Roberta I. Thomas v. United States

WHITAKER, Judge

(dissenting)-.

Plaintiff’s superiors acted unduly harshly and unjustly deprived plaintiff of her position; but we must not let our indignation over their treatment of her induce us to make bad law.

Let us start at the fundamentals. The United States, as a sovereign, can only be sued if it consents to be sued. Only by Act of Congress, approved by the President, can that consent be given.

Congress has consented that all employees of the United States, except those in the State Department, may sue it for their wrongful discharge in only two different Acts, one, the Lloyd-La Follette Act, 5 U.S.C.A. § 652 , 62 Stat. 354 , and the other, the Veterans’ Preference Act, 5 U.S.C.A. § 863 , 58 Stat. 390 . In no other Act has Congress consented that its employees may sue the United States. Therefore, unless plaintiff’s rights under those Acts have been violated, she may not sue the United States. Brown v. United States, 122 Ct.Cl. 361, 377 . Plaintiff may not sue *952 under those Acts, because her position was excepted from the terms of them. 5 C.F.R. 6.101(h), Schedule A. That is what an “excepted position” means — it is excepted from the provisions of the Civil Service Acts. Having been excepted from their terms, she is not entitled to their protection.

Until the original Civil Service Act was passed, the provisions of which are now incorporated in the Lloyd-La Follette Act, an employee could b,e discharged at will, without redress. An employee in an excepted position is in the same position as were all employees before the passage of the Civil Service Act, and may be discharged at will, without redress.

I do not think Service v. Dulles, 354 U.S. 363 , 77 S.Ct. 1152 , 1 L.Ed.2d 1403 , is to the contrary. The plaintiff in that case was a member of the foreign service arid was protected neither by the Lloyd-La Follette. Act nor the Veterans’ Preference Act. However, the McCarran Rider, 65 Stat. 581 , gave the Secretary o.f State authority to summarily discharge an employee “whenever he shall deem such termination necessary or advisable in the interests of the United States.” But by regulation the Secretary had limited his power to discharge an employee by prescribing that certain procedures should be followed prior to discharge. The Supreme Court held that these regulations were binding on the Secretary and, since the procedure set forth was not followed, plaintiff was entitled to recover.

The reasoning of the Supreme Court was that, since these employees did not have the protection of the Lloyd-La Follette Act, and might be discharged whenever the Secretary “deemed” it advisable, he had to follow his own regulations in coming to the conclusion that it was advisable; otherwise the power to discharge had not been lawfully invoked.

Plaintiff, of course, does not come within the terms of the McCarran Rider; nor does she come within the terms of any other Act regulating the discharge of Government employees.

I regret to disagree, but this court has no power to entertain a suit over which Congress has not given it jurisdiction.

LARAMORE, Judge, joins in the foregoing dissenting opinion.