Garcia v. United States

• Decision Date: 02 December 1952
• Docket Number: No. 50459.,50459.
• Citation: 123 Ct. Cl. 722,108 F. Supp. 608
• Parties: GARCIA v. UNITED STATES.
• Court: U.S. Claims Court

108 F. Supp. 608

123 Ct. Cl. 722

GARCIA v. UNITED STATES.

No. 50459.

United States Court of Claims.

December 2, 1952.

COPYRIGHT MATERIAL OMITTED

David Cobb, Washington, D. C., Cobb and Weissbrodt, Washington, D. C., on the brief, for the plaintiff.

S. R. Gamer, Washington, D. C., with whom was Holmes Baldridge, Asst. Atty. Gen., Gilbert E. Andrews, Washington, D. C., on the brief, for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.

JONES, Chief Judge.

This is an action by a former employee of the Government for the recovery of compensation for four separate periods of allegedly wrongful removal without pay from his position as an Associate Engineer with the War Department, and subsequently with the Department of the Army. The parties have filed cross-motions for summary judgment. Plaintiff's motion extends to the first three periods of separation. Defendant's motion extends only to the first two such periods.

The material facts, except as otherwise indicated, are not in dispute. Plaintiff is a preference eligible within the meaning of the Veterans' Preference Act of 1944, 58 Stat. 387, as amended, 61 Stat. 723, 5 U.S. C.A. § 851 et seq. Effective at the close of business on April 30, 1946, plaintiff was suspended from his position without pay pending final action on a recommended separaration. Thereafter, effective July 12, 1946, plaintiff was discharged from his position on grounds of inefficiency. Upon appeal the Regional Director of the Fifth Civil Service Region recommended that plaintiff be restored to his position because of the failure of the agency to follow the procedural requirements relating to suspension and removal of a preference eligible, as set forth in 5 U.S.C.A. § 863, section 14 of the Veterans' Preference Act, supra, in respect of, inter alia, notices of proposed and final adverse action. This recommendation was approved by the Board of Appeals and Review of the Civil Service Commission, and plaintiff was restored to his position on July 15, 1947. Plaintiff claims back pay for the period from April 30, 1946, to July 15, 1947.

The Government's defense to plaintiff's first claim (as well as to plaintiff's second and third claims) is constructed upon the act of June 10, 1948, 62 Stat. 354, 5 U.S. C.A. § 652, which provided in pertinent part as follows:

5 U.S.C.A. § 652(b) (2).

"Any person who is discharged, suspended, or furloughed without pay, under section 863 of this title, who, after answering the reasons advanced for such discharge, suspension, or furlough or after an appeal to the Civil Service Commission, as provided under such section, is reinstated or restored to duty on the ground that such discharge, suspension, or furlough was unjustified or unwarranted, shall be paid compensation at the rate received on the date of such discharge, suspension, or furlough for the period for which he received no compensation with respect to the position from which he was discharged, suspended, or furloughed, less any amounts earned by him through other employment during such period, and shall for all purposes except the accumulation of leave be deemed to have rendered service during such period."

Defendant says, in connection with the first claim, that Congress intended by the passage of this provision in the act of June 10, 1948, to make it the exclusive source of the right to recover back pay in the instance of a veterans' preference eligible, as that term is used in the Veterans' Preference Act, supra, who has been restored to duty after a period of wrongful separation from his position. Defendant next contends that Congress did not intend to provide in section 652 for recovery of back pay where the separation was wrongful merely because of violations of the procedure prescribed in section 863. Defendant says further in effect that by omitting from section 652 any provision for recovery of back pay for procedural violations, Congress thereby intended that all such claims should be abolished. Defendant extends this argument with the further contention that not only did Congress intend to prohibit recovery on such claims which might arise after June 10, 1948 (the date of the act in question), but also that Congress intended to outlaw all such claims which had arisen prior to June 10, 1948. Plaintiff's first claim, of course, arose prior to June 10, 1948.

As to defendant's multiple contentions, we shall content ourselves on plaintiff's first claim merely with pointing out that regardless of the scope of the act of June 10, 1948, it was not intended to be retroactive in application. Lezin v. United States, 98 F.Supp. 574, 120 Ct.Cl. 724. Defendant apparently would abolish all claims which had not been reduced to judgment by that date. The act of June 10, 1948, and its legislative history will be searched in vain for the slightest shred of evidence in support of such a result.

We have held previously in similar circumstances that a preference eligible may recover for loss of compensation occasioned by denial of his procedural rights under section 863. Wittner v. United States, 76 F.Supp. 110, 110 Ct.Cl. 231; Lamb v. United States, 90 F.Supp. 369, 116 Ct.Cl. 325; Stringer v. United States, 90 F.Supp. 375, 117 Ct.Cl. 30 (all involving procedural violations prior to June 10, 1948). Cf. Elchibegoff v. United States, 106 Ct.Cl. 541, certiorari granted 329 U.S. 704, 67 S.Ct. 187, 91 L.Ed. 613, certiorari dismissed 329 U.S. 694, 67 S.Ct. 629, 91 L.Ed. 607 (arising under earlier legislation). Under those holdings plaintiff is entitled to summary judgment on his first claim.

It is appropriate here also to point out a basic contradiction in defendant's argument. There is no question but that the first suspension and removal were procedurally defective. The second separation, hereinafter discussed, was apparently effected upon the same charges of inefficiency as was the first. Because the second separation was held to be unjustified and unwarranted on the merits, defendant is forced to the concession that the first removal was also unjustified and unwarranted on the merits. Defendant construes the act of June 10, 1948, as being applicable only to removals unjustified and unwarranted on the merits, but contends (correctly) that plaintiff is not entitled to base his recovery for his first claim upon that act, because the act was not retroactive. Yet defendant contends that plaintiff cannot recover on the basis of denial of his procedural rights, because the act of June 10, 1948, took away that right. In other words, defendant would have us apply the act retroactively where such application would benefit defendant, and deny retroactive application where such application would benefit plaintiff. There is not the slightest justification for such an unusual result.

Effective at the close of business on August 15, 1947, plaintiff was again separated from his position, on charges of unsatisfactory performance of his duties. Upon appeal to the Regional Director it was found that such charges were unsupported by the evidence. Under date of May 21, 1949, the President of the Civil Service Commission advised the Secretary of the Army of the approval of the Regional Director's findings by the Board of Appeals and Review, and recommended that plaintiff be restored to his position. Under date of June 25, 1948, the President of the Commission further advised the Secretary of the Army that under the amendment to the Veterans' Preference Act, supra, approved August 4, 1947, such recommendation was mandatory upon the Department of the Army. Effective July 26, 1948, plaintiff was again restored to his position with the Department of the Army. For this, the second period of wrongful removal, plaintiff claims compensation from August 15, 1947, to July 26, 1948.

There was no denial of plaintiff's procedural rights under section 863 with respect to the second removal. He was ultimately restored to duty on the ground that his removal was unjustified and unwarranted on the merits. We have held that in the absence of entitlement under the act of June 10, 1948, and in the absence of a showing of arbitrary or malicious action, such circumstances do not empower this court to award back pay. Ginn v. United States, 110 Ct.Cl. 637; Brown v. United States, 122 Ct.Cl. 361. Plaintiff does not contend that such action was taken arbitrarily or with malice, and he therefore must necessarily show that he is entitled to recover under the act of June 10, 1948.

It may be noted here that while his second removal was effected prior to June 10, 1948, his restoration to duty therefrom did not occur until July 26, 1948. In similar circumstances, in Lezin v. United States, supra, we held that despite the fact that the act could not be applied retroactively, the further fact that Lezin's restoration did not take place until after June 10, 1948, justified recovery under the act. See also Jackson v. United States, 121 Ct.Cl. 405. Thus it would appear that if plaintiff's restoration to duty on July 26, 1948, is to be taken as marking the end of plaintiff's second period of wrongful separation, then plaintiff as in the Lezin case is entitled to recover under the act of June 10, 1948.

Defendant seeks to distinguish the instant case from Lezin v. United States, supra, however, in that here, while plaintiff was actually restored to duty subsequent to the passage of the act of June 10, 1948, the final administrative decision and recommendation of reinstatement was issued on May 21, 1948, prior to the passage of the act. Defendant contends that for the purpose of determining whether or not the act is sought to be applied retroactively the critical date is May 21, 1948, when the highest administrative authority found that the discharge was unjustified and unwarranted and recommended that plaintiff be restored to duty. Defendant concludes that plaintiff is seeking retroactive application of the act, and that...