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Order

normally in the agency or in the Civil Service Commission, has itself righted the wrong by reinstating the employee, Congress has authorized the limitation of the Government's liability to something less than what the liability of a private employer similarly in the wrong would be. The Government now urges us to overrule our previous decisions and to apply a statute expressly limited to situations in which an employee has been reinstated, to situations in which he has not been reinstated. And we are asked to perform this act of judicial legislation for what good purpose? To avoid subjecting the Government to the same measure of damages to which common men similarly situated are subjected. The evil does not impress us as being sufficiently ominous to justify the requested action.

As to the annual leave question, Hynning v. United States, 141 C. Cls. 486, and McGuire v. United States, supra, are in point.

Plaintiff's motion for summary judgment will be granted and defendant's similar motion denied. The plaintiff is entitled to judgment. The amount of recovery will be determined pursuant to Rule 38(c).

It is so ordered.

BARKSDALE, District Judge, sitting by designation, and LARAMORE, Judge, concur.

WHITAKER, Judge, dissenting in part in which JONES, Chief Judge, joins:

We dissent for the reasons stated in our dissenting opinions in McGuire v. United States, 145 C. Cls. 17.

In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on June 3, 1960, that judgment for the plaintiff be entered for $7,052.56, of which sum $424.35 shall be credited to plaintiff in the Civil Service Retirement and Disability Fund and $34.25 shall be credited to plaintiff in the Employees' Life Insurance Fund with the balance in the sum of $6,593.96 to be paid to plaintiff.

149 C. Cls.

Syllabus

HORACE J. FELDMAN V. THE UNITED STATES

[No. 198–59. Decided February 3, 1960)

ON DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S PETITION

Civilian pay; reduction in force; limitation of actions. In a suit

filed on May 1, 1959, plaintiff, a veteran preference eligible, seeks to recover the salary which would have accrued to him had his Government employment not been improperly terminated in a reduction in force on December 4, 1949, it is held that plaintiff's petition must be dismissed because it was filed more than six years after his cause of action first accrued (28 U.S.C. $ 2501) on December 5, 1952, when the Civil Service Commission made its final decision that the employing agency must reinstate plaintiff, such decision having been made mandatory by the 1948 amendment to section 19 of the Veterans' Preference Act of 1944 requiring agency compliance with any recommendation of the Commission relative to a veteran's appeal, including recommendations made in connection with section 12 reductions in force. In addition the court held that the "continuing claim” theory of recovery under which each failure of an employer to pay wages due at the end of the time stipulated for payment, gives rise to separate claims or causes of action for such wages illegally withheld so that a separate claim “first accrues” on each such failure to pay, is not applicable to a claim for back pay in a reduction in force situation because the application of that theory would not properly implement the statutes and regulations governing reductions in

force. Petition dismissed. Courts Cm 461 Civilian pay; reduction in force; Civil Service Commission recom

mendation-mandatory effect of—Veterans' Preference Act.Under section 19 of the Veterans' Preference Act as amended in 1948 (62 Stat. 575), recommendations of the Civil Service Commission made under section 12 relative to reductions in force, have the same mandatory effect as recommendations of

the Commission made under section 14. Officers em 72(1) Civilian pay; reduction in force; limitation of actions-accrual of

cause of action.—When an employing agency fails to obey a recommendation of the Civil Service Commission to reinstate a veteran whom the Commission has ruled has been illegally reduced in force, that recommendation of the Commission creates a new statutory claim in the veteran for his back pay in addition to the claim for pay which accrued when the improper separation took place, but the claim must be filed with

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Opinion of the Court in six years of the date of the recommendation in order to fall within the jurisdiction of the Court of Claims. 28 U.S.C.

$ 2501. Courts Om 461 Civilian pay; reduction in force; limitation of actions—accrual of

cause of action. While in some circumstances it may be proper to consider that in a suit for back pay for wrongful separation a fresh and separate cause of action accrues on each occasion that pay is due and wrongfully withheld, this theory is not applicable to claims arising out of wrongful reductions in force since the application of the theory to these situations will not properly implement the statutes and regulations governing re

ductions in force. Courts m 461

Mr. Hans A. Nathan for the plaintiff.

Mr. Kendall M. Barnes, with whom was Mr. Assistant Atiorney General George Cochran Doub, for the defendant.

Jones, Chief Judge, delivered the opinion of the court:

The plaintiff seeks to recover the salary which would have accrued to him had his Government employment not been improperly terminated. The defendant has moved the court to dismiss the plaintiff's petition on the ground that the claim asserted is barred by limitations, and on the further ground that the petition fails to state a claim on which relief can be granted.

Plaintiff, a veteran and a lawyer, served as clerk of a United States Military Government Court in Germany under the Department of the Army. In mid-1949 these functions in Germany were transferred from the Army to the Office of High Commissioner for Germany (HICOG), which was placed under the Department of State. On November 7, 1949, plaintiff received a notice of termination of his services, effective December 4, 1949. Plaintiff appealed to the Civil Service Commission, claiming that under § 12 of the Veterans' Preference Act of 1944, 58 Stat. 390, 5 U.S.C. & 861 (1952), he should have been transferred to HICOG.

128 U.S.C. $ 2501 (1958) provides that “Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.”

149 O. Ols. Opinion of the Court On July 1, 1952, the Chairman of the Commission's Board of Appeals and Review submitted to the State Department a "recommendation" by the Commission that plaintiff "be restored to active duty retroactively to the day following the last day in a full pay status and in a position of like status and pay in your Department to that from which * * * [he was] improperly separated in the Department of the Army.”

When it became apparent that the State Department would not comply with this July 1 recommendation, the Chairman of the Civil Service Commission sent a letter (dated December 5, 1952) to the Secretary of State renewing the Commission's recommendation. On December 22, 1952, the Department of State notified the Civil Service Commission by letter that "the Department has determined that it must respectfully decline to comply with the recommendations.'

On May 4, 1953, the Civil Service Commission submitted a third letter to the Department of State, again reiterating its decision that the plaintiff should be restored to duty. The State Department continued to disregard the Commission's recommendation, and the plaintiff thereafter filed suit in the district court to compel his reinstatement. This relief was denied and his complaint dismissed on April 22, 1959.3

The present petition was filed in this court on May 1, 1959— almost ten years after the Army terminated plaintiff's employment, and more than six years after the July 1, 1952, and the December 5, 1952, Civil Service Commission recommendations, but less than six years after the Commission's May 4, 1953, reiteration of the earlier recommendations. The Government contends in its motion to dismiss that the petition was filed more than six years after the plaintiff's claim first accrued. The resolution of this issue hinges on a determina

" 2

? The recommendations referred to by the State Department related not only to the plaintiff but also to another former employee of the United States Military Government Court in Germany. See Casman v. United States, 143 C. Cls. 16.

* The defendant is not contending that the plaintiff's claim is res judicata. The order of the district court does not state the reason for the action. The defendant has been advised, however, that the motion for dismissal was based upon the contention that the claim was moot, since the court in question passed out of United States control in 1955, and reinstatement to the position was therefore impossible.

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Opinion of the Court tion of the effect of these various Civil Service Commission recommendations.

It is necessary to consider first the Government's contention that the plaintiff's only claim first accrued when he was dismissed in December 1949, and that the decision of the Civil Service Commission recommending plaintiff's reinstatement did not create a new cause of action. This court held in Goodwin v. United States, 127 C. Cls. 417 (1954), that, since § 14 of the Veterans' Preference Act * provides that the Commission's recommendations in connection with appeals processed under $ 14 shall be mandatory upon the employing agency, a recommendation that the employee be reinstated created a new statutory claim against the employing agency for back pay.

Section 12 (the section involved in the case at bar) gives veterans preferential rights in reductions in force, but contains no comparable mandatory provision. The Congress, however, amended § 19 of the Veterans' Preference Act in 1948 to provide that “any recommendation by the Civil Service Commission, submitted to any Federal agency, on the basis of the appeal of any preference eligible, employee or former employee, shall be complied with by such agency.” 62 Stat. 575 (1948), 5 U.S.C. & 868 (1952), amending 58 Stat. 391 (1944). It is fairly obvious that this amendment to § 19 was intended to make decisions of the Civil Service Commission in connection with any appeal processed under the Veterans' Preference Act binding upon the executive departments and agencies. The Committee Reports clearly point toward this construction : 5

This bill proposes an amendment to section 19 of the Veterans' Preference Act of 1944 * * * by providing that the findings of the Civil Service Commission in connection with any appeal to the Commission under the provisions of the Veterans' Preference Act shall be complied with by the executive departments and agencies.

The attention of the committee has been directed many times to decisions of the Civil Service Commission which have been disregarded by the executive departments and agencies. It is obvious that the Veterans' Preference

• 58 Stat. 390 (1944), 5 U.S.C. $ 863 (1952).

'H.R. Rep. No. 1817, 80th Cong., 20 Sess. (1948), 2 U.S. Code Cong. Serv. 1966 (1948).

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