*1 dispute vantage deposited which has been rival claimants of ” ” ** * ** with the court. p. costs, Interpleader The allowance of includ 48 C.J.S. ing attorney fees, is within the discre judicially observed “It has been stipulation tion of the Court. The of the authorities several times counsel heretofore mentioned is bind ques- not in accord on are entire ing upon appears under the Court. It attorney’s allowance tion of the case facts at bar proceedings. interpleader in fees attorney award to fees and many authorities, According com- inequitable. costs would be most seeking party plainant relief or by interpleader an at- It order of this entitled Court torney’s attorney for costs and fee commensurate cause, in fees denied. services of his counsel jurisdictions, some- whereas in some terms virtue of the
times statutes, attor- held that has been it ordinarily
ney’s be al- cannot fees complainant in inter-
lowed to
pleader action. statute, the al- “In the absence attorney’s com- fees to
lowance of plainant, permissible, is where even Horace FELDMAN J. right, rests not a matter v. of the court.” the sound discretion UNITED STATES. Interpleader p. 105. 48 C.J.S. No. 198-59. formerly rule followed the California United States Court of Claims. attorney’s allowed to fees were not Feb. 1960. interpleader complainant in an action. had filed in the Cali- If this action statute, former
fornia courts under the plaintiff able re- would have been attorney part its
cover fees as costs. of Civil Procedure § California Code Fargo China v. Bank of Wells Co., Cir., 209 F. & Union Trust
Bank 467, 48 In 1955 the
2d A.L.R.2d amended, so statute was part
present time it reads follows: 386.6 Civil [Code Ҥ Procedure] attorney fees
Costs party
“A action who follows procedure set forth in Section [Interpleader] or 386.5 [Stake- motion,
holder] petition, complaint, insert his cross or com-
plaint request for allowance of attorney costs reasonable fees
incurred such In action. order- discharge party, of such may, discretion; award party his
such costs reasonable attorney fees from the amount
Madden, J., dissented. Nathan, Washington, C., A. Hans D. plaintiff. Barnes, Washington, C., Kendall M. D. Atty. George
with whom was Asst. Gen. Doub, for Cochran defendant. JONES, Judge. Chief plaintiff seeks to recover the sal- ary which would have accrued to him employment had his Government improperly terminated. The de- has moved fendant the court to dismiss ground petition on respectfully decline mined limitat it must barred asserted is ground recommendations'.” with the ions,1 further 2*and on the a claim state fails to May 4, Service- the Civil *3 granted. which relief can be letter third a Commission submitted again Department State, reiterat the of lawyer, Plaintiff, serv- a a and veteran plaintiff the should- its’decision that Military of States ed as clerk a United Depart duty. be restored to The State Germany the under in Government Court disregard ment continued to Commis the Army. Department In mid-1949 recommendation, plaintiff sion’s and the Germany trans- were in these functions thereafter in the court filed suit district Army of the Office ferred the compel his reinstatement. relief This (HI Germany High Commissioner complaint was and denied dismissed De- COG), placed under the which was April 22, on 1959. 7, partment November of State. On ter- 1949, plaintiff notice of a received present petition The was filed in this services, Decem- of his effective mination May 1, years court 1959—almost ten appealed the 4, ber 1949. Plaintiff Army plaintiff’s after terminated claiming Commission, that Civil Service employment, years and more than six Preference under of the Veterans’ § July 1, 1952, after the and the December 1944, 390, § Act 5 U.S.C.A. of 58 Stat. 1952, Civil Service Commission recom- have been transferred he should mendations, years but less than six after HICOG. May 4, 1953, the Commission’s reitera- tion of. the earlier recommendations. July 1, 1952, of Chairman The Government contends in its motion Appeals Re- and Commission’s Board petition that dismiss was filed . Department view submitted to State more years plaintiff’s than six after the by the Commission a “recommendation” claim first The accrued. resolution of duty restored to active that “be hinges this issue aon determination of following retroactively day effect these various Civil Service day pay a and in last in full status Commission recommendations. your pay position like status * * Department from which to that necessary It is to consider first n separated improperly in the [he was] the Government’s that contention Army.” Department of the only plaintiff’s claim first accrued when apparent that he was became dismissed in When it December Department would not that decision of the State Civil Service recommending recommendation, the Chair- Commission sent did the Civil Service Commission instatement not create a man of new cause 5, 1952) (dated This held court letter action. Goodwin v. renewing Secretary States,- 1954, F.Supp. 369, the Com- State United 417, that, On Decem- 127 Ct.CI. mission’s recommendation. since 14 of the § Department provides 'State Preference Act4 Veterans’ ber that the Civil Service the Commission’s recommendations notified appeals processed “the has deter- letter that connection with (cid:127) provides (1958) contending that § 3. The 1. 28 U.S.O. defendant ,of judicata. “Every .plaintiff’s of which the claim claim res The Court or- jurisdiction shall be barred un- has der of the court Claims district does not state filed thereon is within the reason for the action. The less defend- advised, however, elaim first accrues.” after such ant upon was motion for based dismissal referred to recommendations 2. moot,- since, .contention claim only related not the- question passed out United to another former em but also States control reinstatement Military ployee'of the United .States Gov position,was therefore impossible, to. Germany. See Court ernment Casman Ct.Cl., F.Supp. 4. 58 Stat. 390 v. United U.S.C.A. mandatory upon 14 shall be the em- sions of the Veterans’ Preference ploying agency, a Act. employee a new be reinstated created “During the first session statutory against employing Eightieth Congress, Public Law 325 agency pay. for back (1947)] approved [61 Stat. 723 provides which decisions (the Section 12 section involv the Civil Service in con- bar) gives ed in the case veterans appeals nection with veterans preferential rights force, in reductions in processed under section 14 of the comparable mandatory but contains no *4 Veterans’ Preference Act U.S.C. [5 provision. however, Congress, The binding upon A. shall 863] the § amended 19 of the Veterans’ Prefer § departments agencies. executive and provide “any ence Act in 1948 that provisions This bill the extends by recommendation the Service Civil any appeal proc- that law to include any Commission, submitted to Federal essed under the Veterans’ Prefer- agency, appeal on the basis the ence Act so that a decision favorable preference eligible, employee or former employee to a veteran or will other employee, complied by shall be with such [Emphasis sup- be enforceable. agency.” (1948), 62 575 5 Stat. U.S.C.A. plied.]” amending (1944). 868, 58 Stat. reasoning We believe that the fairly It is obvious this amendment here, and, applicable Goodwin case is 19 was intended to make decisions therefore, the Civil Service Com- of the Civil Service in con Commission mission recommendation connection any appeal processed nection with under plaintiff’s appeal with the did create a binding up the Veterans’ Preference Act statutory pay. new claim for back departments agen on the executive and problem Reports clearly The cies. Committee this case from arises point July 1, 1952, toward this construction :5 fact the initial recommendation of the Civil Service proposes “This bill an amendment May 4, Commission was on renewed to section 19 of the Veterans’ Pref- years prior filing —less than to the * * * by pro- Act of 1944 erence plaintiff’s petition in this court. viding findings that the of the Civil reviewing After Service Commission in connection circumstanc surrounding any appeal es the series of with Civil Serv provisions relating plain ice recommendations under the Veter- ans’ Act tiff’s reinstatement we are shall be com- forced con Preference plaintiff’s statutory plied by depart- clude that the the executive agencies. 5, first accrued than ments later 1952, the time the second recommenda “The attention of the committee Depart tion was submitted to the State many directed been times de- ment. cisions the Civil Service Commis- disregarded Actually, original which have sion by departments the executive on its face constituted final determina agencies. by Commission, plain It is obvious Vet- tion and the nullity statutory ordinarily Preference Act is a erans’ tiff's claim would provision July 1, However, is made to make unless ef- have accrued on 1952.® July the decisions fective Civil there are indications that this respect stayed Service the Civil Service processed July 15, appeals 1952,6 veterans and Commission. On the De employees provi- partment requested under the of State “that other H.R.Rep. 1817, Cong., 80th. 2d No. Sess. 6. See Goodwin v. United F. p. Cong.Serv., Supp. page (1948), 2 U.S.Code 127 Ct.Cl. at (1948). e., reduc- action to be taken [i. rec- [by required time * * (12 force], Fed. tion in to ad- for ommendation] Reg. (1947), 20.13 5 C.F.R. § Com- Service Civil vise United States (1949) (appeals)).” regarding proposed action mission days.” thirty this case extended provided It was further request, the Commission which This Commission, “Whenever on July 18, based granted appeal the result on the of a decision per- nonavailability of the employee, disapproves ac- of an sonnel records. agen- [by employing tion taken cy] regulations in this August part, department or head extension further asked for “a governmental entity restore shall prepare submit of time in order employee duty. (12 Fed. to active appeal of the Com- the decision Reg. 20.14 5 C.F.R. § request, response In mission.” (1949) (actions disapproved Appeals the Board of the Chairman of Commission)).” Commis- Civil Service and Review the *5 granted Department the of State the sion regula is no in There indication these “submitting appeal to opportunity its the a de tions of effect to be accorded Septem- than not later the Commission (as Appeals when cision of the Board of The State ber 1952.” July the recom in case of the “appeal,” instead not an did submit agency mendation) it is submitted to the Commission notified the Civil Service “by Nei direction of the Commission.” reviewing September the it was that any ap provision for was an ther there that Commission’s recommendation peal in to the Commissioners from “the duty plaintiff retroactive- be restored to Commission,” as itial decision within the ly, Commis- and it advise the that would change in the case under the 1953 reach- as a final decision was sion soon regulations.7 if we were to Even ed. say “the Board [of that decision final,” Appeals two ex- that The reads into these be Review] shall right granted appeal,” De- tensions of time the State “there is no further by partment a Service “a correc Civil and that recommendation for July mandatory stay 1, 1962, by rec- Commission tive action the Board is ommendation, denying agen temporarily complied by thus and must by regulations finality pending “appeal” cy” provide8— it now —as questions Department. regulations The thus not then in existence do any, effect, “appeal” raised of “When did Commission’s us what if tell agency by Commission, become final?” recommendation to the or a plaintiff’s Commission, “When, therefore, by did the has on consideration complicated finality claim first are Board accrue?” of a decision. scarcity definitive Service Civil Assuming plaintiff’s interpreta- that regulations. retention Commission communications tion of between regulations preference for use reduc- and the State merely provided that in force tions stay July 1, correct, and that a granted recommendation “Any employee who feels that August again July pending a re- of his there has been violation Commission, rights regulations consideration this is still faced with Civil may appeal part [Part 20] subsequent renew- Commission’s appropriate Service office of Civil Serv- 5, 1952, “stayed” of the days al on from ice within renewal This of the recommendation. his notice of the he received date (appeals). (Supp.1958) amending Fed.Reg. 8. 5 20.9 C.F.R. 7. 17 (appeals). (Supp.1954) 20.9 C.F.R. original letter, recommendation was submitted De- this in which the State partment spells in a fail- letter the Chairman out its reasons recommendation, the Secre- Civil Service Commission to with the tary letter, the Com- “appeal.” of State. In this constituted an doWe 1, 1952, agree July rec- mission interpretation. reiterated regardless Depart- But ommendation and then stated of how the State reply ment’s December 22 is character- e., “Since time [i. ized, the- it could not in itself affect informal we 1952] have had several finality of the Commission’s recommen- representatives contacts with ** regu- dation. Under the statute and the Department for [the State] lations, the December 5 recommendation assisting purpose them —which originated clearly Com- with the placing in ef- our recommendation de- missioners —was on its face in- fect. As of are this date we final And, stated, already cision. as we have formed, however, recom- our nothing there is in the show record to com- mendation still has not been that the Commission intended to.further supplied.] plied [Emphasis with.” stay the of this decision. effectiveness The letter concluded: import It is of no 5- that the December “In order that matter recommendation man was not couched properly requested that closed it is datory language. provides, The statute you latter advise the Commission “any the Civil. than close of business December Commission, Service submitted to 1952, of taken action corrective *6 agency, ap Federal on the basis of the your proposed by or De- be taken to * * peal any preference eligible, employee- of partment in behalf of employee, complied, or former shall be [plaintiff].” n 9 by agency.” with such 5, 1952, Whether this letter December July is as a 1 did, viewed renewal of the It is true that the on- Commission recommendation, May or a to re- as reiterate recom- its earlier stay July a making study voke 1 recommenda- after mendation a further give finality tion, plaintiff’s we case, “taking believe it did to’ of into consid- arguments Commission’s recommendation that eration the the- advanced duty. Department be restored to There is of State in the De- letter of no 5 indication this December letter cember to it reasons prompting the Commission comply the must decline to with the Commis- * * press reopen- State to for a sion’s recommendation It was, 1 course, and reconsideration of the de- of not the- unnatural cision, perfect “appeal” or to to should make one further at- tempt do compliance Commission. Nor we find indi- secure to ear- its (and presumably Commission intended to mandatory) cation lier recom- delay the However, further effect of the recommen- mendation. neither the stat- pending appeal ute, dation reconsid- regulations, logic or a per- nor nor reiteration, contrary, On the eration. the letter hold mits us to that the mere only speaks .compliance prior finality the rec- of a decision affects the of' ommendation. - prior decision. 22, 1952, December plaintiff’s the State De- We are left then with con- replied unequivocally
partment stayed “for- tention that the Commission Depart- hereinafter reasons stated the pending December recommendation a reopening has determined that ment it must re- and reconsideration the- again spectfully decline only with the'- case. But here we can re- .argues that, regardless recommendations.” iterate of what have- § 868, amending (1944). [Emphasis sup 62 Stat. 58 Stat. 391 U.S.C.A. plied.] transpired between the Commission Looking po first at the Government’s De- prior the State sition we are contention met with the find recommendation, can we cember that, continuing applies if the court indi- absolutely nothing record in the theory claim in a situ reduction-in-force intended cate that the Commission ation, thereby the word “first” read any- be December recommendation statutory phrase, out of “within six binding thing the State final and years after such claim accrues.” first Department. December And since argu Despite appeal the surface of this n 5decision was not stayed must it begs ment, question. If, under it though final, Com- (cid:127)considered even continuing theory, claim failure of “each compelled to subsequently mission felt pay wages salary employer or 5 recommendation reiterate its December pay stipulated at the end the time for Department’s .and to answer give the. separate will claim ment rise a to com- refusal 22 documented December wages paid” or cause for not action ply with that recommendation. separate then each claim “first accrues” pay reached when the Government The same result fails salary separate aon period limitations related to each claim. rule that suit validity continuing reme The is tolled while administrative theory being cannot, therefore, it does pursued are be determined dies merely wording begin glance quick Service the Civil until run finally statute; is, passed on the it limitations finality again course, unusual for a statute of lim Here case.10 5, 1952, spell period is not out the time with itations to subsequent petition may filed in terms the Commission’s in which affected (or accrual) of a of that recommendation. of the accrual first reiteration setting claim, up a without formula filed Since the determining when the claim accrued. discharge years after his than six more wording lim Since the of the statute of the Civil after and more than decisive, is not must look itations we final recommenda- Service Commission’s *7 con to whether elsewhere tinuing a determine hold tion, to we have no recourse theory applica claim is valid or by limita- barred these claims are ble in a reduction force situation. tions. urges seriously alternative, plaintiff It cannot now be In continuing jurisdic questioned claim court has a this so-called recovery grant pay theory all is event tion back where he entitled years government illegally employee im pay six a has been accrued within back filing government petit mediately prior separated of his service.14 uncertainty money judgment light granting exist for back In In ion11 implementing pay we shall take of the law this court stat in this area regulations governing opportunity to reexamine con utes and reduc by refusing recognize respect theory tinuing force claim tions in discharge thereby indirectly arising illegal improper reduc out anof claims forcing agency plain considera to reinstate the There are valid in force. tion granting prob for sides of the of the basis present both tiff. In view tions balancing question relief, crucial them out is we think the task of lem. continuing theory easy claim is a one. whether States, F.Supp. States, 1956, 146 134 13. v. United v. Cannon Adler United 10. See (concur- 830, page 827, 200, Ct.Cl. 108 137 203. Ct.Cl. ring opinion). 1956, States, v. United 11. Cannon See F.Supp. 827, 137 Ct.Cl. States, 1945, United 66 F. 14. Lovett v. opinion). (concurring Supp. affirmed 104 C.Cls. 90 L.Ed. 66 S.Ct. U.S.C. 328 U.S. 12. 68 Stat. (1958). proper implementing sitting BARKSDALE, Judge, those device District regulations governing re- designation, statutes and and LARAMORE and WHITAKER, ductions in Judges, force. concur. We are the conten- not unmindful of MADDEN, Judge (dissenting). employee something tion that the I would hold that the nature re- of a divisible contract with pay Government, cover the paid which the presumably would have been which the Government him, rights if his had been re- breaches anew at end spected, every pay period period. However, within the prior filing Judge employ- his suit. See believes to characterize the opinion Littleton’s ment Cannon v. United relation between F.Supp. 827, Ct.Cl. 104. Government as founded on either perils I think the which the divisible or on an indivisible contract guard against may Although analogies court seeks to be would be artificial. by applying, proper avoided ordinary case, in a contract situations can helpful they doctrine of area, laches. in this should controlling where the result conflicts reasonably implement fails to or regulations statutes and involved. continuing theory Under the discharged illegally employee would be
permitted twenty seven, ten, to wait until fifty years discharge illegal
or after his filing petition,
before and would still pay be entitled to all ac recover back Fred LEINER years immediately prior crued within six v. the institution of suit this UNITED STATES. court. Since the unfairness ap sult to the is more than Government No. 576-57. say parent, we are unable to it rea United States Court of Claims. sonably implements the statutes and 8,Oct. regulations plain involved. The crux of tiff’s claim lies the failure of the protection him to' afford Government regulations govern of ing the statutes *8 resulting, and the reductions force illegal discharge. If >he is denied that illegally discharged
protection and is he petition entitled is lief, court only if he seeks relief in this unnecessary promptly and without
delay.15 plaintiff in the case at bar has
waited more than after seeking before accrued aid claim is therefore
this court. His by barred of limitations.
the statute granted, motion is
Defendant’s will be dismissed. ordered. is so
It
holding
is not
inconsistent with Moser v.
15. This
United