Steinberg v. United States

MADDEN, Judge

(dissenting).

The court gives the plaintiff a judgment. In the face of the applicable statute, the award of the judgment must be based upon the conclusion that the statute is unconstitutional and void. Placing the plaintiff’s claim upon a contractual basis does not avoid the constitutional question. If a retired civil servant has contractual rights to his retired pay, Congress intended to take away those rights. Its intent that he should not get the retired pay is clear beyond question. I agree with Judge LARAMORE’S opinion that no contractual rights are present.

Meeting squarely, as I think it must, the constitutional question, the court holds the statute unconstitutional. It should not do so unless the unconstitutionality is clear. I think it is far from clear.

The statute is narrowly drawn. It applies, so far as here pertinent, only to failure or refusal to appear, testify, or produce any book, paper, record or other document with respect to one’s service as an officer or employee of the Government. It applies only to inquiries by a Federal grand jury, a court of the United States, or a congressional committee.

The plaintiff says that it is incongruous on its face that one should be deprived by the Government of benefits to which he is otherwise entitled, because he has exercised a right granted to him by the Constitution itself. The problem involved in such a situation, however troublesome it might appear if the question were open, has been resolved by the Supreme Court of the United States. In Beilan v. Board of Public Education, 78 S.Ct. 1317, 1324 , and in Lerner v. Casey, 78 S.Ct. 1311, 1324 , it was held that the States of Pennsylvania and New York, respectively, could discharge public employees because they made use of the constitutional privilege against self-incrimination and refused to answer pertinent questions relating to their qualifications for employment. Garner v. Board of Public Works, 341 U.S. 716 , 71 S.Ct. 909 , 95 L.Ed. 1317 , was to the same effect.

In the instant case the court relies upon Slochower v. Board of Education, 350 U.S. 551 ; 76 S.Ct. 637 . But the Supreme Court in Beilan expressly distinguished the Slochower decision, pointing out that in Slochower itself the Court had been careful to warn readers that its decision was not applicable to situations such as the one previously presented by Garner and subsequently by Beilan and Lerner. The Court in Slochower said in 350 U.S. at page 558 , 76 S.Ct. at page 641 :

“It is one thing for the city authorities themselves to inquire into Slochower’s fitness, but quite another for his discharge to be based entirely on events occurring before a federal committee whose inquiry was announced as not directed at ‘the property, affairs, or government of the city, or * * * official conduct of city employees.’ In this respect the present case differs materially from Garner, where the city was attempting to elicit information necessary to determine the qualifications of its employees. Here, the Board had possessed the pertinent information for 12 years, and the questions which Professor Slochower refused to answer were admittedly asked for a purpose wholly unrelated to his college functions. On such a record the Board cannot claim that its action was part of a bona fide attempt to gain needed and relevant information.”

The cited cases leave no room for doubt that if the instant plaintiff had been actively employed as a tax attorney of the Government at the time he refused to answer the grand jury’s questions as to his official conduct, he could have been discharged, either administratively for the good of the service, or pursuant to a *598 statute, if there had been an applicable statute. The only possible ground, then, on which the plaintiff may escape the teachings of the Supreme Court decisions is that his status was that of a retired employee, rather than an active one.

As Judge LARAMORE’S opinion holds, the plaintiff had no vested contractual right to the statutory retired pay. Congress could have, by a generally applicable statute, reduced the retired pay of all retired employees. Dodge v. Board of Education, 302 U.S. 74 , 58 S.Ct. 98 , 82 L.Ed. 57 . It could provide that all former employees able to do so should, in order to continue to be entitled to retired pay, render services to the Government in eases of specified emergencies. By the statute here in question Congress has provided that, in order to continue to be entitled to retired pay, all former employees shall furnish information with respect to their service as officers or employees of the Government, if called upon to do so by a Federal grand jury, a Federal court, or a committee of Congress.

Congress decided that retirement should not relieve the retired employee, who was still drawing pay because of his former active service for the Government, from telling the Government what he had learned about the Government’s business while he was on its active payroll. It decided that if a retired employee was unwilling to respond to the Government’s proper inquiries as to his conduct when he was working actively for the Government, the Government should not have to respond to his monthly requests for his pay check. The decision of Congress was so eminently fair and sensible that there is nothing to be said against it, once the philosophical problem adverted to at the beginning of this opinion has been solved. That problem has been solved by the Supreme Court. It seems to me that it is a contradiction of obvious fact to hold that the statute here in question is so clearly arbitrary and lacking in reason as to be unconstitutional.