Schwartz v. United States

• Decision Date: 02 March 1960
• Docket Number: No. 513-57.,513-57.
• Citation: 181 F. Supp. 408,149 Ct. Cl. 145
• Parties: Edward SCHWARTZ v. UNITED STATES.
• Court: U.S. Claims Court

181 F. Supp. 408

149 Ct. Cl. 145

Edward SCHWARTZ v. UNITED STATES.

No. 513-57.

United States Court of Claims.

March 2, 1960.

William J. Woolston, Philadelphia, Pa., for plaintiff.

Kendall M. Barnes, Washington, D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant. Francis J. Steiner, Jr., Washington, D. C., was on the brief.

JONES, Chief Judge.

This is a suit for back pay of an employee during a period of suspension under the Security Act of August 26, 1950, 64 Stat. 476, 5 U.S.C.A. § 22-1 et seq., and Executive Order 10450, 5 U.S.C.A. § 631 note issued pursuant thereto. The defendant defends solely on the ground that plaintiff freely admits that he made no effort to secure other employment or to mitigate the damages in any way during the period of suspension.

Plaintiff held a nonsensitive position with the Post Office Department. He was suspended from duty on March 12, 1954, and was subsequently removed from his position effective September 15, 1954, under the terms of the Security Act of August 26, 1950. After the Supreme Court in Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396, held that the Security Act did not apply to employees in nonsensitive positions plaintiff was reinstated on September 10, 1956. He is claiming back pay from March 12, 1954 (the date of his suspension), to September 10, 1956 (the date of his reinstatement).

At all times involved here, plaintiff had regular full-time employment with the Commonwealth of Pennsylvania, Department of Public Assistance, and later as a social worker for the City of Philadelphia. He held this position with the City of Philadelphia (at which he worked from 8:30 a. m. to 5:00 p. m., five days a week) at the time of his suspension from the Post Office Department and up until the time of his reinstatement.

Plaintiff accepted the additional position with the Post Office as an "indefinite substitute clerk" on February 1, 1953, at an hourly rate of $1.615 per hour for assignment when needed during the hours of 6:30 p. m. and 11:30 p. m. He continued at this rate until his suspension on March 12, 1954.

Plaintiff's position with the City of Philadelphia, which he held continuously from October 15, 1953, until September 1956, was not in any way affected by the suspension of his indefinite Post Office employment and is not involved in this case. Only the Post Office employment is at issue.

During the period between his suspension and his subsequent reinstatement plaintiff made no effort to secure employment to replace his former Post Office work. After his reinstatement by the Post Office Department, plaintiff worked only five weeks, voluntarily terminating his employment effective October 15, 1956.

The Security Act of August 26, 1950 provides that any person whose employment is suspended or terminated under the terms of the Act may in the discretion of the head of the agency concerned be reinstated or restored to duty. If so reinstated or restored such person shall be allowed compensation for all or any part of such period of suspension or termination in an amount not to exceed the difference between the amount such person would normally have earned during the period of suspension or termination at the rate he was receiving on the date of such suspension or termination as appropriate and the interim net earnings of such person.

Plaintiff freely admits that he made no effort whatever to secure any other comparable employment during any part of the period between his suspension and subsequent reinstatement.

Not only the Security Act of 1950, but also the Lloyd-La Follette Act, 5 U.S.C.A. § 652 and other acts to which our attention has been called, contemplate a deduction for interim earnings.

Accordingly, the clearest implication that can possibly be drawn from the language used, is that it was contemplated that the claimant would make a reasonable effort to secure other employment and that the amount which the claimant earned, or with reasonable effort might have earned, be deducted from the total amount of compensation that would otherwise be paid under the statute. Confessedly, plaintiff made no effort to secure such employment.¹

Plaintiff in his brief denies that under the terms of the relevant statutes there is any duty on the part of an illegally dismissed Federal employee to seek to obtain alternative employment. In oral argument, counsel for the plaintiff indicated that to seek other employment during the period, in view of the nature of the charges, might have jeopardized his regular employment with the City of Philadelphia, and that consequently there was no obligation on his part to seek other employment.

After plaintiff's suspension on March 12, 1954, he was given a hearing before the Security Hearing Board on July 8, 1954. The Board rendered its adverse decision on August 31, 1954. Pursuant to this decision the Post Office removed plaintiff from his employment effective September 15, 1954. During this period when plaintiff was preparing for the hearing and while awaiting the Board's decision, we think the plaintiff had reasonable grounds for not making an effort to secure other extra employment. His time was undoubtedly taken up in the effort to secure favorable action by the Board. We think, therefore, that plaintiff had reasonable grounds for not seeking the added employment until the final adverse action removing him from his position. Therefore, plaintiff is entitled to recover for the period...