#### JOSEPH ROTHSCHILD v. THE UNITED STATES

[No. C-1323.

Decided May 24, 1926]

*On the Proofs*

*Customs pay; per diem employee; suspension from duty.*— Where a per diem employee of the customs service is suspended from duty by order of the Secretary of the Treasury and performs no service during the period of suspension, the Secretary is not authorized to revote the order after its expiration,' and the employee can not recover pay for the period he was suspended.

*The Reporter's*statement of the case:

*Mr. Gatrl E. 'Whitney*for the plaintiff.

*Mr. John G.*Ewing, with whom was *Mr. Assistant Attorney General Merman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. Plaintiff is a citizen of the United States and a resident of the State of New York and has at all times borne true faith and allegiance to the United States and has never *298voluntarily aided or abetted or given encouragement to rebellion against the Government.

II. Plaintiff was appointed an inspector of customs of the port of New York on August 10, 1900. On May 4, 1921, the compensation of plaintiff was at the rate of $5.50 per diem.

III. On April 27, 1921, the collector of customs at New York recommended plaintiff’s suspension from duty and pay for a period of 30 days in letter addressed to the Secretary of the Treasury as follows:

“ Under date of March 29 charges were preferred against Inspector Joseph Kothschild as follows:

“ That you received and accepted a gratuity amounting to $10 from James M. Shoemaker, a passenger arriving on the S. S. *Baltic*March 7, 1920, and that you called at his office or place of business to receive the same.

“ 2. That you did not make a proper inspection of the baggage of James M. Shoemaker, opening only one or two of his fourteen pieces.

“ He denies that he accepted any gratuity.

“ Since then statements have been received, through the special agents’ office, (a) that he received $1 from Mrs. Elizabeth Liebman, a passenger arriving on the S. S. *Im-perator*October 3- 1920; (b) that he accepted $1 from W. Thompson, a passenger arriving on the S. S. *Baltic*August 27; (c) that he received $2 from Miss Alice Seligsberg, a passenger arriving on the S. S. *Lapland*August 23.

“ On account of the fact that he has an exceptional record for honesty ■ and loyalty, I would have accepted without •question his reply were it not for the subsequent accumulation of evidence in the way of statements from widely separated passengers. However, in none of the communications received is there any intimation that gratuities were solicited by the inspector. I believe that the man has learned his lesson and I feel sure that he will not again offend.

“ I recommend that the penalty in the case of Inspector Joseph Rothschild be a suspension from duty and pay for a period of thirty (30) days.”

This recommendation was approved by the Assistant Secretary of the Treasury by letter dated April 30, 1921, as follows:

“ As recommended in your letter of the 27 instant, Joseph Rothschild, inspector, $5.50 per diem, at your port, thirty (30) days, to take effect upon receipt of this communication, *299for accepting gratuities from passengers whose baggage was examined by him.

“ You are instructed, however, to impress upon Mr. Eothschild that any repetition of the offenses enumerated in your letter of April 27,1921, will result in instant dismissal.

“ Please advise the department of the date upon which Inspector Eothschild is relieved from duty.”

Plaintiff’s suspension from duty and pay commenced May 4,1921, and ended 30 days thereafter, and during said period plaintiff performed no official duties.

IY. On May 7, 1921, plaintiff wrote a letter to the collector of customs in New York, as follows:

“I have your letter of the 4th inst., in which you state that I am suspended from duty and pay for a period of 30 days. I earnestly request you to review my case, in view of the fact that in your recommendation to the Secretary of the Treasury you admit *‘*he has had an exceptional record for honesty and loyalty and in none of the communications received from passengers is there any intimation that gratuities were solicited by the inspector.’

“ I beg to call your attention to the fact that in my entire service of 35 years there has never been a charge of any kind brought against me, either in my public service or private life. Should not these facts in your opinion have weight?

*“*I appeal to your sense of honor, justice, and magnanimity to clear me of these charges and nullify this penalty.”

Y. On February 2, 1922, Carl E. Whitney, plaintiff’s attorney, wrote a letter to the collector of customs at New York, requesting the revocation of the penalty.

YI. By letter dated September 9, 1922, the Secretary of the Treasury notified the collector of customs as follows:

“ Eeceipt is acknowledged of your letter of the 8th ultimo further in regard to your recommendation for the revocation of the suspension from duty and pay for a period of thirty days of Joseph Eothschild, inspector of customs, which was effective at the close of business May 4, 1921.

“You are hereby authorized to submit a voucher in favor of Mr. Eothschild covering the period of his suspension, which will be approved and forwarded to the General Accounting Office for direct settlement.”

VII. The voucher was approved for payment in the sum of $180.21, but the Comptroller General in decision dated September 5, 1923, refused to permit payment.

*300VIII. Plaintiff has never received any pay for the period of suspension.' If he is entitled to receive same, the amount thereof is $180.21.

The court decided that plaintiff was not entitled to recover.

Hat, Judge,

delivered the opinion of the court:

The plaintiff was appointed an inspector of customs of the port of New York on August 10, 1900. He was a per diem employee, and his rate of compensation on May 4, 1921, was $5.50 per diem. On April 27, 1921, the collector of customs at New York recommended that the plaintiff be suspended from duty and pay for a period of 30 days. This recommendation was made to the Secretary of the Treasury, and the reason given for the suspension was that the plaintiff had received a gratuity amounting to $10 from a passenger on March 7, 1920. The plaintiff denied the charge, but after his denial statements were made by three different passengers that they had given the plaintiff a gratuity. Instead of prosecuting the plaintiff under the provisions of the act of October 3, 1913, 38 Stat. 192, the collector suspended the plaintiff from duty and pay as aforesaid, which suspension was approved by the Secretary of the Treasury by letter dated April 30, 1921. The plaintiff’s suspension from duty and pay commenced on May 4, 1921, and ended 30 days thereafter, during which period the plaintiff performed no duty, and rendered no service to the Government. Thereafter the collector of customs of New York recommended the revocation of the suspension from duty and pay for the period of 30 days, and the Secretary of the Treasury on September 9, 1922, acknowledged the receipt of the letter making such recommendation, and stated in his letter “you are hereby authorized to submit a voucher in favor of Mr. Rothschild covering the period of his suspension, which will be approved and forwarded to the General Accounting Office for direct settlement.”

The voucher was approved for payment in the sum of $180.21, but was denied payment by the Comptroller General. The plaintiff is now suing here to recover the said sum of $180.21.

*301It is a fact that during the 30 days for which period the plaintiff was suspended from pay he performed no service for the Government. He was, moreover, a per diem employee, and had no contractual relation with the Government beyond his employment from day to day. He was suspended for cause, and it was within the power of the Secretary of the Treasury to suspend him from duty and pay. Having exercised his authority to suspend, the period of suspension having expired, it is not within the power of the Secretary of the Treasury more than a year after the period of suspension had expired to revoke the suspension for the purpose of paying the plaintiff the money he lost by reason of said suspension. The plaintiff during the period of his suspension, which was a penalty legally imposed upon him, performed no service for the Government, and we fail to see why he should now be paid for a period of time when he was not doing any work for the Government.

Whatever effect the revocation of the Secretary may have had upon the personal and official record of plaintiff it can not operate to restore him to the pay roll for the period while he was suspended.

The petition of the plaintiff must be dismissed. It is so ordered.

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