstrate satisfactory performance.

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Syllabus suit the availability of all desired records was unquestioned. A written decision followed promptly. It advised him that his responses were insufficient to refute the documented specifications of inefficiency. Surely this notice qualified as "reasons given in writing" and of "charges sustained". 5 U.S.C. 652(a); Green y. Baughman, D.C. cir. 243 F. 2d 610, 612 (1957) cert. den. 355 U.S. 819; Hoppe v. United States, supra, 136 C. Cl. 559.

He was allowed to appeal the agency determination through the appropriate review tribunals of the Air Force. There it was consistently approved. So, clearly, the decision to dismiss was neither hasty, nor arbitrary, nor capricious. But, more, though entitled to appeal within ten days to the Civil Service Commission from the Air Force's approval, March 4, 1957, the plaintiff did not perfect an appeal until April 23, 1957, a wait of some fifty days. The Commission declined the appeal as too late. Having neglected seasonably to pursue this administrative remedy, the plaintiff is actually not entitled to be heard here on his procedural complaints. Bodson v. United States, 141 C. Cls. 532. Finally, his removal was Executive action, punctiliously observant of procedure, and the court cannot review the right or wrong of it. Keim v. United States, 177 U.S. 290 (1900); Eberlein v. United States, 257 U.S. 82 (1921).

Judgment must be entered summarily on the defendant's motion, the plaintiff's motion denied and his petition dismissed.

It is so ordered.

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

WALTER ALLEN, ET AL. v. THE UNITED STATES

(No. 135–58. Decided June 3, 1959]*

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Civilian pay; railroad employees of bankrupt railroad under super

vision of Federal District Court.-In an action by or on behalf

•Plaintiffs' petition for writ of certiorari denied by the Supreme Court November 9, 1959, 361 U.S. 882.

146 C. Cls. Opinion Per Curiam of the estates of 47 Negro train-porters to recover additional wages, which they allege they should have been paid by their employing railroad company for services as brakemen during the period when the railroad was operated by trustees appointed by and acting under the supervision of the District Court of the United States (E.D. Mo.), (section 77 of chapter VIII of the Bankruptcy Act, 47 Stat. 1474, 11 U.S.C. 8 205), on the ground that the practice of paying them the lower wages was unjust and discriminatory, it is held that plaintiffs are not entitled to recover because (1) plaintiffs' rights, if any, were matters for the attention of the District Court and the Circuit Court of Appeals; and (2) the United States, not being the owner of the railroad nor the employer of the plaintiffs, was not a party to racial discrimination by judicially enforc ing a discriminatory agreement between private persons (see Shelley v. Kraemer, 334 U.S. 1), and if it had, the United States still would not have become liable to compensate the

train-porters. Courts Om 518 United States On 78(5) Civilian pay; railroad employees; bankrupt railroad under supervi.

sion of District Court; Court of Claims—jurisdiction.—Employees of a railroad operated under the supervision of the Federal District Court in the course of a reorganization under section 77 of chapter VIII of the Bankruptcy Act, 47 Stat. 1474, 11 U.S.C. $ 205, have no justiciable claim against the United States for wages lost through the discriminatory practices of their private employer who remained the owner of the rail

road during the trusteeship. United States On 78(6).

Mr. Bernard Susman for the plaintiffs.

Miss Kathryn H. Baldwin, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.

Per Curiam: This suit is brought by, or on behalf of the estates of, 47 persons, herein referred to as the plaintiffs, who at some time between June 22, 1923, and October 15, 1956, worked as trainmen on the Missouri Pacific Railroad. During that period the railroad was operated by trustees appointed by, and under the supervision and control of, the District Court of the United States for the Eastern District of Missouri. The reason for the trusteeship under judicial supervision was that the railroad was going through the process of reorganization of its capital structure pur

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Opinion Per Curiam suant to the provisions of section 77 of Chapter VIII of the Bankruptcy Act, 47 Stat. 1474, 11 U.S.C. $ 205.

The plaintiffs were Negroes. During their employment with the railroad they were known as “train-porters" which was a classification applied exclusively to Negroes. As "train-porters” they assisted passengers with their baggage, and performed other tasks. But in addition to those tasks, they performed all of the functions of "brakemen” on passenger trains. They were not, however, paid the wages which white men who worked as brakemen on passenger trains were paid.

During World War I, while the railroads were administered by the Government through the agency of a Director General of Railroads, men who did the kind of work which the plaintiffs did were classified as brakemen, or porterbrakemen, and received brakemen's pay. The railroads were returned to private management in 1921, and then the Missouri Pacific and the Brotherhood of Railroad Trainmen, a union which admitted no Negro members, entered into an agreement whereunder Negroes would not be employed as brakemen, and white men would not be employed as "trainporters” on passenger runs. Thereafter the plaintiffs worked as train-porters, and as such received less pay than brakemen. This practice continued from 1921 until the railroad went into the trusteeship in 1933, and continued through the trusteeship until 1956, when the railroad was returned to the direct management of its owners. So far as we are advised, the practice still continues.

The plaintiffs allege that the practice of paying Negro brakemen less than white brakemen, and of requiring Negro brakemen to perform porters' duties in addition to brakemen's duties, was “unjust and discriminatory.” That much would seem to be obvious. They further say that the practice was violative of the plaintiffs' constitutional and statutory rights. In this proceeding they are suing the United States for the additional wages which, they say, they earned but were not paid because of the discriminatory practice.

The plaintiffs cannot recover. When a sovereign sets up courts for the adjudication of the rights of its citizens, it makes available to its citizens an essential and useful service. 146 C. Cle. Opinion Per Curiam It does not thereby undertake to right all wrongs out of the public treasury. It may well be that the alleged discriminatory practice of the railroad while it was in private management between 1921 and 1933 was, if it occurred, a violation of law. See Steele v. L. and N. R. Co., 323 U.S. 192. If so, the “train-porters" had the same access to the courts that the complainant had in Steele. During the period covered by the instant suit, the Missouri Pacific was operated by trustees appointed by and under the supervision of a District Court of the United States. If the alleged discriminatory practice was illegal, it would seem that a complaint could have been made to the court, which could have required the trustees to operate the railroad in all respects in conformity with the law. So far as appears, no such complaint was made. If complaint had been made and the District Court had failed to properly protect the legal rights of the plaintiffs, appellate relief would have been available.

Instead of asserting their alleged rights in tribunals made available to them by the Government for that purpose, they sue the Government for money compensation for their asserted wrongs. They seek to stretch the doctrine of such cases as Shelley v. Kraemer, 334 U.S. 1, to make it fit their situation. The doctrine of those cases is that the States and the Federal Government, through their judicial branches, will not become particeps to a racial discrimination, by judicially enforcing a discriminatory agreement between private persons. We have no such situation here. The United States did not own the railroad, nor employ the plaintiffs. It merely made available to a railroad in financial distress a judicial proceeding which might lead to a rational reorganization. Because of the court's supervisory powers, relief from illegal employment practices would seem to have been more easily available than in the normal situation. But the court did not become a policeman on a beat, charged with the duty of detecting violations of which no complaint was made. The United States did not, through its judicial branch, enforce a discriminatory practice against the plaintiffs. And if there had been, which there was not, any error or neglect of duty on the part of the court, the United States

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