#### THOMAS H. O’NEIL v. THE UNITED STATES.

[No. 34121.

Decided February 21, 1921.]

*On the Proofs.*

*Civil Service employee; removal from office.*— Where the head of an . executive department removes from office an employee in the classified civil service without stating in writing the cause of removal and filing the same as directed by law and the rules of the Civil Service Commission, the removal is nevertheless valid.

*Same; jurisdiction.*— Where an employee has been illegally removed from office the court has no jurisdiction of a claim for salary unless his right to the office has been established by a court of competent jurisdiction.

*Same; laches; limitations.*— Where an employee has been illegally removed from office and files his petition in court 11 years afterwards, his claim is barred by laches, and by the statute of limitations (sec. 156, Judicial Code).

*90
      *The Reporter's*statement of the case:

Mr. *0. G. Calhoun*for the plaintiff.

The plaintiff was unquestionably a classified competitive employee at the time of his removal and could not be legally removed except in the manner prescribed for removal of a classified competitive employee from a classified competitive position. This was squarely ruled on by the Civil Service Commission. The Civil Service rules were not followed when plaintiff was removed and the rules not being inconsistent with law had the effect of law.

The Acting Attorney General carefully reviewed the facts and concluded his opinion by holding that “ Mr. O’Neil was illegally removed from his position as special agent in the Customs Department.”

This construction of the law, which is undoubtedly sound, was accepted and acted on by the Secretary of the Treasury and by the President, and plaintiff’s reinstatement'was authorized under date of October 19, 1918, at a considerably higher salary than that claimed in this case.

As considerable time elapsed between the date of the illegal removal there may be an inference of laches, but in this case the facts clearly show that there was no negligence whatsovever on the part of the plaintiff. The truth is he was criticized for his persistency in urging that he be reinstated. So far as bringing suit was concerned he could recover nothing until it was determined that his removal was illegal, and the Attorney General appears to have been the proper official to settle that question.

It having been shown that the plaintiff’s removal was illegal, that he was not negligent in his efforts to be reinstated, and that he was able, willing, and ready at all times to perform the duties of the office, the only legal question is whether he is entitled to the salary attached to the office from which he was removed illegally.

Fortunately this question has been passed on by this court and the Supreme Court of the United States, where the opinion in each case was unanimous. In *LeTlman*v. *United*States, 81 C. Cls., 128, 135, this court, after referring to a *91finding that claimant had been illegally removed, as in the case at bar, held, “It is not necessary to cite authorities to establish the proposition that where a person is unjustly suspended in the exercise of official duty, and the power having jurisdiction of him as an employee annuls such suspension, that the party is entitled to whatever emoluments there might be due him during the time of said suspension.” This court further held that “during the period of that improper and illegal suspension he is entitled to whatever emoluments the law gave him for his services during that period.”

Another case directly in point is *United States*v. *Wicher-sham,*201 U. S., 390, 398, in which it was held that “the Secretary of the Interior certified the name of the claimant to the Civil Service Commission as an employee in the office of the surveyor general within the terms of the statute and the Executive order. He was, therefore, entitled to the protection of the President’s order of July 27, 1897 (14 Am. Rep. Civ. Serv. Comm., 133) : No removal shall be made from any position subject to competitive examination except for just cause and upon written charges filed with the head of the department or other appointing officer, and of which the accused shall have full notice and an opportunity to make defense. If the contention of the Government be correct, and the attempted suspension by the surveyor general was equivalent to a dismissal from office, such action would run counter to the requirements of the presidential order just quoted. The action of the surveyor general was not upon written charges, and no notice or opportunity to make defense was given to the accused, as provided in that order. The appellee being entitled to the protection of this order, and to have notice of the charges preferred, and an opportunity to make defense, that attempted removal, if such it was, was without legal effect; nor can we find any authority, statutory or otherwise, authorizing the suspension in the manner undertaken in this case.”

The court, after stating that a person wrongfully suspended “is entitled to the compensation provided by law during such suspension,” cites the authorities to sustain this principle of law and then adds: “ This was the view entertained *92by the of Claims in deciding *Lellman*v. *United*States, 37 C. Cls., 128, on the authority of which the case at bar was decided by that court.. We think the ruling was correct.”

The Court of Appeals of the District of Columbia decided in *Kalbfus*v. *Siddons et al.,*42 Wash. L. B., 854, that a writ of mandamus would lie where an assistant assessor had been removed illegally by the Commissioners of the District of Columbia. Subsequently the District of Columbia Supreme Court decided in an unreported decision, that Kalbfus was entitled to salary during the period he was illegally suspended.

*Mr. ’William D. Harris,*with whom was *Mr. Assistant Attorney General Frank*Davis, *jr.,*for the defendant.

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

I. The plaintiff, Thomas H. O’Neil, is a citizen of the United States and was appointed by the Secretary of the Treasury special inspector of customs on August 16, 1893, and on September 18, 1900, was appointed by the Secretary of the Treasury to the position of special employee. He was promoted August 5, 1904, by the Secretary of the Treasury.

II. By Executive order of President Cleveland the position of special inspector and that of - special employee were transferred to the classified competitive civil service. At the time the plaintiff was removed from his office he was in such service.

III. By letter dated February 11, 1907, signed by L. M. Shaw, Secretary of the Treasury, addressed to Thomas H. O’Neil and received by him, the plaintiff was removed from his position as special employee in the Customs Service. This removal took effect at the close of business on February 28, 1907, and the plaintiff has not performed any of the duties of said office since that date. It does not appear that the cause of removal was stated in writing and filed, in accordance with paragraph 7 of civil service rule 12, section 2.

The President of the United States in pursuance of the act of August 24, 1912, discontinued the office of special employee; said discontinuance took effect July!, 1913.

*93IY. Directly after plaintiff’s removal from office be appealed to the Secretary of the Treasury for a statement of the reasons for his removal, and since that time he has repeatedly appealed to the Secretary of the Treasury in person and by letter to be reinstated in the office. Since the date of his removal from office the plaintiff has been ready, able, and willing to discharge the duties of the office from which he was removed.

Y. Pursuant to Executive order the plaintiff was reinstated in the Customs Service, Treasury Department, without regard to the one-year provision of the civil service rule relative to reinstatement and was appointed on October 19, 1918, a customs agent of the Treasury Department with compensation at the rate of $8 per diem. Said appointment took «fleet on October 21,1918.

YI. At the time the plaintiff was removed from office he was receiving a compensation of $6 per diem, and if he is «entitled to recover in this action would be entitled to receive the sum of $25,494, being his compensation from February 28, 1907, the date of his removal, to October 20, 1918, the date of his appointment to another position in the Government service. The petition in this case was filed June 18, 1919.

Hat, *Judge,*

delivered the opinion of the court:

This is a suit brought by Thomas H. O’Neil to recover from the United States the sum of $25,494, alleged to be due bim for salary as a special employee in the Customs Service of the United States. The amount claimed covers the period from February 28, 1907, the date of his removal from office, to October 20, 1918.

On February 11,1907, the plaintiff was a special employee in the Customs Service of the United States, to which position he had been appointed by the Secretary of the Treasury, who was authorized by law to make such appointment. Some years before February 11, 1907, the President of the United States, by an Executive order, transferred the position of special employee in the Customs Service to the classified competitive civil service, so that on February 11, 1907, the plaintiff was by virtue of the aforesaid Executive order *94in the classified competitive civil service. On that day the plaintiff was, by the Secretary of the Treasury, removed from the office which he held, which took effect on February 28, 1907, and since that date up to the present time the plaintiff has not held that office, nor has he rendered any service to the United States, as a special employee, or in any capacity, except that he was on October 20, 1918, appointed a customs agent. The plaintiff is now bringing an action, which he filed in this court on June 18, 1919, for the sum of $25,494, the amount of salary he would have received had he remained in the service of the United States from February 28, 1907, to October 20, 1918; and he bases his claim upon the ground that he was illegally removed from his office; that he was removed in violation of civil-service regulations ; that the Secretary of the Treasury in removing him from office did not comply with the requirements of the civil-service law, and that if he was illegally removed from his office he is entitled to receive the salary thereof whether he rendered service or not. In • effect, he claims that having once been appointed to the office he has the right to receive the emoluments thereof during his life, even if he is removed, if that removal was illegal.

At the time of the removal of the plaintiff from the office to which he had been appointed by the Secretary of the Treasury there was in effect paragraph 7 of civil-service rule 12, section 2, which reads as follows:

> “2. No person shall be removed from a competitive position, except for such cause as will promote the efficiency of the service. When the President or head of an executive department is satisfied that an employee in the classified service is inefficient or incapable and that the public service will be materially improved by his removal, such removal may be made without notice to such officer or employee, but the cause of removal shall be stated in writing and filed. When misconduct is committed in the view and presence of the President or head of an executive department, removal may be made summarily, and no statement of reasons need be filed.”

The above rule is not a law; it is simply a regulation of the President of the United States, and it imposes upon the *95President and the beads of executive departments certain duties, which they must perform when a removal from the competitive civil service is made. It is in no sense a guarantee to civil-service employees that they shall hold their offices if the duties imposed upon the heads of the departments are not complied with. It is, in effect, a rule established for the purpose of compelling heads of departments to refrain from dismissing persons from office for insufficient, frivolous, or political reasons. And Congress by the act of August 24, 1912, Sec. 6, 31 Stat., 555, adopted the principles embodied in said rule, and by making it a law made it possible to call to account any head of an executive-department who may violate it.

The rule above quoted does not in any way deprive the Secretary of the Treasury of his right to remove from office an officer whom he has appointed. The plaintiff was appointed to the office which he held by the Secretary of the Treasury whom Congress had clothed with the power to make such appointment. Having the power to appoint he had also, as incident to it, the power to remove. The rule above quoted requires the appointing power when he exercises his right of removal to follow a certain course of action. A duty is imposed upon the officer, but if he ignores it and removes a person from office, his action is not thereby illegal, nor is the removal rendered void and of no effect, nor can the person so removed claim that he has not been removed, and that he is entitled to continue in the office, to perform the services of the office, and to receive the compensation attached to it. As a matter of fact, he is removed; he ceases to be in the service of the United States, and his only remedy is to proceed without delay in a court of competent jurisdiction to try his right to the office. This the plaintiff did not do and never has done.

What was it the Secretary was required to do by the rule ? To state the cause of removal in writing and file it. The failure to comply with this requirement could have no bearing upon the legality of the removal. It was simply a rule which had for its purpose the regulation of the conduct of the head of the department. If he failed to comply with it, his conduct could be called in question, and the President *96could, if he chose, reprimand him, or take any steps which he might deem best to correct him.

Even if the removal in this case was illegal, which is not the case, the illegal order of a subordinate officer will not. make the Government responsible for the salary of the plaintiff for a long term of years, during which period no service-has been rendered. In this case the office from.which the plaintiff was dismissed was abolished by law on July 1,1913r and he is suing in part for the compensation of an office which had no legal existence for more than seven years.

The principles involved in this case have been fully dealt with in the case of *Arant*v. *United*States, 55 C. Cls., 327, and in the case of *Nicholas*v. *United*States, 55 C. Cls., 188, where the authorities are fully cited.

Moreover, if the plaintiff ever had a right of action he has, lost it. His right of action, if he had any, accrued on February 28, 1907, or the day thereafter, as he was a per diem employee. Unless he sued within six years after his claim first accrued, his claim is barred. Section 156, Judicial Code. He did not file his petition in this court until June 18,1919, more than 11 years after the alleged right of action accrued.

For the foregoing reasons the petition of the plaintiff must be dismissed, and it is so ordered.

Graham, *Judge;*Downey, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.