McDougall v. United States

149 F. Supp. 651, 138 Ct. Cl. 90, 1957 U.S. Ct. Cl. LEXIS 59

• Court: United States Court of Claims
• Decided: April 3, 1957
• Docket: 50-56
• Status: Published

Opinions

WHITAKER, Judge.

Plaintiff, a Zone Deputy Collector in the office of Collector of Internal Revenue 'at Philadelphia, was dismissed, effective April 18, 1952. He alleges that his dismissal was unlawful because the Commissioner of Internal Revenue “failed to -find that plaintiff was removed for such cause as would promote the efficiency of the classified civil service of the United States and further failed to furnish plaintiff with a written decision stating the reasons for plaintiff’s removal.” He demands payment of the salary he would have earned, except for the alleged unlawful dismissal, from the effective date of his dismissal, April 18, 1952 to May 16, 1955, less the amount he had earned during the time in other employment.

.Defendant in its answer alleged that thq Civil Service Commission, upon ’ receipt of plaintiff’s appeal, dated April 22, 1952, from his dismissal, called on plaintiff to submit evidence of the failure of the Commissioner of Internal Revenue to comply with the procedural ' requirements; but that plaintiff took no further action in the matter until March 10, 1955,¹ when he asked the Civil Service Commission to reopen the matter. ¡The Civil Service Commission refused • to do so, on account of plaintiff’s long deday in prosecuting his appeal. Defend- . ant, therefore, says plaintiff’s suit is . barred by his failure to pursue his administrative remedy.

Defendant also defends on the ground that plaintiff was guilty of laches in not having filed a petition in this court until February 2, 1956, nearly four years after the date of his removal.

As we have pointed out in other cases, a civilian employee of the Federal Government had no right of action on account of his. dismissal from the service until after the passage of the Civil Service Act, 22 Stat. 403, 5 U.S.C.A. § 632, which prohibited removal for political reasons. This was followed by the Lloyd-LaFollette Act. of August 24, 1912, 37 Stat. 539, 555, 62 Stat. 354, 355, 5 U.S.C.A. § 652, which prohibited removal for any cause except for the good of the service and for reasons stated in writing. Plaintiff has a right of action only if these Acts have been violated.

Congress clothed the Civil Service Comission with jurisdiction to enforce the provisions of the Civil Service Act and the Lloyd-LaFollette Act, and we have held several times that ordinarily an employee is obliged to appeal first to the Civil Service Commission before resorting to this court. Martilla v. United States, 118 Ct.Cl. 177; Heffernan v. United States, 137 F.Supp. 437, 133 Ct.Cl. 839; Adler v. United States, 146 F.Supp. 956; 134 Ct.Cl. 200.

Plaintiff appealed to the Civil Service Commission, but did nothing toward prosecuting his appeal for over two years. This, in the judgment of the Civil Service Commission, deprived him of his right to have his case considered by it.

We cannot say that the Commission was not fully warranted in taking this position. Plaintiff, therefore, by his failure to effectively seek the administrative remedy which the law gave him in the first instance, is now barred from prosecuting his appeal before this court. Adler v. United States, supra.

Plaintiff’s excuse for not having prosecuted his appeal before the Civil Service Commission is that a friend of ■ his by the name of Mulligan was contesting his discharge, which had occurred at about the same time as plaintiff’s, and that he wished to await the outcome of Mulligan's contest before going on with his. Had plaintiff wanted his case held in abeyance until after Mulligan’s case ' had been decided, he should have first secured the consent thereto of the Civil , Service Commission. Not having done so, the Civil Service Commission was fully warranted in refusing to reopen his case.

Defendant also defends on the ground that plaintiff has been guilty of laches. Four years elapsed between the date of plaintiff’s dismissal and the filing of his action in this court. In the meantime, defendant’s liability to plaintiff was increased day by day, if plaintiff had been unlawfully dismissed. A year elapsed from the date of the decision in the Mulligan case before plaintiff filed his suit in this court. There is, therefore, room for the assertion by the defendant that plaintiff was guilty of laches, but we do not decide this question, because we think it is clear that plaintiff failed to pursue his administrative remedy for the protection of his rights, and, hence, is barred from resorting to this court.

Plaintiff’s motion for summary judgment will be overruled, and defendant’s motion for summary judgment is allowed, and plaintiff’s petition is dismissed.

It is so ordered.

JONES, Chief Judge, and LARA-MORE, Judge, concur. LITTLETON, Judge, dissents.

1 . The date stated in the answer is incorrect; it should he May 11, 1954.