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148 C. Cls.

value of all the accumulated work the substitute attorney had done on these cases, and plaintiff would have to take them up more or less from the beginning. His restoration after so long a lapse of time would be disruptive of the Government service. In a suit for salary in this court the only hardship on defendant is the payment of two salaries for one job. This is a hardship, too, but it is not the same problem as the one confronting the District Court.

Since the policy considerations for the application of laches differ in this suit from those in the former action, we are not estopped by the judgment of the Court of Appeals from considering the question of whether the doctrine of laches should be applied in this suit. Congress has specifically provided a six-year statute of limitations for claims asserted in this court. Ordinarily a claimant has the full statutory period. It is only where some great injustice would be done the defendant by so long a delay by the claimant that the doctrine of laches should be set up to defeat consideration of the claim on the merits. The equities on both sides should be carefully weighed, and it should be clear that they weigh heavily on the side of the defendant before the court refuses to hear a case because of a delay of less than the statutory period. How the equities are to be balanced in one case is but little guide in another case. Each case must be considered in the light of its own facts and in the light of the relief sought.

Defendant's motion to dismiss the petition is overruled. It is so ordered.

LITTLETON, Judge (Ret.); LARAMORE, Judge; MADDEN, Judge, and JONES, Chief Judge, concur.

DANIEL L. LONG v. THE UNITED STATES

[No. 351-58. Decided January 20, 1960]

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

Civilian pay; dismissal; 30 days' notice; administrative remedies.— In an action by plaintiff, a preference eligible, to recover back pay lost because of his allegedly illegal dismissal from his

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Opinion of the Court

civilian Government position, the illegality claimed being the failure of the employing agency to give plaintiff 30 days' advance written notice of the proposed adverse action and its failure to grant him an opportunity to answer the charges against him personally, as guaranteed by section 14 of the Veterans' Preference Act of 1944, 5 U.S.C. § 863, it is held that plaintiff was given the required advance notice of 30 days and his failure to appeal to the Civil Service Commission the alleged failure to grant him a personal interview and his failure to present to the Commission evidence of his request for such an interview, precludes his basing his case on that particular procedural defect. Petition dismissed.

Officers 68

Civilian pay; dismissal; 30 days' notice-what constitutes.-Where a civilian employee of the Government entitled to the benefits of the Veterans' Preference Act of 1944, 5 U.S.C. § 863, receives a letter of charges on August 31, is thereafter on September 30 notified that he is to be discharged immediately but later the effective date of his dismissal is set for October 5, the employee has had the 30 days' notice required by section 14 of the Veterans' Preference Act.

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Civilian pay; dismissal; administrative remedies-failure to exhaust. Before the Court of Claims will consider a plaintiff's claim that his employing agency denied him the right to personally answer the charges brought against him in connection with his proposed dismissal from civilian Government employment, it must be shown that this procedural defect (section 14 of the Veterans' Preference Act of 1944, 5 U.S.C. § 863) was made one of the grounds of the plaintiff's appeal to the Civil Service Commission which agency has been authorized by Congress to hear and decide such cases in the first instance. When no evidence of a request for such an interview is presented to the Civil Service Commission, the court will not consider the question of the alleged failure of the employing agency to grant the interview.

Officers 72 (2)

Mr. Donald M. Murtha for the plaintiff.

Mr. Francis J. Steiner, Jr., with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.

MADDEN, Judge, delivered the opinion of the court:

The plaintiff, a veterans' preference eligible, was, in 1955, discharged from his position as a guard in the United States

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Opinion of the Court

148 C. Cls.

Post Office in Los Angeles, California. He claims that the procedure by which his discharge was accomplished did not comply with the law, and he therefore sues for back pay.

On or about August 7, 1955, the plaintiff took approved leave of absence, and on the form on which he applied for the leave he gave three addresses in Texas, and the periods during which he would be at each of those addresses. He returned to his home in Los Angeles on August 31, and found a letter from the Postmaster dated August 30, pointing out that he had not answered a letter of August 11. He also found a notice of certified mail being held for him at a post office substation. On August 31 he went to the substation and the certified mail could not be found. He then went to the post office and made inquiry and was given what he was told was a copy of the August 11 letter referred to in the Postmaster's letter of August 30. He signed a receipt for this paper. It was a purported copy of a letter of charges, and said that the plaintiff would have five days in which to answer the charges. On that same day, August 31, the plaintiff asked for time to answer and was told that he could answer by September 7. He submitted his answer about September 4.

On September 30 a letter was written to the plaintiff by the Regional Operations Office of the Post Office Department, which regional office was in San Francisco, advising the plaintiff that after consideration of the evidence, including the plaintiff's reply, it had been decided that the charges had been sustained, and that the Los Angeles Postmaster had been directed to remove the plaintiff from the postal service effective immediately. By a letter dated October 4, the Los Angeles Postmaster discharged the plaintiff effective as of the close of business October 5.

The plaintiff appealed his discharge to the Civil Service Commission, which, on May 10, 1956, affirmed the action of the Postmaster.

Section 14 of the Veterans' Preference Act of 1944, 5 U.S.C. 863, provides that a veteran who is sought to be discharged from the civil service "shall have at least thirty days' advance written notice stating any and all reasons" etc.

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Opinion of the Court

The plaintiff urges that he did not receive a valid letter of charges, and was not given the 30 days' written notice to which he was entitled under section 14. We think the carbon copy of the charges, which the plaintiff receipted for without objection on August 31, and which he and his lawyer answered without objection on September 3, became, by the plaintiff's waiver of its possible imperfections, a valid letter of charges. As to the 30-day notice period, the letter of charges said:

Any action which may be taken on the charges will not be effective until thirty full calendar days after the day you receive this letter."

The plaintiff, as we have seen, received the letter on August 31. He was discharged, effective October 5. While the letter from San Francisco was written on September 30, less than 30 days from August 31, the effective date of the discharge was October 5. We hold that the 30-day requirement was satisfied.

The plaintiff says that he was not permitted to answer the charges "personally" as section 14 of the Veterans' Preference Act requires. He cites our decision in Washington v. United States, 137 C. Cls. 344. The Government says that the plaintiff did not request an opportunity to have a personal interview with the postmaster. The plaintiff tenders a writing which, he says, he put into the proper channels to reach the postmaster, and which writing requested a personal interview. The Government would, if the matter came to trial, dispute the genuineness of the tendered writing. For the purposes of the present motions, however, the Government contends that if there was a request for a personal interview, and a failure to comply with that request, those facts were not called to the attention of the Civil Service Commission and therefore cannot be raised in this court.

After the plaintiff's discharge on October 5, 1955, he appealed to the Civil Service Commission, as he had the right to do under section 14. The appeal stated as its ground:

That the adverse decision is arbitrary, unsound, unjust, illogical and inconsistent with the facts of said case.

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148 C. Cls.

In his closing argument before the Civil Service Commission's regional hearing officer, in the course of a rather lengthy argument, most of which had to do with the merits of the case, the plaintiff's counsel said, without elaboration, "He was denied an interview to which a veteran is entitled." A perusal of the transcript of the evidence which had just been taken discovers no mention in the evidence of a request for or denial of an interview. In answer to his counsel's question as to whether he had been interviewed by his superiors at the time of his discharge the plaintiff answered "No."

The Regional Office of the Civil Service Commission decided against the plaintiff. He thereupon appealed to the Board of Appeals and Review of the Commission. Among the grounds for appeal, No. 3 was "Failure of the Post Office Department to grant appellant an interview." In the Post Office Department's answer to the plaintiff's appeal, it said:

Mr. Long was interviewed by the Director of Personnel at the Los Angeles Post Office. He did not request an interview with the Postmaster. Had he requested such an interview it would have been granted in accordance with the usual custom of the Postmaster.

The plaintiff, in the appeal proceeding, submitted an affidavit in which he said:

2. I have, at no time, ever been PERSONALLY INTERVIEWED by any official of the Post Office, the Captain of the Guard, the Lieutenant in charge, the Superintendent of the Building, the Postmaster, or the Director of Personnel on the charges made against me. The matter of there not having been a personal interview was, then, frequently referred to in the administrative proceedings. We think it was brought forward, not as an asserted procedural error, but as evidence of arbitrary and inhumane conduct on the part of the Department, the summary discharge of an employee of long standing with a good previous record, a family to support, and physical infirmities, without discussing his problems with him.

We think section 14 does not require a department to tender a personal interview to an employee against whom it

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