#### JOHN H. MORSE v. THE UNITED STATES 1

[No. A-289.

Decided January 21, 1924]

*On the Proofs*

*Civil-service employee; removal.*— Where a civil-service employee has been separated from the service under conditions substantially in accord with the civil-service rules, and said employee acts and conducts himself in such a way as to indicate an intention on his part to waive the technical requirements of the rules, ■he may not thereafter invoke the rules in his behalf.

*Same; laches.*— A civil-service employee who files a petition in this court over 14 months after his separation from the service is guilty of laches and is not entitled to recover. See *Nicholas*v. *United States,*257 U. S. 71; *Norfis*v. *United States,*Id. 77; *Mberlem*v. *United States,*Id. 82.

*The Reporter's*statement of the case :

*Mr. John. H. Morse*in *propria persona.*

*Mr. John O.*Ewing, with whom was *Mr. Assistant Attorney Gen&ral Robert H.*Lovett, for the defendant.

*140The following are the facts of the case as found by the court:

I. The plaintiff is a citizen of the United States and the sole owner of the claim involved in this case, and he has at all times been loyal to the Government of the United States.

Plaintiff’s petition in this case was filed October 17, 1921, and his amended petition was filed April 4, 1922.

II. On January 2,1920, and for more than two years prior thereto, the plaintiff occupied a position in the engineering branch of the War Department, obtained by him through civil-service examination and appointment. On or about said date of January 2, 1920, the chief of the Rehabilitation Division of the Federal Board for Vocational Education, Uel W. Lamkin, wrote the chief clerk of said board as follows :

“ 1. It is requested that John FI. Morse be appointed as a supervisor of advisement and training in District No. C. O., Washington, D. C., with official station at Washington, D. C., at a salary of $2,400 per year.

“ 2. This appointment is (a) probational — Cert. No. 467.

“ 3. Oath of office showing date of entrance on duty is attached.

“ 4. Flis duty will be training assistant.”

Upon this request there was indorsed by the vice chairman of the board, the following:

“ The above-named person is hereby appointed under the terms and conditions set forth above, effective Jan. 2, 1920. Payment to be from fund appropriated for vocational rehabilitation.”

On said date of January 2, 1920, the chief, or director, of said rehabilitation division wrote plaintiff as follows:

“ 1. We take pleasure in tendering you a position in the division of rehabilitation, salary to be at the rate of $2,400 per year.

*“*2. All men whom we are employing at this time are employed with the understanding that they will serve in any capacity and in any section of the country to which it is deemed advisable to assign them. In general it is the poliev of the board to assign men to the territory with which the'* are most familiar, but the needs of the service and the quah-*141fications of tlie men must be the determining factors in either temporary or permanent assignments.

“ 3. If you accept this appointment, for the present we shall expect you to serve as training assistant, District C. O., the Washington office, proceed to Dallas. Your appointment will be probational from the civil-service certificate No. 467.

“ 4. Another assignment may be made if conditions make it desirable.

“ 5. We shall appreciate receiving an acknowledgement of this letter at your early convenience.”

Plaintiff immediately secured a month’s leave of absence, without pay, from his position "in the War Department and accepted and entered upon said position and service in said rehabilitation division; and on or about January 20, 1920, he resigned his former position in the War Department, to take effect February 2, 1920, in order to continue in service in said rehabilitation division.

III. Pursuant to orders from the director of said rehabilitation division, plaintiff proceeded to Dallas, Tex., headquarters of district No. 14, reporting to the district vocational officer there, W. F. Doughty, on or about January 6, 1920. The first regular work given him was field work in vocational advisement, or surveys, of disabled veterans. On or about March 1, 1920, he was placed in the training-section of the district office at Dallas in the work of general correspondence with men in training and approved for training.

IV. Plaintiff was not satisfied with the conditions prevailing in the district office at Dallas, both as to character and qualifications of members of the force and as to the conduct and performance of the work of the office. These conditions were criticized by him at different times to his superior officers, and after some three or four months’ service in the district he desired and requested transfer to some other district or branch of the service, but this was not granted him.

V. The plaintiff’s service and conduct in said district office were unsatisfactory and objectionable to his superior officers and others in the office, especially on account of his criticisms and complaints against the members of the force and the character of the work performed in the office, and on July *14212, 1920, the district officer in charge of the Dallas office informed plaintiff orally that his services would not be needed after July 15, 1920, on account of lack of work and necessary reduction of force. Plaintiff protested against being dropped from the service and immediately, on the same date, telegraphed the Director of the Rehabilitation Division at Washington as follows:

“Doughty recommending me dropped effective July 15. Stay action. Wire me transfer or travel order to- report to you for submitting important facts as requested in my letter of May 9.”

Plaintiff also immediately wrote to the vice chairman of said Federal board requesting aid in securing an opportunity to come to Washington and submit, facts as to conditions in the Dallas office and as to whether he should be dropped from the service.

On July 13,1920, District Officer Doughty, at Dallas, telegraphed the Director of the Rehabilitation Division at Washington as follows:

“ Please be advised that the following-named employee has been separated from the service:

“Name: John H. Morse. Designation: Supv. of Adv. & Trg. Salary: $2,400 per annum. Effective date of sepation: July 21, 1920, noon.”

A copy of said telegram was also forwarded to the secretary of the tenth, civil service district, New Orleans, La., for his information.

On the same date, July 13, 1920, Director Lamkin telegraphed District Officer Doughty as follows:

“ Inform Morse transportation can not be furnished to enable him to take appeal from your decision. We do not have place to transfer him at this time. Will accept his resignation without prejudice. File copy of telegram with him.”

On July 14 the plaintiff received a letter from the district officer there at Dallas transmitting to him a copy of the above-quoted telegram from the director, and saying:

“ Inclosed herewith is a copy of the telegram just received from the chief in regard to your resignation, which I am sending you in accordance with his direction. You have accrued four days of earned vacation which, added to July 15, 1920, will make it possible for us to carry you on our pay roll until noon, July 21, 1920.”

*143On July 20,1920, the chief clerk of the said Federal board at Washington wrote plaintiff, through the district office at Dallas, as follows:

“ Upon recommendation of D. Y. O. No. 14, Dallas, your resignation as a supervisor of advisement and training, permanent, at a salary of $2,400 per annum, has been accepted, without prejudice, effective July 21, 1920. By direction of the board.”

The plaintiff was thereupon dropped from the rolls and service of the board July 21, 1920.

YI. Upon receipt of said letter of July 20, 1920, from the chief clerk of the board the plaintiff informed the board that he had not resigned and that he would not resign, and requested a hearing by the board on the action taken to discharge him from the service, and upon his request for a transfer to service in some other district.

Upon coming to Washington soon after being dropped from the rolls and service as aforesaid, plaintiff called on Director Lamkin in the matter and submitted to him a written statement criticizing the personnel, work, and conditions in the Dallas office; and on or about August 19, 1920, Director Lamkin wrote plaintiff as follows:

“ I have read carefully the statement submitted by you. While it is natural that some errors and mistakes will be made in any organization, yet I am sure we are anxious to correct any which have been made in ours. I shall, therefore, take up with the Dallas office immediately the mistakes which you have mentioned, so that no disabled man may suffer thereby. The communication shows a spirit which can not be conducive to' your success in the work of rehabilitation. I see no reason to change my approval of Mr. Doughty’s action. As to a transfer, I do not believe it wise to transfer a man from one district to another because he fails to work harmoniously for the authorities in the district from which he seeks a transfer. The only way we can put this job over is by close, instructive, sympathetic cooperation.”

Upon plaintiff’s said request for a hearing by the Federal board, a hearing before the standing committee of the board was given him on August 24, 1920, at which Director Lam-kin was also present. At this hearing plaintiff was heard in his own behalf, and extensive written criticisms and *144charges were presented by him against said district office at Dallas, with reference to the personnel, management, character of the work, and conditions in the office generally.

The minutes of said hearing of August 24 contain the following entry as to the action of the standing committee in the plaintiff’s case:

“ Mr. John H. Morse, a former employee of the board, whose services were discontinued, appealed from the decision of the director to the standing committee. The standing committee sustained the action of the director requesting the resignation of Mr. Morse. It was the sense of the committee that the director investigate the statements made by Mr. Morse regarding certain practices in the Dallas office, and the secretary was instructed to' notify Mr. Morse of the action of the committee.”

Under date of August 25, the day following said hearing, me secretary of the board wrote plaintiff as follows:

“ The standing committee of the Federal Board for Vocational Education having considered the statements made by vou in writing" and in person before them in formal meeting, August 24, 1920, I have been instructed to advise you that the committee sustains the action of the director accepting your resignation. It was the sense of the meeting that you be informed that an investigation will be made into the statements presented by you both orally and in writing.”

VII. No written charges having been preferred against the plaintiff, with an opportunity for reply thereto by him, in accordance with the provisions of the civil service act oí August 24, 1912, 31 Stats. 555, plaintiff contended that he had not been legally separated from the Government service and appealed to individual members of the Vocational Board to secure a reconsideration of his case and his transfer and assignment to another district or branch of the service. In this he was not successful, and finally, on or about October

1920, he both personally and through Members of Congress from the State of Texas, namely, Senator Morris Sheppard and Representative C. S. Briggs, appealed to the Civil Service Commission in the matter, both in person and by numerous letters to the commission.

*145Acting upon this appeal, the Civil Service Commission, on October 25, 1920, wrote the said Federal board as follows:

“ The commission is in receipt of a letter with reference to the recent separation of John H. Morse of the Dallas office of your board. Mr. Morse states that he was informed that his resignation from the position of supervisor of advisement and training had been accepted, which was impossible, as he had not tendered such resignation. It appears that the district vocational officer notified him verbally that on account of there not being sufficient work his services would be dispensed with July 15. Mr. Morse states that later a communication was sent to the secretary of the second civil service district recommending that he be separated from the service, no reason being given for the same. Mr. Morse complains that the office was taking on many more employees in his line of work and therefore could not claim to be reducing force on account of lessening appropriation. It is known, however, that the new employees called for were from a somewhat different examination and apparently calling for a different line of work than that for which, Mr. Morse, passed his examination.

“ Both an act of Congress and Civil Service Bule XII, which the President promulgated to govern removals from the classified service, require that the person to be removed shall be furnished with a written statement of reasons and be given an opportunity to reply in writing. The commission requests to be furnished with a copy of the written statement given to Mr. Morse before he was removed from the service.”

This letter from the Civil Service Commission was replied to by Director Lamkin, by letter of November 19, 1920, reading as follows:

“ Beplying to your inquiry concerning the separation from the service of Mr. John H. Morse, Mr. Morse was notified by the Dallas office of the Federal board that his services were no longer needed. I quote from a letter from the Dallas office as follows: ■

“ ‘ When Mr. Morse was first assigned to this office, I assigned him to field work in the capacity of vocational adviser. By January 1, 1920, we had our branch offices so well organized that whatever field work was necessary could be taken care of by men stationed in the branch offices. It was, therefore, not necessary to keep additional men in the *146field; consequently, Mr. Morse was called in the district office on or about J anuary 1,1920. I soon found that he was inexperienced in office work and was entirely unacquainted with the rules and regulations of the board. ’ I therefore assigned him to answering general correspondence from trainees and prospective trainees, thinking that he would likely do less damage in this capacity than in any other to which he could be assigned. During his six months in this office he became very proficient in reviewing the cases assigned to his desk in order that he might determine to which training assistant they should be sent for proper action. This, review work and the survey of the sixty-seven cases referred to in his report of July 12 covered a period of time from the 1st of January up to July 12. Under the new procedure ■which was inaugurated in this district on or about July 1, 1920, there was no need for Mr. Morse’s services; consequently, on the 12th day of July, 1920,1 advised him that his services were no longer needed in this district.’

“ Upon receipt of that notice, Mr. Morse came to Washington, saw the director in person, and wrote him a long letter complaining of the conditions in the Dallas office. The director told Mr. Morse that the decision of the Dallas office was approved. From that decision Mr. Morse appealed to the board. On August 24 the board met, Mr. Morse was present, and the whole situation was gone over, and he was told that we did not feel we could utilize his services in view of the changes in the character of the work that would have to be done. We feel that Mr. Morse has been given due and sufficient notice and a full and complete hearing.”

On November SO, 1920, the Civil Service Commission wrote Senator Sheppard as follows:

“ Referring to the commission’s letter of October 22, stating that you would be further advised as to the circumstances of the recent separation of John H. Morse from the Federal Board, for Vocational Education, Dallas, the commission has the honor to inform you that it has been ascertained from the office of the Federal board, this city, that Mr. Morse was first assigned to field work as vocational adviser, but that by January 1, 1920, the branch offices took over the field work and Mr. Morse was called in to the Dallas office about that date. After a trial, he was found to be not adapted to the office work of the board as distinguished from its field work, but proved to be very efficient in answering general correspondence and in reviewing cases assigned to his desk. Under the new procedure inaugurated by the board, however, about July 1, 1920, there was no further *147need for Ms services, and he was therefore advised on July 12 that they would be no longer needed in the district. Mr. Morse then came to Washing-ton and saw the director of the board in person and wrote him about the conditions in the Dallas office. The matter was finally thoroughly reviewed on August 24 by the board, Mr. Morse being present, and he was told that his services could not be longer utilized in view of the changes in the character of work that would have to be done. The board therefore believes that Mr. Morse was given sufficient notice and a full and complete hearing.

“ In view of the above facts, it would appear that the provisions of the removal rule have been essentially satisfied. Attention is invited to the marked removal circular inclosed.”

On December 1,1920, the Civil Service Commission wrote the Federal board as follows:

“ In the case of John H. Morse, formerly employed in the Dallas office of the Federal board, the commission has written a letter to the Honorable Morris Sheppard, United States Senator, who was interested in the matter, the letter setting forth the facts as presented in letter of November 19 to his commission from the Federal board, with the statement that the board believes Mr. Morse was given sufficient notice and a full and complete hearing.

“The commission requests, however, that the Federal board direct all its officers and employees who may be officially concerned in the removal of an employee to follow literally and exactly the procedure laid down in the civil ■ service rules and in the act of August 24, 1912, in the case of removals. Any departure from such procedure involves both the commission and the department from which the removal occurs in needless trouble. The attention of the board is especially invited to the requirement of the law that no person in the classified civil service shall be removed except for reasons given in writing and that the employee shall be allowed a reasonable time for personally answering-in writing. More than this is not required; less than this is insufficient.”

After further and extended correspondence with the board and the plaintiff and the said Members of Congress, the commission practically closed the matter with the board by a letter to it on January 15, 1921, in which it stated that the report of the board tended to indicate that the only notice of the proposed removal given to plaintiff was oral; that *148the right of the board to dismiss him was not open to question, but that the method of dismissal was prescribed by law; and that unless plaintiff received a written statement of the reasons for his removal in advance of removal and was given an opportunity to make a reply in writing, the requirements of the law had not been met in his case; and that it did not appear that the case could be closed in the manner required by law and demanded by the plaintiff until the board reinstated him in the service, furnish him with a written statement of the reasons for. his proposed removal, and allowed him a reasonable time to make a written reply, after which he might be dropped from the service.

On January 13, 1921, Director Lamkin wrote Representative Briggs, in response to a letter of January 11, 1921, from the latter relative to the plaintiff, as follows:

“For your information, I am replying to your inquiry of January 11 concerning Mr. John H. Morse. The work of Mr. Morse was unsatisfactory and he was so told. He appealed to the board and was given a hearing. The board approved the position of the district officer in Dallas -and of the director. Pie then appealed to the Civil Service Commission, who asked for the facts in the case, and the Civil Service Commission has notified the board that it has proceeded according to the law in the matter. Mr. Morse was given a fair hearing. We clo not see the wisdom of continuing him on the pay rolls of the Government when his work is not satisfactory.”

VIII. The plaintiff has repeatedly, since July 21, 1920, requested to be restored to, and reassigned to duty in, the said rehabilitation service. ITe has not been reinstated or reassigned to duty either in the said Rehabilitation Division or in any other branch of the Government service. He has not at any time resigned from the said service and position in the Rehabilitation Division, to which he was appointed on January 2, 1920, and he has at all times been ready, willing, and able to resume service under said appointment.

IX. The rules of the Civil Service Commission contain the following provision relative to appointments to the classified service:

“ The person selected for appointment shall be duly notified by the appointing officer, and upon accepting and reporting for duty shall receive from such officer a certificate *149of appointment. The first sis months under this appointment shall be a probationary period; but the commission and the department concerned may, by regulation, fix the probationary period at one year for any specified positions. If and when, after full and fair trial, during this period, the conduct or capacity of the probationer be not satisfactory to the appointing officer, the probationer shall be so notified in writing, with a full statement of reasons, and this notice shall terminate his service. His retention in the service beyond the probationary period confirms his absolute appointment.”

It does not appear that plaintiff, during his probationary period of service in the rehabilitation service, received any notice or complaint that his services were not satisfactory. Said probationary period of service terminated on July 2, 1920, after which he was rated and carried on the rolls as “ permanent ”; that is, as an employee whose appointment had become “ absolute.”

X. The reason for plaintiff’s being dropped from the service as hereinbefore set forth 'was that his conduct in the office and work to which he was assigned was unsatisfactory to his superior officers and tended to produce discord in the office by reason of the criticisms and complaints by him against the management and operation of the office and against other officers and employees of the office, and that it Avas deemed inadvisable and not for the best interests of the service to further continue him in the service.

XI. Pending the outcome of his efforts for transfer and continuation in the service under the said Vocational Board, plaintiff, in November or December, 1920, applied for and tried to secure reinstatement in the War Department, from which he had resigned on February 2, 1920, on account of his acceptance of his said appointment in the rehabilitation division of the Vocational Board. He was referred by officials of the War Department to district engineer officers who might need his services, and finally succeeded, before the expiration of the year within which he was eligible for reinstatement, in securing a request from the district engineer office at Galveston, Tex., for his employment and assignment to that office. Upon reporting there about January 1, 1921, he found that opposition to his reinstatement had developed *150in tlie War Department and that the engineer officer at Galveston bad been informed that he would not be reinstated. After two days of temporary employment given him at the Galveston engineer office, for which he received payment, plaintiff returned to Washington, D. C., to try further to secure reinstatement in the War Department. He failed to secure such reinstatement. He has been practically without, employment since he was dropped from service in the rehabilitation division of the Vocational Board on July 21, 1920.

XII. At the time of plaintiff’s being dropped from said rehabilitation service, July 21,1920, there were in the service of the said rehabilitation division at the Dallas office a number of other employees of the same official designation and grade except that they had not yet completed their probationary terms of service under their appointments requisite to render their appointments absolute.

XIII. Since the plaintiff was dropped from the rehabilitation service as aforesaid there have been open for appointments thereto positions in said service similar in grade, duties, and salary to the position held by the plaintiff in said service under his said appointment of January 2, 1920.

XIV. The plaintiff did not seek reinstatement to his said position in the rehabilitation service by a suit for writ of mandamus for the reason that he considered Director Lam-kin hostile toward him and believed that if he should secure reinstatement by court proceedings and order said Lamkin would immediately bring about his separation from the service by giving him the requisite written notice regardless of the merits of the question. Also, he doubted whether under such circumstances a court would grant a writ for his reinstatement.

1

 Appealed.

Booth, Judge,

delivered the opinion of the court:

The plaintiff was a Government employee in the classified service. On January 2, 1920, he was offered a position in the Rehabilitation Division, Federal Board for Vocational Training. Immediately after the receipt of this offer he secured a month’s leave of absence without pay from the *151War Department, where he Fas then working, accepted the above offer, and proceeded to Dallas, Texas, and reported for duty,'resigning his position in the War Department on January 20, 1920, to take effect February 2, 1920. The Director of the Dallas Division of Rehabilitation first assigned the plaintiff to field service. Subsequently it was found inexpedient’ to continue him in this particular work, and he wa-s transferred to the district office for office work. Proving inefficient in office work, the director assigned him to answering general correspondence from trainees and prospective trainees, in which task he became quite proficient. On July 1, 1920, the need for the plaintiff’s services in this respect ceased, and he was verbally notified on July 12, 1920, that on and after July 15, 1920 — afterwards extended to July 21, 1920 — on account of reduction in force and lack of work his services would be no longer needed and he would be dropped from the rolls. Plaintiff vigorously protested against the order, wired his protest to the Washington (D. C.) officials, and supplemented the telegram with a letter to like effect. Not only did he protest against the proceedings but he requested a travel order to come to Washington and be granted the privilege of laying his complaints before the Federal Board for Vocational Education. On July 13, 1920, Director Lamkin, from Washington, advised the district officer in Texas by wire that the plaintiff’s request for transportation from Dallas to Washington could not be allowed; that it was not possible to transfer him from Texas; and that his resignation without prejudice would be accepted. This message was duly received by the plaintiff. On July 20, 1920, the plaintiff received from the Federal board in Washington a formal letter accepting his resignation without prejudice and separating him from the service on July 21, 1920. The plaintiff replied to this letter positively denying having tendered or offered to tender his resignation, requested a hearing upon the action taken to discharge him, and concluding his correspondence with a request for a transfer to some other division of the service.

Soon after this incident and probably about the middle of August the plaintiff arrived in Washington. He called on *152one of the officials of the board and was allowed to and did submit a written statement wherein he criticized the personnel of the Dallas division of the board, criticized the work and all the surrounding conditions, as well as his separation from the service. On August 24, 1920, the plaintiff was granted a hearing before the standing committee of the board. At this time he personally appeared and was heard in his own behalf, as well as with regard to the serious charges he had made against the officials in charge of the Dallas division. He was even allowed to supplement in writing the previous accusations made by him upon his arrival in Washington. The standing committee sustained the action of the director in Dallas in requesting the resignation of the plaintiff and decided to investigate the charges he had made, and the plaintiff was duly notified to this effect.

The plaintiff, following the receipt of this information, and apparently for the first time, asserted a claim to certain individual members of the board for a rehearing of his case, predicating his appeal upon the fact that he had not been legally separated from the service in accord with the civil service act of August 24, 1912, 37 Stat. 555, not having received a formal written notice containing charges against him and given opportunity to reply thereto. The committee declined a reconsideration of his case, and on October 5, 1920, the plaintiff, through a United States Senator and a Representative in Congress from Texas, appealed to the Civil Service Commission, which in turn advised the board that the plaintiff should have received charges in writing and been given an opportunity to reply; that the board had better reinstate him in the service and observe the terms of the law. The board did not observe the admonition but sedulously contended that the plaintiff had been legally separated from the service.

The plaintiff made a final effort to be reinstated in the War Department, and did succeed in securing a request for Iris employment and assignment to duty at Galveston, Tex. He reported there on January 1, 1921, and after two days of temporary employment returned to Washington, having eventually failed to receive reinstatement in the service de*153sired, since which time he has been practically without employment.

On October 17,1921, the plaintiff filed his petition herein, 1 year 2 months and 26 days after his separation from the service, setting up a cause of action predicated upon his alleged unlawful removal from office, and seeking the recovery of the salary of said office from the date of removal, and continuing judgments for monthly installments of the same until he is reinstated.

We have reviewed the facts somewhat *in extenso.*The determinate issue does not revolve around the emphasis put by the plaintiff on the fact that he did not resign, nor the erroneous assertion by the Federal board that his resignation was accepted. Manifestly the plaintiff did not resign, nor in the end was any final order of separation rested upon an assumption that he had resigned. Fie was. separated from the service by the director at Dallas because his services were no longer needed, the particular work which he was doing-having in a reorganization of the service been discontinued. The error as to his resignation obviously originated in a well-meant proposal upon the part of the Washington office to accept his resignation without prejudice in order to disclose a voluntary retirement from the service without prejudice to his securing employment in other branches of the Government service generally. The only pertinent inquiry which we might under any circumstances indulge is the failure of the officials to strictly obey the requirements of the civil service law heretofore cited. By the express terms of the statute written charges and an opportunity to reply are required. An officer removing a subordinate in the classified service is expressly enjoined to follow this procedure. It occurs to us, however, that such a requirement and the benefits of the statute, if the plaintiff chooses so to do, may be waived, and if he acts and conducts himself under the circumstances in such a way as to clearly imply an intent to do so, he may not complain as a last resort that the law in all its particulars has not been observed. The plaintiff in this case did not, in the first instance, invoke the statute in his behalf. On the contrary, he protested that he had not resigned, and wanted a hearing. This protest was heeded; *154his appeal for a bearing Avas granted, and be received even more than the civil service law mandatorily provides, for under its terms be is entitled to no more than an opportunity to reply to the written charges filed unless in the discretion of the officer he rIIoavs a hearing. In this case the plaintiff Avas fully informed of the reasons for his dismissal; he appealed to the highest officials for a hearing, that was granted, and he Avas given the fullest opportunity and the very widest latitude in Avhich to present his case. He did not challenge the right of removal before the general committee. Indeed, he tried his case there upon its merits. If, as here contended for (to which we do not commit ourselves), the intent of the civil service law is to protect the classified employee from summary removal without an opportunity to reply to the reasons therefor, and the émployee is satisfied to accept oral charges and reasons and reply thereto orally and in writing, may he then in desperation, and as a last resort, for the first time insist upon the letter of the law? We think-not.

The language of the court in *Shutte*v. Thompson, 15 Wall. 151, 159, in apropos:

> “A party may waive any provision, either of a contract or of a statute, intended for his benefit. If, therefore, it appears that the plaintiff in error did Avaive his rights under the act of Congress — if he did practically consent that the deposition should be taken and returned to the court as it was — and if by his waiver he has misled his antagonist — if he refrained from making objections known to him, at a time when they might have been removed, and until after the possibility of such removal had ceased, he ought not to be permitted to raise the objections at all. If he may, he is allowed to avail himself of what is. substantially a fraud.”

See also *Mullan*v. *United*States, 212 U. S. 516.

In the case of *(O'Neil*v. *United*States, 56 C. Cls. 89, we had occasion to decide the scope and effect of the provisions of the civil service law here involved. With respect thereto the court said:

> “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 *155heads 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, 37 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.”

> *****

> “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.”

The case seems to fall so completely within the rule laid down by the Supreme Court in the cases of *Nicholas*v. *United*States, 257 U. S. 71; *Norris*v. *United*States, Id. 77; and *Eberlein*v. *United*States, Id., 82, that further comment is unnecessary.

The plaintiff waited over thirteen months before filing his petition in this court, and the only reason he assigns for not seeking redress earlier in the courts is the fact that he experienced much uneasiness over the possibility of his reinstatement in the service and his immediate removal therefrom in accord with the civil service law, a proceeding previous adjudications as well as the letter of the Civil Service Commission to the Federal board duly warned him of.

The petition must be dismissed. It is so ordered.

GRAham, *Judge;*Hat, *Judge;*Downey, *Judge;*and Campbell, *Chief*Justice, concur.

On June 9, 1924, plaintiff’s motion for leave to file a motion for new trial was overruled, with the following

MEMORANDUM BY THE COURT

This case was before the court for a considerable time prior to January, 1924. On January 21, 1924, the petition was dismissed and an opinion filed. Subsequently the *156plaintiff filed a motion for a new trial, accompanied by án extensive and exhaustive brief and argument in support thereof. We again Avent over the record and considered the motion, and after several weeks of consideration overruled the same. The plaintiff now files a third motion for a new trial, an unusual proceeding. In this third motion the allegation is made that he has recently come into knowledge of important testimony, which, if before the court, he verily believes would change its opinion and sets forth in detail the facts he expects to establish if allowed to produce and examine the witnesses. The plaintiff, being his own attorney and not in all respects familiar with the practice of the court, causes us to consider his last motion, whereas, as a rule, we would summarily overrule, it. To that end we have gone carefully into the facts hei now alleges as material and convincing, and we are unable to perceive that even if admitted the result would be different from what it is. The evidence now offered would merely accentuate the acute differences between parties concerned, differences we fully considered on the trial of the case, and not affect the issue from a legal standpoint. The case itself, in our view of the situation, falls within the rule announced and repeated in *O'Neil*v. *United*States, 56 C. Cls. 89; *Mullan*v. *United*States, 212 U. S. 516; *Nicholas*v. *United States,*257 U. S. 71; *Norris*v. *United*States, Id. 77; *Eberlein*v. *United*States, Id. 82. The case in no respect differs from former adjudications on the same subject, and it would but prolong the controversy by allowing the motion.

The motion will be overruled. It is so ordered.