
    CALVIN I. KEPHART v. THE UNITED STATES
    [No. 47363.
    Decided December 1, 1947.
    Defendant’s motion for new trial overruled March 1, 1948]
    
      
      Mr. Galvin I. Kephart pro se.
    
    
      Mr. S. R. Gamer, with whom was Mr. Acting Assistant Attorney General Herbert A. Bergson, for the defendant. Mr. Edgar T. Fell was on the brief.
   Howell, Judge,

delivered the opinion of the court:

Plaintiff is an employee of the Interstate Commerce Commission, a department of the United States Government, Washington, D. C., as a Principal Trial Examiner in the Section of Complaints, Bureau of Motor Carriers.

On January 26, 1940, while a Senior Examiner, P-5 classification, plaintiff appealed to the Civil Service Commission for a reallocation of his position to that of Principal Examiner, grade P-6 classification, which appeal was, in accordance with the rules, filed with the Interstate Commerce Commission. The appeal was considered and denied by the Interstate Commerce Commission on August 9,1940, whereupon plaintiff filed an appeal with the United States Civil Service Commission.

On August 22, 1940, the Civil Service Commission acknowledged receipt of the appeal and suggested the advisability of the matter being handled without a hearing in order to conserve time, to which plaintiff consented. Shortly thereafter, on October 14, 1940, plaintiff was called to active military duty as a member of the Officers’ Reserve Corps component of the Army, pursuant to Public Resolution No. 96, approved August 27, 1940, 54 Stat. 858. He served for one year and was restored to a position with the Interstate Commerce Commission as a Senior Examiner, P-5 classification, and later, on June 5, 1942, was again called to active military service, being finally discharged because of age on November 12,1943, at which time he was again restored to a position as Senior Examiner, P-5 classification.

At the time plaintiff was called to active duty in October 1940, the Civil Service Commission suggested that action on his appeal be suspended during his military service, to which plaintiff agreed with the understanding that it would not work to his injury and he duly kept the Civil Service Commission informed of his tour of military duty.

Following the plaintiff’s final discharge from the armed services, the Civil Service Commission, on July 29, 1944, advised plaintiff and the Interstate Commerce Commission that the work plaintiff was performing at the time of call to the military service was properly allocable to grade P-6. The Interstate Commerce Commission requested the Civil Service Commission to reconsider the decision and in January 1945 the Civil Service Commission sustained its previous determination. Subsequently the Interstate Commerce Commission requested a ruling of the Comptroller General as to the date on which the reallocation should become effective and the Comptroller General ruled that the reallocation should be made effective as of January 1, 1945, January being the month during which the Civil Service Commission sustained its previous decision reallocating plaintiff to a grade P-6 classification. Plaintiff has received pay for his services accordingly.

Plaintiff contests the ruling of the.Comptroller General as to the effective date of this reallocation and relies upon the provisions of the Public Eesolution as amended by the Selective Training and Service Act, 54 Stat. 885, contending that the reallocation should be made effective from the date of the appeal or from the date of his first tour of military duty, and seeks judgment for the difference in salary including administrative raises from that date. The ruling of the Comptroller General in this case was based upon a previous ruling of that office (4 Com/p. Gen. 280) which has been followed for many years and the soundness of that ruling in a case not affected by the Acts of Congress relating to military service before and during World War II need not now be considered, as the court is of the opinion that plaintiff’s case-is controlled by those acts.

-Under the Public Eesolution as amended by the Selective Training and Service Act, a person who leaves a position in the employ of the United States Government, upon relief from military duty is to be restored to such position or to a position of like “seniority, status, and pay”, and, when so restored, “stall be considered as having been on furlough or leave of absence during his period of active military service” and “shall be restored without loss of seniority.” Sec. 8 (d), Selective Training and Service Act, 54 Stat. 885, 890.

While plaintiff’s appeal was pending during his first tour of active military duty from October 1940 to October 1941, the duties formerly performed by him and other P-5 examiners were divided and the more complex cases were assigned to examiners holding positions reallocated to grade P-6j classification. This, of course, left the less complex cases to be handled by the P-5 examiners; thus to restore plaintiff to a P-5 position handling cases of less complexity than those he formerly handled would not constitute a restoration to a position of like seniority, status, and pay. It might be said that to restore him as a P-6 Examiner would in a way be restoring him to a higher position than that which he left to enter the service but the division of work and the classification of the new positions for some of the work was a natural evolution of the Interstate Commerce Commission and if plaintiff is not permitted to be restored to a position in which he would be engaged on cases with the same relative complexity as when he left, he is being placed at a disadvantage upon his return from the service, which would be a demotion in every way except in pay. The Acts of Congress were clearly designed to prevent any disadvantage from accruing to a soldier because of his military service. Cf. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275. These acts contemplate a restoration to the same relative position the soldier enjoyed when he left for service. Freeman v. Gateway Baking Co., 68 F. Supp. 383.

It is true that the Interstate Commerce Commission in their administrative discretion considered plaintiff with the other nine P-5 examiners for promotions to the P-6 positions and that they did not select plaintiff. However, it must be emphasized that the Civil Service Commission determined that the duties being performed by plaintiff at the time he entered military service were such as to be properly allocated to P-6. If this allocation were correct, the work of the P-5 examiners after the division of the work was of a lower allocation and classification than that which the plaintiff was performing when he entered the service. The law was clearly intended to preclude restoration to work of a lower classification.

It is held therefore that restoration of plaintiff to a position of like seniority, status, and pay, on his return from the service in October 1941 required his restoration at the grade of P-6, from the date of the commencement of the pay period in which he entered the army. By such restoration the plaintiff can be given the rights intended by the various acts designed for the benefit of those who were required to enter the military service. Plaintiff is entitled to recover the difference in pay between that which he has actually received from the Interstate Commerce Commission and the pay to which he would have been entitled if he had been restored to a P-6 classification effective October 1,1940.

Judgment will be entered in favor of plaintiff upon the filing of a stipulation by the parties showing the amount due plaintiff under the findings and the foregoing opinion. It is so ordered.

MaddeN, Judge; Whitaker, Judge; LittletoN, Judge; and JoNes, Chief Justice, concur.

ok defendant’s motion for a new trial

Howell, Judge,

delivered the opinion of the court:

The defendant’s motion for a new trial is based upon two grounds, first, the court erred in holding that plaintiff, as an employee of the Federal Government, had a right to sue the United States for benefits to which he was allegedly entitled under Public Eesolution No. 96, approved August 27, 1940, as amended by the Selective Training and Service Act of 1940; second, that it was error to decide plaintiff was entitled to recover.

Defendant again calls the attention of the court to the cases of Insular Police Commission v. Lopez, 160 F. (2d) 678, cert. denied, 67 S. Ct. 1743, and Clark v. United States, 109 C. Cls. 444. These cases are both clearly distinguishable from the case before us.

In Insular Police Commission v. Lopez, supra, the proceedings were for mandamus restoring plaintiff to his former position and for interim loss of salary. In the case of Ballf v. Krantz, 82 F. (2d) 315, which is discussed in the Lopez opinion, the proceedings were identical. In these cases it was held that the District Courts of the United States had no jurisdiction to hear and determine such suits and the proceedings were therefore properly dismissed.

Clark v. United States, supra, involved a suit by a former Federal Judge who had resigned from his position in order to enter the armed forces, for salary to which he claimed he was entitled. A successor having been duly appointed to fill the vacancy created by his resignation, this court held that to hold the provisions of the Selective Training and Service Act applicable would, in effect, enable Congress to direct the President whom to appoint to such vacancies and thus encroach upon the powers of appointment of the President. In holding that Congress could not possibly usurp the Constitutional appointing power, this court properly dismissed the plaintiff’s petition.

In that case we did not decide that an employee of the Federal Government did not have a right of action against the Government if he was wrongfully denied restoration to his former position. We left that question unanswered.

In all three cases the plaintiff was asking not only to be restored to his former position, but for interim salary, whereas in the present case the plaintiff has already been restored to his former position and claims only the difference in salary which improper Civil Service classification caused him to lose.

The pertinent provisions of section 8 of the Selective Training and Service Act of 1940, as amended, 54 Stat. 890, 56 Stat. 724, 58 Stat. 798, 50 U. S. C. A. Appendix, Sec. 308, appear below.

Particular attention is directed to paragraph (A) of subsection (b). In dealing with an employee of the United States Government, its Territories or possessions, or the District of Columbia, it contains this language:

such person shall he restored to such position or position of like seniority, status and pay.

Since Congress was dealing with employees of the Federal Government, it naturally possessed the power to direct that such persons should be restored, etc. The use of this language is not only directive, in our opinion, but mandatory.

Paragraph (B) of subsection (b) refers to a person holding a position with a private employer, wherein it is provided:

such employer shall restore such person to such position, etc. * * *

In implementing this requirement, Congress in subsection (e) of section 8 provided the forum in which a private employee could sue, in this language:

In case any private employer fails or refuses to comply with the provisions of subsection (b) or subsection (c), the district court of the United States for the district in which such private employer maintains a place of business shall have power, * * *

In paragraph (C) of subsection (b), in dealing with an employee of any State or political subdivision thereof, this language is used:

It is hereby declared to be the sense of Congress that such person should be restored * * *

Apparently it was hoped by Congress that the various states would permit themselves to be sued in appropriate proceedings, thereby giving the third class of employees means of enforcing their rights under the Act.

Since 1855, the Court of Claims has had authority “to hear and determine all claims founded upon any law of Congress or upon any regulation of an executive department * * * which may be suggested to it by petition filed therein * * The right of Federal employees among other classes of citizens to proceed in money claims against the Government in this court has long been recognized as shown by numerous decisions, among them, Moore v. United States, 4 C. Cls. 139; Strong v. United States, 60 C. Cls. 627; Danford v. United States, 62 C. Cls. 285. The term “regulation” was intended to cover any regulation within the lawful discretion of the head of an executive department, such as the finding of the Civil Service Commission in this case. To hold that the term “regulation” meant anything other than that would simply be disregarding the plain language of the Act.

It was not necessary for Congress in the Selective Training and Service Act to reaffirm the basic jurisdiction of this court or to confirm rights of Government employees long recognized thereunder. These rights cannot be negatived by implication. It must be done by specific legislation clearly disclosing such intention. Consequently, the silence of the Act on this point while authorizing District Courts to assume jurisdiction in the case of private employees is not ground for the slightest implication that Congress intended in any way to curtail the right of Government employees to institute claims founded upon any law of Congress or upon any regulation of an executive department. As a matter of fact, it is our judgment that silence in this respect should be interpreted as representing the intention of Congress to leave these rights unchanged.

From what has been said above, it follows that the motion for a new trial must be overruled. It is so ordered.

MaddeN, Judge; Whitaker, Judge; Littleton, Judge, and Jones, Chief Justice, concur. 
      
       Sec. 308. Service and health certificates; employment and reemployment provisions ; voting during service
      (a) Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3 (b) [Section 303 (b) of this Appendix] shall be entitled to a certificate to that effect upon the completion of such period of training and service which shall include a record of any special proficiency or merit attained. In addition, each such person who is inducted into the land or naval forces under this Act for training and service shall be given a physical examination at the beginning of such training and service; and upon the completion of his period of training and service under section 3 (b) [Section 303 (b) of this Appendix], each such person shall be given another physical examination and, upon the written request of the person concerned, shall be given a statement of medical record by the War Department: Provided, That such statement shall not contain any reference to mental or other conditions which in the judgment of the Secretary of War or the Secretary of the Navy would prove injurious to the physical or mental health of the person to whom it pertains.
      (b) In the cases of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (I) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within forty days after he is relieved from such training and service—
      (A) if such position was in the employ of the united States Government, its Territories or possessions, or the District of Columbia, such person shall be restored to such position or to a position of like seniority, status, and pay ;
      (B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so;
      (C) if such position was in the employ of any State or political subdivision thereof, it is hereby declared to be the sense of the Congress that such person should be restored to such position or to a position of like seniority, status, and pay.
      (c) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of training and service in the land or nayal forces, shall be so restored without loss' of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration.
      (d) Section 3 (c) of the joint resolution entitled “Joint Resolution to strengthen the common defense and to authorize the President to order members and units of reserve components and retired personnel of the Regular Army into active military service,” approved August 27, 1940 [section 403 (c) of this Appendix], is amended to read as follows :
      “(c) Any person who is restored to a position in accordance with the provisions of paragraph (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of active military service, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was ordered into such service, and shall not be discharged from such position without cause within one year after such restoration.”
      (e) In case any private employer fails or refuses to comply with the provisions of subsection (b) or subsection (c), the district court of the united States for the district in which such private employer maintains a place of business shall have power, upon the filing of a motion, petition, or other appropriate pleading by the person entitled to the benefits of such provisions, to specifically require such employer to comply with such provisions, and, as an incident thereto, to compensate such person for any loss of wages or benefits suffered by reason of such employer’s unlawful action. The court shall order a speedy hearing in any such case and shall advance it on the calendar, upon application to the United States district attorney or comparable official for the district in which such private employer maintains a place of business, by any person claiming to be entitled to the benefits of such provisions, such United States district attorney or official, if reasonably satisfied that the person so applying is entitled to such benefits shall appear and act as attorney for such person in the amicable adjustment of the claim or in the filing of any motion, petition, or other appropriate pleading and the prosecution thereof to specifically require such employer to comply with such provisions: Provided, That no fees or court costs shall be taxed against the person so applying for such benefits.
     