181 F. Supp. 400 | Ct. Cl. | 1958
delivered the opinion of the court:
Plaintiff, a postal employee, sues to recover back pay from July 12, 1954, the date on which he was suspended from his position in the Post Office Department, to September 7, 1956, the date on which he received the offer of reinstatement,
* * * any person whose employment is so suspended or terminated under the authority * * * [of this Act] may, in the discretion of the agency head concerned, be reinstated or restored to duty, and if so reinstated or restored shall be allowed compensation * * * [Italics supplied].
' The statement of charges preferred against plaintiff stated that plaintiff’s retention was not “clearly consistent with the interests of national security” and it specified seven particulars in which it was hot consistent. Thereafter, oh December 3, 1954, plaintiff’s case was heard by a Security Hearing Board of three members which decided that, contrary to the statement of the Postmaster General, plaintiff’s employment was consistent with the interests of national security as long as plaintiff was employed in a non-sensitive position. By letter dated December 28, 1954, the Board so advised the Post Office Department. The Postmaster General, however, proceeded on August 15, 1955, to remove plaintiff from his employment pursuant to the July 20,1954,
In the meantime, i. e., on May 28,1954, the suit of Cole v. Young was commenced in the United States District Court for the District of Columbia. Cole was a government employee who had also been suspended and discharged from a non-sensitive position in a government agency. On October 26, 1954, the District Court rendered a decision adverse to Cole (125 F. Supp. 584), which decision was, on July 28, 1955, affirmed by the United States Circuit Court of Appeals for the District of Columbia Circuit, 26 F. 2d 337. As noted above, the employment of the instant plaintiff, Mr. Leiner, was terminated on August 15, 1955. On October 11, 1955, plaintiff commenced his suit for reinstatement in the District Court, Leiner v. Summerfield, Civil Action No. 4473-55. Plaintiff herein was represented by the same attorneys who represented Mr. Cole. On November 21,1955, the Supreme Court granted certiorari in the case of Cole v. Young, 350 U. S. 900. On December 10,1955, a request of the Department of Justice for an extension of time to file an answer in Leiner v. Summerfield, was extended to January 11, 1956. On June 11, 1956, the Supreme Court rendered a decision favorable to Cole in Cole v. Young, 351 U. S. 536, and on July 6, 1956, the time for rehearing and for withholding of the Supreme Court mandate expired. On July 31, 1956, the attorney for the plaintiff herein was advised by attorney for the United States in Leiner v. Summerfield that the Department of Justice would advise the Post Office Department that Mr. Leiner could be reinstated in view of the decision of the Supreme Court in Cole v. Young.
On September 5, 1956, the plaintiff was offered reinstatement to his position in the Post Office Department. In the letter offering plaintiff reinstatement he was advised that in view of the decision of the Supreme Court in Cole v. Young, supra, it had been concluded that since plaintiff occupied a position which had not been designated as “sensitive”, Executive Order 10450 and section 22-1 of the 1950 Act were not legally applicable to his case. The letter advised plaintiff how to prepare a claim for back pay, stat
As we have seen, section 22-1 of the Act of August 26, 1950, provides that any person whose employment is suspended or terminated under the authority of that section and who is reinstated by the head of the employing agency, shall be paid back pay; • The plaintiff was suspended, and later removed, by written communications expressly based upon the authority granted to the Postmaster General by section 22-1. Plaintiff was later restored to duty. Without more, his case would seem to fit the statute and his entitlement to receive the back pay appears clear.
The Government says, however, that the plaintiff’s case is not covered by the statute because, although the Postmaster General purported to remove plaintiff “under the authority of” section 22-1, that statute did not give the Postmaster General the authority which he assumed. Cole v. Young, supra, decided that section 22-1 was not applicable to employees who did not occupy “sensitive” positions, hence, the Government urges, the assumed authority herein was in fact non-existent, and therefore the back pay proviso, applicable to a person whose. employment is suspended or terminated “under the authority of” section 22-1 is not applicable to this plaintiff. If the Government’s concept of the narrow scope of authority granted to the agency heads in the 1950 act is valid and is carried to its logical conclusion, it is difficult to conceive of a casé where a reinstated employee might recover the back pay provided for in the statute.
Did Congress, in the proviso granting back pay to employees removed and later restored by personnel action related to this security statute, mean that if the department head should later, persuaded by a decision of the Supreme Court, conclude that he had misconstrued the statute, and therefore should reinstate the employee, and did so, the employee should not get back pay? We are of the opinion that Congress had no such intention. We think that in this remedial provision Congress could not have intended to draw so fine a line. Congress recognized that the statute, lodging arbitrary and final power in department heads, was a departure from normal Government personnel practice, justifiable only in the interest of national security. It tempered the severity of the statute by granting discretion to the department heads to right possible wrongs committed under the statute by ordering reinstatement. Then it made mandatory the payment of back pay to such reinstated employees. If the Postmaster General had followed the decision of the Security Hearing Board in the first place and had reinstated the plaintiff because his job was not a “sensitive” one, plaintiff would, of course, have received his back pay under the statutory provision in question. When the Postmaster General, a year later, did the very same thing because of the Supreme Court’s decision in Cole v. Young, he was correcting an error. The error had been regarded by the Security Hearing Board as an error of judgment, an over-zealous application of the security law. The Supreme Court decided that a similar error by another department head was an error of law. We think Congress did not intend, in the remedial provisions of the statute, to draw a distinction between the two kinds of errors.
Plaintiff is entitled to recover and his motion for summary judgment is granted. Defendant’s motion for summary judgment is denied. Judgment will therefore be entered to that effect with the amount of recovery to be determined pursuant to Pule 38 (c).
It is so ordered.
The offer of reinstatement and the instructions relative to the preparation of plaintiff’s claim for back pay specified that the dates for such pay claim should be from the date of suspension to the date of -receipt of the letter offering reinstatement.
By Executive Order-10450, 18 Fed. Reg. 2489, Section 3 of the 1950 Act *was invoked to include all executive departments of the Federal Government', including the Post Office Department.
Plaintiff points out that prior to his suspension he had successfully completed his probationary period although the 18-month period of investigation during which time the Civil Service Commission might order his removal, had one month to run.