Opinion of the Court 145 C. Cls. mended the discharge of the plaintiff to require us to say that the plaintiff was deprived of a substantial and important right when the Internal Revenue Service failed to follow the procedures prescribed by its own regulations. The Government says that Memorandum No. 19-3 was not complied with because it was not applicable; that a wholly different Memorandum No. 18-7 was applicable, and was complied with. Memorandum No. 19-3 is, as we have seen, titled "Adverse Actions". Its section 3 defines its "scope" as applying to all personnel throughout the region except in three designated situations. The only conceivably pertinent one of the three named exceptions is described as Actions against employees under the provisions of Executive Order 10450, dated April 27, 1953, relative to security. (See RC-PHI-Memorandum No. 18-7 Revised, dated May 3, 1955, covering this subject.) We do not think that the charges against the plaintiff had anything to do with "security" as that word is used in this memorandum. Executive Order 10450 related to the security of the country against subversion and sabotage, not to its efficiency in collecting income taxes. But, says the Government, Memorandum No. 18-7, although it is entitled "Personnel Security Procedures" and although its section 1, entitled "Purpose", says: This memorandum supplements certain of the provisions of Section (10)300 of the Internal Revenue Manual regarding Personnel Security Procedures. nevertheless contains section 5, entitled "Suitability Decisions", and the plaintiff was discharged for suitability reasons. We think that section 5, being a section in a memorandum devoted to security, takes color from its surroundings, and has to do with suitability from the standpoint of security. Examples, we suppose, would be persons of undoubted loyalty and ability who might nevertheless be "unsuitable" because of a tendency to get drunk and talk too freely, or who, because of a vice, or of having near relatives in an unfriendly country, might be the subjects of blackmail. Finally, the Government says that even if Memorandum 18-7 is not very obviously applicable to the instant situation, 25 Syllabus it is the one that was applied, and since the Government was the author of it, it is the one entitled to interpret it. This is not, of course, tolerable doctrine with regard to official Government regulations unless they are mere housekeeping directions, of no concern except to the Government. The defendant's motion for summary judgment is denied. The plaintiff's similar motion is granted, and judgment will be entered for the plaintiff. The amount of recovery will be determined pursuant to Rule 38 (c). It is so ordered. LARAMORE, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur. In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on September 25, 1959, that judgment for the plaintiff be entered for $4,597.58. CORNELIUS KOOY AND LOUIS J. GIOFFRE v. THE UNITED STATES [No. 299-56. Decided February 11, 1959] ON DEFENDANT'S AND PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT Civilian pay; dismissal; reinstatement; right to administrative payment of salary lost.—In an action by two nonveteran civilian employees of the Government for back pay allegedly due them for a period of wrongful removal from their Government positions to which they were reinstated, it is held that under the 1948 amendment to the Lloyd-La Follette Act (62 Stat. 354), back pay upon reinstatement is due only where the removal has been found to be unjustified or unwarranted, and where, as under the facts in this case, the decision to restore plaintiffs to their positions was based on the ground that although removal was justified and warranted, a less drastic punishment was in order in view of plaintiffs' long and unblemished Government service, plaintiffs did not qualify under the 1948 Act for administrative payment of back pay and, accordingly, have not established a claim in this court for such pay. It is further held that because they did not appeal to the Civil 145 C. Cls. Opinion by Judge Laramore Service Commission within 10 days from the administrative determination that their reinstatements should be without back pay, their recovery is barred by their failure to exhaust their administrative remedies provided by the employing agency. United States 39(8) Civilian pay; dismissal; reinstatement; right to administrative payment of salary lost.-Where a Government employee is dismissed and later reinstated on the ground that his dismissal was unjustified and unwarranted, he is entitled to the administrative payment of back pay lost under section 6(b)(1) of the 1948 amendment to the Lloyd-La Follette Act (62 Stat. 354). But where his reinstatement is not on the ground that his dismissal was unjustified and unwarranted but rather because the employee's long unblemished Government service prior to his proper removal justified his reinstatement, he is not entitled to the administrative payment of the lost pay under the 1948 amendment to the Lloyd-La Follette Act. United States 39 (8) Civilian pay; dismissal; administrative remedies-failure to exhaust. Where a departmental appeal or some other administrative remedy is provided, failure to pursue such appeal or remedy will usually serve as a bar to recovery in a suit brought in the Court of Claims. Adler, et al. v. United States, 134 C. Cls. 200, cert. denied 352 U.S. 894; Majesic v. United States, 137 C. Cls. 188, cert. denied 355 U.S. 826. Courts 460 Mr. Carl L. Shipley for the plaintiffs. Mr. Thomas J. Lydon, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant. LARAMORE, Judge, delivered the following opinion: Plaintiffs, non-veteran civilian employees of the New York Port of Embarkation, Department of the Army, sue for back pay alleged to be due them for the reason that in violation of the Lloyd-La Follette Act of 1912, 37 Stat. 539, 555, as amended 62 Stat. 355, 5 U.S.C. § 652 (b) (1), they were removed from their classified Civil Service positions and were subsequently restored to these positions. The back pay alleged to be due them is from the date of their removal to the date of their restoration. Both plaintiffs and defendant have filed motions for summary judgment. 31 Opinion by Judge Laramore The facts as alleged and as shown by the exhibits filed are as follows: Prior to September 17, 1953, plaintiffs were employed as aforesaid, plaintiff Gioffre as a Civil Engineer, GS-12, and plaintiff Kooy as a Civil Engineer, GS-9. On August 17, 1953, both plaintiffs were notified in writing of an intention to remove them from duty and pay on approximately September 18, 1953, for failure to properly protect the Government interests in certain contract matters. The notices set forth the charges upon which the proposed removals were based and advised plaintiffs of their right to reply in writing. Plaintiffs did reply, and on September 2, 1953, plaintiffs were notified that, based on the facts and their replies to the charges, it was the opinion of the personnel officer that their removals were warranted. On the same day plaintiffs received formal notice of removal for cause. Thereafter plaintiffs appealed to a Special Grievance Committee, which committee on May 21, 1954, issued its report regarding the removal action taken against plaintiffs. The majority of the Committee (two) recommended that plaintiffs be restored to their jobs with forfeiture of one month's pay. The minority member recommended restoration, but forfeiture of all pay during the period of their removal. The recommendation of the Grievance Committee was disapproved by the Commanding General of the New York Port of Embarkation on May 28, 1954. Plaintiffs were informed of the above action in writing on June 2, 1954, and were further informed of their right to appeal from that decision within 10 days to the Chief of Transportation, Washington, D.C. On plaintiffs' request, the Commanding General reconsidered and rescinded his May 28, 1954 decision, stating as follows: 1. The action dated 28 May 1954 has been reconsidered and the same is hereby rescinded. 2. The evidence in this case, as stated in the findings of the Special Grievance Committee, establishes derelictions of duty on the part of both persons concerned. The preponderance of the evidence justifies the removal action taken against both appellants. 574580-61 -4 Opinion by Judge Laramore 145 C. Cls. 3. It appears that the appellant Cornelius Kooy has been employed by the Government for twenty-seven (27) years and the appellant Louis J. Gioffre has been similarly employed for thirteen (13) years. Their unblemished records of long Government service prior to the actions which resulted in their removal are considered sufficient justification for action other than removal. 4. The recommendation of the majority of the Special Grievance Committee is disapproved. 5. The recommendation of the minority of the Special Grievance Committee is approved. On the same day the Commanding General informed plaintiffs' attorney of his decision in the following manner: Pursuant to the request contained in your letter addressed to me, dated 14 June 1954, I have given further consideration to the matter of the charges against your clients Louis J. Gioffre and Cornelius Kooy. After having again reviewed the record of the hearing held by the Special Grievance Committee which heard the appeals of the complainants, and after considering the matters set forth in your letter, though I am still of the opinion that the charges against the complainants were sustained by the evidence, I have modified my original action sustaining their removal to the extent of restoring them to duty in positions of the same seniority status and pay to that which they occupied prior to their removal, the intervening period from their removal to their restoration, however, to be regarded as a non-pay status. In view of the unblemished records of the complainants in Government service for, in the case of Mr. Kooy, twenty-seven (27) years and in the case of Mr. Gioffre thirteen (13) years, I regard my modified action set forth above as appropriate and just punishment for their failure to properly protect the interests of the Government in contract matters. If the complainants are not satisfied with my decision. as now modified you may submit to the Commanding General, Attention: Chief, Civilian Personnel Division, New York Port of Embarkation, a request for review by the Chief of Transportation, Washington, D.C. Such request should be made within ten (10) days of receipt of this letter. Pursuant to the reconsideration, plaintiff Gioffre was restored to duty effective June 30, 1954, and plaintiff Kooy |