#### GEORGE E. BURNAP v. THE UNITED STATES.

[No. 33672.

Decided June 17, 1918.]

*On the Proofs.*

*Civil-service employee, when dismissal without pay lanoful.*— A civil-service employee whose position was in the Engineer Department at Large may be suspended without pay by the officer in charge, in conformity with the provisions of Par. 13, Section Y, of General Orders, No. 5, Office of Ohief of Engineers, and with the instructions governing the classified civil service as applied to the Engineer Department at Large.

*The Reporter’’s*statement of the case:

*Mr. George A. King*for the plaintiff. *King <& King*were on the briefs.

*Mr. Harvey D. Jacob,*with whom was *Mr. • Assistant Attorney General Huston*Thompson, for the defendants.

The following are the facts of the case as found by the court:

I. The plaintiff, George E. Burnap, was Secretary of War landscape architect in the Office of Public Buildings and Grounds. He took the oath of office and entered upon duty July 1,1910.

*606Friction having arisen between plaintiff and his immediate superior officer, the officer in charge of the Office of Public Buildings and Grounds on September 14, 1915, addressed a communication to the plaintiff, stating: “You are hereby suspended from duty and pay as landscape architect in this office, to take effect from to-day, pending final action upon charges against you to be preferred to the proper authorities with a view to your dismissal from the service for cause. You will be allowed until September 24 to- make a reply to the charges specified below, at which time the subject will be submitted to the department.” Accompanying said communication were charges in writing, and in general terms, of inefficiency, disobedience of orders, evasion, and lack of adaptability, and under each of said charges were a number of more or less definite specifications.

Plaintiff answered the charges in writing and under oath. On September 28, 1915, the officer in charge of the Office of Public Buildings and Grounds submitted said correspondence to the Chief of Engineers, together with a memorandum prepared by Col. William W. Harts, and a statement that “ In view of these facts I feel compelled to recommend that Mr. Burnap be discharged for the good of the service.”

Said charges were submitted by the Chief of Engineers to the Secretary of War, who, at plaintiff’s request, directed that the charges be submitted to him for consideration. The case was thereupon referred by the Secretary of War to the Judge Advocate General, and on October 19,1915, the Judge Advocate General made a memorandum for the Secretary of War dealing with said charges and answers, and suggested that, taking the charges as a whole, he found no specific instances of misconduct proved, and that that largely because a definite statement was not given to plaintiff in the first place so that he might make an equally definite answer, and adding:

“There appear to me to be two courses which could be followed with justice to the parties concerned. One is to allow Mr. Burnap to resign, if he is willing to do so. His relations with his superior are now such that harmonious cooperation is impossible, however anxious each may be to reach it, and he may therefore be ready to end the situation. In that case he should be allowed to go without suggestion *607of any blot upon bis record, for if bis conduct has actually been such as to warrant his dismissal, that fact has still to be proved. If he is unwilling to resign, or it is considered inexpedient to allow him to do so, I recommend that Col. Harts’s supplementary memorandum be referred to him that he may present his version of the matters therein treated; and that the opinions of competent observers be secured as to his efficiency and attention to duty in his present employment. Lieut. Col. Spencer Cosby, C. E., the officer under whom Mr. Burnap was originally employed here, would perhaps be the best judge of the value of his services. It is probable, too, that the members of the Fine Arts Commission are well acquainted with his capabilities.”

On April 12,1916, the Secretary of War, the Hon. Newton D. Baker, addressed a communication to the plaintiff, as follows:

“ *Dear Sir*: In the matter of the recommendation of Col. Harts, Superintendent of Public Buildings and Grounds, for your dismissal from the position of landscape architect, concerning which I have talked with you, I beg to inform you that I can not comply with the request contained in your letter of the 8th instant to grant you leave of absence without pay until such time as a change may occur in the position of Supreintendent of Public Buildings and Grounds. ■

“ In the review of the case made for Secretary Garrison by the Judge Advocate General, he reached the following conclusions:

“‘Taking the charges as a whole, I find no specific in-, stances of misconduct proved. As to one or two points, I think Mr. Burnap has justified himself; as to the rest, it is not yet possible to form a fair opinion. This is largely because a definite statement was not given to Mr. Burnap in the first place, so that he might make an equally definite answer; some grounds of complaint are set forth for the first time in the memorandum which Mr. Burnap has never seen, and others are not even yet clearly formulated. But even if Mr. Burnap were cleared of all objectionable acts that are charged or suggested, there would remain a very serious question as to his fitness for his present position. One may have high abilities, may never be guilty of any infraction of orders or regulations, and yet perform his duties in such a perfunctory manner, give so grudging an attention to his work, that he is practically worthless. It is possible that Mr. Burnap is such a man; if so, satisfactory proof should not be difficult to obtain.

*608“ ‘ There appear to me to be two courses which could be followed with justice to the parties concerned. One is to allow Mr. Bumap to resign, if he is willing to do so. His relations with his superior are now such that harmonious cooperation is impossible, however anxious each may be to reach it, and he may therefore be ready to end the situation. In that case he should be allowed to go without suggestion of any blot upon his record, for if his conduct has actually been such as to warrant his dismissal, that fact has still to be proved. If he is unwilling to resign, or it is considered inexpedient to allow him to do so, I recommend that Col. Harts’s supplementary memorandum be referred to him that he may present his version of the matters therein treated, and that the opinions of competent observers be secured as to his efficiency and attention to duty in his present employment. Lt. Col. Spencer Cosby, C. E., the officer under whom Mr. Bumap was originally employed here, would perhaps be the best judge of the value of his services. It is probable, too, that the members of the Fine Arts Commission are well acquainted with his capabilities.’”

“ Owing to the temperamental incompatibility between you and Col. Harts the situation, I think, is such that one or the other of the two courses suggested by the Judge Advocate General ought to be followed. I am willing to accept your resignation without prejudice and will be glad to write you a letter stating that you have separated yourself from the service and that your going does not reflect upon your competency or upon the services you have rendered, but that 'your resignation is made because of temperamental incompatibility between you and your chief.

“ Please advise me in the matter as soon as practicable.”

The case having again been referred by the Secretary of War to the Judge Advocate General, the latter, under date of June 24,1916, reported to the Secretary that — ■

“ Under date of September 14,1915, the officer in charge of public buildings and grounds (Col. W. W. Harts, C. E.) suspended from duty Mr. George E. Bumap, landscape architect, preferring charges, with a view to his dismissal from the service for cause, giving him ten days to answer the same. Mr. Bumap submitted his reply to the charges in detail, and the officer in charge of public buildings and grounds, under date of September 28,1915, supplemented the charges by further specifications, which supplemental matter was referred to Mr. Burnap, and to which he submitted a supplemental reply dated June 10, 1916.”

*609And further reported that the plaintiff had attempted to answer each of the specifications in detail; that as to many of them the papers did not afford material to warrant a definite finding without the risk of grave injustice to the employee, and added:

“ But, considering the case as a whole, they exhibit Mr. Burnap in an attitude of insubordination to superior authority. Much of this attitude seems to have had its origin in the dual relation by which Mr. Burnap carried on work for private clients, dividing his time between the Government and such clients. At first this work appears to have been undertaken with the consent of his superior, but later this consent was withdrawn, after which the private work was carried on against the expressed wishes and even orders of Colonel Harts, who appears to have endeavored to secure from Mr. Burnap such service as he thought Mr. Burnap should render to the Government under his employment. Upon review of the papers as a whole, I can not escape the conclusion that they exhibit Mr. Burnap in an attitude of insubordination to his superior, and that this attitude is largely due to his failure to adapt himself to the requirements of his position and loyally conform his actions to the views of his superior officer.”

Calling attention to the several charges the report of the Judge Advocate General concludes:

“ Mr. Burnap’s reply of June 10,1916, while denying some of these allegations and attempting to explain others,_ does not show a prompt compliance with the request of his superior in this regard or answer the definite allegations that he failed to do so. I think it clearly appears from the papers that Mr. Burnap did in fact evade compliance with the order of Ms superior with regard to private work and that the main and primary cause of ill feeling between him and his superior grew out of his failure to comply with the views of his superior in this matter. Without going into the several allegations as to difficulties in his official relations, I think there is sufficient in these papers to warrant their return to the Chief of Engineers for his action under paragraph 13, Eage 15, of the Regulations for the Administration of the ivil Service in the Engineer Department at Large (G. O., No. 5, Office, Chief of Engineers, June 8,1915). Should the Chief of Engineers, after reviewing the papers, supplemented by such further inquiry into the facts as he may make, find that the discharge of Mr. Burnap is not warranted by the gravity of the offenses committed, I think it is evident that *610Mr. Burnap’s retention in the service should be under conditions which will preclude his engaging in private work during office hours or in using Government facilities in connection with any such work which he may undertake outside of office hours. It should also be under conditions that would preclude his use of any Government employees either in or outside of office hours in connection with such private work as he may perform outside of office hours.”

The plaintiff did not resign.

On June 26, 1916, the following indorsement was made on the said report of the Judge Advocate General:

“To the-Chief of Engineers. For action in accordance with the foregoing suggestion of the Judge Advocate General. Wm. M. Ingraham, Assistant Secretary of War.”

On August 2, 1916, the Chief of Engineers made the following order:

“ 1. Under the provisions of paragraph 13, section Y, G. O. No. 5, O. C. E., 1915, the discharge of George E. Burnap, landscape architect, to promote the efficiency of the service, is hereby authorized.

“ 2. Mr. Burnap’s discharge should be reported on Form 28 for the information of the Civil Service Commission.

“ By command of the Chief of Engineers.”

On August 3, 1916, the plaintiff was discharged in pursuance of said order, as it appears from the third indorsement on said report, as follows:

“ To the Chief of Engineers.

“1. Keturned.

“2. Mr. George E. Burnap, landscape architect, has, in accordance with the authority contained in the second in-dorsement hereon, been this day notified by letter from this office of his discharge, to promote the efficiency of the service. His discharge will be reported on Form 28, in accordance with the instructions.”

II. General Orders No. 5, referred to above, from the Office of the Chief of Engineers, War Department, contained certain regulations' governing the classified civil service a's applied to the Engineer Department at Large which had been approved by the Civil Service Commission and the Secretary of War and were published for the information and guidance of all employing officers under the direction of the Chief of Engineers. It provides, among other things, *611that all points not covered by this order will be governed by the civil-service rules and regulations. Paragraph 13 of section 5, General Orders No. 5, referred to above, is as follows:

“18. *Discharge for cause.*— Discharge for cause of any regularly appointed classified employee will be subject to the provisions or civil-service Pule XII, and can not be made without the approval of the Chief of Engineers. An employee may be suspended without pay by the officer in charge, who should at once furnish the employee with a statement in writing of the charges against him and give him a reasonable time within which to make answer thereto in writing. As soon as reply is received, or in case no reply is received within the time given him, all papers should be submitted to the Chief of Engineers with full statement of the facts in the case and the officer’s recommendations.”

On August 3, 1916, the officer in charge of the Office of Public Buildings and Grounds addressed the following communication to the plaintiff:

“ Sir : Eeferring to the charges preferred against you by the officer in charge on September 14,1915, under which you were suspended without pay, and which have been acted upon by the department, you are, by authority of the Chief of Engineers, dated August 2, 1916, hereby discharged from the position of landscape architect under this office, in order to promote the efficiency of the service, to take effect August 3,1916.”

On July 7, 1916, the plaintiff applied to the Auditor for the War Department for the accrued salary of the position of landscape architect in the Office of Public Buildings and Grounds from September 14,1915, to July 1,1916, “ with continued compensation at monthly intervals until such time as the Secretary of War takes action in the matter.” The auditor declined to make an allowance, and his action was, upon appeal, confirmed by the comptroller on September 27, 1916.

The said position of landscape architect was in the classified civil service. A successor to the plaintiff was appointed landscape architect, at $2,400 per annum, in the Engineer Department at Large, Washington, D. C., on July 20, 1917, and duly qualified under that appointment on July 30, 1917.

III. If the plaintiff is entitled to the salary of the position of landscape architect from the date of his suspension, Sep *612tember 14, 1915, to the date of his discharge the amount Avould be $2,119.88; if entitled to recover to the date of the appointment of his successor the amount would be $4,306.66.

CONCLUSION OE LAW.

Upon the foregoing findings of fact the court decides, as a conclusion of law, that the plaintiff is not entitled to recover, and his petition should be, and it is, dismissed. Judgment is rendered in favor of the United States against the plaintiff for the cost of printing the record in this cause in the sum of $59.81, to be collected by the clerk as provided by law.

MEMORANDUM.

The court’s conclusions are based upon the following considerations :

1. That plaintiff was suspended on the 14th day of September, 1915, under the provisions of paragraph 13, Section V, of General Orders, No. 5, office of Chief of Engineers, and in conformity with the instructions governing the classified civil service as applied to the Engineer Department at Large.

2. That the plaintiff’s position was in the Engineer Department at Large.