Kephart v. United States, 47363.

• Decision Date: 01 March 1948
• Docket Number: No. 47363.,47363.
• Citation: 75 F. Supp. 1020,109 Ct. Cl. 646
• Parties: KEPHART v. UNITED STATES.
• Court: U.S. Claims Court

75 F. Supp. 1020

109 Ct. Cl. 646

KEPHART v. UNITED STATES.

No. 47363.

Court of Claims.

March 1, 1948.

Calvin I. Kephart, pro se.

S. R. Gamer, of Washington, D. C., and H. G. Morison, Acting Asst. Atty. Gen., for defendant.

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

HOWELL, Judge.

The defendant's motion for a new trial is based upon two grounds, first, the court erred in holding that plaintiff, as an employee of the Federal Government, had a right to sue the United States for benefits to which he was allegedly entitled under Public Resolution No. 96, approved August 27, 1940, 50 U.S.C.A.Appendix, § 401 et seq., as amended by the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 308; second, that it was error to decide plaintiff was entitled to recover.

Defendant again calls the attention of the court to the cases of Insular Police Commission v. Lopez, 1 Cir., 160 F.2d 673, certiorari denied, 331 U.S. 855, 67 S.Ct. 1743, and Clark v. United States, 72 F.Supp. 594, 109 Ct.Cl. 444. These cases are both clearly distinguishable from the case before us.

In Insular Police Commission v. Lopez, supra, the proceedings were for mandamus restoring plaintiff to his former position and for interim loss of salary. In the case of Ballf v. Krantz, 9 Cir., 82 F.2d 315, which is discussed in the Lopez opinion, the proceedings were identical. In these cases it was held that the District Courts of the United States had no jurisdiction to hear and determine such suits and the proceedings were therefore properly dismissed.

Clark v. United States, supra, involved a suit by a former Federal Judge who had resigned from his position in order to enter the armed forces, for salary to which he claimed he was entitled. A successor having been duly appointed to fill the vacancy created by his resignation, this court held that to hold the provisions of the Selective Training and Service Act applicable would, in effect, enable Congress to direct the President whom to appoint to such vacancies and thus encroach upon the powers of appointment of the President. In holding that Congress could not possibly usurp the Constitutional appointing power, this court properly dismissed the plaintiff's petition.

In that case we did not decide that an employee of the Federal Government did not have a right of action against the Government if he was wrongfully denied restoration to his former position. We left that question unanswered.

In all three cases the plaintiff was asking not only to be restored to his former position, but for interim salary, whereas in the present case the plaintiff has already been restored to his former position and claims only the difference in salary which improper Civil Service classification caused him to lose.

The pertinent provisions of section 8 of the Selective Training and Service Act of 1940, as amended, 54 Stat. 890, 56 Stat. 724, 58 Stat. 798, 50 U.S.C.A.Appendix, § 308, appear below.¹

Particular attention is directed to paragraph (A) of subsection (b). In dealing with an employee of the United States Government, its Territories or possessions, or the District of Columbia, it contains this language: "such person shall be restored to such position or to a position of like seniority, status, and pay."

Since Congress was dealing with employees of the Federal Government, it naturally possessed the power to direct that such persons should be restored, etc. The use of this language is not only directive, in our opinion, but mandatory.

Paragraph (B) of subsection (b) refers to a person holding a position with a private employer, wherein it is provided: "such employer shall restore such person to such position, etc. * * *"

In implementing this requirement, Congress in subsection (e) of section 8 provided the forum in which a private employee could sue, in this language: "In case any private employer fails or refuses to comply with the provisions of subsection (b) or subsection (c), the district court of the United States for the district in which such private employer maintains a place of business shall have power, * * *."

In paragraph (C) of subsection (b), in dealing with an employee of any State or political subdivision thereof, this language is used: "It is hereby declared to be the sense of the Congress that such person should be restored * * *."

Apparently it was hoped by Congress that the various states would permit themselves to be sued in appropriate proceedings, thereby giving the third class of employees means of enforcing their rights under the Act.

Since 1855, 10 Stat. 612, 28 U.S.C. A. § 250, the Court of Claims has had authority to "hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department * * * which may be suggested to it by petition filed therein * * *". The right of Federal employees among other classes of citizens to proceed in money claims against the Government in this court has long been recognized as shown by numerous decisions, among them, Moore v. United States, 4 Ct.Cl. 139; Strong v. United States, 60 Ct.Cl. 627; Danford v. United States, 62 Ct.Cl. 285. The term "regulation" was intended to cover any regulation within the lawful discretion of the head of an executive department, such as the finding of the Civil Service Commission in this case. To hold that the term "regulation" meant anything other than that would simply be disregarding the plain language of the Act.

It was not necessary for Congress in the Selective Training and Service Act to reaffirm the basic jurisdiction of this court or to confirm rights of Government employees long recognized thereunder. These rights cannot be negatived by implication. It must be done by specific legislation clearly disclosing such intention. Consequently, the silence of the Act on this point while authorizing District Courts to assume jurisdiction in the case of private employees is not ground for the slightest implication that Congress intended in any way to curtail the right of Government employees to institute claims founded upon any law of Congress or upon any regulation of an executive department. As a matter of fact, it is our judgment that silence in this respect should be interpreted as representing the intention of Congress to leave these rights unchanged.

From what has been said above, it follows that the motion for a new trial must be...