Daub v. United States, 533-59.

• Decision Date: 19 July 1961
• Docket Number: No. 533-59.,533-59.
• Citation: 292 F.2d 895,154 Ct. Cl. 434
• Parties: Arthur B. DAUB v. UNITED STATES.
• Court: U.S. Claims Court

154 Ct. Cl. 434, 292 F.2d 895 (1961)

Arthur B. DAUB v. UNITED STATES.

No. 533-59.

United States Court of Claims.

July 19, 1961.

Arthur B. Daub, pro se.

Mary J. Turner, Washington, D. C., with whom was Asst. Atty. Gen. William H. Orrick, Jr., for defendant.

MADDEN, Judge.

Prior to July 30, 1956, the plaintiff was on the Civil Service register for Food Specialist, GS-7 (Options: Institutional Feeding, Equipment and Preservation). The register for these positions expired on June 30, 1956. After that the plaintiff was on no Civil Service register. However, on July 30, 1956, he was given a "Temporary Appointment — PER" (Pending Establishment of a Register) to the position of Inspector (Non-Perishable Subsistence Supplies), GS-7, at the New York Quartermaster Market Center, Department of the Army. He was removed from this position, the title of which in the meantime had been changed to "Preserved Food Inspector", on July 22, 1957, on the charge that he had refused to obey orders.

After proceedings which will be described hereinafter, the plaintiff was restored to his position on January 19, 1959, but he was not paid for the period between his discharge and his reinstatement.

After his discharge, the plaintiff resorted to various administrative reviews, without avail. He commenced an action in the United States District Court for the District of Columbia. No answer was filed on behalf of the Army, and the United States Attorney made a motion that the matter be remanded to the Army for further administrative action. The court granted that motion. The Army thereupon granted the plaintiff a grievance hearing. The Government's representative conceded before the Grievance Committee that the plaintiff's removal was unwarranted and illegal and was contrary to the Army's personnel regulations. The Army's letter advising him of his reinstatement said:

"The complete case has been reviewed by the Grievance Committee of this installation and the Committee\'s recommendation to restore you to the position of Preserved Food Inspector, GS-1905-7, $4980 per annum is approved.

"It is felt that the disciplinary action taken was not in consonance with the Department of the Army recommended Table of Penalties."

The plaintiff's reinstatement was effective as of January 19, 1959. He was placed upon the payroll as a new employee without retroactive pay or step increases, and he was denied seniority rights.

Section 900-57-20 of the Manual of Depot Operating Procedures provided:

"All actions will be based on the following principles:

"1. Fair and impartial treatment.

"2. Like penalties for like offenses.

"3. Use of Table of Standard Penalties.

* * * * * *

"6(a). A removal is a permanent separation of an employee, and will be used when such action is based on an employee\'s willful action or upon carelessness beyond reasonable excuse. The action will be applied regardless of whether the employee occupies a temporary or permanent position and will be in accordance with Table of Standard Penalties (Appendix A).

* * * * * *

"7(c). It is the policy of the Department of the Army to afford maximum protection to its employees against arbitrary or unfair action. The circumstances surrounding separation actions will always be completely investigated and made a matter of record before any action is initiated.

"Table of Standard Penalties (Appendix A):

"The following table of penalties for delinquency or misconduct will be used as a guide in imposing disciplinary action to assure like penalties for like offenses throughout the Depot. It is extremely important that the principle of like treatment be adhered to.

"This list of offenses and penalties set forth below may not successfully meet the demands of all situations, and it will be necessary for supervisors to use judgment in determining proper action for violations not covered. Final decision as to the action to be taken will rest with the responsible supervisor. * * *

"Offenses — Insubordination (Refusal to Obey Orders, Impertinence, Like Offenses)

"1st offense — Official written reprimand

"2nd offense — 3 day suspension

"3rd offense — 5 day suspension or removal."

The offense charged against the plaintiff was a refusal to obey an order to travel. It was his first offense. According to the table, the standard penalty suggested by the Army for that offense was an official written reprimand. The penalty actually imposed was the plaintiff's discharge.

The Government argues, correctly, that the table of penalties was intended to be a guide to administrative officers, and not an immutable schedule. But the regulation containing the table had a spirit, as well as a body, and the spirit of fair treatment would hardly have authorized the officer who was applying the regulation to substitute the extreme penalty, discharge, for the lightest penalty, reprimand, unless the case at hand was a most extraordinary one.

In the instant case the Army, after having refused the plaintiff any administrative relief, surrendered quite abjectly when it was taken to court. It asked the court for another chance to right its wrong; being given that chance it confessed its wrong, and reinstated the plaintiff to his position.

The picture which emerges seems to be that of a reckless and unjust decision, made by a subordinate officer, but, having been made, stubbornly adhered to until the prospect of having to defend it in court loomed up. Only then did the more responsible officials of the Army and the Government put their minds on the problem. They had had, in the meantime, other things to do, but, by contrast, the plaintiff had been deprived of his job and his pay.

The Army's conduct in the instant case was a violation of its regulation. Its conduct may properly be characterized as arbitrary and capricious. Those who wrote the regulation did not authorize such an application of it. On the contrary, they forbade it. The gross misapplication of the regulation did not accomplish the plaintiff's discharge and he is entitled to the relief for which he sues. Knotts v. United States, 121 F. Supp. 630, 128 Ct.Cl. 489.

The Government points out that the plaintiff was a temporary employee who had no status either in the competitive civil service, or as a veteran. But, as we have shown, the Army had, by regulation, conferred upon its employees, including its employees who had no rights under the Lloyd-La Follette Act, 5 U.S. C.A. § 652 or the Veterans' Preference Act, 5 U.S.C.A. § 851 et seq., the right to prescribed rational and uniform treatment with regard to their status as employees. The Government does not contend that these regulations were beyond the powers of the Army. The doctrine of Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403, and of Watson v. United States, 142 Ct.Cl. 749, is applicable.

There is nothing novel about our awarding back pay to the plaintiff, although he was not covered by the back pay provision of the 1948 amendment of the Lloyd-La Follette Act. In the Knotts case, supra, the back pay statute was not applicable because the plaintiff had not been reinstated, yet the court awarded back pay. It has done the same in the long line of cases in which procedural requirements were not complied with. Examples are United States v. Wickersham, 201 U.S. 390, 26 S.Ct. 469, 50 L.Ed. 798; Stringer v. United States, 90 F. Supp. 375, 117 Ct.Cl. 30.

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

It is so ordered.

JONES, Chief Judge, and LARAMORE and DURFEE, Judges, concur.

WHITAKER, Judge (dissenting).

I think my brethren will commit a grave error, eventually involving large sums of money, if they persist in their present intention to hold that an employee, not in the classified civil service, may recover a judgment against the United States, on the sole ground that his discharge was not "in consonance" with the regulations of the Department by which he was employed. In the hope that I may convince them of the error of their ways, or, if not, that the Supreme Court may be persuaded to review the interpretation my brethren put on the decision in Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403, I file this dissenting opinion.

The majority apparently concedes that there has been no violation of the Lloyd-La Follette Act, as amended (5 U.S.C.A. § 652; 62 Stat. 354), or of the regulations of the Civil Service Commission promulgated pursuant thereto, but it says that plaintiff is entitled to recover a money judgment against the United States because the regulations of the War Department, prescribing the punishment to be inflicted for insubordination, were not complied with.

Such a holding gives a right of recovery to the employees of the War Department by decree of the head of the department alone, which has never been authorized by Congress. It gives to the thousands of employees of this department a right of recovery not enjoyed by the employees of other departments of the Government. It discriminates against all other Government employees. Or, if the War Department can afford its employees this protection, then the Treasury Department can adopt whatever regulation it thinks appropriate, the Commerce Department some other regulation, and so on throughout the 13 Departments and the 31 or more Independent Agencies of the Government. The result would be something less than uniformity in the rights of Government employees, something less than stability, dependent as they would be on the views of the various heads of departments and agencies, as they come and go.

Congress alone may consent to suit by employees of the Federal Government. Congress alone, either itself or through authorized agencies, may prescribe the conditions which must be met before such a suit may be...