The opinion
MADDEN, Judge
(dissenting).
When the plaintiff was, on September 2, 1951, transferred from the Reports Branch, Reports and Statistics Division, to the Replacement Pool, Personnel Division, he was, like all other employees of the Reports Branch, placed in a reserve on which the High Commissioner could draw for assignment to any necessary personnel work. The reason these employees were placed in the replacement pool was that the High Commissioner, on the day following their transfer to the Replacement Pool, abolished the Reports Branch and thereby abolished the jobs of the employees who worked in the Reports Branch. But the other employees who were so transferred were not discharged nor separated from the payroll. Nor was the plaintiff discharged. The only reason for his not being paid, and not being assigned from the pool to specific work, was that he was under suspension as a security risk.
Section 22-1 of the Security Act of August 26, 1950, quoted in the opinion of the court, says that if one whose employment is suspended or terminated as a security risk is reinstated, he “shall be allowed compensation for all or any part of the period of such suspension or termination * * *.” [Emphasis supplied.] As the court says in the instant opinion:
“Once an employee is reinstated or restored to duty, this section made mandatory the payment of back pay. Leiner v. United States,
143 Ct.CI. 806; Schwartz v. United States, Ct.CI., 181 F.Supp. 408 .”
However, the court, in the language just quoted, having given the plaintiff relief, proceeded immediately to take back what it had just given by saying:
“However, this section did not, as plaintiff urges us to hold, require that the Secretary must allow compensation for the full period of the suspension.”
And the court goes on to hold that compensation for only a part of the period of suspension satisfied the requirements of the statute.
To hold, as we did in Leiner, that the back-pay provision of the statute is mandatory, once reinstatement has been made, and to say, as the court does in the instant case, that this mandatory requirement is satisfied by giving back pay for a fraction of the period, is, in effect, to overrule Leiner. The Secretary can, under this decision, reinstate an employee after two years of suspension, saying that he never should have been suspended in the first place, but at the same time saying that he should receive back pay for only one day of the two years of his suspension.
The court’s opinion urges that there is some equity in the fractional relief awarded in the instant case because the job to which the plaintiff had been appointed had been abolished. But the plaintiff had not been discharged. He had been transferred to other employment, and the only reason he was not worked or paid was because of the security suspension. There is not the slightest doubt about “the amount which * * * [the plaintiff] would normally have earned during the period of such suspension * *
In Leiner we said:
“Congress recognized that the statute, lodging arbitrary and final power in department heads, was a departure from normal Government personnel practice, justifiable only in the interest of national security. It tempered the severity of the statute *837 Tby granting discretion to the department heads to right possible wrongs committed under the statute by ordering reinstatement. Then it made mandatory the payment of back pay to such reinstated employees. 143 Ct.Cl. 806, 811 .”
“Equity delights to do justice, and that not by halves.” Story, Equity Pleading, Section 72. I think Leiner was right, and I would not fractionalize the equity which the court accomplished in that case.