Lynsky v. United States, 26-54.

• Decision Date: 30 November 1954
• Docket Number: No. 26-54.,26-54.
• Citation: 130 Ct. Cl. 149,126 F. Supp. 453
• Parties: Myer LYNSKY v. The UNITED STATES.
• Court: U.S. Claims Court

126 F. Supp. 453

130 Ct. Cl. 149

Myer LYNSKY v. The UNITED STATES.

No. 26-54.

United States Court of Claims.

November 30, 1954.

Myer Lynsky, pro se.

Kathryn H. Baldwin, Washington, D. C., with whom was Warren E. Burger, Asst. Atty. Gen., for defendant.

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

LITTLETON, Judge.

This case is before the court on the defendant's motion for summary judgment. The plaintiff, a Government employee, seeks to recover back salary resulting from a reduction in rank and subsequent restoration to the former rank.

The facts are not in dispute. Plaintiff is a veteran preference eligible under the Veterans' Preference Act of June 27, 1944.¹

Plaintiff was employed by the United States Tariff Commission as an economist in grade P-6. On December 29, 1947, the Tariff Commission gave plaintiff 30 days' written notice of the proposed action to demote him from grade P-6 to grade P-5. The basis for this reduction in rank and pay was the plaintiff's failure, in the opinion of the Commission, to perform his work in accordance with the requirements for a P-6 economist. The notice stated specifically and in detail the areas wherein plaintiff had failed to measure up to the P-6 standards. Plaintiff answered in writing objecting to the proposed action. On January 22, 1948, the Tariff Commission advised plaintiff of its final decision to reassign him as grade P-5, effective February 1, 1948. Plaintiff appealed this decision to the Civil Service Commission. The Chief Law Officer of the Civil Service Commission considered plaintiff's case and found no procedural defects in the action by the Tariff Commission but recommended to that Commission that plaintiff be restored to his former grade (P-6), effective as of the date of his actual restoration, stating that in his view the demotion of plaintiff had been effected without plaintiff having been afforded a complete opportunity to demonstrate whether he could produce work of a P-6 caliber. The Tariff Commission appealed this decision to the Civil Service Commission. The Tariff Commission was advised on June 24, 1948, that the Civil Service Commission affirmed the decision of the Chief Law Officer. In accordance with that decision, the Tariff Commission restored plaintiff to grade P-6, effective the date of actual restoration, i. e., June 27, 1948. In July 1948, plaintiff made an oral request to the Civil Service Commission that he be ordered restored to P-6 rank retroactive to the date of his demotion by the Tariff Commission on February 1, 1948. The Commission considered and denied this request.

In April 1949, the Civil Service Commission amended its regulations to provide that the Commission would reopen, at the request of the individual, cases in which restoration had been recommended on or after August 4, 1947, for the purpose of considering, in a proper case, the advisability of a supplemental recommendation that restoration be made retroactive. The amended regulation provided that such requests for reconsideration must be filed and received by the Civil Service Commission not later than July 1, 1949.² It was not until August 17, 1949, that plaintiff again requested the Civil Service Commission to make his restoration retroactive to February 1, 1948, the date of his reduction in grade. The Commission considered this application and refused to reopen his case on the stated ground that plaintiff's request for reopening had not been received by the Commission on or prior to July 1, 1949, as required by the amendment to the regulation.

Plaintiff is suing in this court to recover the amount which he would have received as salary had he not been reduced in rank.³

Plaintiff contends that he did not receive the notice to which he was entitled for the purpose of making his application for retroactive restoration in that he was not advised by the Civil Service Commission or the Tariff Commission of the existence of the regulation of April 23, 1949, which provided that applications for retroactive restoration would not be considered unless filed and received on or prior to July 1, 1949. He also urges that the Tariff Commission did not comply fully with the restoration order of the Civil Service Commission.

Plaintiff's contention that he did not receive the notice to which he was legally entitled must fall upon the mere statement of his contention. Plaintiff received such notice as he was entitled to receive. There was no regulation or established custom in the Tariff or the Civil Service Commissions which required either Commission to transmit information to the plaintiff concerning the amendments of Civil Service rules.⁴ Publication of rulings and regulations in the Federal Register is notice to all of the world. The Federal Register statute⁵ provides that:

"* * * unless otherwise specifically provided by statute, such filing of any document, required or authorized to be published * * * shall * * * be sufficient to give notice of the contents of such document to any person subject thereto or affected thereby. * * *"

Just as everyone is charged with knowledge of statutes published in the United States Statutes at Large, Congress has provided that the appearance of rules and regulations in the Federal Register gives legal notice of their contents unless otherwise provided by statute. Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 385, 68 S.Ct. 1, 92 L.Ed. 10. Plaintiff has pointed to no applicable statutory...