
    EDWARD F. O’HARE v. THE UNITED STATES
    [Cong. No. 4-56.
    Decided April 7, 1961]
    
      
      Thomas A. Ziebarth for plaintiff. Garl L. Shipley on the brief.
    
      Ed/na P. Goldberg, with whom was Assistant Attorney General William H. Orrich, Jr., for defendant.
   Laramore, Judge,

delivered the opinion of the court:

This suit was filed on July 13, 1956, pursuant to House Resolution 380, 84th Congress, 2d session, and involves a claim for back pay based on alleged violations of the Selective Training and Service Act of 1940, 54 Stat. 885, 890, as amended, 58 Stat. 798, and the Veterans’ Pi’eference Act of 1944, 58 Stat. 387,390.

This claim for back pay was the subject of an earlier decision by this court, O'Hare v. United States, 124 Ct. Cl. 250, in which the court held that plaintiff’s claim, except for a portion thereof, was barred by the statute of limitations, 28 U.S.C. 2501. Thereafter, the parties entered into a stipulation of settlement whereby plaintiff waived “* * * any and all other claims upon defendant touching any and all matters involved in this case.”

House Eesolution 380 under which this case was referred to the court, asks the court to furnish a report to the House giving:

* * * such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand, as a claim legal or equitable, against the United States, and the amount, if any, legally or equitably due from the United States to the claimant.

The facts are fully found and will be referred to herein only to the extent necessary.

The first question confronting the court is whether or not plaintiff has a legal claim against the United States.

The short answer to the above question is that plaintiff does not have a legal claim against the United States for two reasons.

First, in the stipulation of settlement entered into after the first O' Hare case it was provided that plaintiff

* * * hereby waives and abandons any and all other claims upon defendant touching any and all matters involved in this case and agrees to accept said amount of $100.00 in full satisfaction thereof * * *.

Secondly, assuming arguendo that the earlier waiver has no effect on the present claim, plaintiff still does not have a legal claim against the United States based on the merits of this action.

The facts show that plaintiff was restored to a position of even higher seniority, status and pay than the position he held at the time of his entry into the military service. Upon plaintiff’s return, to the Railroad Retirement Board, he was restored to a grade 7 position to which he had been conditionally promoted. After plaintiff was displaced by a returning serviceman, he was given the opportunity and elected to take a grade 6 position, which was a higher grade than that held prior to his entry into the service. Prior to his entry into the Armed Forces his CAF-5 position was abolished and was not upgraded during his absence. The position to which he was conditionally promoted was in existence prior to his entry into the Armed Forces and was also not the result of the upgrading of any position which plaintiff had previously held.

Section 8 of the Selective Training and Service Act, supra, provided:

*****
(b) In the case 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 (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year—
(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; *****
(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 naval 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.

Thus it can be seen that since plaintiff returned to a position higher in grade his rights under that Act were clearly not violated.

Section 8 of the Selective Training and Service Act, supra, was designed to give the returning veteran the right not to be discharged without cause for one year after he had been restored to his position or a like position of seniority, status and pay.

As demonstrated earlier, even after demotion to a grade 6 job plaintiff was in a position of greater seniority, status and pay than that held prior to entry into service. Consequently, it cannot be said that he was discharged without cause within the meaning of section 8.

Since it was not intended by section 8 to place a returning veteran in a better position than he would have been in if not away on military leave, plaintiff’s demotion would not be a discharge within the 1-year period. Plaintiff’s rights, if any, therefore must arise under the Veterans’ Preference Act, supra.

Plaintiff in his petition and brief has not alleged or claimed any violation of his procedural rights under section 14 of the Veterans’ Preference Act, and in this respect it has been uniformly held that absence such an allegation the court will presume that the correct procedures have been followed. Riley v. United States, 130 Ct. Cl. 113. Furthermore, the record does not disclose any violation of his section 14 procedural rights.

Section 12 of the Veterans’ Preference Act, supra, covers reduction in force and provides in pertinent part:

In any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings: * * *.

While plaintiff in his brief states that he was “demoted in a reduction in force, in further violation of his rights as a returning veteran,” he has not explained in what way his rights were violated under section 12 above. In any event, section 12 is not applicable to a demotion from a conditional promotion. Powers v. Gold, 124 F. Supp. 93. Plaintiff accepted the promotion which was expressly conditioned upon tbe return of another veteran. The other veteran did return, and plaintiff was demoted to a position which was still higher than that which he occupied prior to service.

The remaining aspect of the case is whether or not plaintiff has an equitable claim against the United States.

The answer to this question is simple — -plaintiff concedes and it is obvious that he suffered no monetary loss as a result of his demotion to the grade 6 position. Under these circumstances the United States cannot be equitably indebted to plaintiff even in the broad moral sense of the term. Cf. Gay Street Corporation v. United States, 130 Ct. Cl. 341. Furthermore, as stated previously, plaintiff realized a gain rather than a loss as a result of his military service.

In conclusion, it is our opinion that for the reasons stated, plaintiff has neither a legal nor an equitable claim against the United States.

This opinion and the findings of fact, together with the conclusions thereon, will be certified by the clerk to Congress pursuant to House Eesolution 380, 84th Congress, 2d session.

It is so ordered.

Feed, Justice {Bet.), sitting by designation; Dukeee, Judge, MaddeN, Judge, and JoNes, Chief Judge, concur.

FINDINGS OF FACT

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

1. This is the second time plaintiff’s claim for additional salary as a Federal employee has been before the Court. (See finding 10 herein.) No trial was held in comiection with the first claim, the Court’s action being based on defendant’s motion to dismiss. Subsequently a formal trial was held with opportunity for both parties to submit proof, which included both oral testimony and documentary evidence. On October 1, 1942, prior to his entry into military service, plaintiff was reassigned and transferred from his position as Unemployment Claims Examiner, CAF-5, to a position as Field Representative, CAF-5, in the Cleveland District Office of the Railroad Retirement Board, with the same salary of $2,000 per annum.

2. For a period of time, a few months immediately preceding October 1, 1942, when plaintiff held the position of Unemployment Claims Examiner, OAF-5, he was actually performing the work of a grade four position, because the volume of grade five work had decreased considerably after the outbreak of World War II. The position of Unemployment Claims Examiner, CAF-5, was abolished because of such decrease in that type of work at that time.

3. At the time of the abolition of the position of Unemployment Claims Examiner, CAF-5, plaintiff was given the choice of displacing a grade four Junior Claims Examiner or taking the vacant position of Field Representative, CAF-5, at Detroit, Michigan, which was within the boundaries of the Cleveland District Office of the Railroad Retirement Board. In accordance with regulations then in effect, the Field Representative position was posted as a vacant position, and applications for that position were requested. Plaintiff applied for it. Mr. Murphy, the Regional Director of Region 3 of the Railroad Retirement Board, with headquarters in Cleveland, Ohio, changed the official station of the position from Detroit to Cleveland, so plaintiff could get the job.

4. When plaintiff entered the military service on December 20, 1942, he held the position of Field Representative, CAF-5.

5. The position of Unemployment Claims Examiner, CAF-5, which plaintiff had held until October of 1942, had been abolished prior to plaintiff’s entrance into military service, and, • accordingly, was not upgraded to a grade seven during his absence in military service.

6. While plaintiff was in the military service, the position of Field Representative, CAF-5, which he held at the time he entered military service, was abolished. Effective September 10, 1945, plaintiff was conditionally transferred and promoted from Field Representative, CAF-5, to Unemployment Claims Examiner, CAF-7. The position of Unemployment Claims Examiner, CAF-7, had been in existence when plaintiff entered upon active military duty, and was not tbe result of any upgrading of any position which, plaintiff had previously held with the Railroad Retirement Board. Plaintiff returned to the Railroad Retirement Board on November 5, 1945, and was placed in that position of Unemployment Claims Examiner, CAF-7, conditional. The assignment to the position was conditional, and in place of a Mr. Wolfer, who was at that time in military service, and would be entitled to such position, or one of equal seniority, pay, and grade upon his return to Federal service.

7. When Mr. Wolfer returned from military service, plaintiff was displaced by Wolfer from the position of Unemployment Claims Examiner, CAF-7, and, under the Railroad Retirement Board policy then in effect, plaintiff was given a choice of displacing a grade seven Field Representative at Cincinnati, Ohio, or displacing a Certifying Officer, CAF-6, in the Cleveland District Office. Plaintiff elected to take the position of Certifying Officer, CAF-6, in the regional office, and the personnel action reflecting that change was effective March 4, 1946.

8. On and after March 4,1946, plaintiff’s salary was $2,980 per annum, which was the same salary he had received as an Unemployment Claims Examiner, CAF-7. On July 1,1946, there was a general increase to $3,397.20 per annum, and on November 18,1946, plaintiff received a “step” increase in his grade six position, bringing his salary to $3,522.60. On December 2, 1946, plaintiff was promoted to the position of Unemployment Claims Examiner, CAF-7, at a salary of $3,522.60 per annum, which was exactly the same salary he would have been receiving had he never been demoted to grade six.

9. Plaintiff did not suffer any pecuniary loss as a result of his demotion to the position of Certifying Officer, CAF-6, in which action he acquiesced, rather than accept a position in grade seven at Cincinnati, Ohio.

10. With respect to the first petition filed by plaintiff on July 21, 1952, the Court of Claims held (O'Hare v. United States, 124 Ct. Cl. 250) that the claim of Edward F. O’Hare, plaintiff herein, for loss of salary was barred by the statute of limitations, except for the period from July 21, 1946, to November 5, 1946. Thereafter, plaintiff and the Government entered into a stipulation of settlement for the amount of $100. That stipulation of settlement provided that plaintiff:

* * * hereby waives and abandons any and all other claims upon defendant touching any and all matters involved in this case and agrees to accept said amount of $100.00 in full satisfaction thereof * * *

Pursuant to that stipulation, the Court of Claims, by order dated July 13, 1954, entered judgment in favor of plaintiff for said amount.

11. In the instant suit initiated by plaintiff’s petition filed July 13, 1956, subsequent to passage by the House of [Representatives of H.R. 380, referring the case to this Court, the parties are the same and the basis of the cause of action is the same as they were in O'Hare v. United States, 124 Ct. Cl. 250 (1953).

12. H.R. 8572, dated January 17, 1956, for the relief of Edward E. O’Hare, reads in part as follows:

* * * That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, * * * the sum of $7,000 to Edward F. O’Hare, of Lakewood, Ohio. Such sum represents the difference in pay to which said Edward F. O’Hare was entitled under the Selective Service Act of 1940 and the Veterans’ Preference Act of 1944, and the amount he was actually paid by the Railroad Retirement Board, and is the sum he would have received had he filed his petition with the United States Court of Claims prior to the running of the statute of limitations: * * *

13. H.R. 8572 was not enacted into law, but has been referred to the Court of Claims by House Resolution 380. House Resolution 380 requested the Court of Claims to furnish a report to the House giving:

* * * such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand, as a claim legal or equitable, against the United States, and the amount, if any, legally or equitably due from the United States to the claimant. 
      
       It is noted that the court in its prior decision did not pass on the merits of plaintiff’s claim. The court’s opinion as to the portion of the claim not barred by limitations was conditioned upon the correctness of plaintiff’s allegations.
     
      
       Conditioned upon the return of another serviceman.
     
      
       When plaintiff left for military duty he held a position of Field Representative, CAF-5.
     
      
      
        McKinney v. Missouri-Kansas-Texas Railroad Co., 357 U.S. 265.
     