Petition for Writ of Certiorari — Motto v. General Services Administration

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SUPREME COURT, U- &

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

no. 4 -70 0

THOMAS A. MOTIU, JR., Petitioner

versus

THE GENERAL SERVICES ADMINISTRATION

OF THE UNITED STATES OF AMERICA; ROBERT

HAMPTON; JAMES E. JOHNSON; and L. J. ANDOLSEK,

Individually and as Chairman and Members of

the United States Civil Service Commission,

and ROBERT L. KUNZIG, Individually and as

Administrator of THE GENERAL SERVICES ADMINIS-

TRATION OF THE UNITED STATES, Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

Neal D. Hobson

1100 Whitney Building

New Orleans, Louisiana 70130

Counsel for Petitioner,

Thomas A. Motto, Jr.

I N DE X = Page l

TABLE OF CASES ----------------------- i

OPINION BELOW ------------------------ 1

JURISDICTION ------------------------- 2

QUESTIONS PRESENTED ------------------ 2

STATUTORY PROVISIONS INVOLVED -------- 3

STATEMENT OF THE CASE ---------------- 4

REASONS FOR GRANTING THE WRIT -------- 6

1. The decision below conflicts

with THE BACK PAY ACT, 5

U.S.C. §5596, 81 Stat. 201 ---- 6

2. The decision below raises

Significant and recurring pro-

blems concerning the compen-

Sation to be awarded wrong-

fully discharged federal em-

ployees ----------------------- 18

CONCLUSION --------------------------- 19

APPENDIX

1. Judgment of United States

Court of Appeals for the Fifth

Circuit, No. 74-1763, Summary

Calendar ---------------------- 1

United States District Court,

Eastern District of Louisiana - 4

3. Findings of Fact and Conclu-

sions of Law in C.A. No.

70-1865 ----------------------- 7

I N D E X = Page 2

APPENDIX (Cont.)

Stipulation of Facts -----------

District Court's written reasons

for denial of Motion to Clarify

Judgment -<-------<---------------

Lloyd-Lafollette Act as Amended

in 1948; 62 Stat. 354 ----------

Act of August 26, 1950; 64 Stat.

476, then referred to as 5

U.S.C. §22-1 -------------------

5 U.S.C. §6304, recently amended

by P.L. 93-181, 87 Stat. 705 ---

Public Law 93-181, 87 Stat.

y 0

TABLE OF CASES

Page_

Ainsworth v. U.S., Ct. Cl.

1968, 399 F.2d 176 ----------------- 8,12, 14,

Hynning v. U.S.,

141 Ct. Cl. 468 (1958) ------------- i

Leverette v. United States,

142 F. Supp. 955, Ct. of Cl1.(1956) - 9,15,17

McGuire v. U.S., Ct. Cl. No. 38354,

decided Feb. 11, 1959 -------------- 12

Prosterman v. U.S., 144 Ct. Cl.

691 (1959) ------------------------- 12

Vitarelli v. U.S., 279 F.2d &78,

Che of Cie (1960) ee eee eda ee ee > # | Fp t

zeiger v. U.S., Ct. Cl. 1961,

295 F.2d 915 ----------------------- 8,12,13,

14,15,16,17,18,19

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

THOMAS A. MOTTO, JR., Petitioner

versus

THE GENERAL SERVICES ADMINISTRATION

OF THE UNITED STATES OF AMERICA; ROBERT

HAMPTON; JAMES E. JOHNSON; and L. J. ANDOLSEK,

Individually and as Chairman and Members of

the United States Civil Service Commission,

and ROBERT L. KUNZIG, Individually and as

Administrator of THE GENERAL SERVICES ADMINIS-

TRATION OF THE UNITED STATES, Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

The petitioner, Thomas A. Motto, Jr.,

respectfully prays that a writ of certiorari

issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit

entered in this proceeding on October 2, 1974.

OPINION BELOW

The judgment of the Court cf Appeals for

the Fifth Circuit, not reported, appears in

the Appendix hereto. This judgment, without

written opinion, was a summary affirmance

of the decision rendered by the District Court

for the Eastern District of Louisiana. The

Original judgment of the District Court re-

ported in 335 F. Supp. 694, was rendered on

February 7, 1972 and ordered petitioner to be

reinstated and paid back pay. Petitioner and

The General Services Administration of the

United States of America disagreed over the

meaning of the iack pay order, and on November

13, 1973, petitioner brought a motion to clari-

fy the District Court's judgment. This motion

was denied, in an unreported opinion, on Janu-

ary 21, 1974. The decision of the Court of

Appeals affirmed the denial of the motion to

clarify judgment; this petition seeks review

of che affirmance of that denial.

JURISDICTION

The judgment of the Court of Appeals for

the Fifth Circuit was entered on October 2,

1974. This petition for certiorari was filed

within ninety (90) days of that date. This

Court's jurisdiction is invoked under 28 U.S.C.

§1254(1), 62 Stat. 928.

QUESTIONS PRESENTED

1. Whether The Back Pay Acc, 5 U.S.C.

§5596, 81 Stat. 201, requires that a wrong-

fully discharged employee of a federal agency,

who has been reinstated by court order, be

paid a lump sum payment for the annual leave

which he would have accumulated had he not

been wrongfully discharged.

2. Whether Th2 Back Pay Act prohibits

the United States from deducting from the

back pay due to a reinstated civil serv.ce

employee, the amount of the lump sum payment

made to him at the time of his wrongful dis-

charge.

STATUTORY PROVISIONS INVOLVED

1. United States Code, Title 5, §5596:

"(a) For the purpose of this section,

‘agency' means--

{33 an Executive agency;

2 the Administrative Office of

the United States Courts;

(3) the Library of Congress;

(4) the Government Printing Of-

fice; and

(5) the yovernment of the District

of Columbia.

(b) An empioyee of an agency who, on

the basis of an administrative deter-

mination or a timely appeal, is found

by appropriate authority under appli-

cable law or regulation to have under-

gone an unjustified or unwarranted

personnel action that has resulted in

the withdrawal or reduction of all or

a part of the pay, allowance, or dif-

ferentials of the employee--

(1) is entitled, on correction of

the personnel action, to receive for

the period for which the personnel ac-

tion was in effect an amount equal to

all or any part of the pay, allowances,

or differentials, as applicable, that

the employee normally would have

earned during that period if the per-

sonnel action had not occurred, less

any amounts earned by him through other

employment during that period; and

(2) for all purposes, is deemed to

have performed service for the agency

during that period, except that the

employee may not be credited, under

this section, leave in an amount that

would cause the amount of leave to

his credit to exceed the maximum

amount of the leave authorized for

the employee by law or regulation.

shall prescribe regulations to carry

out this section. However, the regu-

lations are not applicable to the

Tennessee Valley Authority and its

employees. Added Pub. L. 90-83, §1l

(34) (C), Sept. 11, 1967, 81 Stat. 201.

2. Other Federal Enactments Set Forth

in the Appendix Page

a. Lloyd-Lafollette Act as

Amended in 1948; 62 Stat.354 20

b. Act of August 26, 1950;

64 Stat. 476, then referred

to as 5 U.S.C. §22-1 23

c. 5 U.S.C. §6304, recently

amended by P.L. 93-181,

87 Stat. 705 26

dad. Public Law 93-181,

87 Stat. 705 30

STATEMENT OF THE CASE

On February 12, 1967, Thomas A. Mocto,

Jr., petitioner, was wrongfully discharged

from his Civil Service job by The General

Services Administration of the United States

of America. At the time of his wrongful dis-

charge, Mr. Motto was paid, among other things,

$950.40 as a lump sum payment for the 240 hours

of leave that he had accumulated as of that

date.

Suit was initiated on behalf of Mr. Motto

in the District Court for the Eastern District

of Louisiana on July 31, 1970. The jurisdic-

tion of the District Court was based on 28

U.S.C. §1346 and 28 U.S.C. §1391. On Febru-

ary 7 1972, the District Court rendered judg-

me orderirig Mr. Motto reinstated and fur-

tuer ordering that he be paid back wages for

the period he was wrongfully discharged, less

amounts he earned from other employments dur-

ing this period. 335 F.Supp. 694. The judg-

ment did not mention lump sum leave payments.

The particular facts relating to this peti-

tion and the judgment of the District Court

are set forth in the District Court's opinion

and a i nae orgs © a the parties entered into

on March 5, 1974.

Petitioner was reinstated to employment

with The General Services Administration of

the United States of America, pursuant to

judgment of the District Court, on June 18,

1972. Upon reinstatement, the $950.40 ori-

ginally paid Mr. Motto as compensation for his

accumulated leave was deducted from the award

rendered by the District Court, and petitioner

was recredited with 240 hours of accumulated

leave, plus the annual leave accumulated dur-

ing the then current year. Mr. Motto was not

paid for, nor credited with, any additional

leave at the time of his reinstatement.

Petitioner and the General Services

Administration disagreed over petitioner's

right to leave payments, and on November 13,

1973, petitioner brought a motion to clarify

the judgment of the District Court.2 This

1/7 The judgment and stipulation are printed

in the Appendix, beginning at pages 4 and 14

respectively.

2/ The Motion to Clarify the Judgment is

found in the Appendix at page 16.

motion contended that Mr. Motto should be com-

pensated monetarily for the leave that he would

have accrued had he not been wrongfully dis-

charged. Alternatively, the motion contended

that Mr. Motto should be allowed to retain the

$950.40 paid him at the time of his wrongful

discharge and that the 240 hours of accumu-

lated leave with which he was recredited

should be charged against the leave which he

would have accrued and accumulated during the

four years he was kept from his employment.

The motion to clarify the judgment was denied

on January 21, 1974. On March 15, 1974, ap-

peal was taken to the United States Court

of Appeals for the Fifth Circuit and on Octo-

ber 2, 1974, the Court of Appeals, summarily

affirmed the decision of the District Court

denying the Motion to Clarify the Judgment .3/

A motion to stay issuance of the mandate for

thirty (30) days was granted by the Court of

Appeals on October 29, 1974.

REASONS FOR GRANTING THE WRIT

1. The decision below conflicts with

THE BACK PAY ACT, 5 U.S.C. §5596, 81 Stat.

201.

a) The Back Pay Act requires that

a wrongfully discharged employee of

a federal agency, who has been rein-

stated by administrative determina-

tion or court order, be paid a lump

sum payment for the annual leave

which he would have accumulated had

he not been wrongfully discharged.

3/ The judgment of the United States Court

of Appeals for the Fifth Circuit is found in

the Appendix at page l, 2.

The basic statutory provision setting

forth the compensation to be given a wrong-

fully discharged employee of a federal agency

is 5 U.S.C. §5596, 81 Stat. 201, the Back

Pay Act. The provision provides as follows:

"“(a) For the purpose of this section,

‘agency' means--

(1) an Executive agency;

(2) the Administrative Office

of the United States Court;

(3) the Library of Congress;

(4) the Government Printing Of-

fice; and

(5) the government of the Dis-

trict of Columbia.

(b) An employee of an agency who, on

the basis of an administrative deter-

mination or a timely appeal, is found

by appropriate authority under applic-

able law or regulation to have undergone

an unjustified or unwarranted personnel

action that has resulted in the with-

drawal or reduction of all or a part of

the pay, allowances, or differentials

of the employee--

(1) is entitled, on correction of

the personnel action, to receive for

the period for which the personnel ac-

tion was in effect an amount equal to

all or any part of the pay, allowances,

or differentials, as applicable, that

the employee normally would have earned

during that period if the personnel ac-

tion had not occurred, less any amounts

earned by him through other employment

during that period; and

(2) for all purposes, is deemed

to have performed service for the agency

during that period, except that the em-

ployee may not be credited, under this

section, leave in an amount that would

cause the amount of leave to his credit

to exceed the maximum amount of the

leave authorized for the employee by

law or regulation.

shall prescribe regulations to carry out

this section. However, the regulations

are not applicable to the Tennessee

Valley Authority and its employees."

Added Pub.L. 90-83, §1(34)(C), Sept. 11,

1967, 81 Stat. 201.

This act does not specifically mention

payment for leave; however, a careful review

of the legislative and jurisprudential his-

tory of this enactment clearly demonstrates

the right of a wrongfull, discharged employee

to be compensated fer the annual leave that

he would have accumulated had he not been

wrongfully discharged. Several Court of

Claims cases have denied a reinstated employee

compensation for annual leave. Ainsworth v.

U.8,, Ct. Cl. 1968, 399 F.2€ 176; Zeiger v.

Use, Gee Che £961, 295 F.24 915, and others.

This Court has never passed on the right of

a wrongfully discharged employee to be paid

for such leave. For this reason it is sub-

mitted that this Court should grant this peti-

tion and render a definitive ruling on the

question.

The present Back Pay Act was a reenact-

ment and liberalization of severa: previous

acts. It was promulgated with the clearly

established purposes of consolidating into

one enactment all of the prior laws dealing

with this subject, making the benefits simi-

lar for the various classes of employees af-

fected, and liberalizing existing law govern-

ing the restoration of an employee to his

position. The law was in no way designed to

restrict the recovery which an employee might

then have; rather it was to give all employees

the most liberal recovery then allowed under

any one of the statutes. It is this act that

governs Mr. Motto's right to be ~~mpensated

for His lost leave.

The history of the various antecedent

Back Pay Acts is determinative of the intent

of the present act.

The initial federal enactment allowing

an employee, reinstated because his suspension

or removal was unwarranted or unjustified,

the right to be compensated for this improper

removal was the Lloyd-Lafollette Act of 1912;

as amended in 1948, 62 Stat. 354, then 5 U.S.C.

§652, it provided in pertinent part as follows:

"Any person removed or suspended with-

out pay *** who *** is reinstated or

restored to duty on the ground that

such removal or suspension was un-

justified or unwarranted, shall be

paid compensation at the rate received,

on the date of such removal or suspen-

sion for the period for which he re-

ceived no compensation with respect to

the position from which he was removed,

or suspended, less any amounts earned

by him through other employment dur-

ing such period, and shall for all

purposes except the accumulation cf

leave be deemed to have rendered ser-

vice during such period." (See

Appendix page 20 for complete Act).

This provision, hereafter referred to

as the "1948 Act", expressly provided that

the reinstated employee is deemed to have

rendered services during such period of un-

warranted discharge for all purposes except

the accumulation of leave.

In Leverette v. United States, 142 F.

Supp. 955, Ct. of Cl. (1956), the Court of

Claims had occasion to interpret the 1948

Act. The Court properly held that the claim-

ant was not entitled to the paid for leave

which he would have accumulated while wrong-

fully kept from his job, holding "an employee

wrongfully removed as the result of a reduc-

tion in force and subsequently restored ‘shall

for all purposes except the accumulation of

leave’ be deemed to have rendered service

during the period of separation." It was

noted that the same scatute which provided

for the restoration of plaintiff to his for-

mer position also specifically removed any

rights that he may have to the annual leave

that he would have accrued but for his wrong-

ful discharge.

It is submitted that this limitation re-

garding leave accumulation has been eliminated

from the applicable federal enactments.

Congress began modification of the limit-

ing concepts found in the "1948 Act" with the

passage of the Act of August 26, 1950, 64

Stat. 476, then referred to as 5 U.S.C. 22-1,

hereafter referred to as the "1950 Act".

This enactment related to employees who were

reinstated after having been removed from

their positions for national security reasons.

The relevant parts of this act provided as

follows:

"kkk any person whose employment is

so suspended or terminated under the

authority of said sections *** may,

in the discretion of the agency head

concerned, be reinstated or restored

to duty, and if so reinstated or re-

stored shall be allowed compensation

for all or any part of the period of

such suspension or termination in

an amount not to exceed the differ-

ence between the amount such person

would normally have earned during

the period of such suspension or

termination, at the rate he was

receiving on the date of suspen-

sion or termination, as appropriate,

and the interim net earnings of such

person: ***," (See Appendix page 23

for complete Act).

Significantly, this act made no mention

either cf accumulated leave or of payment

therefor or of repayment for leave previously

accumulated. In Vitarelli v. U.S., 279 F.2d

878, Ct. of Cl. (1960), the Court of Cliaims

squarely held that a discharged employee re-

instated under the 1950 Act was entitled to

the monetary equivalent of the leave which he

would have accrued. The court stated as

follows:

"As to accrual of annual leave, the

Act of August 26, 1950, is silent;

that is, it is not prohibited, as

it is under the 1948 Amendment to the

Lloyd-La Follette Act. In Hynning

v. United States, 1958, 141 Ct. Cl.

486 a plaintiff who had been removed

and reinstated under the same sta-

tute as this plaintiff was permitted

to recover both for the annual leave

he would have accrued during the

period of his removal as well as “or

48 hours earned at the time of his

removal, but not accrued due to the

30-dey limit on such accruals. The

court recognized that it could not

require the defendant to credit the

reinstated employee with any more

than the 30 days permitted by 5

U.S.C.A. §2062(c). Nevertheless,

it felt compelled to presume that he

would have taken his annual leave

rather than have forfeited it had

he not been prevented from taking

any leave as result of the acts of

the defendant. The court, therefore,

granted plaintiff the monetary equi-

valent of the leave which would have

accrued. It indicated, also, that

it did not believe the limitation

on accruable leave was intended by

Congress to apply to persons sepa-

rated under the circumstances of

that case and, we might add, under

the circumstances of this one, too.

The reasoning of the Hynning case

has been relied on by us in the past

as it is now." Vitarelli v. U.S.,

279 ¥. 24 8768, Ct. of Cl. (1960).

As noted in the above excerpt, the court

recognized that the reinstated employee couid

not be credited with greater than 30 days or

240 hours of accrued leave, 5 U.S.C. §6304,

recently amended by P.L. 93-181, 87 Stat. 705.

However, the court felt compelled to presume

that the employee would have taken his annual

leave rather than have forfeited it; there-

fore, the plaintiff was granted the monetary

equivalent of the leave which he would have

accrued.

Other cases supporting the Vitareili

court's reasoning are Hynning v. U.S., 141 Ct.

Cl. 468 (1958); Prosterman v. U.S., 144 Ct. Cl.

691 (1959); McGuire v. U.S., Ct. Cl. No. 38354,

decided February 11, 1959.

The cases relied on by the District Court

are Ainsworth v. U.S., Ct. Cl., 399 F.2d 176

(1968) and Zeiger v. U.S., Ct. Cl., 295 F.2d

915 (1961). Ainsworth primarily was decided

on the precedent of Zeiger.

It is submitted that Zeiger was an errone-

ous decision under the 1950 Act. This decision

held that the reinstated employee was not en-

titled to be paid for lost leave. It is sub-

mitted that this decision is erroneous.

The Zeiger court reached its conclusion

notwithstanding a vigorous dissent by retired

Supreme Court Justice Reed sitting by designa-

tion. Justice Reed, in disseat, noted that

the 1950 Act differed markcdiy from the 1948

Act which had specifically excluded reimburse-

ment for accrued annual leave from the award

to be given a reinstated employee. He further

observed that this change gained increased

significance because the variance had been

specifically called to the attention of the

committees in charge of the bill. Based on

the significance of this modification, Justice

Reed was of the opinion the phrase "the amount

such person would normally have earned during

the period of suspension or termination" re-

ferred not only to salary but additionally to

the monetary value of his annual leave.

b) Recent federal enactments evidence

an affirmation of the concept of

distinguishing between crediting

annual leave and being compen-

sated for annual leave.

The concept of giving monetary value for

accrued annual leave is well recognized by

the legislation of the United States. 5

U.S.C. §5551, 80 Stat. 488, 138. In no other

way can a wrongfully discharged employee be

made whole except by the reimbursement of

his lost salary and the monetary equivalent

of his lost annual leave.

The Veterans Preference Act, 58 Stat.

387, as amended from time to time, also re-

quires back pay awards, at least as inter-

preted by the Comptroller General, 39 Comp.

Gen. 639; however, this provision pertains

to improper demotions, and leave provisions

are not involved.

In 1966, the Back Pay Act, \5 U.S.C.

§5596, 81 Stat. 201, was enacted with th:

apparent intent of further liberalizing :+xist-

ing law governing the restoration of a w-song-

fully discharged employee to his former dosi-

tion. The only words of limitation found in

this enactment is the provision stating that

"the enoloyee may not be credited, under this

section, leave in an amount that woul% cause

the amount of leave to his credit to exceed

the maximum amount of leave peg” 7 for

the employee by law or regulation." The

obvious intent of this provision was to pre-

vent a returning employee from going on ex-

tended leave at full pay immediately upon his

return to Governmen: service. This section

does not prevent, nor even allude to, the pay-

ment to an employee for accumulated leave not

used.

The only case that has interpreted the

1966 Act, regarding this issue, is Ainsworth

v. U.S., 399 F.2d 176, Ct. of Cl. (1968).

In Ainsworth, the court, relying on the Zeiger

decision, held that the reinstated employee

was not eligible to be paid for the back leave

that he would have accumulated had he not been

wrongfully discharged. The Ainsworth decision

4/ 5 U.S.C. §6304 provides that employees

may carry forward from one year to the other,

not more than 30 days or 240 hours of accumu-

lated leave. This carry forward is deter-

mined as of January 1 of each year. See

Appendix, page 26 for complete text.

was based on Zeiger which had erroneously in-

terpreted the 1950 Act. Zeiger, apparently,

WisplhLaced celiece un the Levereiie T2222

which had properly interpreted the 1948 Act.

As noted in dissent by Justice Reed, the

Zeiger court failed to denote the significance

of the modifications made to the 1948 Act.

These modifications were carried forward, with

even greater benefits to reinstated employees,

in the Back Pay Act of 1966. By improperly re-

lying on Zeiger, Ainsworth fails to distin-

guish a distinct trend of Federal legislation

liberalizing benefits to reinstated employees.

Counsel submits that the decisions rendered

in Zeiger and Ainsworth are in error and should

be corrected by this court.

Significantly, the legislative history and

intent of the 1966 Act, as traced in the U. c.

Congressional and Administrative News Vol. 2

at page 2099, provides "In addition, leave

accumulation, excluded specifically from the

back pay provision of Section 6 of the Act of

August 24, 1912, (the 1948 Act) is authorized

uniforniy in accordance with the precedent of

the most recent Act of August 25, 1950." The

precedent of the 1950 Act is that of Hynning,

Supra, and Vitarelli, supra, which specific~

ally requires that a reinstated employee be

paid for leave not used or credited.

The Congressional liberalization of

leave benefits has not ceased with the 1966

Act; Congress has recently enacted and the

President has signed a bill, Public Law

33-181, 87 Stat. 705, (See Appendix page 30),

increasing federal employees' use of annual

leave. The new law allows federal employees

to be paid for the unused leave they earn

during the leave year of their departure from

government. In amending 5 U.S.C. §6303(b)

the enactment also provides that annual leave

lost through administrative error, exigencies

of public business or illness can be credited

beyond the present maximum accumulation and

carried into the next leave year. In cases

of lost leave through administrative error,

reinstitution will be made to June 1960.

Leave restored under these conditions is

placed in a separate leave account and if

Still available shall be included in the lump

sum payments under 5 U.S.C. §5551 or §5552(1).

Certainly if leave lost through admini-

Sstrative error or sickness of the employee is

to be regained, then clearly leave lost be-

cause of wrongful discharge should be restored.

Public Law 93-181 further demonstrates

the Congressional view of liberalizing employee

benefits. As previously shown, this enactment,

under certain conditions, allows accumulation

of leave in excess of the maximum amount per-

mitted by law and even allows payment for this

accrued leave.

Petitioner submits that the legislative

history of 5 U.S.C. §5596 demonstrates a Con-

gressional desire of increasing leave benefits

given reinstated employees. In Ainsworth v.

United States, the court, with misplaced re-

liance on Zieger v. U.S., failed to recognize

this legislative precedent. Petitioner strong-

ly urges that this petition be granted and

that Ainsworth be reversed by a holding that

Thomas A. Motto, Jr., be compensated for the

annual leave he would have accrued had he

been in government service during the time be-

tween his illegal discharge and his reinstate-

ment.

c) The Back Pay Act prohibits the

United States from deducting

from the back pay due to a

reinstated civil service em-

ployee, the amount of the lump

sum payment made to him at the

time of his wrongful discharge.

At the time of petitioner's wrongful dis-

charge he was paid $950.40 for 240 accumulated

hours leave accrued as of that date. Upon rein-

statement, the $950.40 originally paid Mr.

Motto was deducted from the award rendered by

the District Court, and petitioner was re-

credited with 240 hours accumulated leave plus

the annual leave accumulated during the then

current year.

Petitioner contends that he should, at

least, be allowed to retain the $950.40 ori-

ginally paid him and that he should be fur-

ther credited with 240 hours of lost accumu-

lated leave plus the annual leave he would

have acquired during the then current year.

The 240 hours of lost leave with which peti-

tioner should be credited should be offset

against the 1,112 hours of leave he would

have accumulated had he not been wrongfully

kept fromhis employment and not against leave

for which he was previously paid.

In Ainsworth, the Court of Claims, rely-

ing on Leverette, refused plaintiff the right

to retain the lump sum payment for accrued

leave given him at the time of his discharge.

Leverette had correctly interpreted the 1948

Act which had prohibited a reinstated em-

ployee from being credited for leave that he

would have accrued had he not been discharged.

The 1950 Act, and 1966 Act, made no such

limitations; therefore, wrongfully discharged

employees have been allowed to accrue leave,

up to the maximum of 240 hours, during the

period of their wrongful discharge, Zeiger v.

U.S., supra. Petitioner should not be penaliz-

ed because at the time of his discharge he had

accumulated 240 hours of accrued leave. For

these reasons the Ainsworth court was erroneous

and should be reversed.

In summary, at the time of petitioner's

discharge he was fully compensated for all

leave accrued as of that date. During the

period of this wrongful discharge, he again

began to accrue leave, by the time of his re-

instatement he would have accrued 139 days

or 1,112 hours of annual leave. Clearly,

Mr. Motto should at least be allowed to re-

tain the $950.40 originally paid him and in

addition thereto he should be granted 240

hours leave as a credit against the 1,112

hours he would have accumulated had he not

been wrongfully discharged.

2. The decision below raises significant

and recurring problems concerning the compen-

Sation to be awarded wrongfully discharged

federal employees.

Petitioner submits that the Congressional

enactments regulating the back pay and other

compensation to be awarded wrongfully dis-

charged federal employees, who have been rein-

stated by administrative or court order, show

a clear intent on the part of Congress to

liberalize the benefits to be given these re-

instated employees. The lower courts have

frustrated this Congressional desire by re-

fusing to denote and fully implement the 5/

applicable statutes, i.e., the "1950 Act"

and The Back Pay Act, 5 U.S.C. §5596, 81 Stat.

201.

In Zeiger v. U.S., 295 F.2d 915, Ct. of

Cl. (1961), the Court of Claims, notwithstand-

ing a vigorous dissent on the part of former

5/ The "1950 Act", Act of August 26, 1950,

64 Stat. 476, is found at Appendix, page 23.

Justice Reed, reversed a line of cases

which had interpreted the "1950 Act" so as to

require that a reinstated federal employee be

compensated for annual leave he would have

accrued had he not been wrongfully discharged.

In Ainsworth v. U.S., 399 F.2d 176, Ct. of Cl.

(1968), the court relying on Zeiger gave The

Back Pay Act, 5 U.S.C. §5596, 81 Stat. 201,

a restrictive interpretation so as to preclude

a reinstated employee from receiving monetary

compensation for the leave he would have ac-

crued had he not been wrongfully discharged.

Petitioner submits that this interpre-

tation frustrates a clear desire of Congress

to liberalize the benefits to be given re-

instated federal employees. Petitioner be-

lieves that this petition should be granted

in order to have the Supreme Court of the

United States render a definitive opinion on

this critical question.

CONCLUSION

For the foregoing reasons, a writ of

certiorari should issue to review the judg-

ment and opinicn of the United States Court

of Appeals for the Fifth Circuit.

Respectfully Submitted:

Neal D. Hobson

1100 Whitney Building

New Orleans, Louisiana 70130

Counsel for Petitioner,

Thomas A. Motto, Jr.

Of Wirerenss ©. .5., 279 ¥F.24 876, Ct. of Ci.

(1960); Hynning v. U.S., 141 Ct. Cl. 468 (1958);

and Prosterman v. U.S., 144 Ct. Cl. 691 (1959).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 74-1763

Summary Calendar*

THOMAS A. MOTTO, UR.,

Plaintiff-Appellant,

versus

GENERAL SERVICES ADMINISTRATION OF

THE UNITED STATES OF AMERICA, ET AL.,

Defendants-Appellees

Appeal from the United States District

Court for the Eastern District of

Louisiana

(October 2, 1974)

Before WISDOM, GOLDBERG and GEE,Circuit

Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.

*Rule 18, 5 Cir., Isbell Enterprises, Inc.

v. Citizens Casualty Company of New York,

ot ai., 3 Cis, 12970, 4314 Pa 2G 409, Part Ts

See N.L.R.B. v. Amalgamated Clothing

Workers of America, 5 Cir., 1970, 430 F.

2d 966.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1973

No. 74-1763

Summary Calendar

D.C. Docket No. CA 70-1865 "C"

THOMAS A. MOTTO, OR.,

Plaintiff-Appellant,

versus

GENERAL SERVICES ADMINISTRATION OF

THE UNITED STATES OF AMERICA, et al.,

Defendants-Appellees

Appeal from the United States District

Court for the Eastern District of Louisiana

Before WISDOM, GOLDBERG and GEE, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the

transcript of the record from the United

States District Court for the Eastern Dis-

trict of Louisiana, and was taken under

submission by the Court upon the record

and briefs on file, pursuant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that

the judgment of the said District Court in

this cause be, and the same is hereby,

affirmed;

It is further ordered that plaintiff-

appellant pay to defendants-appellees, the

costs on appeal to be taxed by the Clerk

of this Court.

October 2, 1974

Issued as Mandate:

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

NUMBER 70-1865

(HEADING OMITTED)

JUDGMENT

The Court having filed its written

Opinion herein, in lieu of formal findings

of fact and conclusions of law, directing

the entry of judgment in favor of the plain-

tiff and agairst the defendants, it is

ADJUDGED as follows:

Thet the plaintiff Thomas A. Motto, Jr.

recover of the defendants, The General Ser-

vices Administration of the United States

of America; Robert Hampton; James F. John-

son; and L. J. Andolsek, Individually and

as Chairman and Members of the United States

Civil Service Commission, and Robert L.

Kunzig, Individually and as Administrator

of The General Services Administration of

the United States, the sum of Five Thousand

Six Hundred Five and 74/100 Dollars

($5,605.74) (representing the pay, including

stautory pay adjustments and periodic step

increases, the plaintiff would have received

in the normal course of his employment with

The General Services Administration of the

United States of America from February 12,

1967 to the approximate time of institution

of this suit (July 31, 1970) after deducting

therefrom the amounts he received during

that period from other employment and as

United States Government retirement benefits)

plus interest of four percent (4%) per annum

thereon from the date of entry of this judg-

ment until payment of all sums due the plain-

tiff pursuant to this judgment, and the costs

of this action;

Il.

That the plaintiff Thomas A. Motto, Jr.

further recover of the said defendants the

sum of Two Thousand Seven Hundred Ninety-

Eight and 79/100 Dollars ($2,798.79) (repre-

senting the pay, including statutory pay ad-

justments and periodic step increases, the

plaintiff would have received in the normal

course of his employment with The General

Services Administration of the United States

of America from the approximate time of in-

stitution of this suit (July 31, 1970) to

December 31, 1971, after deducting therefrom

the amounts he received during that period

from other employment and as United States

Government retirement benefits) plus interest

of four percent(4%) per annum thereon from the

date of entry of this judgment until payment

of all sums due the plaintiff pursuant to

this judgment, and the costs of this action;

IIt.

That the plaintiff Thomas A. Motto, Jr.

further recover of the said defendants the

amounts to which he woule similarly be en-

titled with respect to the period from January

1, 1972 until the date of final payment by

the defendants of all sums due the plaintiff

pursuant to this judgment, plus interest at

the rate of four percent (4%) per annum from

the date of entry of this judgment until pay-

ment of all sums due the plaintiff pursuant

to this judgment; and

IV.

That the plaintiff Thomas A. Motto, Jr.

be reinstated to employment with The General

Services Administration of the United States

of America, with all rights and benefits

that have accrued thereto and derived there-

from since the date of his involuntary resig-

nation, including, but not limited to, senior-

ity, retirement rights, back pay as set forth

in paragraph I, II, and III hereof, and the

promotion to Traffic Manager, GS-9 (with ap-

propriate step increases) GSA-FSS, Supply

Distribution Division, Export Control Branch,

at the Naval Support Activity, New Orleans,

Louisiana, which promotion the record shows

the plaintiff would have received had he not

been forced to resign from is employment.

JUDGMENT READ, RENDERED and SIGNED at

New Orleans, Louisiana, this 7th day of

February, 1972.

/s/ Alvin B. Rubin

JUDGE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

NUMBER 70-1865

(HEADING OMITTED)

FINDINGS OF FACT AND CONCLUSIONS

OF LAW

Thomas A. Motto, Jr. had keen employed

in New Orleans by The General Services Ad-

ministration for nine years when he was

notified he was transferred to Fort Worth.

Rather than accept the transfer, he resigned.

He contends that his transfer was an adverse

action, and that he was entitled to notice

and a hearing. His transfer without a hear-

ing, he contends, forced him out of govern-

ment service, and he seeks reinstatement,

with back pay, and other benefits that he lost

when he resigned. The United States contends

that Motto's transfer was to meet the needs

of his employer, and did not constitute ad-

verse action entitling him to a hearing.

It is unnecessary to plumb the depths

of all the issues tendered by the parties.

While the evidence was contradictory, I find

the facts to be as follows:

Motto was a Civil Service employee. He

had served in World War II and the Korean

War and was entitled to the protection of

the Veterans Preference Act, 5 U.S.C.A.

§§2108, 3501 et seq. See also 5 U.S.C.A.

§§ 3307 et seq. and 5 U.S.C.A. §7511. His per-

formance evaluation sheets indicate that his

work had always been considered average or

above average.

Whether Mr. Motto was a supervisor, as

he contends, or merely a working job leader,

as contended by GSA, several people were

under his supervision in New Orleans. There

had been a degree of turnover in his staff

that his superior considered excessive and

there had been some complaints about his

supervisory ability. In the latter part of

1966, his supervisor was alerted to an ap-

proaching inspection of the New Orleans and

Ft. Worth offices. He therefore came from

Ft. Worth to inspect the New Orleans office

himself, to attempt to make certain that the

offices would obtain satisfactory reports.

Because of dissatisfaction with Motto's

services, Motto's supervisor decided to get

rid of Motto. If he attempted to discharge

Motto because of inadequate performance,

Motto would be entitled to a hearing, and the

evidence was not sufficient to indicate that

the charges would succeed. But Motto's super-

visor knew that he had twice before refused

transfers from New Orleans. While some of

Motto's personal circumstances had changed in

the interim, his superior knew that Motto

would likely again decline a transfer unless

he were offered a concurrent increase in pay.

Therefore, the supervisor decided to order a

transfer to Ft. Worth, without a pay increase.

Motto's supervisor conferred with person-

nell officers about how to achs2ve his goals.

They prepared a draft of a letter stating

that Motto was being transferred because of

"your inability to supervise people" and be-

cause of "your excessively high rate of turn-

over." (Motto Ex. 13).

But a transfer on these grounds might

create a factual issue concerning Motto's

supervisory ability and also might be con-

sidered adverse action. On the other hand,

a transfer for “operational reasons" could

not be questioned. Therefore, Motto was or-

dereil to move to Ft. Worth because of job re-

quirements.

As expected, Motto decided he would not

accept the transfer. He was informed that he

could instead resign, and he did.

In fact, Motto's services were needed in

New Orleans, not in Ft. Worth, at the time

his transfer was ordered. Indeed, his super-

visor's own report, dated December 12, 1966,

indicated that he then foresaw the need for

an additional employee in New Orleans. While

he testified that the work load in New Orleans

was not increasing, or indeed, was declining,

the report he requested from the Federal Sup-

ply Service, the agency that supplied the

work being done by GSA's office, indicated

that their work load had increased substan-

tially and was then expected to remain at the

higher level indefinitely.

As soon as Motto resigned, a new employee

was hired in Ft. Worth supposedly to replace

him. But, while Motto was classified GS 8,

the new employee was classified GS 9. Ex-

planations are found for this: the new em-

piLoyee had special qualifications, he was

hired three months later, he had been a GS

10 and took a reduction to come to Ft. Worth.

But nothing in all of this rationali-

zation explains why Mr. Motto could not have

been offered the new position. In fact, it

is possible, although the evidence is not

clear, that the new employee had been inter-

viewed and was under consideration when Motto

was presented with his dilemma by his super-

visor. GSA correspondence shows that the

new employee was “hired to fill the vacancy..

created by the retirement" of Motto, and

this letter is dated March 24, 1967 only eight

weeks after Motto resigned.

Nor is the superior able to explain why

Motto was not afforded the benefit of the

administrative policy, "Employees who are

moved from one geographical location to an-

other. . .will be given promotions to the

maximum extent possible, subject to the avail-

ability of vacancies and pursuant to manpower

requirements." Administrative Procedure

Manual, Chp. 2-39 p.30 (ADM P1000. 2A Chge 11)

April 7, 1970. There is no satisfactory ex-

planation why Motto's subordinate in New

Orleans was promoted to GS 7 in Jaly, 1967,

a few months after it was appareutly learned

that there was less need for that office.

Indeed in March, 1967 it was recommended in

an investigation of the New Orleans office

that the permanent position formerly held by

Motto and then in Ft. Worth by the employee

hired to replace him be returned to the New

Orleans office. While this was never done,

it does create substantial doubt about the

supposed need to transfer Motto's job to

Texas.

Motto contends his transfer was an ad-

verse action, 5 U.S.C.A. §7512, entailing an

elimination of supervisory status, hence a

reduction in rank, and he was entitled to

written notice and a hearing. 5 U.S.C.A.

§5712(b). Whether or not he was a super-

visor, Motto's transfer was ordered because

he was considered an undesirable employee, and

to induce his resignation. Hence it was an

adverse action even if it entailed no reduction

in rank. Cf. Kletschka v. Driver, 2 Cir.1969,

411 F. 2d 436, at 444-45,

This is not a case where a genuine

operational need of an agency required the

agency to give an employee a job that he con-

sidered inherently unpleasant.

"The fact that the employee may be

faced with an inherently unpleasant

situation, or that his choice may

be limited to two unpleasant alter-

natives, does not, per se, make the

resulting action an involuntary

action."

Federal Personnel Manual, 762-1,p.25. Here

Motto's supervisor devised the "inherently

unpleasant situation" as a way to get rid of

Motto.

Unlike the situation in Paroczay v.

Hodges, D.C.D.C. 219 F. Supp. 89, rev'd, D.C.

Cir. 1961, 297 F.2d 439, an immediate resig-

nation was not demanded. But, as the court

said in a footnote to that decision, the

ultimate issue is whether the resignation was

in fact coerced. Id. at 441.

A discretionary decision by an adminis-

trative official authorized to make the de-

cision should not be overturned by the courts

unless that decision was arbitrary or capri-

cious. Hoppe v. The United States, 1956, 136

Ct. Cl. 559, See Kletschka v. Driver, 2 Cir.

1969, 411 F.2d 436. And an employee may be

given a fair choice between facing charges or

resigning. Rich v. Mitchell, Ct. of App. D

of Cc. 1959, 273 F. 24 78. But if it is shown

that a decision was made to rid the government

of an employee without complying with the

statute, the action may not be camouflaged as

a discretionary decision to relocate the

place «where a function is performed. Trans-

fer, like other government action affecting

an employee's status, may not be based on

"an aribtrary decision to achieve a

predetermined result." Bright v. Macy, D.

Maryland, 1967, 278 F. Supp. 215 220.

GSA would read the issues narrowly. But

the statute, the regulations, and the federal

administrative policies are not mere cant.

They reflect a national policy designed to

protect government employees from arbitrary

action. To those who work for the largest

employer in the free world these policies af-

ford a fundamental protection against the

caprice or tyranny of a supervisor who might

otherwise control the events of an employee's

life. Hence, government procedures may not

be manipulated by using literal compliance to

achieve a prohibited result.

If Motto was an unsatisfactory employee,

he should have been faced with the charge

that he was, and given an opportunity to de-

fend himself. If his transfer was to dis-

cipline him for improper work performance, he

should have been notified of the reasons for

it and afforded a hearing.

"It was to guard against the danger

of arbitrary treatment of personnel,

without a fair opportunity being given

the employee to refute whatever charges

have been levied against him, that

Congress guaranteed the right to a

hearing before any disciplinary action

could be taken. If this salutary pro-

cedural safeguard can be evaded merely

by ordering a transfer, with no

reasons being given for such action,

then § 4110 would mean very little

indeed. Disciplinary action by any

name requires for its legitimization

a full hearing under § 4110." Kletschka

v. Driver, 2d Cir. 1969, 411 F. 2d

436, 446.

Here as there, Motto would have been "“entit-

led to introduce proof establishing that his

transfer falls within the disciplinary classi-

fication, and if he can so prove, he is en-

titled to appropriate declaratory and in-

junctive relief." Id. There is no reason

why GSA, or any government agency, should be

required to provide lifelong employment on

his own terms to an employee who does not do

a satisfactory job, either because of his

work results or his personality. But neither

should any supervisory be permitted to make

his own subjective determination that an

employee is undesirable, and set out to

achieve that person's separation from service

by a calculated series of actions designed to

force his resignation.

For these reasons, judgment will be

rendered in favor of the plaintiff. Plain-

tiff's counsel will prepare a form of judg-

ment, and submit it to opposing counsel for

review. If there is any objection to the pro-

posed form of judgment that the parties can-

not reconcile, their difference will be

submitted to the court.

This opinion serves in lieu of formal

findings of fact and conclusions of law.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

NUMBER 70-1865

(HEADING OMITTED)

STIPULATION OF FACTS

It is hereby stipulated by and between

the parties in the above entitled action,

through their respective counsel of record,

that:

The employment of Thomas A. Motto, Jr.,

by The General Services Administration of the

United States of America was initially ter-

minated on February 12, 1967.

Upon discharge, Thomas A. Motto, Jr. was

paid $950.40 for accumulated leave of 240

hours as of February 12, 1967.

Thomas A. Motto, Jr. was reinstated to

employment with The General Services Adminis-

tration of the United States of America on

June 18, 1972.

Upon reinstatement, the $950.40 paid

Thomas A. Motto, Jr. for 240 hours accumulated

leave during the current year on February 12,

1967 was deducted from the award rendered by

the District Court, and Thomas A. Motto, Jr.

was recredited with 240 hours of accumulated

leave, plus the annual leave accrued during

the then current year.

Thomas A. Motto, Jr. was not paid for,

nor credited with, any additional annual

leave at the time of his reinstatement.

It is further stipulated by and between

the parties in the above entitled action,

through their respective counsel of record,

that this stipulation may be filed with the

Clerk of the United States District Court,

Eastern District of Louisiana and made a part

of the record in this proceeding.

Dated: March 15, 1974.

/s/ Neal D. Hobson

Milling, Benson,

Woodward, Hillyer &

Pierson

/s/ Leonard P. Avery

Assistant United

State Attorney

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

NUMBER 70-1865

(HEADING OMITTED)

WRITTEN REASONS FOR DENIAL OF MOTION

TO CLARIFY JUDGMENT

Plaintiff asks for a “clarification” of

the form of judgment to which he and the

defendant agreed, ordering the government to

pay him for the annu21 leave he would have

accrued had he been in government service

during the time between his illegal discharge

and his reinstatement. If the alternative,

he asks that the government be compelled to

pay him $950.40, the amount the government de-

ducted from he award because it had been

paid to the piaintiff, in lieu of leave time,

on his separation from government service.

The issue must be resolved by an inter-

pretation of the applicable statute, for the

plaintiff's rights are founded solely on it.

The statute presently in force, 5 U.S.C.

§5596, is a sliyhtly amended version of the

1966 Back Pay Act, Pub. L. 89-380, 80 Stat.

95, (the "1966 Act") and it clearly governs

this action, since the plaintiff was wrong-

fully discharged in 1967. Indeed, Ainsworth

ve. U.S., Ct. Cl. 1968, 399 F. 2d 176, holds

that the 1966 Act governs even if separation

was before 1966, so long as reinstatement

comes after the Act's passage.

The Act provides, in section (b), that

a reinstated employee is entitled to the back

pay and allowances "that the employee normally

would have earned during that period..." and

that he is deemed to have been an employee

during separation for all purposed "except

that the employee may not be credited, under

this section, leave in an amount that would

cause the amount of leave to his credit to

exceed the maximum amount of the leave authori-

zed for the employee by law or regulation."

Plaintiff, the parties agree, is entitled to

accumulate a maximum of 250 hours,plus time

accumulated in the current year. Even if

the statute had never been construed before,

I cannot read it as implyiny that, though a

maximum is placed on accrual of leave, an

employee is entitled to be paid for leave time

that he may not accrue. Indeed the statute

appears to imply precisely the reverse: with

respect to leave there will be no benefits in

excess of 240 hours accrued leave time.

The statute has been construed before,

and so have its predecessors. Although plain-

tiff looks to this statutory and judicial

history to support his argument, he looks in

vain.

The Act of August 28, 1950, 64 Stat. 476

(the "1950 Act"), dealt with the reinstatement

of employees discharged for national security

reasons; it was one of the several acts that

the 1966 Act was meant to consolidate and

simplify. This act, however, did not provide

for either accrual or pay for leave time: in

fact, it made no mention at all of accumulated

leave time. \

Plaintiff also looks to another prede-

cessor of the Back Pay Act, The Lloyd Lafol-

lette Act cf 1912, as amended in 1948, 62 Stat.

354; which provides that a reinstated employee

“shall for all purposes except the accumula-

tion of leave [be] deemed to have rendered

service during" the period of separation.

Using the cases that both parties view

as the principal decisions under these

statutes, it is easy enough to trace the ju-

dicial interpretation of them. In Leverette

v. U.S., Ct. Cl. 1956, 142 F. Supp. 955, the

Court read the 1948 Act to rule out payments

for annual leave that would have accrued if

the plaintiff had not been fired; it required

the plaintiff to pay back the lump sum he

had been paid in lieu of leave when he was

discharged.

Early decisions under the 1950 Act

reached a contrary result since this Act was

silent on the subject of annual leave. See,

e.g. Hynning v. U.S., 1958, 141 Ct. Cl. 468;

Vitarelli v. U.S., Ct. Cl. 1960, 279 F. 2d

878. Zeiger v. U.S., Ct. Cl. 1961, 295 F.

2d 915, expressly overruled these earlier

cases, however, and held that a reinstated

employee could not recover for annual leave

passed during separation.

In Ainsworth v. U.S., Ct. Cl. 1968, 399

F. 2d 176, the Court interpreted the 1966

Act to rule out annual leave payments upon

reinstatement. The law in this area--regard-

less of the specific statute involved-- there-

fore would seem to be relatively settled.

But plaintiff advances a rather ingenious

argument. He argues that Zeiger is wrong

and the earlier cases under the 1950 Act are

right; here he has some distinguished company,

since Mr. Justice Reed dissented in Zeiger.

If Zeiger is wrong, he argues, then an

employee wrongfully discharged continues to

accumulate leave time during separation, for

which he may demand credit or pay. The 1966

Act rules out only the credit option and is

Silent on the subject of pay; therefore,

plaintiff concludes, he may demand pay for

the leave time he would have accumulated had

he not been discharged.

Ingenious as it is, plaintiff's argument

has some fatal flaws. To succeed, plaintiff

must show that, under the various statutes

and the case law, the pay and credit options

have been viewed as separable--otherwise, the

1966 Act forecloses the pay option by ex-

pressly limiting the credit option. There

is simply no evidence that these two alter-

natives are separable. In fact, there is

every reason to suppose that they are tied,

and that a statute expressly limiting credit

for accumulated leave implicitly limits pay

for it. The 1950 Act was silent on the

subject, and the early cases (overruled by

Zeiger) simply allowed pay. Ainsworth read

the 1966 Act to prevent pay because it ex-

pressly limited credit for accumulated leave.

The statutes have treated pay and credit for

accumulated leave as two sides of the same

coin; a statute that deals with one implicitly

deals with the ott.er. The courts have

properly adher~d to this symbiosis in their

application o. the statutes. This result

is the only one that, in light of the statu-

tory languace and scheme, make sense.

Though on occasion precedent must yield

to logic ard reason, this is not such a case.

Leverette, Ainsworth and even Zeiger appear

to have been correctly decided, and this

court will follow them. Plaintiff's motion

to clarify the judgment is DENIED.

Dated: Jaiuary 17, 1974.

/s/ Alvin B. Rubin

JUDGE

Pte 26+

Lloyd-Lafollette Act as Amended in 1948; 62

Stat. 354. §652 Removal without pay from

classified civil service.

No person in the classified civil ser-

vice of the United States shall be removed or

suspended without pay therefrom except for

such cause as will promote the efficiency of

such service and for reasons given in writing.

Any person whose removal or suspension with-

out pay is sought shall (1) have notice of

the same and of any charges preferred against

him; (2) be furnished with a copy of such

charges; (3) be allowed a reasonable time for

filing a written answer to such charges,with

affidavits; and (4) be furnished at the

earliest practicable date with a written

decision on such answer. No examination of

witnesses nor any trial or hearing shall be

required except in the discretion of the of-

ficer or emplcecyee directing the removal or

suspension without pay. Copies of the charges,

the notice of hearing, the answer, the reasons

for removal or suspension without pay, and

the order of removal or suspension withou~ pay

shall be made a part of the records of the

proper department or agency, as shall also

the reascns for reduction in grade or compen-

sation; and copies of the same shall be fur-

nished, upon request, to the person affected

and to the Civil Service Commission. This

subsection shall apply to a person within

the purview of section 863 of this title, only

if he so elects.

(b) Reinstatement or restoration to duty;

compensation; deduction; veterans; re-

moval by reduction in force.

(1) Any person removed or suspended

without pay under subsection (a) of this sec-

tion who, after filing a written answer to

the charges as provided under such subsec-

tion or after any further appeal to proper

authority after receipt of an adverse de-

cision on the answer, is reinstated or re-

stored to duty on the ground that such re-

moval or suspension was unjustified or un-

warranted, shall be paid compensation at the

rate received on the date of such removal or

suspension, for the period for which he re-

ceived no compensation with respect to the

position from which he was removed or suspen-

ded, less any amounts earned by him through

other employment during such period, and

shall for all purposes except the accumulation

of leave be deemed to have rendered service

during such period. A decision with respect

to any appeal to proper authority under this

paragraph shall be made at the earliest

practicable date.

(2) Any person who is discharged, sus-

pended, or furloughed without pay, under

section 863 of this title, who, after answer-

ing the reasons advanced for such discharge,

suspension, or furlough or after an appeal

to the Civil Service Commission, as provided

under such section, is reinstated or restored

to duty on the ground that such discharge,

suspension, or furlough was unjustified or

unwarranted, shall be paid compensation at

the rate received on the date of such dis-

charge, suspension, or furlough for the period

for which he received no compensation with

respect to the position from which he was

discharged, suspended, or furloughed, less

any amounts earned by him through other em-

ployment during such period, and shall for

all purposes except the accumulation of leave

be deemed to have rendered service during

such period.

(3) Any person removed or suspended

| nna

without pay in a reduction in force who,after

an appeal to proper authority, is reinstated

or restorea to duty on the ground that such

removal or suspension was unjustified or

unwarranted shall be paid compensation at the

rate received on the date of such removal or

suspension, for the period for which he re-

ceived no ccmpensation with respect to the

position from which he was removed or suspen-

ded, less any amounts earned by him through

other employment during such period, and shall

for all purposes except the accumulation of

leave be deemed to have rendered service

during such perio’3,. A decision with respect

to any appeal to proper authority under this

paragraph shall be made at the earliest prac-

ticable date.

no cause for reduction in rank or compensa-

tion or removal.

Membership in any society, association,

club, or other form of organization of postal

employees not affiliated with any outside

organization imposing an obligation or duty

upon them to engage in any strike, or pro-

posing to assist them in any strike, against

the United States, having for its objects,

among other things, improvements in the con-

dition of labor of its members, including

hours of labor and compensation therefor and

leavy of absence, by any person or groups of

persons in said postal service, or the presen-

ting by any such person or groups of persons

of any grievance or grievances to the Con-

gress or any Member thereof shall not consti-

tute or be cause for reduction in rank or

compensation or removal of such person or

groups of persons from said service.

(d) Right ‘to petition Congress,

The right of persons employed in the

civil service of the United States, either

individually or collectively, to petition

Congress, or a Member thereof, or to furnish

information to either House of Congress, or

to any committee or member thereof, shall

not be denied or interfered with. (Aug. 24,

1912, ch. 389, §6,37 Stat. 555; June 10,

1948, ch. 447, 62 Stat. 354.)

Act of August 26, 1950; 64 Stat. 476, then

referred to as 5 U.S.C. §22-1.

To protect the national security of the United

States by permitting the summary suspen-

sion of employment of civilian officers and

employees of various departments and agencies

of the Government, and for other purposes.

Be it enacted by the Senate and House of

Representatives of the United States of

America in Congress assembled, That, notwith-

standing the provisions of section 6 of the

Act of August 24, 1912 (37 Stat. 555), as

amended (5 U.S.C. 652), or the provisions of

any other law, the Secretary of State; Secre-

tary of Commerce; Attorney General; the

Secretary of Defense; the Secretary of the

Army; the Secretary of the Navy; the Secre-

tary of the Air Force; the Secretary of the

Treasury; Atomic Energy Commission; the Chair-

man, National Security Resources Board; or

the Director, National Advisory Committee

for Aeronautics, may, in his absolute dis-

cretion and when deemed necessary in the in-

terest of national security, suspend,without

pay, any civilian officer or employee of the

Department of State (including the Foreign

Service of the United States), Department of

Commerce, Department of Justice, Department

of Defense, Department of the Army, Depart-

ment of the Navy, Department of the Air Force,

freon

Coast Guard, Atomic Energy Commission,

National Security Resources Board, or Nation-

al Advisory Committee for Aeronautics, res-

pectively, or of their several field services:

Provided, That to the extent that such agency

head determines that the interests of the

national security permit, the employee con-

cerned shall be notified of the reasons for

his suspension and within thirty days after

such notification any such person shall have

an opportunity to submit any statements or

affidavits to the official designed by the

head of the agency concerned to show why he

should be reinstated or restored to duty.

The agency head concerned may, following such

investigation and review as he deems necessary,

terminate the employment of such suspended

civilian officer or employee whenever he shall

determine such termination necessary or advis-

able in the interest of the national security

of the United States, and such determination

by the agency head concerned shall be con-

clusive and final: Provided further, That

any employee having a permanent or indefinite

appointment, and having completed his proba-

tionary or trial period, who is a citizen of

the United States whose employment is sus-

pended under the authority of this Act, shall

be given after his suspension and before his

employment is terminated under the authority

of this Act, (1) a written statement within

thirty days after his suspension of the

charges against him, wi.ich shall be subject

to amendment within thirty days thereafter

and which shall be stated as specifically as

security considerations permit; (2) an oppor-

tunity within thirty days thereafter (plus

an additional thirty days if the charges are

amended) to answer such charges and to sub-

mit affidavits; (3) a hearing, at the employ-

ee's request, by a duly constituted agency

authority for this purpose; (4) a review of

his case by the agency head, or some official

designated by him, before a decision adverse

to the employee is made final; and (5) a

written statement of the decision of the

agency head:

Provided further, That any person whose em-

ployment is so suspended or terminated under

the authority of this Act may, in the discre-

tion of the agency head concerned, be rein-

stated or restored to duty, and if so rein-

stated or restored shall be allowed compen-

sation for all or any part of the period of

such suspension or termination in an amount

not to exceed the difference between the

amount such person would normally have earned

during the period of such suspension or ter-

mination, aS appropriate, and the interim

net earnings of such person: Provided fur-

ther, That the termination of employment

herein provided shall not affect the right

of such officer or employee to seek or accept

employment in any other department or agency

of the Government: Provided further, That

the head of any department or agency consider-

ing the appointment of any person whose em-

ployment has been terminated under the pro-

visions of this Act may make such appointment

only after consultation with the Civil Service

Commission, which agency shall have the

authority at the written request of either

the head of such agency or such employee to

determine whether any such person is eligible

for employment by any other agency or depart-

ment of the Government.

Sec. 2. Nothing herein contained shall

impair the powers vested in the Atomic Energy

Commission by the Atomic Energy Act of 1946

or the requirements of section 12 of that Act

that adequate provision be made for admini-

strative review of any determination to dis-

miss any employee of said Commission.

Sec. 3. The provisions of this Act shall

apply to such other departments and agencies

of the Government as the President may, from

time to time, deem necessary in the best in~

terests of national security. If any depart-

ments or agencies are included by the Presi-

dent, he shall so report to the Committees

on the Armed Services of the Congress.

Sec. 4. Section 3 of the Act of Decem-

ber 17, 1942 (56 Stat. 1053), and section

104 of the Act of July 20, 1949 (Public Law

179, Eighty-first Congress), and section

630 of the Act of October 29, 1949 (Public

Law 434, Eighty-first Congress), are hereby

repealed. August 26, 1950.

5 U.S.C. §6304, recently amended by P.L.

93-181, 87 Stat. 705.

(a) Except as provided by subsections (b),

(d), and (e) of. this section annual leave

provided by section 6303 of this title, which

is not used by an employee, accumulates for

use in succeeding years until it totals not

more than 30 days at the beginning of the

first full biweekly pay period, or corres-

ponding period for an employee who is not

paid on the basis of biweekly pay periods,

occurring in a year.

(b) Annual leave not used by an employee of

the Government of the United States in one of

the following classes of employees stationed

outside the United States accumulates for use

in succeeding years until it totals not more

than 45 days at the beginning of the first

full biweekly pay period, or corresponding

period for an employee who is not paid on

the basis of biweekly pay periods, occurring

in a year:

(1) Individuals directly recruited or

transferred by the Government of the United

States from the United States or its terri-

tories or possessions including the Common-

wealth of Puerto Rico for employment outside

the area of recruitment or from which trans-

ferred.

(2) Individuals employed locally but --

(A) (i) who were originally recruited

from the United States or its territories or

possessions including the Commonwealth of

Puerto Rico but outside the area of employ-

ment;

(ii) who have been in substantially

continuous employment by other agencies of

the United States, United States firms, in-

terests, or organizations, international or-

ganizations in which the United States par-

ticipates, or foreign governments; and

(iii) whose conditions of employ-

ment provide for their return transportation

to the United States or its territories or

possessions including the Commonwealth of

Puerto Rico; or

(B) (i) who were at the time of employ-

ment temporarily absent, for the purpose of

travel or formal study, from the United

States, or from their respective places of

residence in its territories or possessions

including the Commonwealth of Puerto Rico;

and

(ii) who, during the temporary ab-

sence, have maintained residence in the United

States or its territories or possessions in-

cluding the Commonwealth of Puerto Rico but

outside the area of employment.

(3) Individuals who are not normally

residents of the area concerned and whn are

discharged from service in the armed forces

to accept employment with an agency of the

Government of the United States.

pe Ne ae

allowable --

(1) under subsection (a) or (b) of this

section which was accumulated under earlier

statute; or

(2) under subsection (a) of this section

which was accumulated under subsection (b)

of this section by an employee who becomes

subject to subsection (a) of this section; re-

mains to the credit of the employee until

used. The excess annual leave is reduced at

the beginning of the first full biweekly pay

period, or corresponding period for an em-

ployee who is not paid on the basis of bi-

weekly pay periods, occurring in a year, by

the amount of annual leave the employee used

during the preceding year in excess of the

amount which accrued during that year, until

the employee's accumulated leave does not ex-

ceed the amount allowed under subsection (a)

or (b) of this section, as appropriate.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 519.

(d) (1) Annual leave which is lost by opera-

tion of this section because of --

(A) administrative error when the error

causes a loss of annual leave otherwise accru-

able after June 30, 1960;

(B) exigencies of the public business

when the annual leave was scheduled in ad-

vance; or

annual leave was scheduled in advance;

shall be restored to the employee.

(2) Annual leave restored under para-

graph (1) of this subsection, or under clause

(2) of section 5562 (a) of this title, which

is in excess of the maximum leave accumulation

permitted by law shall be credited to a

separate leave account for the employee and

shall be available for use by the employee

within the time limits prescribed by regul-

ations of the Civil Service Commission.

Leave credited under this paragraph but un-

used and still available to the employee

under the regulations prescribed by the

Commission shall be included in the lump sum

payment under section 5551 or 5552(1) of this

title but may not be retained to the credit

of the employee under section 5552(2) of this

title.

(e) Annual leave otherwise accruable after

June 30, 1960, which is lost by operation of

this section because of administrative error

and which is not credited under subsection

(d)(2) of this section because the employee

is separated before the error is discovered,

is subject to credit and liquidation by lump

sum payment only if a claim therefor is filed

within 3 years immediately following the date

of discovery of the error. Payment shall be

made by the agency of employment when the

lump sum payment provisions of section 5551

of this title last became applicable to the

employee at the salary rate in ettect on the

date of the lump sum provisions became ap-

plicable. As amended Pub.L. 93-181, §3,

Dec. 14, 1973, 87 Stat. 705.

PUBLIC LAW 93-181

93rd Congress, H. R. 1284

December 14, 1973

AN ACT

To amend title 5, United States Code, to im-

prove the administration of the leave system

for Federal employees.

Be it enacted by the Senate and House of

Representatives of the United States of America

in Congress assembled, That (a) the second

sentence of section 5551 (a) of title 5,United

States Code, is amended by striking out ",

except that it may not exceed pay for a period

of annual or vacation leave in excess of 30

days or the number of days carried over to his

credit at the beginning of the leave year in

which entitlement to payment occurs, whichever

is greater”.

(b) Section 5551(b) of title 5, United

States Code, is amended to read as follows:

‘"(b) The accumulated and current accrued

annual leave to which an officer excepted from

subchapter I of chapter 63 of this title by

section 6301(2) (x)-(xii) of this title, is

entitled immediately before the date he is

excepted under that section shall be liqui-

dated by a lump sum payment in accordance

with subsection (a) of this section or sub-

chapter VIII of this chapter, except that the

payment is based on the rate of pay which he

was receiving imnediately before the date on

which section 6301(2) (x)-(xii) of this title

became applicable to him.".

Sec. 2. The first sentence of section

6303(b) of title 5, United States Code, is

amended to read as follows: "Notwithstanding

subsection (a) of this section, am employee

whose current employment is limited to less

than 90 days is entitled to annual leave under

this subchapter only after being currently

employed for a continuous period of 90 days

under successive appointments without a break

in service.".

Sec. 3. Section 6304 of title 5, United

States Code is amended --

(1) by striking out of subsection (a) the

phrase "subsection (b) of this section” and in-

serting in lieu thereof "subsections (b), (d),

and (e) of this section"; and

(2) by adding at the end thereof the

following new subsections: "(d)(1j) Annual

leave which is lost by operation of this

section because of --

"(A) ddministrative error when the error

causes a loss of annual leave otherwise

accruable after June 30, 1960;

"“(B) exigencies of the public business

when the annual leave was schedule in advance:

shall be restored to the employee.

"(2) Annual leave restored under paragraph

(1) of this subsection, or under clause (2) of

section 5562(a) of this title, which is in

excess of the maximum leave accumulation per-

mitted by law shall be credited to a separate

leave account for the employee and shall be

available for use by the employee within the

time limites prescribed by regulations of the

Civil Service Comnission. Leave credited under

this paragraph but unused and still available

to the employee under the regulations prescri-

bed by the Commission shall be included in the

lump sum payment under section 5551 or 5552(1)

of this title but may not be retained to the

credit of the employee under section 5552 (2)

of this title.

Geer is om

"(e) Annual leave otherwise accruable

after June 30, 1960, which is lost by opera-

tion of this section because of administrative

error and which is not credited under sub-

section (d) (2) of this section because the

employee is separated before the error is dis-

covered, is subject to credit and liquidation

by lump sum payment only if a claim therefor

is filed within 3 years immediately following

the date of discovery of the error. Payment

shall be made by the agency of employment

when the lump sum payment provisions of

section 5551 of this title last became appli-

cable to the employee at the salary rate in

effect on the date of the lump~sum provisions

became applicable.".

Sec. 4. Section 6302 of title 5, United

States Code, is amended by inserting at the

end thereof the following new subsection:

"(£) An employee who uses excess annual

leave credited because of administrative error

may elect to refund the amount received for the

days of excess leave by lump-sum or installment

payments or to have the excess leave carried

forward as a charge against later-accruing

annual leave, unless repayment is waived under

section 5584 of this title.".

Sec. 5. With respect to a former employee

(except a former employee under section 6 of

this Act) who is not on the rolls on the date

of enactment of this Act, annual leave which

accrued after June 30, 1960, but, because of

administrative error, was lost by operation

of section 6304 of titie 5, United States Code,

is subject to credit and liquidation by lump-

sun payment only if a claim therefor is filed

within three years immediately following the

date of enactment of this Act, with the agency

by which he was employed when the lump-sum

payment provisions of section 5551 of title 5,

United States Code, last became applicable to

him. Payment shall be by that agency at the

salary rate in effect on the date the lump-

sum payment provisions became applicable.

Sec. 6. (a) With respect to a former

employee of the Post Office Department or a

former employee of the United States Postal

Service who had prior civilian service with

the Post Office Department or other Federal

Agency, who is not on the rolls on the date

of enactment of this Act, annual leave which

accrued after June 30, 1960, and before July

1, 1971, but, because of administrative error

was lost by operation of section 6304 of title

5, United States Code, is subject to credit

and liquidation by lump-sum payment only if a

claim therefor is filed within three years

immediately following the date of enactment

of this Act with the Postal Service. Payment

shall be by the Postal Service at the salary

rate in effect on the date the lump-sum pay-

ment provisions of section 5551 of title 5,

United States Code. or comparable provisions

of regulations of the Postal Service, as

appropriate, last became applicable to the

former employee.

(b) With respect to a present employee of

the Postal Service who had prior Federal

civilian service with the Post Office Depart-

ment or other Federal agency annual leave

which accrued after June 30, 1960, and before

July 1, 1971, but, because of administrative

error was lost by operation of section 6304

of titie 5, United States Code, is subject to

credit and liquidation by lump-sum payment

only if a claim therefor is filed within three

years immediately following the date of en-

actment of this Act with the Postal Service.

Payment shall be by the Postal Service at the

salary rate in effect on the date of enactment

of this Act.

Sec. 7. (a) Section 5562(a) of title 5,

United States Code, is amended by adding at

the end thereof the following new sentences:

"Notwithstanding any other provision of law,

an employee in a missing status on or after

January 1, 1965, is entitled --

"(1) to payment for annual leave which

accrued to his account on or after January l,

1965, but which was forfeited under section

6304 of this title because he was unable to

use that leave by virtue of his missing

status; or

"(2) to have all of that leave restored

to him and credited to a separate leave

account in accordance with the provisions of

section 6304(d)(2) of this title.

An employee shall elect in writing, within

90 days immediately following the date of en-

actment of this sentence or within 90 days

immediately following the termination of his

missing status, whichever is later, whether

he desires payment for the leave under clause

(1) of this subsection or credit of the leave

under clause (2) of this subsection. Payment

under clause (1) of this subsection shall be

at the employee's rate of basic pay in effect

at the time the leave was forfeited.”

(b) The amendment made by subsection (a)

of this section shall apply to former employees

or their beneficiaries.

Approved December 14, 1973.

CERTIPICATE

I hereby certify that three copies of the

aforegoing Petition for Writ of Certiorari

have been sent first class mail, postage pre-

paid and properly addressed tc each of the

following persons or organizations:

(1) Mr. Leonard P. Avery

Assistant United States Attorney

500 St. Louis Street

New Orleans, Louisiana 70130

Counsel of Record for Appellees

(2) The Adnistrator of The General

Services

Administration of the United States

of America

18th and F Streets, N.W.

Washington, D. C. 20405

(3) Mr. Erwin N. Griswold

Solicitor General

Department of Justice

Constitution Avenue and 10th Street,

N.W.

Washington, D. C. 20530

this day of , 1974

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.