
    HARVEY L. CAREY v. THE UNITED STATES
    [No. 532-52.
    Decided June 7, 1955]
    
      
      Mr. Harvey L. Oarey -pro se.
    
    
      Mr. 8. B. Gamer, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant. Mr. Thomas H. MeGrail was on the brief.
   Jones, Chief Judge,

delivered the opinion of the court:

This is a suit by a former United States Attorney for the Western District of Louisiana to recover pay for the period during which he was in a temporary leave status pending an investigation into his conduct in office.

The plaintiff, Harvey L. Carey, having been duly nominated by the President and confirmed by the Senate of the United States, assumed the duties of United States Attorney on August 29, 1950, at a designated salary of $7,800 per annum and served in that capacity until December 27, 1950.

About a week before the latter date the Attorney General of the United States received information suggesting or tending to show that the plaintiff on December 5, 1950 and subsequently had solicited bribes from persons against whom criminal charges were then pending or had been proposed in plaintiff’s office. The Federal Bureau of Investigation was immediately directed to investigate the alleged misconduct. A short time later, after a preliminary report from the Federal Bureau of Investigation had been submitted, the Attorney General reported the alleged improper conduct of the plaintiff to the President, advising him that drastic action would probably be in order, and the President directed the Attorney General to take such action as he, the Attorney General, found to be warranted by the circumstances.

The reports which the Attorney General had received from the Federal Bureau of Investigation had caused him to conclude that plaintiff had either committed the criminal act of soliciting bribes or had exercised improper judgment by conferring with and attempting to entrap individuals who, the plaintiff contended at the time, were attempting to bribe him.

On December 27,1950 the Attorney General of the United States, J. Howard McGrath, sent the following telegram to plaintiff:

I am authorized to direct that you be placed on temporary1 leave status, effective immediately. Pending further investigation of the conduct of your office you are directed to turn over the affairs of your office to your assistant William J. Fleniken.

Plaintiff on December 27, 1950 was placed on temporary leave and informed that an investigation was to be made in the conduct of his office. He was granted an interview with the Attorney General on January 4, 1951 and was then informed that the investigation was in progress and that when it was concluded additional steps would be taken.

Plaintiff believed at the time that he was being placed on temporary leave with pay. Other than as disclosed in the telegram plaintiff was not specifically notified that he was not in a pay status until his resignation was accepted by the President on January 24, 1952. It is reasonable to assume, however, that upon receipt of the final pay check covering accumulated leave the plaintiff must have realized that he was no longer on the payroll.

After the conclusion of the investigation on February 26, 1951 the matter was referred to a grand jury which returned an indictment against the plaintiff on March 28, 1951.

On November 17,1951 the Attorney General, by long distance telephone, requested plaintiff’s resignation, but he refused to resign, notwithstanding he was told that if he did not resign he would be removed from office.

Plaintiff’s attorney stated that the plaintiff would not resign and on November 19,1951 advised the Attorney General by letter that any action taken at that time which would change Mr. Carey’s status would prejudice his case. In reply thereto the Attorney General wrote plaintiff’s attorney a letter agreeing that since plaintiff felt any such action might conceivably prejudice his case, no further steps would be taken to change plaintiff’s status before his trial.

Plaintiff was not removed from office but voluntarily submitted his resignation on J anuary 18, 1952 and notified the Attorney General by sending him a carbon copy of his letter to the President. The letter is set out in finding 13. It also advises the Attorney General of the plaintiff’s acquittal by a jury empaneled to try him on the charges set out in the indictment. The resignation was accepted by the President on January 24, 1952.

The plaintiff on May 16, 1951 was paid a per diem and travel expenses incurred in connection with an authorized trip to Washington, D. C., for a conference with the Attorney General concerning the action which had been taken against plaintiff. Plaintiff did not engage in the practice of law during the period he was in a status of temporary leave and no successor was appointed by the President until after his resignation was accepted on January 24, 1952. The plaintiff sues for his salary for the period from January 9, 1951 to January 24, 1952.

Both parties as disclosed by the briefs are in agreement on the principle that a United States Attorney may be removed from office by the President and that this question was settled in the case of Parsons v. United States, 167 U. S. 324, which holds that the President may remove a United States District Attorney at his discretion. In fact, the principle is well settled that the President has power to remove officers of the executive department whose appointments are by the President with the consent of the Senate. Reagan v. United States, 182 U. S. 419; Shurtleff v. United States, 189 U. S. 311; Myers v. United States, 272 U. S. 52. As we read sections 501 and 504 of Title 28, United States Code, they do not undertake to limit the President’s power of removal. It may be doubtful whether a coordinate branch of the government would have authority to limit that particular power, although this question we do not reach. We quote from Shurtleff v. United States, supra, at page 317:

In making removals from office it must be assumed that the President acts with reference to his constitutional duty to take care that the laws are faithfully executed, and we think it would be a mistaken view to hold that the mere specification in the statute of some causes for removal thereby excluded the right of the President to remove for any other reason which he, acting with a due sense of his official responsibility, should think sufficient.

We think also that the power to remove an executive officer appointed by the President would naturally include the lesser power to place one upon temporary leave without pay as incidental to the power to appoint and dismiss. Myers v. United States, supra; United States v. Murray, 100 U. S. 536; Ginn v. United States, 110 C. Cls. 637.

In effect, conceding these established principles, the plaintiff asserts that in the instant case the Attorney General had no authority to place the plaintiff in a status of leave without pay and that only the President personally could exercise this power.

The record, however, shows that the Attorney General advised the President before sending the telegram and was given authority by the President to take such steps as might be necessary in the premises, and that the President afterward was advised of the action taken and it was in effect approved by him.

As stated in our findings it must have been evident to plaintiff when his pay was stopped after his accumulated leave had expired that he was not in a pay status, and that he would not be paid during an investigation of criminal accusations, a grand jury proceeding and a criminal trial. In fact, his attorney stated as his reason for not resigning in November 1951 that it might prejudice his case, and the Attorney General advised the attorney that if he felt any action taken at that time would conceivably prejudice the plaintiff’s status it was far from his wish or desire that any such thing should occur, and he would see to it that no further action would be taken which would change his status before the trial.

In the circumstances we think that the action taken after consultation with the President, apparently with his approval, was sufficient exercise of the President’s power and from a practical viewpoint the natural way in which the President would take a step of this kind. To hold otherwise would be like determining that a decree of a court was not action by the court because, forsooth, the order was prepared by the clerk and typed by the secretary.

If one will glance at Sections 2, 3 and 4 of Article II of the Constitution and observe the many duties that are devolved upon the President, he will realize the impossibility of the President’s personally, physically and individually exercising all these powers, and that necessarily he must have assistance in executing such powers and discharging such responsibilities. He is given authority to nominate and, with the advice and consent of the Senate, to appoint thousands of officers; he is made Commander in chief of the Army and Navy of the United States and of the militia of the several states when called into the actual service of the United States; he is authorized to require the opinion in writing of the principal officer in each of the executive departments upon any subject related to the duties of their respective offices; he is given power to grant reprieves and pardons for offenses against the United States except in cases of impeachment; he is given the power, with the advice and consent of the Senate, to make treaties, appoint ambassadors, other public ministers and all other officers of the United States whose appointments are not otherwise provided for; the power to fill all vacancies that may happen during the recess of the Senate; he is given the obligation from time to time to give the Congress information of the state of the Union and recommend for their consideration such measures as he shall judge necessary and expedient; he is obligated to receive ambassadors and other public ministers and take care that the laws are faithfully executed, and is directed to commission all the officers of the United States.

In many of the acts of Congress the President is given broad powers and authority which in the nature of things he must delegate to his appointed assistants.

There is a limit to human capacity. To expect the President to attend to all these obligations personally is out of the question. In the vast and complicated governmental setup in this broad, big country there must be a practical way of discharging these duties.

We hold that the action of the Attorney General, with the authority and approval of the President, was in practical effect the action of the President of the United States and the exercise by him of the power of removal and dismissal, and incidentally the lesser power of placing plaintiff in a status of leave without pay.

The petition is dismissed.

Laramore, Judge; MaddeN, Judge; Whitaker, Judge; and LittletoN, Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, Harvey L. Carey, was duly nominated by the President and confirmed by the Senate of the United States as United States Attorney for the Western District of Louisiana. He assumed the duties of said office as of August 29, 1950, and continuously discharged such duties at a designated salary of seven thousand eight hundred dollars per annum until December 27, 1950, with official headquarters at Shreveport, Louisiana.

2. Plaintiff was regularly paid his salary by the defendant on a semi-monthly basis up to and including December 27, 1950, but no salary was paid him subsequent to that date, except for accrued annual leave which payment, for accounting purposes, carried his pay status through the first four hours of January 9,1951.

3. At a time approximately one week to ten days prior to December 27,1950, the then Attorney General of the United States, J. Howard McGrath, received information suggesting or which tended to show that plaintiff on December 5, 1950, and subsequently, had solicited bribes from persons against whom criminal charges were then pending or had been proposed in plaintiff’s office. The Attorney General immediately directed the Federal Bureau of Investigation to investigate said alleged misconduct.

4. Within a short time following his receipt of initial reports from officials of the Department of Interior, but after preliminary reports from the Federal Bureau of Investigation had been submitted, the Attorney General reported the alleged improper conduct of plaintiff to the President. The Attorney General advised the President that drastic action would probably be in order. The President directed the Attorney General to take such action as he, the Attorney General, found to be warranted by the circumstances.

5. The Attorney General received reports from the Federal Bureau of Investigation on, or shortly prior to, December 27,1950, which caused him to conclude that the plaintiff had either committed the criminal act of soliciting bribes or had exercised improper judgment by conferring with and attempting to entrap individuals who, the plaintiff contended at that time, were attempting to bribe the plaintiff.

6. On December 27, 1950, plaintiff, without prior notice, was informed by a telegram sent to him by the then Attorney General of the United States, J. Howard McGrath, that he was being “placed on temporary leave status”. No reference to the pay status of the plaintiff was contained in the telegram. The complete telegram reads as follows:

I am authorized to direct that you be placed on temporary leave status, effective immediately. Pending further investigation of the conduct of your office you are directed to turn over the affairs of your office to your assistant William J. Fleniken.

On the basis of information which the Attorney General had received on or prior to December 27, 1950, his action in placing the plaintiff on a “temporary leave status” was neither arbitrary nor unreasonable. The then Attorney General testified that a short time thereafter he advised the President of the action taken and he approved the decision.

7. The plaintiff was placed on temporary leave by the then Attorney General effective December 27, 1950, and informed that an investigation was to be made of his conduct in office, but he was not informed of the charges against him. He was granted an interview with the Attorney General on January 4, 1951, and was then informed that an investigation was in progress and that when it was concluded the Attorney General’s office would then take additional steps in the matter.

8. It was plaintiff’s belief at the time the action was taken by the Attorney General that he would be on temporary leave with pay and later that his pay was being withheld pending the disposition of the pending charges.

9. No official affirmative action affecting the pay status of plaintiff was transmitted to the plaintiff by the Attorney General (other than the dispatching of the telegram of December 27,1950) from December 27,1950, until plaintiff’s resignation was accepted by the President on January 24, 1952, and plaintiff was never specifically notified by the Attorney General that he was not in a pay status.

10. The plaintiff, while in Washington, D. C., on January 3,1951, was told by Assistant Attorney General Mclnerney, after consultation by telephone between Mclnerney and some official in the Department of Justice, that he, the plaintiff, was still on the payroll. He also advised the plaintiff that he was on leave and only the President could remove him. It is reasonable to assume, however, that upon receipt of the final pay check, covering accumulated leave, the plaintiff realized that he was no longer on the payroll.

11. On or before December 27, 1950, the Attorney General had made the decision to dismiss plaintiff from office but the only affirmative written action he took toward that end was the placing of plaintiff on temporary leave pending an investigation on December 27, 1950, which leave status was not changed by any notice to plaintiff from the Attorney General after the conclusion of his investigation on February 26, 1951, or prior to the time plaintiff’s resignation was accepted by the President. The matter was referred to a Grand Jury which returned an indictment against the plaintiff on March 28, 1951. Between that date and November 17, 1951, no further action was taken with respect to a dismissal of plaintiff from office.

12. The Deputy Attorney General requested plaintiff’s resignation by long distance telephone on November 17,1951. Plaintiff refused to resign on that date despite a threat by the Deputy Attorney General that unless plaintiff resigned by November 20, 1951, he would be removed from office. Plaintiff’s refusal to resign was not made in a pleading, conciliatory manner, but was a vehement denial of the charges against him. On November 19, 1951, plaintiff’s attorney, Whitfield Jack, notified the Deputy Attorney General and J. Howard McGrath, the Attorney General, that plaintiff would not resign from office. Plaintiff did not resign as requested and the threatened removal was withdrawn in a letter from the Attorney General addressed to Mr. Jack as follows:

I have your air mail letter of November 19th in which yon transmit to me verbatim prepared statement of a telephone conversation you had with the Deputy Attorney General on November 19th. I note that you feel that any action that would change Mr. Carey’s status taken at this time would conceivably prejudice his case. It is farthest from our wish or desire that any such thing should occur.
The Deputy Attorney General recently took over his office, and in going over personnel matters came upon the fact that Mr. Carey had long been carried as suspended though under indictment. The Deputy Attorney General did not know when he made his telephone call that the case had already been set for trial. Therefore, it is advised that I accept your statement that any action taken now might prejudice this trial, and I shall see to it that no action is recommended that would change his status before trial.

13. Plaintiff was never removed from office, but voluntarily submitted his resignation to the President on January 18,1952, and notified the then Attorney General, J. Howard McGrath, by sending him a carbon copy. The resignation was accepted by the President on January 24, 1952.

Plaintiff’s letter of resignation, addressed to the President of the United States, was as follows:

I submit herewith my resignation as United States Attorney for the Western District of Louisiana.
The handling of the affairs of my office has been fully vindicated and I have been completely absolved by a unanimous verdict of acquittal by the jury on yesterday.
However, because of the lack of confidence that has been manifested by the Attorney General of the United States, I feel that I can no longer discharge the duties of my office with pleasure and in close harmony and cooperation with his department.

The letter of acceptance by the President is as follows:

Your resignation as United States Attorney for the Western District of Louisiana is hereby accepted.

14. The Administrative Assistant Attorney General, S. A. Andretta, continued to recognize the plaintiff as a United States Attorney for certain purposes and addressed him as such despite the telegram of December 27, 1950. On May 16, 1951, he approved payment to plaintiff for per diem and travel expense incurred in connection with an authorized trip to Washington, D. C., for a conference with the Attorney General concerning the action which had been taken against the plaintiff, on a voucher submitted and approved by plaintiff as “United States Attorney” on May 16,1951.

In January 1952, Ellis N. Slack, the then acting Assistant Attorney General; S. A. Andretta, the Administrative Assistant Attorney General; and President Harry S. Truman, addressed plaintiff as the United States Attorney in corresponding with him.

15. Plaintiff did not engage in the private practice of law during the period while on “temporary leave” from the office of the United States Attorney.

No successor to plaintiff’s office was appointed by the President of the United States until after the President had accepted plaintiff’s resignation on January 24, 1952.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is not entitled to recover, and the petition is therefore dismissed. 
      
       The then Attorney General] testified in this respect as follows:
      In the meantime as soon as this information came to me, I believe the very next day I went to see the President and I told the President that I was sorry for that report and didn’t want to have a nasty situation bréale out in the Department of Justice, that one of the United States Attorneys appeared to be acting irregularly ; and I told him briefly as I could what the general nature of the situation was, and told him it would probably call for rather drastic action. The President said to me, “You take such action as you feel is warranted. You have my permission to do whatever the situation calls for.”
      Q. Do you recall during the conversation when reference was made to action to be taken, the type of action that was discussed between you and the President, the type of action that would be taken ?
      A. Talked about action leading to dismissal of the united States Attorney if the facts warranted after the P. B. I. reported to me. * * *
      Q. Mr. McGrath, do I understand then that the discussion you had with the President prior to the issuance of this telegram was a discussion in effect that the united States Attorney would ultimately have to be removed from office, and you were authorized or elected by the President to take whatever steps were necessary leading to the ultimate removal ?
      A. That’s correct.
      * $ * * # # *
      Q. After that action was taken, that action indicated by the telegram, after that action was taken by you, did you again see the President on the same matter ?
      A. Well, X saw the President very shortly after that and informed him what I had decided, that I had decided to dismiss the United States Attorney and had done so.
      Q. Did he approve that decision to you ?
      A. He did.
     