137 Ct. Cl. 557 | Ct. Cl. | 1957
Lead Opinion
delivered the opinion of the court:
Plaintiff moves for a rehearing, alleging that the opinion and judgment of the court dismissing her petition was contrary to law. She also asks leave to amend her petition so as to assert rights under Revised Statutes 161, 5 U. S. C. 22, which gives to the head of each department of the United States Government the authority to prescribe regulations for the conduct of its officers and employees. She alleges that the regulations of the War Department were issued pursuant to the authority of this statute, and that since these regulations were not observed, she is entitled to a judgment.
This position cannot be sustained. Many regulations are issued by the various departments governing their personnel for the guidance of the officers and agents in the departments, but the violation of them creates no right of action in the employee. Only Congress can create a right of action against the United States. This principle is recognized and relied on in the cases cited below.
On January 16, 1888 (22 Stat. 403), Congress passed the Civil Service Act, which created the Civil Service Commission, and which provided for the appointment of employees of the Federal Government after competitive examination. It contained no reference to removals from office, except in section 13, which prohibited the discharge or demotion of any officer or employee, but only for this reason, — “for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose.” However, pursuant to the authority therein granted to make “suitable rules for carrying this Act into effect,” the President, through the Civil Service Commission, promulgated a rule providing for a probationary period of six months before a permanent appointment in the Civil Service. Whether or not this rule gave to the plaintiff, a probationary appointee, who was suspended prior to the expiration of six months, a right of action against the United States, was before the court in Ruggles v. United States, 45 C. Cls. 86.
* * * Such rules, though effective to regulate the conduct of subordinates subject to executive authority, may at the will of the Executive be rescinded; consequently it has been held that no vested right is acquired oy the incumbent of an office by virtue of such regulation. (Carr v. Gordon, 82 Fed. Rep., 373, 379; Page v. Moffett, 85 Fed. Rep., 38-40.)
Paragraph 4 of section 2 of the civil-service act of January 16, 1883 (22 Stat. L., 403), provides for “a period of probation before any absolute appointment or employment” is made; and therefore it may be said that the executive regulation fixing the probationary period at six months has the force of law; yet neither the statute nor the regulation can be construed to bind the Government to retain in its employ an appointee who is found inefficient.
The civil-service act does not prescribe the tenure of office, nor was it intended to restrict the Executive in his power of removal or discharge of an officer subject to his appointment, except as provided by section 13, which in substance provides that no officer shall be discharged, promoted, or degraded for giving, withholding, or neglecting to make contributions for political purposes. This was the view of Circuit Judge Lurton in the case of Morgan v. Nunn (84 Fed. Rep., 551, 552), which was an action to enjoin an internal-revenue collector from the removal of a clerk in the classified service for political reasons, in respect to which the court, among other things, said: “It is now well settled that, in the absence of constitutional or statutory regulation, the power of appointment carries with it, as an incident, the power to remove. This was first authoritatively determined in respect to appointments vested by the Constitution, or by acts of Congress, in the President, judges of United States courts, and heads of departments, in the case reported as In re Hennen (13 Pet., 230), the question there being as to the power of a district judge to remove a district court clerk. The doctrine in that case was followed in an elaborate opinion in Parsons v. United States (167 U. S., 324).”
In William A. Miller v. United States, 45 C. Cls. 509, a printer had been discharged by the Public Printer and later reinstated, pursuant to a finding of wrongful discharge by the Civil Service Commission. He sued for his salary dur
In Morgan v. Nunn, 84 Fed. 551, Mr. Justice Lurton, then Circuit Judge, also considered the power of removal after the passage of the Act of January 16, 1883. Of this Act he said:
The Act of January 16, 1883, commonly called the “Civil Service Act,” deals in no direct way with the tenure of office of those persons then, or who might thereafter be, included within the classified service. Nor does it make any declaration expressly bearing upon the subject of removals from office, except in the single provision found in the thirteenth section, which prohibits any promotion, degradation, removal, or discharge of any officer or employe for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose. It is now well settled that, in the absence of constitutional or statutory regulation, the power of appointment carried with it, as an incident, the power to remove. This was first authoritatively determined in respect to appointments vested by the constitution, or by act of congress, in the President, judges of United States courts, and heads of departments, in the case reported as In re Hennen, 13 Pet. 230; the question there being as to the power of a district judge to remove a district court clerk. The doctrine of that case was followed, in an elaborate opinion, in Parsons v. United States, 167 U. S. 324, 17 Sup. Ct. 880. The civil service act prescribes no tenure of office, and does not deny the power of removal, except in the particular mentioned. The executive rules in force prior to November 2, 1896, in no way undertook to regulate removals; and it is a part of the history of the country that removals were constantly made, at the will of the appointing power, down to the promulgation of the amended rules of November 2, 1896, and those of July 27, 1897.
Pie then quoted the rule promulgated by the President on July 27, 1897, reading:
*561 No removal shall be made from any position subject to competitive examination, except for just cause, and upon written charges filed with the head of the department, or other appointing officer, and of which the accused shall have full notice, and an opportunity to make defense.
Of this rule he said:
It is said that the civil service rules, so far as they deny the unrestrained power of removal, are not the law of the land, but are mere executive orders, dependent for their force upon the vigilance and earnestness of the chief executive in compelling his appointees to regard and obey regulations voluntarily imposed by him as a regulation by the appointing power of its otherwise unrestrained liberty of removal. To this contention I am constrained to yield my assent. These rules regulating the power of removal were made by the president, and may be repealed, altered, or amended at his pleasure. Prior to November 2, 1896, no such restraints existed; and, if after that date they came into force, it was alone by virtue of an executive order. Law is not thus enacted, altered, or amended. Law must be an expression of a rule of action by the legislative authority. These civil service rules, so far as they deal with the executive right of removal, — a right which is but an incident of the power of appointment,- — are but expressions of the will of the president, and are regulations imposed by him upon his own action, or that of heads of departments appointed by him. He can enforce them by requiring obedience to them on penalty of removal. But they do not give to the employes within the classified civil service any such tenure of office as to confer upon them a property right in the office or place.
The only restriction on the power of removal contained in the Act of January 16,1883, is removal for political reasons. Although the President undertook to prohibit removals, except for just cause, and upon notice, and with an opportunity to make defense, the courts have nevertheless held that this regulation conferred no property right on the employee, and that the rule was enforceable only by the President himself, and conferred no rights on the employee which could be enforced in court. In addition to the above cases, it was so held in Carr v. Gordon, 82 Fed. 373; Flemming v. Stahl,
In United States v. Wickersham, 201 U. S. 390, there was involved the removal of an employee by a subordinate officer who had no authority to do so. His removal had not been approved by the head of the department, but, on the contrary, had been criticized by him; the court did not decide what his rights would have been had he been discharged by the head of the department. It said, at page 399:
Whether he could have been summarily removed or suspended by the President or other competent authority is not the question now before the court, but the question is whether the employe during his wrongful suspension by a _subordinate officer is entitled to the compensation provided by law.
This court in Ruggles v. United States, supra, said that the Wichersham case was not applicable to the removal of a probationary appointee by competent authority before the probationary period, fixed by the Civil Service Commission regulation, had expired, and that such removal gave the employee no right of action in court.
Except for the Act of January 16, 1883, prohibiting discharges for political reasons, the only Act which gives to a non-veteran employee a right of action for á wrongful discharge is the Lloyd-LaFollette Act of August 24, 1912, 5 U. S. C. 652. This Act provides that no employee in the classified civil service shall be discharged except for the good of the service, and after a certain procedure has been followed. A violation of this statute creates a right in an employee, for the violation of which the United States is liable. But in Nadelhaft v. United States, 132 C. Cls. 316, we held that since the prohibition against removal, except for cause, applies only to employees in the classified civil service, a probationary employee was not entitled to its protection, since he was not in the classified civil service until he had served out his probationary period. Since this Act has not been violated, and since plaintiff in the instant case has not been discharged for political reasons, she has no right of action against the Government.
Plaintiff files a motion to amend her petition so as to claim rights arising under E. S. 161, instead of the Lloyd-LaFol-lette Act of 1912. Since, in our opinion, plaintiff acquired no rights under E. S. 161, it would be futile to allow the amendment of her petition so as to claim rights thereunder.
For these reasons the motions for leave to amend her petition and for a rehearing are denied.
It is so ordered.
Dissenting Opinion
dissenting:
We would grant plaintiff’s motion for leave to amend her petition. The proposed amendment does not alter the nature or extent of plaintiff’s claim but merely alters the original petition to show the correct statutory authority for the regulations on which plaintiff bases her claim, i. e., the act of March 3, 1871, R. S. 1753, 16 Stat. 495, 514, the act of January 16, 1883, 22 Stat. 463, and R. S. 161, 5 U. S. C. 22, and to eliminate all reference to the Lloyd-LaFollette Act of August 24, 1912, 37 Stat. 539, 555. Although the majority is of the opinion that the proposed amendments, if permitted, would not affect the outcome of the case, adverse to plaintiff, we think plaintiff should be permitted to make the corrections desired in view of the fact that she may decide to seek a review of this court’s decision.
We do not agree with the conclusion reached by the majority to the effect that no claim within the jurisdiction of the court arises upon the violation by the United States of a Civil Service or departmental regulation prescribing the manner in which a probationary employee may be removed from her government position.
(d) Probationary appointment. A person selected for appointment shall be duly notified by the appointing officer and upon accepting and reporting for duty shall receive from such officer a notice of probationary appointment. The first year of service under this appointment shall be a probationary period: * * * If and when, after a full and fair trial, the conduct, capacity or efficiency of the probationer is not satisfactory to the appointing officer, the probationer shall, prior to_ the completion of his probationary period, be so notified in writing, with a statement of reasons, and this notice shall terminate his service. [Italics supplied.]
The above regulation was issued pursuant to Executive Order 9691 of February 4, 1946, 3 Code of Federal Regulations, 1946 Supplement, p. 95, and the Executive Order was issued under authority of sections 2 and 3 of the Civil Service Act of 1883, 22 Stat. 403, and section 1753 of the Revised Statutes. The regulation, to the extent quoted, had been in effect in almost identical form for a number of years. See 5 Code of Federal Regulations, § 7.2 (3), 1938 Supplement, issued pursuant to Executive Order 7915 of June 24, 1938, Rule YII Certification, 2 (c), 3 Code of Federal Regulations, 1938 Supplement, p. 52, issued pursuant to section 1753 of the Revised Statutes, the Civil Service Act of 1883, supra, and the authority vested in the President by the Constitution.
The departmental regulation relied on by plaintiff, and in effect at the time of her discharge, was War Department Civilian Personnel Regulation No. 60, issued pursuant to section 161 of the Revised Statutes (1773-1774), 5 U. S. C. § 22, which provides as follows:
The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it.
Neither the Civil Service regulation nor the War Department regulation was complied with upon the occasion of plaintiff’s discharge, and the question before the court is whether the violation of either or both of these regulations gave rise to a claim for pay against the United States within the meaning of section 1491 of Title 28 of the United States Code as a claim founded upon a regulation of an executive department. This question was decided in Simon v. United States, 113 C. Cls. 182.
With respect to the Civil Service regulation relied on by plaintiff, and issued pursuant to R. S. 1753 and the Civil Service Act of 1883, supra, the majority holds that such regulation prescribing the manner in which a probationary employee may be separated from government service does not have the force and effect of law, and its violation, therefore, does not form the basis for a claim for pay within the jurisdiction of this court. The majority points out that the 1883 Civil Service Act places no restriction on the right of an appointing official to remove employees appointed pursuant to that Act, except in § 13, which prohibits removals for withholding political contributions. The majority further states that the cases have uniformly held that regulations issued pursuant to the 1883 Act, which purported to place additional restriction on the power of removal, conferred upon employees covered by such regulation no rights against the United States which could be enforced in any court.
A careful study of the cases cited in the majority opinion persuades us that they do not justify the result reached by the court in the instant case.
In the Circuit Court cases relied on by the majority, and discussed hereinafter, the courts were concerned with a Civil Service procedural regulation promulgated by Executive Order of July 27, 1897, pursuant to the 1883 Civil Service Act. That regulation provided that no removal of an em
* * * It has no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. To assume such a jurisdiction, or to sustain a bill in equity to restrain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government. [Italics supplied.]
The holding in Carr v. Gordon, supra, was followed in a number of subsequent cases involving the same issue, i. e., the jurisdiction of a court of equity to grant an injunction to restrain a threatened removal of a Civil Service employee in violation of the Executive Order of July 27, 1897. Flemming v. Stahl, 83 Fed. 940 (1897); Morgan v. Nunn, 84 Fed. 551 (1898); Page v. Moffett, 85 Fed. 38 (1898). In each case the court held that it had no jurisdiction to issue the injunction because no property right was involved and that jurisdiction to determine title to a public office belonged exclusively to courts of law to be exercised either by cer-tiorari, error or appeal, by mandamus, prohibition, quo war-ranto, or an information in the nature of a writ of quo war-ranto, according to the necessities of the case.
A conflict existed at that time between the holdings of circuits, as exemplified by the holding in Butler v. White, 83 Fed. 578 (1897), in which the court granted an injunction restraining a threatened removal in violation of the terms of the Presidential Order of July 27, 1897. This conflict was resolved in White v. Berry, 171 U. S. 366, in a decision upholding the conclusions reached by the courts following the holding in Carr v. Gordon, supra, i. e., that courts of equity have no jurisdiction over the appointment or re-
The question therefore arises: what, if any, application have the holdings above noted in the equity cases to suits for fay founded upon an alleged wrongful and illegal removal of a government employee covered by the Civil Service Act of 1883 (and not by the Lloyd-LaFollette Act of 1912) ?
In Ruggles v. United States, 45 C. Cls. 86 (1910), cited by the majority herein and quoted at some length, the cases of Carr v. Gordon, Page v. Mofett, and Morgan v. Nunn, supra, are relied on as holding that no vested right in a government office is acquired by virtue of certain executive regulations. Buggies had received an appointment in the War Department for a probationary period of six months. Before the expiration of the six months, Buggies was suspended by the quartermaster without pay on the ground that he was not qualified for the duties of the office, of which fact he was notified in writing. Thereafter charges were preferred, investigated, and sustained. Ultimately, his suspension without pay was ratified by the Secretary of War and Buggies was discharged. Buggies sued to recover his pay during the balance of the six-months’ probationary period because, he claimed, he could not legally be removed during that period under the Civil Service Act of 1883, and a Presidential regulation promulgated thereunder. The regulation relied on by Buggies was apparently that of January 2,1897, providing that a probationary appointee should receive a certificate of appointment for a probationary period of six months. See Brown v. United States, 39 C. Cls. 255. The court held that neither paragraph 4 of section 2 of the Civil Service Act, providing for a period of probation before any absolute appointment, nor the regulation of January 2, 1897, providing that the probationary period should be for six months, created in the probationary appointee a vested right in his job for six months and that the Government was free to remove him if his services were found to be inadequate or not needed. The particular regulation which was before the circuit courts in the cases of Carr, Morgan and Page, supra, was the 1897 Executive Order requiring that removals for cause be made
But in the present case as the claimant was suspended without pay for inefficiency, upon written charges which were investigated and found to be true, we need not further consider the force and effect of the rules promulgated by the Executive in respect to removals from office during the probationary period of an appointee. The claimant was removed m compliance with the rules of the civil service promulgated by the President; and we may add that the rule prohibiting removals except upon written charges, with notice and an opportunity to defend, of itself implies removal for just cause during the probationary period.
This is not the case of a wrongful suspension of an employee by a subordinate officer, as in the Wichersham, case (201 U. S. 390), but was a suspension followed by removal for just cause upon written charges, as prescribed by the rules of the civil service promulgated by the President, and for that reason the demurrer is sustained and the petition dismissed. [Italics supplied.]
From the above it appears that the holding in the Buggies case is not authority for concluding that violation of the proced/u/ral reguiirements for removal of a government employee prescribed by an executive order issued under the 1883 Civil Service Act does not give rise to a claim for pay within the jurisdiction of the Court of Claims.
Another case relied on by the majority is that of Miller v. United States, 45 C. Cls. 509 (1910). In that case, Miller was discharged by the appointing official, the Public Printer. He was first suspended until final action could be taken on charges which had been preferred and of which he was advised, including the reasons therefor. The Public Printer, being satisfied that Miller’s removal would be for the good of the service, ordered his discharge. Subsequently, the Civil Service Commission held Miller’s discharge improper and recommended his reinstatement. Thereafter, the President of the United States also ordered Miller’s reinstatement,
A case which appears to be identical in most respects with the Miller case, supra, was that of Eberlein v. United States, 53 C. Cls. 466 (1918), affirmed, 257 U. S. 82 (1921). In the Eberlein case, the plaintiff, a customs employee, had been removed on charges, without pay, pending an investigation of such charges which were found to be established and Eberlein was discharged from the service. Two years later, the charges were reinvestigated and plaintiff was cleared thereof. The President directed reinstatement of Eberlein and thereafter Eberlein sued for back pay for the period of alleged wrongful suspension. In affirming the judgment of dismissal by the Court of Claims the Supreme Court noted that all the procedures required by law and regulation were complied with in connection with the suspension and removal of Eberlein, and the Court held that since all procedural requirements had been met, the action of the appointing official was not subject to revision in the courts, since it appeared that the discretion of the authorized officer had been exercised “as required by law.” With respect to the reinstatement order of the President, the Supreme Court held that the power of appointment and removal of this particular employee had, by act of Congress, been placed in the Secretary of the Treasury rather than in the President and that therefore the order of the President merely reinstated
Neither the Miller nor the Eberlein case holds that a government employee, whose removal is in violation of the procedural requirements of a regulation, issued pursuant to the 1883 Civil Service Act, has no claim for pay lost by reason of such removal.
We next consider the case of Wichersham v. United States, 201 U. S. 390 (1906), which, in our opinion, is the closest in point with the case under consideration in that it involved the right of a government employee to sue for back pay in the Court of Claims where his discharge was in violation of the procedural requirements of a regulation issued pursuant to the Civil Service Act of 1883. The regulation in question was not identical with the one in the instant case, but it did have two things in common with the regulation here involved: (1) it prescribed certain procedures to be followed in removing a government employee, and (2) it was issued under the authority of the Civil Service Act of 1883 and R. S. 1753.
Wickersham, an employee of the General Land Office, was summarily discharged by the Surveyor General on the ground that there was insufficient work in his office to warrant the continued employment of Wickersham. When, shortly thereafter, the Surveyor General requested permission of the Commissioner of the General Land Office to employ additional clerical help to cope with a backlog of work, he was advised that his action in dispensing with the services of Wickersham and others was improper for two reasons: (1) that there was no lack of sufficient work to be done at the time of the removals, and (2) that the Surveyor General had failed to comply with the Civil Service regulation requiring that written charges be filed with the depart
Beginning on page 397, the Supreme Court discusses the scope of the Civil Service Act of 1883 to regulate and improve the Civil Service of the United States and states that its provisions “are broad and comprehensive.” The Court then held that both the regulation of May 6,1896, extending Civil Service coverage to certain officers and employees not theretofore covered, and the procedural regulation of July 27, 1897, providing for the manner in which their removals should be effected, were within the scope of the 1883 Act. With respect to the latter rule, the Supreme Court states at p. 398:
* * * He [Wickersham] was, therefore, entitled to the protection of the President’s order of July 27, 1897 (14 An. Eep. Civ. Serv. Comm. 133) : “No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the department or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense.” If the contention of the Government be correct, and the attempted suspension by the surveyor-general was equivalent to a dismissal from office, such action would run counter to the requirements of the Presidential order just quoted. The action of the surveyor-general was not upon written charges, and no notice or opportunity to make defense was given to the accused, as provided in that order. The appellee being entitled to the protection of this order, and to have notice of the charges preferred, and an opportunity to make defense, the attempted removal, if such it was, was without legal effect; * * *.
The Supreme Court then noted, as pointed out by the majority herein, that it was not passing on the question of whether the President or some other competent authority could have (with impunity) summarily removed or suspended Wickersham because that question was not before the Court. The question which the Supreme Court felt was before it was whether an employee who had been suspended by a subordinate official in a manner violative of the executive order of the President was entitled to the compensation pro
We cannot agree with the interpretation by the majority of the 'Wichersham opinion as a holding that it involved only the removal of an employee by a subordinate officer “who had no authority to do so.” The subordinate officer in question, the Surveyor General, did have authority to bring about the removal of the employees under him, provided he complied with the procedures outlined in the executive order and the Civil Service rule. Furthermore, we cannot agree with the statement of the majority of what this court said in the Buggies case, supra, in distinguishing that case from the Wichersham case. What this court said of the Wichersham case in its opinion in the Ruggles case, was this:
This is not the case of a wrongful suspension of an employee by a subordinate officer, as in the Wichersham case (201 U. S. 890), but was a suspension followed by removal for just cause upon (written charges, as prescribed by the rules of the civil service promulgated by the President, and for that reason the demurrer is sustained and the petition dismissed.
Earlier in the Buggies opinion, the court distinguished the situation in Buggies from that in Lellmann's case, 37 C. Cls. 128, on the ground that Euggles, unlike Lellmann, was served with charges in writing and was given an opportunity to make defense. The facts in Lellmann's case were identical with those in the Wichersham case, and the holding of this court was specifically approved by the Supreme Court in its decision in the Wichersham opinion. Finally, the Court of Claims in the Buggies opinion did not consider the applicability of the 1897 executive order covering removals from government office upon the removal of a probationary appointee, for the express reason that the procedures contained in the 1897 order had been fully complied with in the Buggies case.
Until the decision in the instant case, the most recent decision of this court on the precise issue involved herein, was the case of Simon v. United States, 113 C. Cls. 182. In that case the majority of the court (four judges) held that a
In the Simon case, supra, the Government took the position that the Civil Service Act of 1883, and regulations issued thereunder, such as the reduction-in-force regulation involved in the Simon case, were not intended to create rights enforceable by the Court of Claims through a money judgment; that only where Congress expressly states in a statute authorizing regulations that violation of those regulations will give rise to a claim thereunder enforceable in the Court of Claims does this court have jurisdiction of a claim founded upon those regulations. In rejecting that contention, the court noted that the Civil Service Act of 1883 had been enacted some twenty years subsequent to the Act setting forth the jurisdiction of this court and, in enacting the 1883 Act and providing for the issuance of regulations thereunder, Congress was presumably aware that the Court of Claims had jurisdiction to render judgment on claims founded upon the regulations of an executive department, and did not consider it necessary to again declare that rights created under the 1883 Act and its regulations could be litigated in and determined by this court. While the Civil Service Act contained no provisions with respect to the procedures to be followed in removing employees from government service, regulations prescribing such procedures were certainly not in conflict with that statute, and a regulation promulgated to insure an orderly and fair manner of carrying out reductions in force was held to be a regulation or “suitable rule for carrying this act [1883] into effect.” Subsequent to the decision of this court in the Simon case, Congress enacted Public Law 623 of June 10, 1948, 62 Stat. 354, amending section 6 of the Lloyd-LaFollette Act of August 24, 1912, 5 U. S. C. 652. The 1912 Act had nothing to do with reductions in force, but the 1948 amendment provided in subpara-
The only ground upon which a removal during a reduction in force could be said to be “unjustified” or “unwarranted” would be that the Civil Service reduction-in-force regulation issued pursuant to the 1883 Act had not been followed. No statute of which we are aware provides for reductions in force or the manner in which they must be carried out. The reduction-in-force regulation itself cites as its authority the Civil Service Act of 1883 and Congress must have thought the regulation a valid and enforceable one to have provided in the 1948 Act that an employee discharged in violation thereof and later reinstated should be paid for the period of wrongful removal.
From our study of the cases mentioned herein above, we think the following observations are here pertinent. No Federal statute to date has conferred on a government employee holding an appointment under any of the Civil Service laws such a property right in the position to which he is appointed as will invoke the protection of a court of equity, since no such statute specifically denies to the President or some other appointing official the right of removal. Since no property right in a government job exists, equity will not enjoin the threatened removal of an incumbent in violation of a Presidential or Civil Service rule which prescribes the manner in which that removal must be made. In so holding, however, the courts of equity and the Supreme Court have, as hereinbefore mentioned, been careful to point out that in the event of an actual (as distinguished from threatened) removal of a government employee in violation of such an
While a government employee may not secure an injunction to restrain a removal which is in violation of a procedural regulation applicable to removals, once that removal is effected in violation of the procedural regulation, the courts have held such a removal illegal, and the Court of Claims has rendered judgment for pay lost during such wrongful removal. Lellmann v. United States, Wickersham v. United States, and Simon v. United States, supra.
It is of some significance that neither the briefs of the parties in the Supreme Court nor the Court itself in its opinion in the Wichersham case, made any mention of the holdings of the Supreme Court in White v. Berry, supra, or of the Circuit Courts in Carr v. Gordon, Page v. Moffett, Flemming v. Stahl, and Morgan v. Nunn, supra, although all of those cases involved the same procedural regulation of the President of July 27, 1897 which was involved in the Wichersham case. We think the reason for this is that the equity cases have no application to the issues involved in a suit for pay where the ground for recovery asserted is- the actual violation of a procedural regulation.
A regulation of an executive department which is not in conflict with existing law and which can be said to reasonably effectuate the purposes of the statute under which it was issued, is a regulation which has the force and effect of law and one upon which a claim within the jurisdiction of this court may be based. While it is true that the Civil Service Act of 1883 did not take from the appointing power the
From the pleadings and papers in the instant case, it appears that this case has much in common with the Wiclcer-sham case. Plaintiff in the instant case was not summarily removed by the head of the War Department any more than was Wickersham summarily removed by the Secretary of the Interior or by the President and accordingly the excerpt quoted by the majority herein relative to the power of the President or department head to dismiss an employee has no more application to this case than it had to the Wicker-sham situation. Plaintiff herein was removed by a Major Warren, a subordinate officer in the Army Finance Office, and like the Surveyor General in the Wickersham case, Major Warren failed to observe and comply with the procedural regulation of the Civil Service Commission expressly applicable to the removal of a probationary employee. We are of the opinion that the removal of Miss Watson was as illegal as that of Wickersham and that she is entitled to recover on her claim for pay founded upon a valid regulation of the Civil Service Commission.
With respect to Civilian Personnel Regulation 60 of the War Department, issued pursuant to section 161 of the Revised Statutes, we are of the opinion that such regulation also has the force and effect of law so that an employee removed in violation of the procedures prescribed therein has a claim cognizable by this court.
In Carter v. Forrestal, 175 F. 2d 364, cert. denied, 338 U. S. 832, Carter, a civilian employee of the War Department, was discharged because he willfully avoided payment
Neither do we find any merit in appellant’s contentions that the War Department regulation (Orders T) was invalid. There is both constitutional authority, Constitution, Article II, Section 2, and statutory authority, Sec. 161, R. S., 5 U. S. C. A. § 22, authorizing the Secretary of War to promulgate regulations specifying what shall be considered grounds for the dismissal of an employee. * * *
In Boske v. Comingore, 177 U. S. 459, the Court, speaking of a departmental regulation, issued pursuant to section 161 of the Eevised Statutes, stated, at page 470:
* * * In determining whether the regulations promulgated by him [Secretary of the Treasury] are consistent with law, we must apply the rule of decision which controls when an act of Congress is assailed as not being within the powers conferred upon it by the Constitution; that is to say, a regulation adopted under section 161 of the Eevised Statutes should not be disregarded or annulled unless, in the judgment of the court, it is plainly and palpably inconsistent with law. Those who insist that such a regulation is invalid must make its invalidity so manifest that the court has no choice except to hold that the Secretary has exceeded his authority and employed means that are not at all appropriate to the end specified in the act of Congress.
This plaintiff does not urge that she had classified civil service status at the time of her discharge in 1947, nor does she claim the benefits of the Lloyd-LaFollette Act. She does, however, claim that as a regularly appointed probationary employee she is covered by the Civil Service Act of 1883, the Civil Service regulation relative to probationary employees issued pursuant thereto, and by Civilian Personnel Regulation 60 of the War Department, issued pursuant to section 161 of the Revised Statutes.
We are of the opinion that both regulations relied on by plaintiff are valid regulations of an executive department not in conflict with any existing law and that her discharge in violation of such regulations gave rise to a claim founded upon a regulation of an executive department cognizable by this court. We would accordingly grant plaintiff’s motion for a new trial. We would also give plaintiff leave to amend her petition to correct the errors in legal citations appearing in her present petition.
The Constitution provides in Article II, section 2, clause 2; with respect to the powers and duties of the President, in part as follows:
“* * * and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: hut the Congress may by Lam vest the Appointment 0} such inferior Officers, as they thinh proper, in the President alone, in the Courts of Lam, or in the Beads of Departments.” [Italics supplied.]
The full text of the regulation is as follows:
‘‘No removal shall be made from any position subject to competitive examination, except for just cause, and upon written charges filed with the head of the department, or other appointing officer, and of which the accused shall have full notice, and an opportunity to make defense.”
Both regulations required that a probationary employee be notified in writing of the reasons why her conduct or capacity was not satisfactory.