Cain v. United States, 47C491.

• Court: U.S. District Court — Northern District of Illinois
• Writing for the Court: William C. Dill, of Milwaukee, Wis., and Edward U. Dithmar, of Chicago, Ill., for plaintiff
• Citation: Cain v. United States, 73 F.Supp. 1019 (N.D. Ill. 1947)
• Decision Date: 17 September 1947
• Docket Number: No. 47C491.,47C491.
• Parties: CAIN v. UNITED STATES.

73 F. Supp. 1019

CAIN v. UNITED STATES.

No. 47C491.

District Court, N. D. Illinois, E. D.

September 17, 1947.

William C. Dill, of Milwaukee, Wis., and Edward U. Dithmar, of Chicago, Ill., for plaintiff.

Otto Kerner, Jr., of Chicago, Ill., for defendant.

SULLIVAN, District Judge.

Plaintiff brings this suit under Section 41(20), 28 U.S.C.A. (section 24(20) of the Judicial Code, as amended,) commonly known as the "Tucker Act," wherein she seeks to recover the sum of $297.12 claimed to be due her on account of accumulated annual leave to which, as a civilian employee of the Federal Government she alleges she was entitled under the provisions of Title 5 U.S.C.A. Sections 61b and 61d.

The complaint sets out that on October 24, 1944, because of absence in the military service of Judge Minton's regular secretary, she was appointed by Judge Sherman Minton, one of the Judges of the Circuit Court of Appeals for the Seventh Circuit, as his secretary, and that she so remained employed until June 29, 1946. That on June 29, 1946, on account of the return of the former secretary, plaintiff was separated from the Government service without cause.

That under the provisions of Sections 61b and 61d, 5 U.S.C.A. she was entitled to cumulative leave for the term of her service, which leave amounted to 25 working days and represented the sum of $297.12. That she has made due demand for this sum but the United States Government has failed and refused to pay the same.

The Government filed its motion to dismiss the complaint on the ground that the Tucker Act does not confer jurisdiction on District Courts to entertain suits brought by officers of the United States for the recovery of fees, salaries or compensation for official services. Therefore, the Government contends that under the Tucker Act this court is without jurisdiction of the parties or subject matter here involved.

The Tucker Act provides:

"The district courts shall have original jurisdiction as follows:

"* * *

"(20) Suits against United States. Twentieth. Concurrent with the Court of Claims, of all claims not exceeding $10,000 founded upon the Constitution of the United States or any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States * * *"

"Provided, however, that nothing in this paragraph (section 24(20) of the Judicial Code) shall be construed * * * as giving to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States * * *."

Disposition of the motion now pending before me therefore depends primarily upon whether plaintiff was "an officer of the United States" who brought an action "to recover fees, salary, or compensation for official services" within the meaning of the Tucker Act.

The courts seem universally to have held that the limitation of jurisdiction under the Tucker Act applies to those claimants who are "officers of the United States" within the meaning of Article 2, Section 2, Clause 2 of the Constitution of the United States. Kennedy v. United States, 5 Cir., 146 F.2d 26; Callahan v. United States, 74 App.D.C. 281, 122 F.2d 216; Oswald v. United States, 9 Cir., 96 F.2d 10. Except for this limitation the district courts and the Court of Claims have concurrent jurisdiction.

Article 2, Section 2, Clause 2, of the Constitution of the United States provides: "* * * and he (the President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint * * * all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

It is therefore apparent that in order to be designated an "officer of the United States" a person must have been appointed in one of the modes prescribed in Article 2, Section 2, Clause 2 of the Constitution. In Hoeppel v. United States, 66 App.D.C. 71, 85 F.2d 237, 241, the court states the rule thus: "We think it is well settled that a person in the service of the United States, who has been appointed in any of the modes prescribed in article 2, § 2, Cl. 2 of the Constitution, is an officer of the United States, and, conversely, that any person in the service of the United States who has not been so appointed is not, strictly speaking, an officer of the United States."

In Scully v. United States, C.C., 193 F. 185, 187, the court said: "There can be no offices of the United States, strictly speaking, except those which are created by the Constitution itself, or by an act of Congress * * *."

The Constitution nowhere provides for the appointment of secretaries to either circuit or district judges, and until July 27, 1947, there was no legislation or statutory authority of any kind providing for their appointment. Prior to July 27, 1947, no legislation created the office of secretary to a circuit or district judge, nor provided by whom such secretaries were to be appointed, outlined their duties, or provided for how long they should hold their offices.

Section 222a of Title 28 U.S.C.A. provides for the appointment of law clerks to circuit judges.

The Government admits that no legislation provides for the appointment of secretaries to circuit or district judges, but urges that authority for their appointment is found in the...