Clark v. United States, 47009.

• Decision Date: 07 July 1947
• Docket Number: No. 47009.,47009.
• Citation: 72 F. Supp. 594
• Parties: CLARK v. UNITED STATES.
• Court: U.S. Claims Court

72 F. Supp. 594

CLARK v. UNITED STATES.

No. 47009.

Court of Claims.

July 7, 1947.

Lloyd Paul Stryker, of New York City (Harold W. Wolfram, of New York City, on the brief), for plaintiff.

Edgar T. Fell, of Baltimore, Md., and John F. Sonnett, Asst. Atty. Gen. (Edward L. Metzler, of Washington, D. C., on the brief), for defendant.

Before BOOTH, Chief Justice (retired), recalled, WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.

WHITAKER, Judge.

Plaintiff, William Clark, sues for the salary to which he claims he is entitled as a judge of the United States Circuit Court of Appeals for the Third Circuit from August 15, 1945, to the date of rendition of judgment.

Shortly after the outbreak of World War II, to wit, on January 30, 1942, plaintiff wrote the President of the United States stating that he desired to serve in the armed forces of his country, and on February 16, 1942 he applied to the Adjutant General of the United States Army for appointment as Lieutenant Colonel, Field Artillery, Officers' Reserve Corps. On March 8, 1842 he was appointed a Lieutenant Colonel, and on March 10 he was directed to report to the Chief of Staff for duty. On March 24, 1942 he took his oath of office as a Lieutenant Colonel in the Army of the United States.

As of the last mentioned date, plaintiff wrote the President of the United States a letter submitting his resignation as Circuit Judge of the United States Circuit Court of Appeals for the Third Circuit, in order to accept a commission in the Army of the United States. This letter follows:

"United States Circuit Court of Appeals "Third Judicial Circuit "Chambers of Judge Clark. "Newark, N. J., March 24, 1942. "The Honorable Franklin D. Roosevelt "The White House, Washington, D. C.

"Dear Mr. President: This letter submits my resignation as Circuit Judge of the United States Circuit Court of Appeals for the Third Circuit. I am doing this because I am today taking the oath of office as a Lieutenant Colonel in the Army of the United States. I am reporting to the General Staff for duty and I hope will eventually be sent to some field or foreign post where I can be useful. I thought that my military experience might well justify more than a transfer from one desk to another. I have most enthusiastically followed your awareness of what we have been facing in the world and with you I agree that "business as usual" or "courts as usual" must not continue. As I have on occasion expressed myself to that effect, I have wanted to practice what I have been preaching.

"God keep you in your task of leading us all to victory.

"Respectfully "(Sgd.) William Clark "William Clark."

As of the same date plaintiff wrote the President another letter, the first and last paragraphs of which were identical with the foregoing letter, but which contained, in addition, the following paragraph:

"It would be hypocritical for me to pretend that I should not like to have you accede to the request of my colleagues that the Congressional precedent be followed and leave of absence be granted. I have been a judge now for eighteen years, most of my adult life. I love the work and to give it up even for a short time is a great sacrifice. Because of that, however, I feel I am too closely concerned to be able to say what should be done. For this reason, I feel I must leave the decision to you."

The President replied on March 26 as follows:

"March 26, 1942.

"Honorable William Clark,

"United States Circuit Court of Appeals "Princeton, New Jersey.

"My dear Bill

"Since talking to you the other day, I have been advised that under the law your voluntary entry into the military service will not permit the retention of your commission as United States Circuit Judge.

"Under the circumstances I must regretfully accept your resignation from the judicial post.

"With appreciation for your long and able service, and for the patriotism which has moved you to your present choice, I am

"Very sincerely yours "Franklin D. Roosevelt."

On April 2, 1942, plaintiff wrote the President as follows:

"United States Circuit Court of Appeals "Third Judicial Circuit "Chambers of Judge Clark. "Newark, N. J., April 2, 1942. "Honorable Franklin D. Roosevelt. "President of the United States, "Washington.

"Dear Franklin:

In these times I hesitate to trouble you with anything personal. However, as we talked about the matter, I feel I should.

"Our friend Frances sic seems to me to have unnecessarily complicated the matter of my resignation. As I said to you, I was unwilling to follow the selfish precedent of our Congressional friends and therefore feel I should submit my resignation as a judge. You very generously rejected it and I think I am safe in saying that action on your part met with universal approval.

"I try to be careful about the law, particularly when dealing with my President and Commander-in-Chief. I was quite familiar with the statute on which the Attorney General has advised you. It was intended to prevent the receipt of two salaries. Only by a trained construction can it be extending to what is known as `incompatible office holding.' However, I was careful about even that strained construction and discovered that the Act (it is found, I believe, U.S.C.A., title 8, Section 65) is in process of amendment, the amending bill being H.R. 6676 introduced March 11th and made retroactive to December 7, 1941. It would, therefore, be rather foolish to have me declared ineligible pending the passage of the bill which would make me perfectly eligible.

"Due to your kindness I am going to a far distant post and imagine I will be there for such length of time that I should have to insist on resigning in any event. It is my suggestion, however, that your recent letter might well be withdrawn pending a clarification of the legal situation. As I say, I think I shall have to resign in any event but I should be very reluctant to be forced out, so to speak, on the doubtful interpretation of a statute.

"My address from Saturday until probably Wednesday will be the Fairmont Hotel, San Francisco, where I could be reached by telegraph from General Watson, or in any other way.

"In conclusion, again thanking you for all your kindness, and be sure that I follow you with my usual affection and admiration.

"Yours sincerely, "William Clark."

The President replied to this letter by telegram on April 7, 1942, as follows:

"Your letter of April 2nd received. In view of the doubt which H.R. 6766 sic is intended to remove, I think the wisest thing to do is to let your resignation stand.

"Franklin D. Roosevelt."

Plaintiff received this telegram, but made no further reply.

Subsequently, the President nominated Gerald McLaughlin to be Judge of the United States Circuit, Court of Appeals for the Third Circuit, vice William Clark, resigned. On June 8, 1943 Judge McLaughlin's nomination was confirmed by the Senate, and he was subsequently appointed.

1. Notwithstanding the submission of his resignation as Judge of the Circuit Court of Appeals for the Third Circuit and its acceptance by the President and the subsequent appointment of a successor to the office, plaintiff nevertheless says that under the Constitution he still holds the office and is entitled to the salary attached to it. He grounds this contention on the alleged fact that when his letter of resignation was presented to the President at an interview plaintiff had with him, the President refused to accept it.

Plaintiff properly says that under the Constitution judges of both the Supreme and inferior courts are completely independent of the Executive Department of the Government and that they can be removed from office only by resignation or by impeachment by the House of Representatives and conviction by the Senate. Cf. O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356, and citations there given. Since he has not been impeached and convicted, plaintiff says he is still in office because his voluntary resignation was rejected by the President.

We cannot agree that the rejection by the President of a judge's resignation, without more, continues that judge in office. His continuance in office, in the absence of impeachment and conviction, from a legal standpoint, is subject wholly and alone to the untrammelled will of the judge. The President of the United States has nothing whatever to do with it, unless the judge of his own volition leaves to the President the decision as to whether or not he shall continue in office. If a judge wishes to resign, he, of course, may do so, whether the President wants him to or not; and, on the other hand, neither the President nor anyone else has the legal right to force him to resign.

The only constitutional reason, so far as we know, for submitting to the President an unequivocal resignation of a judge is for the purpose of notifying the President that there exists a vacancy in the office so that the President may exercise his constitutional power of appointing a person to the vacancy. It is not submitted because it is within the power of the President to accept or reject it.

When a judge, being wholly independent of the Executive Department, once submits his unequivocal resignation, a vacancy in the office is thereby created, independent of any action on the part of the President,¹ and the President, with the advice and consent of the Senate, is thereupon empowered under the Constitution to fill the vacancy, unless the judge has the power to withdraw his resignation prior to the time the vacancy is filled, or prior to acceptance by the President.

We express no opinion on the power of the judge to withdraw his resignation before acceptance by the President or before the vacancy has been filled, but, for the purposes of this case, we shall assume that he has this power.

If plaintiff submitted an unequivocal resignation and the President nominated another judge to succeed him, and the...