United States v. Bowen, 18588.

• Decision Date: 02 May 1961
• Docket Number: No. 18588.,18588.
• Citation: 290 F.2d 40
• Parties: UNITED STATES of America, Appellant, v. Robert E. BOWEN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

290 F.2d 40 (1961)

UNITED STATES of America, Appellant, v. Robert E. BOWEN, Appellee.

No. 18588.

United States Court of Appeals Fifth Circuit.

May 2, 1961.

E. Coleman Madsen, U. S. Atty., Miami, Fla., Charles K. Rice, Asst. Atty. Gen., Lavinia L. Redd, Asst. U. S. Atty., Miami, Fla., for appellant.

Robert E. Bowen, West Palm Beach, Fla., for appellee.

Before JONES and BROWN, Circuit Judges, and CONNALLY, District Judge.

JOHN R. BROWN, Circuit Judge.

This appeal relates to the nature of the master's rights against an unfaithful servant. Here the master is the United States Government, the servant a former civilian engineer in the employ of the United States Engineers in Western Germany in 1951.

The District Court, after somewhat extensive pretrial hearings, denying the servant's motion for summary judgment but quashing notice of the Government to take testimony by oral deposition in Germany, entered an order dismissing the complaint for failure to state a claim. F.R.Civ.P. 12(b), 28 U.S.C.A. No opinion was filed and the order itself contains little illumination. From it and the Government's brief on appeal (none being filed by Bowen, the servant) we understand that the Court based this on two principal legal propositions. As to Counts I and II, the Court was of the opinion that the Government, as master, could not recover since the funds involved were those of the Western German Government, and in any event, the complaint failed to show how or in what manner the master, the United States, was damaged. As for Count III, the Court apparently concluded that a breach of fidelity was alleged but the Government's relief would be limited to the servant's salary for the overlapping time. The Government declined to amend to specify such damage so that claim was also dismissed.

We think that the Court was in error in each of these basic conclusions. This makes it both unnecessary and undesirable that we set forth much detail. It is undesirable since whatever we say in declaring why a case ought not to have been dismissed on pleadings alone seems always to plague the subsequent trial at every stage. See, for example, Fontainebleau Hotel Corp. v. Crossman, 5 Cir., 1961, 286 F.2d 926. We can only repeat what we oftentimes say that all we decide is that this complaint under the broad limits of the Rules states a claim. We cannot now predict what the facts will be either on a trial or developed in advance of trial which might demonstrate the absence of a genuine controversy of a material fact warranting summary judgment. Carss v. Outboard Marine Corp., 5 Cir., 1958, 252 F.2d 690, 693; Millet v. Godchaux Sugars, Inc., 5 Cir., 1957, 241 F.2d 264, 267. Nothing said or unsaid in this opinion is to be understood as a determination, or even an intimation, by us as to the ultimate decision of this case or any part of it.

In discussing these basic errors of the Trial Court, we think it essential to take note of a specific fact which leads to a like fundamental weakness in the Government's theory. The record amplified in part by interrogatories, requests for admissions, and the like expands the complaint somewhat to include as a highly controverted fact the time that Bowen, the servant, ceased active employment. According to him he entered on what he called terminal leave on April 6, 1951. The Government disputes that in point of fact, asserting that from then until June 19, 1951, he continued to engage in serious official duties. In any event, the Government argues, he was on pay status under the so-called terminal leave and he was therefore subject to all of the rigorous duties and obligations — equitable, legal and moral — attaching to the relationship of master-servant. It is conceded that after June 19, 1951, the relationship was severed altogether. As this case may now have to proceed through the difficult process of a trial a decade after the events with much of the evidence available only through depositions¹ of German Nationals and military personnel now widely scattered, we think orderly administration requires that this basic question be settled.

We emphasize that we are dealing with an important, but limited, phase of the relationship between master and servant, between the Government and its civilian employees. We do not consider, nor do we decide, what the result should be in other areas such as prohibitions against corrupt political practices, e. g., 5 U.S. C.A. § 118, amendability to military discipline, cf. Grisham v. Hagan, 1960, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279; McElroy v. United States ex rel. Guagliardo, 1960, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282; Kinsella v. United States ex rel. Singleton, 1960, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268; Reid v. Covert, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148, or the like.

The key is found in the nature of the legal theory which holds a servant to accountability. The law exacts a faithful single-minded devotion to the interests of the master. In a situation in which he advances his self-interest while performing work for the master, the servant is not free to determine both for himself and the master what course the master should or would take. When the business at hand involves the performance of some act within the responsibility delegated to the servant, the law requires that the master's interest, and only the master's interest, be a factor. It is this responsibility to take some action in behalf of the master's interest which denies the servant the right to advance his own cause

But there is no need for the legal rule where the person formerly a servant is no longer one either in formal fact or in the sense of having any duties to perform or authority to do any act on the master's behalf. That certainly seems to be the case as to civilian employees on so-called terminal leave. More properly it should be called lump sum payment for accumulated or accrued annual leave on separation from service. 5 U.S.C.A. § 61b. See 1953 U.S.Code Cong. & Admin. News Vol. 1 pp. 167, 169, Vol. 2 pp. 1788, 1800 and 5 C.F.R. § 30; cf. 5 U.S.C.A. §§ 2061-2066. The person may be carried on payrolls and other records to satisfy statutory personnel standards and requirements. But it is essentially a part of deferred compensation for past services comprehending the payment of additional money for a specified time.² A former active civilian employee is not, however, required to remain idle. He is free to accept other employment. We see no purpose to be served — indeed we see much harm in — a rule which during the terminal period covered by the lump sum payments restricts freedom of employment by prohibiting work which involves dealing with the Government. If he may work for others who deal with the Government, he may work for himself in like work.

Consequently, if — and we emphasize the if — it is determined that Bowen's active employment ceased on April 6, 1951, so that he no longer had authority or responsibility to act on behalf of the Government, this will have significant effect. As to projects, contracts and related matters which, at any time prior to April 6, 1951, had not been handled by him or which were not within the responsibility of the Construction Branch of which he was assistant chief, Bowen was free to solicit and engage in the performance of work during the period of so-called terminal leave between such date and June 19. During that period, just as after its expiration, it was not unlawful to take full advantage of whatever knowledge and experience he may have gained from his previous employment. For like reasons, we think it quite permissible for such an employee during the pendency of his active service to make plans and preparations for private employment, either by self or others, to commence at the beginning of the terminal accumulated leave. This, of course, subjects him to an actual scrupulous avoidance of any conduct during active employment which in any way compromises the undivided loyalty and single-minded concern for the master's interests. On the other hand, as we point out hereafter, whatever was effectively planted during the period of active employment becomes illicit fruit subject to the heavy obligation of accounting.

That brings us to the allegations of the complaint. The essence of Counts I and II is that the United States Military Engineering Headquarters to which Bowen was assigned had a responsibility for approving the selection and employment of architect-engineering firms in connection with projects likewise approved for the use of United States forces in Western Germany. When approved a "Requisition Order Demand (Form 6-GA)" was executed by Bowen's superior. This 6-GA assured that on completion of the work or services covered by the requisition demand, such person would be paid by the West German Government. There is a suggestion that through the complex foreign aid programs of our Government, the funds ultimately...