Weinstein v. United States

Whitaker, Judge,

dissenting:

I cannot agree with the opinion of the majority.

Section 6 of the Act of August 24,1912 ( 37 Stat. 539 , 555) provides that no person shall be removed from a position in the classified civil service until notice of the reasons for his removal shall have been given him in writing, together with a statement of any charges preferred against him, and until he has been allowed a reasonable time for personally answering the allegations against him and for filing affidavits in support thereof.

This section could not have been complied with in this case. Plaintiff was served with notice of her discharge on March 14, effective the following day. Certainly no time was given for answering the allegations against her, nor for filing affidavits in support of her answer.

Nor do I think that the mere statement that she was discharged “for administrative reasons” is a sufficient compliance with the Act. This is not a statement of the reasons for her discharge, nor is it accompanied by a copy of the charges preferred against her. It is said that the discharge is “in consideration of report received from the United States Civil Service Commission,” but plaintiff is not advised of the contents of that report.

In my opinion there has been a complete failure to comply with the provisions of section 6 of the Act of August 24, 1912, supra. Ivan M. Elchibegoff v. United States, 106 C. Cls. 541 .

■ But it is said that the Act of June 28, 1940 ( 54 Stat. 676 , 679), makes it unnecessary to comply with the provisions of section 6 of the Act of August 24, 1912. It is true that this Act does not make it necessary to comply with the provisions of the Act of August 24, 1912, in a case where the Secretary of the Department concerned is of the opinion that the employee’s discharge is warranted by the demands of national security, but there is nothing whatever in the record to show *587 that the Secretary was of opinion that this employee’s discharge was warranted by the demands of national security. He has never said so, and we have no right to assume that he thought so.

This case being before us on demurrer, we must take the facts as stated in the petition. We are limited to those facts. We cannot read into the petition something that is not there. We cannot read into the petition an allegation that the Secretary was of opinion that this employee’s discharge was warranted by the demands of national security. The demurrer, of course, cannot supply this allegation.

The only reason for her discharge, so far as we know, is that it was deemed advisable “for administrative reasons.” This covers a wide latitude. “Administrative reasons” might be a lack of money, might be a failure of the employee to get along with her fellow employees, might be inefficiency in the discharge of her duties, might be the fact that she did not get to work on time, that she loafed on the job,— it might mean a multitude of things; but there was only one excuse for not complying with the provisions of the Act of August 24, 1912 and that was that the Secretary thought that the employee’s discharge was warranted by the demands of the national security. Whether or not he thought so, we do not know. If such is the case, the Government should be required to prove it. Certainly we cannot assume it.

I think the demurrer should be overruled.