#### WILSON SCOTT NORRIS v. THE UNITED STATES.1

[No. 33262.

Decided March 8, 1920.]

*On Remand by Supreme Court.*

*Appeals; remand by Supreme Oourt.*— Where a case has been remanded *to*this court for further findings of fact, without an order directly setting aside the judgment or directing the court to set it aside, the order will not be construed as authorizing a new trial, but as limiting the remand to “ further findings of fact.”

*The Reporter's*statement of the case:

*Mr. Louis T. Miehener*for the plaintiff. *Dudley & Mich-ener*and *Spoor & Russell*were on the briefs.

*Mr. Harvey D.*Jacob, with whom was *Mr. Assistant Attorney General Frank*Davis, *jr.,*for the defendants.

*209This case having been remanded by the Supreme Court for additional findings of fact by an order dated June 2, 1919, the court makes the following finding, marked II, in addition to and in amplification of the original Finding II:

II. The Secretary of the Treasury, having some time prior to August 24, 1911, appointed a committee to examine into and report upon the conduct of the customs business at Baltimore, and having instructed that the examination be thorough, vigorous, and exact, embracing the entire customs business, including the personnel, that committee made a report, under date of August 24, 1911, in which it made recommendations relative to the discharge from the service of a number of employees, and reported, among others, as to the plaintiff herein, as follows:

“ W. Scott Norris, inspector, is sixty-four years old, and is not a good inspector (see p. 92) ; he has been suspended and reprimanded several times, and he suffers with rheumatism continually. In our opinion, the inspectors’ force would be improved if he were dropped from the rolls.”

On February 5, 1913, the Honorable Franklin McVeagh, Secretary of the Treasury, made a memorandum upon, or attached to, said report, in which he stated that he had given most careful consideration to it, and, after conference with the collector and the special agent in charge at Baltimore, and with members of the customs committee, he had reached the conclusions which were indicated after each of the names referred to in the committee’s report; and as to the plaintiff, the memorandum stated:

“ The committee recommends that he be dropped from the rolls. Becommendation approved.”

Thereupon, on February 19, 1913, the Secretary of the Treasury addressed a communication to the collector of customs at Baltimore, in which he said:

“ In view of recommendations received by the Department, the following changes in the force employed at your port are hereby approved, the appointments to take effect from the dates of new oaths. . . .

“W. Scott Norris, inspector, class 2, at $4.00 per diem, to be removed from the service, to take effect upon receipt of this communication, it appearing that he is not a good *210inspector, that he has been suspended and reprimanded several times, and that he suffers with rheumatism continually.”

Upon receipt of that letter the collector at Baltimore, under date of February 20, 1913, addressed a letter to the plaintiff to the effect that he was directed by the Secretary of the Treasury to advise plaintiff that his services as inspector would be dispensed with, and the position vacated by him at the close of business on that day.

Nothing is shown as to what plaintiff did upon receipt of that notice until December 22, 1918, on which day he addressed a communication, from a place called High Peak, Va., to the Secretary of the Treasury, in which he stated:

“ On Feb’y. 20th last I was dismissed from the Customs Service at the port of Baltimore, in which service I held a position of inspector.

“ No reason was assigned for my dismissal, nor were any charges furnished me, nor opportunity to answer given, as provided in section 6 of the postal appropriation act of August 24, 1912.

“My dismissal, therefore, seems contrary to law, and I therefore petition you to reinstate me and determine my case on its merits, in the manner prescribed in the above-mentioned act.”

On January 12, 1914, the department, by the Assistant Secretary, responded to this letter of December 22, and stated to plaintiff that his separation from the service had been directed, after careful consideration of his record in the department, and added:

“As it appears that you were removed without having been furnished with a written copy of the charges, the department is willing to request the Civil Service Commission for the issuance of a certificate to cover your reinstatement, and upon receipt of the same to approve such reinstatement, and then give you a written copy of the charges which led to your separation from the service, as was done in a similar case at the port of Baltimore.

“As you have a legal right to a hearing in the matter, if you insist upon such legal right, the department will follow the course indicated in relation to jmur reinstatement.”

Thereafter, on January 24, 1914, the plaintiff wrote the Secretary of the Treasury,.acknowledging receipt of the department’s letter of the 12th instant, and said:

*211“Replying, beg to state that I desire to renew the request for reinstatement, as contained in my letter of the 22d ultimo.”

On February 10, 1914, a communication was addressed by the chief of the division of customs at Baltimore to the Chief of the Division of Appointments of the Treasury Department, requesting the reinstatement of W. Scott Norris as inspector, class 2, $4 per diem, in the Customs Service at Baltimore, in order that he might be furnished with a copy of the charges upon which he had been removed, and be allowed to answer the same in accordance with the act of August 24, 1912.

On the same day, February 10, 1914, the Treasury Department, by the Assistant Secretary, addressed a communication to the collector of customs at Baltimore, Md., inclosing therein a letter reinstating the plaintiff as inspector, class 2, and adding:

“ Immediately upon Mr. Norris subscribing to the oath of office he will be suspended from duty and pay pending investigation of charges of inefficiency to be preferred against him based upon the report of a committee of special agents which investigated the Customs Service ”

at Baltimore in 1911, and including the part of said report referring to plaintiff as above quoted.

On February 12, 1914, the Treasury Department requested the Civil Service Commission to issue the necessary certificate for the reinstatement of W. Scott Norris as inspector of customs, class 2, at $4 per diem, in the customs service at Baltimore, Md., stating that the department desired the reinstatement.in order to give Mr. Norris an opportunity to answer the charges against him which resulted in his removal from the service in February, 1913.

On February 16, 1914, the Civil Service Commission issued the order above requested “in order that he may be given an opportunity to answer the charges against him.”

On February 20, 1914, the collector of customs at Baltimore was notified that by direction of the Secretary of the Treasury:

“ W. Scott Norris is hereby reinstated and appointed inspector, class 2, new office, with compensation at the rate of $4 per diem (at Baltimore) in order that he may have an *212opportunity to answer the charges against him which resulted in his removal, * * * the appointment to take effect from date of oath.”

The plaintiff executed the oath of office on March 5, 1914, o.f which fact the Secretary of the Treasury was notified by the collector on that date.

On March 9, 1914, the plaintiff made and filed with the collector of customs an extended answer “ to the charges contained in department letter, dated February 10th, and submitted by you to me under date of March 5th.”

Immediately upon the execution of the oath of office on March 5, the plaintiff was suspended from duty and pay, the charges were preferred against him, and his answer to the charges were forwarded to the Secretary of the Treasury by the collector on March 10, 1914.

On April 25, 1914, the Treasury Department, in a letter signed by the Assistant Secretary, acknowledged receipt of plaintiff’s answer to the said charges and considered the answer. The letter concludes:

“In view of the foregoing, after a careful consideration of the charges and the evidence upon which they were based, the department is of the opinion that they were not sufficient to have warranted a dismissal of this officer. Inasmuch, however, as there is no vacancy to be filled at the present time in the force of inspectors at your port the department can not utilize Mr. Norris’ services. The position of inspector was created for him in order that he might take the oath of office so that these charges could be tried. His services will therefore necessarily be dispensed with, which will be effective upon receipt of this letter by you, and the position abolished. He is eligible for reinstatement within one year, provided his services can be utilized and he is properly recommended for an existing vacancy.”

II-A. The plaintiff’s motion for additional findings calls for a finding “whether or not Wilson Scott Norris made, or caused to be made, applications for reinstatement following his second removal, under dates of May 27, 1914, and February 18, 1915.”

In answer to that interrogatory, the court finds, from the evidence, the following facts:

Under date of May 27, 1914, a letter was addressed by the president of the National Association of United States Customs Inspectors to the Assistant Secretary of the Treasury, *213calling attention to the letter above mentioned, of April 25, from the secretary to the collector, and in this letter the president of the association urged the reinstatement of the plaintiff upon the grounds that he had been wrongfully removed, and that the department had concluded that the charges were not sufficient to have justified the removal at the earlier date above mentioned, and stating in his letter: “The sole question then is whether or not the department may find a place for him.” The letter urged favorable action toward the reinstatement of the plaintiff.

On June 6, 1914, the Assistant Secretary of the Treasury responded to this letter from the president of the association, to the effect that there was no position of inspector vacant at the port ,of Baltimore, and the department could not, therefore, utilize the services of plaintiff, and that Mr. Norris was entitled to reinstatement, and should a vacancy occur in which his services could be utilized he would be given consideration.

On February 18, 1915, the plaintiff addressed a letter to the Secretary of the Treasury making application for reinstatement to the position of inspector of customs. Except the letter of May 27,1914,.from the president of the association it does not appear that the plaintiff applied, on that date, or that application was caused to be made by him on that date, for reinstatement.

II-B. From the testimony taken since the cause was remanded the court finds that the plaintiff, after his dismissal, remained a few months in Baltimore, and then went to a farm in Virginia; that he occasionally visited Baltimore; that he was ready, willing, and able to discharge the duties of customs inspector at the port of Baltimore from the time of his dismissal up to and including the 20th day of May, 1916, and no facts appear to show that he was not ready, willing, and able to perform the duties at the time of taking his deposition in August, 1919.

The foregoing (Finding II-B) takes the place of the original Finding III.

The plaintiff is the sole owner of this claim, and no assignment or transfer of the same, or any part thereof, has been made.

1

 Appealed.

*214Per curiam :

From the judgment of the Court of Claims in this case an appeal was taken to the Supreme Court of the United States. The appellant there, who was the plaintiff here, filed a motion to remand the record, with instructions to the Court of Claims to take evidence, by deposition or otherwise, and to certify therefrom the facts therein upon certain points set forth in the motion. The order of the Supreme Court upon that motion is that on consideration of the motion of the appellant to remand this cause to the Court of Claims for further finding of facts it is ordered that the said motion be, and the same is hereby, granted.

Since tfiat order the plaintiff has taken depositions to prove that he has been ready, willing, and able to discharge the duties of the office from which he was removed. Additional findings of fact have been made.

It has been a long-continued practice in the Court of Claims that admissions of fact by a representative of the defendant made at the bar in course of trial will not be accepted by the court in the absence of evidence in ■ the record, unless such admissions be by the Attorney General or his authorized assistant, and in writing.

The reasons for this practice has been stated in decisions. Manifestly, besides other reasons, the court can not be expected to carry such admissions in mind or subject itself to the criticism of making findings that there is nothing in the record to sustain.

In its attempt to enforce this practice there has now been adopted a rule of the court which specifically provides that a stipulation shall be in writing, duly signed by designated representatives of the Government, and that otherwise the court will not pay attention to stipulations of attorneys.

This court is in doubt as to whether the order of the Supreme Court is intended as a direction that it shall proceed as upon a new trial. We construe the order as remanding the cause “ for further finding of facts.”

In another case *(Nicholas*v. *United*States, No. 168 in the Supreme Court, *ante,*p. 188), an order was made upon a motion to remand the cause for further findings of fact. The *215motion was granted “ and the Court of Claims is directed to set aside its judgment and reopen the case.”

In the absence of an order directly setting aside the judgment from which the appeal was'prosecuteql, or directing this court to set it aside, it is our view that we can not set aside the judgment because of the time that has elapsed since its rendition, and, because further, the appeal removed the case from this court to the Supreme Court.

We therefore think that our jurisdiction in the matter is limited to making findings of fact upon the points stated in the motion, and certifying the same. If the judgment were set aside we would have to treat the matter as upon a new trial; but in the present condition of the record, as we view it, the appeal is in the Supreme Court.

The clerk will be ordered to certify a copy of the additional findings and this memorandum to constitute a part of the record in the case.