#### JAMES L. WILMETH v. THE UNITED STATES

[No. H-46.

Decided January 9, 1928]

*On the Proofs*

*Director of Bureau of Engraving and Printing; appointment under sec. 8577, R. B.; removal 6y President.*— Under 'the Constitution the President has the power to remove from office inferior officers appointed by the heads of departments, in the absence of a limitation by Congress, and the Director of the Bureau of Engraving and Printing, appointed by the Secretary of the [Treasury under section 3577, Revised Statutes, and removed by Executive order of March 31, 1922, without regard to the provisions of the act of August 24, 1912, for procedure in the case of civil-service employees, is not entitled to the salary of his office after such removal.

*369
      *The Reporter's,*statement- of the case:

*Mr. George M. Wilmeth*for the plaintiff.

*Mr. W. F. Norris,*with whom was *Mr. Assistant Attorney General Herrrum J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff is a citizen of the United States, and has at all times borne true allegiance to the Government of the United States and has' not in any way aided, abetted, or given encouragement to rebellion against the said Government.

II. Plaintiff was appointed to a position in the classified civil service of the United States on February 25, 1895, as a result of having qualified in a competitive civil-service examination, and the following is a true statement of his record in said civil service according to the records of the United States Civil Service Commission:

Appointed February 25, 1895, in the office of the Sixth Auditor, Treasury Department, clerk, $120 per annum, having qualified in clerk-copyist examination; June 1, 1895, promoted to $840; January 20, 1896, $1,000; December 26, 1896, $1,200; July 1, 1901, $1,400; July 1, 1903, $1,600; October 1, 1905, $1,800; November 7, 1906, $2,000, as expert accountant in the Office of the Comptroller of Treasury; November 4, 1907, clerk, $1,800; May 29, 1908, expert accountant, $2,000; February 10, 1909, clerk, $1,800; July 1, 1910, laiv clerk, $2,000, on appropriate noncompetitive examination; October 1, 1910, transferred to Secretary’s office as chief clerk, $3,000; July 1, 1911, $4,000; December 10, 1917, transferred to’ Bureau of-Engraving and Printing as director, $6,000; March 31, 1922, discontinued by Executive order dated March 31, 1922.

III. On March 31,1922, the President issued an Executive order (No. 3657) reading as follows:

*370EXECUTIVE ORDER

JEiemoving certain officers of the Bureau of Engraving and Printing, filling vacancies by appointment, and abolishing certain offices and creating other offices in lieu thereof, for the reorganization of the bureau

On and after this date the Director of the Bureau of Engraving and Printing, James L. Wilmeth, and the assistant director, James M. Fisher, are removed. Louis A. Hill is hereby appointed to be director, and John P. Perry is to be assistant director. This action is taken for the good of the service.

The following-named offices in the Bureau of Engraving ■and Printing are hereby abolished, and the present incumbents of these offices are dismissed for the good of the service (exception is made of those who are eligible for. retirement for age. Such persons shall be placed on the retired list, as -of this date), viz:

All offices of chief of division.

All offices of assistant chief of division.

The office of custodian of dies, rolls, and plates.

The office of chief clerk.

The office of experimental engineer.

The office of mechanical expert and designer.

The office of superintendent of work.

The office of superintendent of picture engravers.

The office of superintendent of transferors.

The office of superintendent of photo-litho. section.

The office of superintendent of electrolytic section.

The office of foreman of building and cleaners.

The office of foreman of garage.

The office of foreman of plate cleaners.

The office of storekeeper.

In lieu of the above offices the following offices are hereby • established: All offices heretofore known as chief of division •and assistant chief of division shall hereafter be designated superintendent of division and assistant superintendent of division, respectively; the office heretofore known as custodian of dies, rolls, and plates shall be designated superintendent of plate vault; the office heretofore known as chief clerk shall be designated chief accountant; the office heretofore known as foreman of building and cleaners shall be designated superintendent of the building; the office heretofore known as foreman of building and cleaners shall be assistant superintendent of building; the office heretofore known as foreman of plate cleaners shall be designated -technical foreman of plate cleaners; and the office heretofore *371known as storekeeper shall be designated custodian of supplies.

All vacancies created by the above-described plan of reorganization shall be filled by the director of the bureau.

WaeRBN G. HakdiNG.

The White House,

*March 31, 19M.*

IV. Plaintiff was appointed to the office or position of Director of the Bureau of Engraving and Printing on December 10, 1917, by the Secretary of the Treasury, and at the time of the issuance of the aforesaid Executive order he was an employee of the classified civil service of the United States.

"V. Plaintiff was not given notice in writing of the reasons for his purported removal from his office, or of any charges preferred against him, nor furnished with a copy thereof; nor was he allowed a reasonable time for answering any charges that may have been preferred against him.

VI. From the date of the issuance of the aforesaid Executive order plaintiff was denied or deprived of his office or position as Director of the Bureau of Engraving and Printing, and was denied the pay of sa,id office or position. He made all reasonable efforts to have said office or position restored to him, and at all times stood ready, willing, and able to perform the duties of said office or position.

VII. On December 24, 1923, the President issued Executive Order No. 3940 which provided:

EXECUTIVE ORDER

The following-named persons who were separated from the Bureau of Engraving and Printing, are eligible to enter any part of the classified service in appropriate positions for a period of five years from March 31, 1922, on certificate of the Civil Service Commission:

James L. Wilmeth,

James E. Chamberlin.

CALVIN Coolidge.

The White House,

*Deceriber*21¡., *1923.*

And on or about December 20, 1923, the Secretary of the Treasury tentatively and conditionally offered to restore *372plaintiff to said office or position as Director of the Bureau of Engraving and Printing which offer was declined by plaintiff.

VIII. Plaintiff endeavored through congressional action to recover compensation for the period April 1, 1922, to December 20, 1923, and bills authorizing payment thereof were passed by the Senate in the 68th and 69th Congresses. If plaintiff is entitled to the salary attaching to the office or position of Director of the Bureau of Engraving and Printing during said period, he is entitled to judgment for $10,333.33.

The court decided that plaintiff was not entitled to recover.

Moss, *Judge,*

delivered the opinion of the court:

On December 10, 1917, plaintiff, James' L. Wilmeth, who was at that time, and had been for many years prior thereto, an employee in the classified civil service of the United States, was appointed by the Secretary of the Treasury to the office of Director of the Bureau of Engraving and Printing at a salary of $6,000 per annum. Plaintiff served in that capacity until March 31, 1922, at which time he was summarily removed from office by Executive order of the President of the United States. On or about December 20, 1923, the Secretary of the Treasury, on certain conditions, which were not satisfactory to plaintiff, offered to restore plaintiff to the office from which he had been removed, which offer was declined. On December 24, 1923, the President issued an Executive order restoring to plaintiff his civil-service status for a period of five years. This action was instituted for the recovery of salary for the period between April 1, 1922, and December 20, 1923. If entitled to such salary, plaintiff should recover $10,333.33.

It is plaintiff’s contention that as a civil-service employee he could not be removed from his office except upon compliance with the act of Congress of August 24, 1912 (37 Stat. 555), which provides that no person in the classified civil service shall be removed therefrom except for cause and for reasons given in writing; that the person whose removal is sought shall have notice of same and of the charges which *373may be preferred against him, and be furnished with a copy thereof, and be allowed a reasonable time for personally answering same in writing. It is also provided that copies of .the charges, notice of the hearing, reasons for the removal, answer, and order, of removal shall be made a part of the records of the proper department or office. Plaintiff further contends that the President was without authority to dismiss an official of the Treasury Department appointed by the Secretary of the Treasury.

The question raised by the first condition was directly settled in the case of *Thomas H. O'Neil*v. *United States.*(56 C. Cls. 89.) O’Neil was a customs service employee in the classified civil service. On February 11, 1907, he was removed from the position which he held, by order of the Secretary of the Treasury. At the time of plaintiff’s removal there was in effect a civil-service rule which provided that — •

*“*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.”

By the act of August 24, 1912, hereinabove mentioned, Congress adopted the essential principles embodied in the foregoing rule. O’Neil was later reinstated in the customs service by an Executive order, and he brought his action in the Court of Claims for his salary covering the period from the time of his dismissal until the date of his reinstatement. The court held that the failure of the Secretary of the Treasury to comply with the rule requiring the statement of the cause of removal in writing and .the filing of the same could have no bearing upon the legality of the removal; and the court further declared that *“*his only remedy is to proceed •without delay in a court of competent jurisdiction to try his right ,to the office.” The court cited with approval *Arant*v. *United States*(55 C. Cls. 327) and *Nicholas*v. *United States*(55 C. Cls. 188).

*374Congress was granted the power to vest the appointment to inferior offices, which classification includes the office of Director of the Bureau of Engraving and Printing, in heads of departments, under Article II, section 2, <of the Constitution, which provides as follows: “ * * * but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” Pursuant to this grant of authority Congress; has vested the appointment of Director of the Bureau of Engraving and Printing in ¡the Secretary of the Treasury, by section 3577 of the Revised Statutes, which reads as follows: “ The Secretary of the Treasury may cause notes to be engraved, printed, and executed at the De-joartment of the Treasury in Washington, and under his direction, if he deems .it inexpedient to procure them to be engraved and printed by contract; and he may purchase and provide all the machinery and materials, and employ such persons *and appoint such officers as are necessary for this purpose?''*

The authority of Congress to vest the appointment of inferior officers in the heads of departments carries with it the incidental authority to invest such heads of departments with power of removal. However, this incidental authority is not exclusive of the power of the President as the chief executive officer of the Government to remove officers of executive departments. The President has the power to remove such officers, unless his authority to do so has been limited or taken away by act of Congress.

The Supreme Court of the United States in the case of Myers, administratrix, *etc.,*v. *United*States, 272 U. S. 52, decided October 25, 1926, said: “Assuming then the power of Congress to regulate removals as incidental to the exercise of its constitutional power to vest appointments of inferior officers in the heads of departments, certainly so long as Congress does not exercise that power, the power of removal must remain where the Constitution places it, with the President, as part of the executive power.”

Congress having imposed no restriction or limitation on the power of the President to remove officers in the classification which included plaintiff, the court must hold under *375the authority of the *Myers*ease, sufra, that the President, had the power to remove plaintiff from office.

. It is adjudged and ordered that plaintiff’s petition herein be and the same is dismissed.

Graham, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justiae, concur.