
    DWIGHT CROCKER v. THE UNITED STATES
    [No. 50254.
    Decided January 11, 1955]
    
      
      Mr. Tyree. G. Derrick for the plaintiff. Mr. Meredith Turner was on the briefs.
    
      Mr. Thomas H. McGrail, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   Laramore, Judge,

delivered the opinion of the court:

The plaintiff sues for the pay he lost by reason of his alleged wrongful removal from his position in the classified civil service of the United States.

Plaintiff, a member of the classified civil service, was employed by the Medical Center for Federal Prisoners at Springfield, Missouri, as a Medical Custodial Assistant, grade CPC-7. His employment commenced on April 1, 1940, and was terminated on November 16, 1948. Plaintiff served continuously at the Medical Center during this time with the exception of three and one-half years which the plaintiff spent in the military service. Plaintiff was notified by a memorandum dated April 6,1948, that his performance on the job had failed to meet the requirements of the service and he was warned that if his performance did not improve within a period of 90 days or less he would receive a “fair” or “unsatisfactory” efficiency rating. On July 6, 1948, a special efficiency-rating committee unanimously agreed that the plaintiff’s work performance was below desirable standards and recommended that plaintiff be given an “unsatisfactory” efficiency rating for the period July 1,1947, to June 30,1948. Prior to this rating, all of the plaintiff’s previous ratings had been “good.” On October 4, 1948, plaintiff received notification of proposed action to discharge him on the ground that his efficiency rating was “unsatisfactory.” The plaintiff was discharged on November 16, 1948.

Plaintiff appealed the dismissal to the Ninth United States Civil Service Region and the efficiency rating to the Efficiency Rating Board of Review, United States Public Health Service, Federal Security Agency. After a hearing on the dismissal action, the Regional Director of the Civil Service Commission recommended that the plaintiff be demoted to grade CPC-6 in lieu of being separated from the service because of the “unsatisfactory” rating. The agency appealed the Regional Director’s decision to the Board of Appeals and Review of the Civil Service Commission in Washington. On March 1,1949, the Board of Appeals and Review reversed the Ninth Region and withdrew the Regional Director’s recommendation that the plaintiff be restored in the reduced grade.

In the meantime, the plaintiff’s appeal of the efficiency rating was being processed. On July 26,1949, the Efficiency Eating Board of Eeview raised the plaintiff’s rating from “unsatisfactory” to “fair” and ordered all records be changed to reflect the adjusted efficiency rating. The Board also ordered the employing agency to redetermine and adjust other administrative actions to conform to the adjusted efficiency rating. The warden at the Medical Center was advised by letter of the readjusted efficiency rating. His attention was directed to chapter El-34 of the Federal Personnel Manual. His attention was also directed, in an accompanying memorandum marked confidential, to the view of the Board of Eeview that plaintiff should be restored to duty “unless the field station has a justifiable reason for not doing so. This justification should include the quality of his performance from July 1,1948, to date of separation. It might be well for the station to be prepared to present such justification in the event they do not wish to return this employee to duty.” On October 4,1949, plaintiff was notified that his rating records had been changed to “fair” but that it had been administratively determined, in the public interest, that there were no positions to which the plaintiff could be assigned. There were vacancies in the plaintiff’s grade and field but the warden at the Medical Center did not regard the plaintiff as being qualified to fill the vacancies. It was the opinion of the warden that once an unsatisfactory rating had been given an employee, regardless of whether sustained on appeal and review, he should not be reinstated at the same institution because of the effect it would have on the morale of the other employees and upon their attitude toward the management of the institution. Upon notification of the decision of the Efficiency Eating Board of Eeview, the plaintiff sought reinstatement of his position both by letter and in person. He was not successful. Plaintiff then sought to reopen his case before the Civil Service Commission on the basis of the corrected efficiency rating. The Civil Service Commission refused to reopen the case stating that the Civil Service Commission does not have the authority to require an agency to reinstate an employee who has been removed because of an “unsatisfactory” rating. Plaintiff has at all times held himself ready for employment by the defendant.

Plaintiff brings this action pursuant to Section 14 of the Veterans’ Preference Act, 5 U. S. C. 863 (1952).

The question presented in this case is whether the warden acted in good faith in refusing to reinstate the plaintiff after the erroneous efficiency rating had been corrected by the Efficiency Rating Board of Review.

The Government contends that it was in the public interest to refuse to reinstate plaintiff; that full consideration was given to the regulation which requires redetermination of administrative action to conform to the adjusted rating; the warden’s opinion in this matter should be accorded the greatest respect; the decision of the agency, that it would not be in the public interest to reinstate plaintiff, was an exercise of its discretionary power; and that the decision should not be reviewed by this court since the decision was made in good faith.

The court does not agree with the contentions of the defendant. In arriving at this conclusion we have not only considered the Commissioner’s report, and briefs and argument of counsel, but we have read the testimony in the case and have considered the exhibits. An examination of the above-mentioned material convinces us that the action of the warden was motivated by a desire to disregard the civil service personnel policies which are based upon acts of Congress, and in their place substitute his own program of rules and regulations at the Medical Center. The Commissioner of this court found that the warden was of the opinion that once an unsatisfactory rating had been given an employee, regardless of whether sustained on appeal and review, he should not be reinstated at the same institution because of the effect it would have on the morale of other employees and upon their attitude toward the management of the institution. This rule of thumb, as used at the Medical Center, certainly violated the plan of Congress. There was a verdict before the trial. If it is the practice to refuse to reinstate an employee discharged because of an unsatisfactory efficiency rating, then it is clear that the personnel rules and regulations in force at the Medical Center are at variance with the general policies of the Civil Service. The regulation under consideration provides that upon the increase of a rating by the Board of Beview on Efficiency Eatings, the agency, insofar as possible under law and regulations and in the public interest, is required to redetermine and adjust such administrative actions to conform with the adjusted rating. The warden was required to reconsider his action in dismissing the plaintiff because of the unsatisfactory rating. The warden performed the acts required by the regulation in that he stated that a revaluation of the plaintiff’s qualifications had been made and it had been administratively determined that the plaintiff was not qualified to be reinstated. But the law required more. A good faith determination of the reinstatement, upon consideration of all the evidence, is required. A mere statement that the action was taken in the public interest is not sufficient to satisfy the regulation. Here it appears to the court that the warden has determined that once an employee had been rated unsatisfactory, even though that rating was erroneous and later raised, then public interest demanded that he not be reinstated because of some adverse effect that the reinstatement would have on the other employees at the Medical Center. If this is true, then Congress should make an exception to the Government personnel regulations for the benefit of the Medical Center. The exception to the general rules may not be made by the warden.

We cannot see how it would adversely affect employee morale to restore a man, who had been discharged on the basis of an erroneous efficiency rating, to his former job. The record contains no evidence that such result would follow upon his reinstatement, and in the absence of such proof we would suppose that the contrary would be true. In our opinion employee morale would be considerably improved by the knowledge that management was ready and willing to acknowledge and correct its mistakes. Failure to do so would not, as the warden somewhat naively presumed, convince the employees that management was incapable of making mistakes, but rather that it was too apathetic or cowardly to correct them. It appears to the court that the adverse effect, if any, created by reinstating the plaintiff would not be on the employees but rather on the warden. The warden wanted to save face. He admitted the reason that he did not reinstate the plaintiff was because he did not want others to know that he had made a rating and had been overruled by higher authority. The warden did not want it known around the Medical Center that the plaintiff had won his appeal and “gotten away with it.” This is not the type of redetermination contemplated by regulation. If by the mere statement that the refusal to reinstate an employee was done in the public interest when an open admission is made that it was done to save face satisfies the law and regulations, then the congressional acts and the regulations made by the Civil Service Commission to implement them are meaningless. A statement that an act is done in the public interest, in the face of the evidence shown here, is not sufficient to satisfy the regulation. There must be more — the good faith reconsideration. A circumvention of the law in this manner will not be permitted. Good faith determinations and this type of conduct are indeed strange bedfellows. Personnel disputes are hard to resolve and we start out with the presumption that the official acted in good faith. We are always loath to find to the contrary, and it takes, and should take, well-nigh irrefragable proof to induce us to do so. In this case, however, we have come to the conclusion that plaintiff’s superiors in refusing to reinstate him were motivated, not by a determination that the public interest would be served, but rather by the personal desire of being the final authority on employee efficiency at the Medical Center.

We hold, therefore, that the action taken by the warden in refusing to reinstate the plaintiff was not a redetermination made in good faith of the administrative action taken on the efficiency readjustment of the plaintiff and was not made in the public interest, but rather the action was motivated by personal considerations. This determination of the warden was not made in accordance with the regulation. It was not made in good faith and it is not supported by the evidence. It constituted arbitrary action on the part of the warden. Where discretion is conferred upon an administrative officer to render a decision, this decision must be honestly rendered, and if it is arbitrary or capricious, or rendered in bad faith, then the courts have the power to review the decision and set it aside. The employee is entitled to an honest judgment of the administrative officer based on the evidence. If that officer does not render an honest judgment, but acts arbitrarily, then undoubtedly the rights of the employee have been violated.

Defendant further contends that the plaintiff’s claim is barred by laches. This contention was raised for the first time in the defendant’s brief. The rules of this court require that the defense of laches be pleaded as an affirmative defense. This defense was not contained in the defendant’s answer and the defendant has presented no evidence to show that it had in any way been prejudiced by the delay of the plaintiff in filing this suit. Since laches is an affirmative defense, it must be pleaded or it is considered waived if it is not pleaded.

Plaintiff is entitled to recover for the period from the date of discharge to the date of entry of judgment at the rate of pay he was receiving on the date of discharge less any outside earnings. We further find that plaintiff is entitled to any legislative increases and periodic step increases provided for by law or regulation.

Entry of judgment will be suspended to await the filing of a report by the General Accounting Office showing the amount due the plaintiff in accordance with this opinion or the filing of a stipulation by the parties to that effect. It is so ordered.

Madden, Judge; Wttttatcer, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Marion T. Bennett, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff, Dwight Crocker, is a citizen of the United States and a resident of Missouri. He was employed by the Medical Center for Federal Prisoners at Springfield, Missouri, from April 1, 1940, until about April 24, 1942, when he entered military service and served during World War II. After being honorably discharged, plaintiff was reemployed by the Medical Center on November 19, 1945, and served until November 16,1948. Prior to his separation from employment he was a preference eligible under the Civil Service Act and was classified as CPC-7, Medical Custodial Assistant, with a salary of $3,100.20 per annum.

The Medical Center for Federal Prisoners at Springfield, Missouri, is an institution for the incarceration and treatment of chronically ill prisoners from all other Federal prisons. About 20 percent of the inmates are insane. The medical custodial assistants have direct custody and supervision of the prisoners and assist in carrying out a program of their rehabilitation.

2. By memorandum dated April 6, 1948, the plaintiff was officially notified by his supervisor, with the approval of the Associate Warden, that his performance on the job had failed to meet the requirements of the service and he was warned that if his performance did not improve within a period of 90 days or less he would receive a “fair” or “unsatisfactory” efficiency rating. This memorandum stated further as follows:

It is the general opinion of your supervisors that you lack confidence and do not have the ability to make decisions.
_ Also, you lack necessary leadership requirements, particularly so in supervising subordinates.
By your request it has been necessary to limit your assignments.
It is suggested for self-improvement that you review the constructive criticism enumerated in the preceding paragraphs and seek assistance of your supervisors in attempting to improve your efficiency.

3. On July 6, 1948, a special efficiency rating committee convened at the Medical Center. Those present included the Captain of the Guards, the Associate Warden, eight lieutenants of the custodial force, the Clinical Director of the institution and the Chief Nurse. The committee unanimously agreed that the plaintiff’s work performance was below desirable standards and recommended that he be given an “unsatisfactory” efficiency rating. The committee noted that the plaintiff had become involved in the following irregularities:

1. April 1,1948 — late 25 minutes.
2. May 14,1948 — late 5 minutes.
3. Falsifying records by signing in on time May 14, 1948, whereas he was late 5 minutes.
4. June 2, 1948, careless in issuing Commissary Books which resulted in disciplinary action on an inmate and Mr. Crocker’s making good the $10.00 Commissary Book.
5. Definitely resents assignment to T. B. Ward.
6. Kesents assignment to the CPI Units.

4. An efficiency rating report was prepared and issued on July 12, 1948, by the acting captain of the custodial force, plaintiff’s supervisor, for the period July 1,1947 to June 30, 1948, after review and approval by the Associate Warden and the efficiency rating committee. In this report the plaintiff was assigned an “unsatisfactory” rating. He was found weak in attention to pertinent detail, accuracy of judgment or decision, dependability and effectiveness in instructing, training and developing subordinates in the work.

5. Up to April 6,1948, the plaintiff had never received any complaints about the quality of his work nor was he advised by his superiors that he was handling inmates improperly. No disciplinary action had been taken against him and he had not been advised of any dereliction in duty. His rating was “good” up to the period he received the rating of “unsatisfactory” for which he was discharged. As is apparent, the notice to plaintiff on April 6, 1948, did not itemize some of the irregularities subsequently listed by the rating committee as grounds for an “unsatisfactory” rating. Some of these objections as to the quality of plaintiff’s service were not communicated to the plaintiff prior to April 6, 1948, and in fact occurred thereafter.

6. On September 16, 1948, the plaintiff was notified officially that he had been assigned an “unsatisfactory” efficiency rating by his immediate supervisor for the period July 1, 1947 to June 30, 1948. The official notice defined “unsatisfactory” as meaning that performance in a majority of important phases of the work did not meet job requirements. It stated, further, that such a rating required that the employee be dismissed or reassigned to other work in which he could be reasonably expected to render satisfactory service. Efficiency ratings are a factor in determining the order in which employees are affected by reduction in force. Ratings of “excellent”, “very good”, or “good” are necessary in order to receive a periodic within-grade salary advancement. An efficiency rating of “fair” requires a one-step salary reduction if an employee’s pay rate is above the middle rate for his grade.

7. On October 4,1948, the Warden and Chief Medical Officer at the Medical Center wrote to the plaintiff advising him of the proposed administrative action under Section 14 of the Veterans’ Preference Act of 1944 to terminate plaintiff’s services 30 days after receipt of the notice because of his “unsatisfactory” efficiency rating and set forth in detail the reasons for such proposed action. Paragraph 2 of the letter is as follows:

2. Section 9 of the Civil Service Classification Act states that an employee whose official efficiency rating is “Unsatisfactory” shall not be permitted to remain in his present position. He may be separated from the service, or he may be reassigned or demoted to a position for which he is qualified and in which satisfactory performance could be expected. The records show that as of June 30, 1948, you received an “Unsatisfactory” efficiency rating, which was approved by the Public Health Service Efficiency Rating Committee on September 1,1948. The notice of this rating was forwarded to you on September 16,1948.

Paragraph 3 of the letter stated some of the duties of medical custodial assistants and paragraph 4 advised the plaintiff in detail of the basis of the rating of “unsatisfactory”. Among other things, reference was made to irregularities numbered 1, 2 and 4 listed in finding 3 above and to the events of April 3, 1948, when an inmate almost escaped by removing tile, brick and mortar from the wall of his room, broke and removed the lock on the screen and did other things which plaintiff failed to note on his inspection tours. Eef erence was made, also, to the matters referred to in finding 4 above. The letter concluded with the advice that, since there was no other position to which the plaintiff could be reassigned or demoted, his employment would be terminated 30 days from receipt of the notice, which was delivered to the plaintiff on October 6. The plaintiff was given one week in which to state in writing why the proposed action should not be taken.

8. On October 14, 1948, the Medical Center for Federal Prisoners requested approval by the Eegional Director of the Ninth TJ. S. Civil Service Eegion of the proposed action for termination of plaintiff’s employment. Such approval was necessary in accordance with instructions contained in Chapter El-25 and El-26 of the Federal Personnel Manual. Approval was given on October 18, 1948, the action appearing to meet the procedural requirements in the opinion of the Eegional Director.

9. The Chief Personnel Officer of the United States Public Health Service notified the plaintiff under date of November 2,1948, as follows:

On October 6, 1948, you received a statement dated October 4,1948, informing you that your removal from the service had been proposed.
Your reply has been carefully considered and it has been decided to proceed with your removal. You are hereby notified that your last day of active duty will be November 16,1948.
You will remain on active duty until the effective date of separation.
Inasmuch as this is an adverse decision under Section 14 of the Veterans Preference Act of 1944, you have the right to appeal your removal to the Civil Service Commission within 10 calendar days after November 16,1948.

Pursuant to the foregoing notice, plaintiff’s employment was terminated on November 16,1948.

10. After his dismissal the plaintiff appealed to the Eegional Director of the Ninth United States Civil Service Eegion, St. Louis, Missouri. A hearing was held December 30, 1948, at which plaintiff appeared. In analysis of the evidence, the Director stated in part on January 7, 1949, as follows:

In the instant case we are not concerned with the correctness of the efficiency rating under the uniform efficiency rating system, which rating is appealable to an “Efficiency Eating Board of Eeview”. The primary issue for consideration is whether the action of the administrative officer of the Center in removing the appellant from his position, rather than reassigning or demoting bim to another position, was taken to promote the efficiency of the service within the meaning of Section 14 of the Veterans’ Preference Act of 1944, as amended.
The appellant has contended that he could have been given special assignments, * * * and that he. should have been considered for demotion to the position of Medical Custodial Assistant, CPC-6. Eepresentatives of the Medical Center agree that at the time of separation there were Medical Custodial Assistant CPC-6 positions for which the appellant could have and. was in fact considered. It was decided, however, that since the CPC-6 position was merely a trainee position from which incumbents were automatically promoted to Medical Custodial Assistant, CPC-7, upon successfully completing the training and further, in view of the appellant’s unsatisfactory performance of duty in the CPC-7 position, the appellant could not be expected to satisfactorily perform the duties of the CPC-6 position.
Although the agency has contended that the CPC-7 and CPC-6 positions are practically identical, this conclusion is not supported by the evidence. * * * the important distinguishing features between the two positions are that the CPC-6 incumbent works under close guidance and supervision with very little personal responsibility and devotes the major portion of his time to study and receiving instructions, with a view to qualifying him for advancement to Medical Custodial Assistant, CPC-7.

The Eegional Director made a finding and recommendation stating:

* * * although the administrative officer was not. required to demote the appellant to the position of Medical Custodial Assistant, CPC-6, in lieu of separation because of an unsatisfactory efficiency rating, it would have promoted the efficiency of the service within the meaning of Section 14 of the Veterans’ Preference Act of 1944, as amended, to have taken such action and it is accordingly recommended that Mr. Dwight E. Crocker be restored to his former position and demoted to the position of Medical Custodial Assistant, CPC-6, in lieu of separation because of an unsatisfactory efficiency rating.

The letters of transmittal by the Eegional Director of the Director’s decision, from which the foregoing quotations were taken, to plaintiff and to defendant’s Medical Center, characterized the latter’s action in removing the plaintiff from his position as “in violation of the provisions of Section 14 of the Veterans’ Preference Act of 1944, as amended.”

11. On January 28,1949, the agency appealed the decision of the Ninth Eegion to the Board of Appeals and Eeview of the Civil Service Commission, Washington, D. C. On March 1, 1949, the Board of Appeals and Eeview reversed the Ninth Eegion. The Commission advised the agency of its decision by a letter of the same date which contained the following statement:

. The Civil Service Commissioners, after a careful consideration of all the facts and circumstances in these cases, have found that since your agency was acting within its administrative discretion in removing these veterans as the result of “Unsatisfactory” efficiency ratings and since there is no showing that this action was arbitrary or biased, the decision of the Ninth Eegion has been reversed. Therefore, recommendation for the assignment of Messrs. Jennings and Crocker to the position of Medical Custodial Assistant, CPC-6, is hereby withdrawn.

12. In the meantime, on October 18, 1948, the plaintiff filed an efficiency rating appeal with the Efficiency Eating Board of Eeview, United States Public Health Service, Federal Security Agency. On July 26, 1949, the Board of Eeview reached the following decision:

The efficiency rating of “Unsatisfactory” is raised to . “Fair”.
All records of the Department shall be corrected accordingly and appropriate corrective action shall be initiated in compliance with Chapter El, Federal Personnel Manual, U. S. Civil Service Commission.

The Board of Review made no findings indicating that the initial efficiency rating was arbitrary, malicious or given in bad faith.

Plaintiff’s rating record was changed to reflect a “fair” rating and he was so notified by letter dated October 4,1949. At the same time the plaintiff was told by the Chief Personnel Officer that it had been administratively determined, in the public interest, that there was no position to which he could be assigned. There were vacancies in plaintiff’s grade and field but the Warden and Chief Medical Officer at Springfield and his associates did not regard plaintiff as qualified to fill them.

13. In reaching its decision to raise plaintiff’s efficiency rating to “fair”, the Board of Review had before it several extensive and detailed statements submitted by the plaintiff and by the Medical Center regarding the quality of plaintiff’s performance as a medical custodial assistant. The Board agreed that plaintiff’s performance with respect to the matter of “accuracy of judgments or decisions” was “weak”, as it had been marked by plaintiff’s supervisor in the efficiency report. The Board believed that the ratings of “weak” assigned to plaintiff in respect to “attention to pertinent detail”, “dependability”, and “effectiveness in instructing, training, and developing subordinates in the work”, were not established by the evidence and these elements were raised to “adequate”. The remaining eight performance elements for which plaintiff had been rated as “adequate” by his supervisor, were considered to have been appropriately rated by the Board.

14. After the decision of July 26,1949, changing plaintiff’s efficiency rating from “unsatisfactory” to “fair”, the plaintiff attempted both in person and by letter to get his position back without success. He has at all times held himself ready for employment by defendant.

15. On November 14, 1949, the plaintiff sought to reopen his case under Section 14 of the Veterans’ Preference Act of 1944 on the basis of the corrected efficiency rating. The Civil Service Commission advised him on January 27, 1950, as follows:

The regulations governing efficiency ratings provide that when a Board of Beview on Efficiency Bating increases the rating, the department or agency shall cause the adjusted efficiency rating to be substituted in its official records for the original efficiency rating in each place where such rating was recorded, and, insofar as possible under law and regulations and in the public interest, redetermine and adjust such administrative actions to conform to the adjusted efficiency rating. The Commission, however, does not have the authority under these regulations to require an agency to reinstate an employee who has been removed because of an “Unsatisfactory” rating.

16. The Warden at the Springfield institution was advised of the readjusted efficiency rating by letter dated August 15, 1949, from the Chief Personnel Officer of the United States Public Health Service who sent him a copy of the Notice of Decision from the Board of Beview. A paragraph from the Federal Personnel Manual, Chapter El-34, the substance of which is quoted in the finding above, was called to the Warden’s attention. His attention was also directed, in an accompanying memorandum marked confidential, to the view of the Board of Beview that plaintiff should be restored to duty “unless the field station has a justifiable reason for not doing so. This justification should include the quality of his performance from July 1, 1948, to date of separation. It might be well for the station to be prepared to present such justification in the event they do not wish to return this employee to duty.”

The Warden understood one letter to tell him to reinstate the plaintiff and the other to tell him how to avoid it.

17. On September 2,1949, the Warden and Chief Medical Officer at Springfield advised the Medical Director of the Bureau of Prisons that many man-days had been spent in evaluating plaintiff’s performance, that an honest evaluation had been made and “unsatisfactory” correctly described plaintiff’s performance. His performance from the date of his last efficiency rating, July 1,1948, to date of separation was described as following “the same confused pattern” as plaintiff’s previous service. It was stated that other officers were reluctant to work with plaintiff on hazardous duty and that it would be bad for the morale of the institution to restore plaintiff to duty. It was recommended that if he must be restored to Government service it be at another station.

The charge that other employees were afraid to work with plaintiff did not come to plaintiff’s attention until the trial of his case and is not supported by the evidence. It is a fact established by the evidence, however, that the Warden at the Springfield Medical Center was very strongly of the opinion that once an unsatisfactory rating had been given an employee, regardless of whether sustained on appeal and review, the man should not be reinstated at the same institution because of the effect it would have on the morale of other employees and upon their attitude toward the management of the institution.

18. On September 7, 1949, the Medical Director of the Bureau of Prisons in Washington, D. C., concurred in the recommendation of the Warden at Springfield that nothing further was to be done for the plaintiff. The plaintiff was so advised.

19. It is found that at no time did any personal antagonism exist between the plaintiff and any official at the Medical Center. The plaintiff testified at the trial that he knew of nothing arbitrary, vindictive, malicious or improper in the conduct or attitude of the officials which was the cause of their failure to reinstate him, other than as indicated in their ultimate refusal to take such action.

20. Since his separation from employment at the Medical Center on November 16, 1948, and up to the date of trial, April 1, 1953, the plaintiff has held odd jobs and attended college under the terms of the Servicemen’s Readjustment Act. The evidence about his earned income since termination is incomplete but appears to be approximately $2,102.25. During the same interval he received various benefits from the defendant in the form of unemployment compensation and veteran’s subsistence in the sum of approximately $4,960. If, as a matter of law, plaintiff is entitled to recover his salary, the sum should be subject to computation by the General Accounting Office or a stipulation by the parties as to the amount due.

CONCLUSION OK 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 entitled to recover.

Entry of judgment will be suspended to await either the filing of a report by the General Accounting Office or a stipulation by the parties showing the amount due the plaintiff in accordance with this opinion. 
      
      
         Chapter El-25 (September 23, 1948) of the Federal Personnel Manual provided: “* * * An employee whose official efficiency rating is ‘unsatisfactory’ shall not he permitted! to remain in his position. He may be separated from the service, or he may be reassigned or demoted to a position for which he is qualified and in which satisfactory performance could be expected. * '* *’’
      
     
      
       Chapter El-34 (November 22, 1948) of the Federal Personnel Manual provided: “upon receipt of the decision of the board of review increasing the efficiency rating of an employee, the department or agency shall cause the adjusted efficiency rating to be substituted in its official records for the original efficiency rating in each place where the original efficiency rating was recorded, shall reconsider any and all administrative actions based on the original efficiency rating, and insofar as possible under the law and regulations and in the public interest, redetermine and adjust such administrative actions to conform to the adjusted efficiency rating.”
     
      
       See footnote 2.
     
      
      
         Finding 16.
     
      
       5 CFR 22.11 (e) (1949) provides that the Civil Service Commission may in their discretion reopen an appeal when snch action appears warranted by the circumstances. The plaintiff based his appeal to the Civil Service Commission to reopen his case on section 14 of the Veterans’ Preference Act, 5 U. S. C. 863 (1952).
     
      
       Finding 17..
      The warden assumed his duties at the Medical Center on July 6, 1948. This was the first employee efficiency case of this type which the warden processed at the Medical Center. Mr. Crocker was the first employee of the Medical Center, during the present warden’s administration, to receive an unsatisfactory rating, appeal to the Efficiency Rating Board of Review, have the rating raised1 and then reapply for his position. The warden’s unfamiliarity with this type of situation may account for the action taken here. It seems rather strange that department officials are sometimes reluctant to follow the simple requirements of the regualtions. Perhaps it is pride in a decision already rendered, or a desire not to acknowledge a mistake. At any rate, they sometimes seem to acknowledge the necessity, of a concession grudgingly rather than openly and willingly, to make the barest sort of correction rather than a real compliance. Stringer v. United States, 117 C. Cls. 30, 52.
     
      
       Chapter El-34, Federal Personnel Manual. See footnote 2.
     
      
       The official is presumed to have acted; in good faith. The plaintiff has to overcome this presumption. If the plaintiff is successful, then the burden of proceeding shifts to the defendant to show that the action of the official was made in good faith. In this case, the defendant has failed to sustain that burden.
     
      
       On direct examination the warden testified as follows:
      “Q. And why would it have been bad for the morale of the service?
      “A. Because we had in effect fired the man and ,[he], had returned. It meant he had overruled us in this thing, and gotten away with it, when other officers knew of this incapacity.”
      *****
      ”Q. And it is your position, once your institution, you have made a determination the rating is unsatisfactory and an unsatisfactory rating is given, regardless of whether you are sustained in that or not, if there is an appeal taken and the man overrules you, you don’t want him back for that reason, is that correct? That is what you said, isn’t it?
      “A. That is correct.”
      This testimony of the warden was not rebutted by, the defendant either on cross-examination of the warden or by any other witness.
     
      
       The regulation Is clear. It does not require the agency to reinstate the employee who was discharged because of the erroneous efficiency rating, which wag later raised by the Efficiency Rating Board of Review, but it does require the agency to redetermine and adjust such administrative actions to conform with the adjusted efficiency rating. We are not authorized to determine whether a particular veteran should be employed. That is the province of the appropriate agency. /Nor are we concerned with whether an employee should be discharged. That is properly in the hands of the affected department. Once a veteran is employed, however, we are concerned with seeing that e/ven a proper discharge is accomplished in the maimer provided' by law, and that, in discharging him, the agency foRows the procedure laid down by the Congress. See Wittner v. United States, 110 C. Cls. 231. The same rule applies to reinstatement. The regulations must be followed.
     
      
      
        Knotts v. United States, 128 C. Cls. 489.
     
      
       Arbitrary has been defined as “Fixed or done capriciously or at pleasure; without adequate determining principle * * * depending on the will alone * * * capriciously * * Central of Georgia Ry. Co. v. Mote, 131 Ga. 166, 62 S. E. 164, 170 (1908). We think that the policy practiced at the Medical Center was arbitrary im the light of the circumstances in this case.
     
      
      
        Knotte v. United States, supra, footnote 8; Levy v. United States, 118 C. Cls. 106; Gadsden v. United States, 111 C. Cls. 487.
     
      
       Plaintiff’s petition was filed on July 30, 1951. The last administrative action in this case occurred on January 27, 1950, when the Civil Service Commission refused to reopen the plaintiff’s case. Eighteen months elapsed from the date of the last administrative action until the filing of the petition. This was 2 years and 8 months after the plaintiff’s actual dismissal.
     
      
       Rula 15 (b), Rules of the U. S. Court of Claims, 28 U. S. C. (1952).
     
      
       Rule 16 (h), Rules of the U. S. Court of Claims, 28 U. S. C. (1952).
     