Chambers v. United States

If the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative; since the court cannot be controlled by agreement of counsel on a subsidiary question of law. If the stipulation is to be treated as an attempt to agree "for the purpose only of reviewing the judgment" below, that what are the facts, a moot or fictitious case is presented. "The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. * * * No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard." [Id.at 289,37 S.Ct. at 289(footnote omitted).]

1. The district manager denied employment to her in March 1967, because of an inaccurate and demeaning reference report which was submitted by the BARH.

2. The district manager erred in assigning weight to the reference report. (Complaint is sure the report came from Charles D. Holland, who, being anti-Negro, discriminated against her during her employment at the BARH.

3. Immediately prior to receipt of the reference report from the BARH, the district manager gave her direct indications that he would recommend her for employment ifPage 1059the BARH reference report proved good — proof positive that, but for the report, she would have been employed by SSA.

The complainant believes that the sum of these elements amounts to racial discrimination against her by the SSA and/or district manager. However, she concedes that SSA and/or the district manager may not have discriminated against her directly, citing her firm belief that SSA and/or the district manager would have hired her in October 1965 had she not taken employment at the BARH.¹

A. But for the reference report submitted by the BARH [management employees, complainant would have been recommended for employment by the district manager.However,neither the accuracy, of the report not [sic] the validity of its demeaning content has been determined.

B. The district manager assigned substantial — and crucial — weight to the BARH reference report.However,in doing so, he did not err under existing, applicable policies and regulations.

C. Immediately prior to receipt of the BARH reference report, the district manager gave the complainant direct or indirect indication that he would recommend her for employment if the BARH reference report proved good.However,his doing so was more an acknowledgment, on his part, of the complainat's awareness of her status vis-a-vis possible employment than a firm commitment to a definite course of action with respect to her application for employment.

D. Notwithstanding the basic findings outlined in A-C above, the complainant, in seeking employment, wasnotdiscriminated against, because of race, by the Social Security Administration and/or the district manager.³

We recommend she be advised there was no discrimination based on race, color, religion or national origin. In her letter of June 27, 1967, she points out that we employed her cousin to fill the vacancy for which she was considered. Obviously, the selection was made between two minority applicantsPage 1060— one with no prior service whose references were good, and one with prior service whose last employer in Beckley would not reemploy her. Also, the manager had some other reservations about Miss Bennett's attitude from several contacts with her that he considered of minor importance until the former employer questioned her ability to get along with coworkers. We did not investigation the situation at the Beckley Appalachian Regional Hospital leading to the poor reference, since this would not appear to be under our jurisdiction at the present time, even though the hospital is certified under Medicare. The manager has enjoyed a good working relationship with that hospital, and certainly would not have questioned the integrity of their reference regarding Madrith Bennett.

Q Miss Bennett, as I take it, a central part of your charge is that, in acting on references received from the hospital, Mr. Billings and the Social Security office acted in a racially discriminatory way by not looking behind or into the events that led to the reference from the hospital. Is that correct?

Q I believe it is your position that, if the reference had been satisfactory, you would have been hired.

Q So, that, without leading, aside from this point — the references, you would not make a charge of discrimination on the part of Mr. Billings or the Social Security office; that is, they were prepared to hire you.

A Well, as I earlier stated, this discrimination existed at the Beckley Appalachian Regional Hospital and it was transmitted by a reference check to Mr. Billings; it was just transferred from one institution to the other. Do you understand what I am saying?

A * * * So, actually, it was racial tension and it was, in turn, transmitted to the Social Security Office. Whether Mr. Billings was aware of it, I have no knowledge of this, or what added to it in these regards.

MR. JANUS [Hearing Officer]: Let me ask you this. Do you have any reason to believe that Mr. Billings did not want to hire you and used this as a convenient excuse not to hire you? Do you feel that he is prejudiced?

MISS BENNETT: I can't very well say that. I've been in Mr. Billings' office, as he well knows, time and time again and he was always pleasant and he was always willing to take his time out to sit and talk to me and what have you and he told me to feel free to come in his office at any time that I wished to check and see if there was any vacancies and I truthfully couldn't say that Mr. Billings is prejudiced. I couldn't say this. It's just a matter that he got hung up through an unfavorable reference where racial tension was involved. That's the only thing I could say at this point.

* * * Would you have hired me on the basis of one unfavorable reference?Page 1061Would you have hired me or would you not have hired me? It is a matter of opinion, really. I can't say that he's not prejudiced; I really can't. But, as far as greeting me and going in his office, he made me feel at home and this type of thing. He talked to me and everything but, when it came to hiring me, this was a different capacity altogether. I mean, he just took a different attitude based on that reference.

2) Mr. Billings, the Manager of the Beckley Social Security Office, was considering hiring Miss Bennett, and told her so. He decided not to after getting what he considered an unfavorable reference from her most recent employer. It appears to me to be a reasonable inference that his eventual decision not to hire her was not motivated by any racial prejudice on his part.

3) Mr. Billings said that it is his normal procedure to check references of all prospective employees. I can see no evidence that Miss Bennett was being unfairly treated by having her references checked before employment.

4) Miss Bennett did not charge, nor is there any indication, that Mr. Billings went out of his way or did anything unusual in asking for a reference from the Beckley Appalachian Regional Hospital, since it was Miss Bennett's most recent employer.

5) It is Mr. Billings' contention that one unfavorable reference is enough, in his mind, to decide not to hire a person, and he cited a previous occasion in which this had occurred and resulted in not hiring a white person. In the hearing I asked Miss Bennett whether she had any information of any contradictory action on the part of Mr. Billings, i. e., an instance in which he hired a white person even though he had an unfavorable reference, and she said she did not.

6) The issue, as I stated in the hearing, is not whether Mr. Billings was wise or unwise in ruling out an applicant on the basis of one negative reference. The issue is whether Mr. Billings did what he did because of Miss Bennett's race.

It is my conclusion, based on the testimony at the hearing, that there is no evidence of racially discriminatory behavior or action on the part of the Beckley Social Security Office.

DIRECT EXAMINATION OF MR. BILLINGS BY MR. SNYDER:

Q. Mr. Billings, have you any objection to the hiring of a qualified Negro to work in your office?

Q Have you in the past hired qualified negroes to work in your office?

Q Let me ask you this. If Miss Bennett had been white and you had gone to this depth that you did and received the same information that you did, would you or would you not have hired her?

A I would not have. I can think of a similar illustration where I was right down to the last notch of an individual and it didn't look right to me. I talked with the employer and he gave me all sorts of fine reports and so on and I said, "This doesn't look right. Can I talk with someone else?" And he said, "Well, I'll make an appointment for you to talk with a certain man," and he said, "She's a trouble maker." She was a white girl, I had confidence in recommending her, but she had worked with him.

Q In other words, Miss Bennett's race had nothing to do with this consideration.

Even devoid of racial implications, it would appear unduly arbitrary to give such weight to one unfavorable recommendation, and nullify the preponderance of positive recommendations from other reputable sources as to her character and work.

We need not indulge citation of authorities to sustain a proposition that no right to recover the salary of an office prevails until the office is created, the salary fixed,appointment proved, andduties are performed.* * * [Emphasis supplied.] [Id.,65 Ct.Cl. at 95-96.]

* * * The allegations of plaintiff's petition do not state a cause of action. [Id.,115 Ct.Cl. at 46.]

* * * A Government employee with reemploymentpriority rightsis merely a "former" Government employeePage 1066who has certain preference or priority rights which he may assertwhen a position becomes vacant forwhich he qualifies.* * *

* * * Because of her reemploymentpriorityrights, plaintiff merely had a right to priority in securing a job in the Housing Administration. * * * [W]e knowof no authority on which might be based a decisionthat she is entitled to be paid for a job to whichshe was not appointed and from which she was not, ofnecessity, removed.[Emphasis supplied.]

Plaintiff's motion for summary judgment is overruled and her petition is dismissed. Defendant's motion for summary judgment is granted. [Id.157 F. Supp. at 168, 138 Ct.Cl. at 842.]

[93] 2.The Plaintiff Had No Constitutional, Inherent or VestedRight to a Government Job, and the Denial Thereof Did notGive Her a Cause of Action Against the United States.

* * * The petitioner may have a constitutional right to talk politics,but he has no constitutional rightto be a policemen.[Id.29 N.E. at 517.] [Emphasis supplied.]

* * * Plaintiff, however, has no right to public employment. * * * [Id.at 828.]

Thus the Constitution protects the right of free speech but it does not guarantee plaintiff employment with the City of Minneapolis. * * *

* * * The First Amendment guarantees free speech and assembly, but it does not guarantee Government employ. * * * [Id.182 F.2d at 59.]

* * *But there is no basic right to Governmentemploy,any more than there is to employment by any other particular employer. * * * [Emphasis supplied.] [Id.182 F.2d at 60.]

* * *Government employ,with which we are here dealing,is not a right.* * * What is denied her [the plaintiff] is Government employ. The argument * * * therefore, must me that Miss Bailey has a right to Government employ unless her presence there would constitute a clear and present danger.There simplyis no such right.* * * [Emphasis supplied.] [Id.182 F.2d at 61.]

* * * [T]he 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.

* * * An officer of the United States can only be appointed by the president, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution. This subject was considered and determined in United States v. Germaine,99 U.S. 508, and in the recent case of United States v. Mouat, [124 U.S.] 303, [88 S.Ct. 505]. What we have here said is but a repetition of what was there authoritatively declared. [Id.at 532,8 S.Ct. at 597]

* * * Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States.

We do not see any reason to review this well established definition of what it is that constitutes such an officer. [Id.at 307,8 S.Ct. at 506]

* * * The United States Supreme Court and inferior Federal Courts have frequently been called upon to decide who are "officers of the United States." The test used in the great majority of the cases is: Was the employee appointed by the "head of a department"? United States v. Germaine, 1878,99 U.S. 508,25 L.Ed. 482; United States v. Mouat, 1888,124 U.S. 303,8 S.Ct. 505,31 L.Ed. 463; Burnap v. United States, 1920,252 U.S. 512,40 S.Ct. 374,64 L.Ed. 692; Scully v. United States, C.C., 193 F. 185; Morrison v. United States, D.C.,40 F.2d 286; Hoeppel v. United States,66 App.D.C. 71,85 F.2d 237; Brooks v. United States, D.C.,33 F. Supp. 68.

An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties.

A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent of the other.[†]

[†] United States v. Maurice [Fed.Cas. No. 15,747], 2 Brockenbrough [96] 103; Jackson v. Healy, 20 Johnson [N.Y.] 493 [495]; Vaughn v. English,8 California, 39; Sanford v. Boyd [Fed.Cas. No. 12,311], 2 Cranch's Circuit Court, 78; Ex parte Smith [Fed.Cas. No. 12,967], Id. 693. [Id.at 393.]

In connection with this section of the Constitution the Supreme Court of the United States in the case of United States v. Hartwell, 1867, 6 Wall. 385,73 U.S. 385,18 L.Ed. 830, construed the term office to mean a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure duration, emolument and duties. The court in this case, further held that the defendant, Hartwell, having been appointed by the head of his department within the meaning of the applicable constitutional provision upon the subject of the appointing power (Section 2, Article 2, Constitution) was an officer of the United States. See, also, United States v. Germaine, 1878,99 U.S. 508,25 L.Ed. 482; also Hall v. Wisconsin, 1880,103 U.S. 5,26 L.Ed. 302; also, Auffmordt v. Hedden, 1890,137 U.S. 310,11 S.Ct. 103,34 L.Ed. 674; Fairchild v. United States, C.C.N.J., 1899, 91 F. 297; also United States v. McCrory, 5 Cir., 1899,91 F. 295, citing with approval the Hartwell and Germane cases, supra.

The primary question in this case, one which underlies the first, second and third of appellant's propositions stated above, is, whether an officer appointed for a definite time or during good behavior had any vested interest or contract right in his office of which Congress could not deprive him? The question is not novel. There seems to be but little difficulty in deciding that there was no such interest or right. * * * [Id.at 104,10 S.Ct. at 432.]

* * * We have already shown, that the appointment to and the tenure of an office created for the public use, and the regulation of the salary affixed to such an office, do not fall within the meaning of the section of the Constitution relied on by the plaintiffs in error; do not come within the import of the termcontracts,or, in other words, the vested, private personal rights thereby intended to be protected. * * * [Id.at 105,10 S.Ct. at 433.]

* * * Whatever the form of the statute, the officer under it does not hold by contract. He enjoys a privilege revocable by the sovereignty at will; and one legislature cannot deprive its successor of the power of revocation. Butler v. Pennsylvania,supra[10 How. 402,13 L.Ed. 472]; Stone v. Mississippi,supra[101 U.S. 814,25 L.Ed. 1079]; Cooley's Const. Lim. 283; United States v. McDonald,128 U.S. 471,473, [9 S.Ct.Rep. 117]. [Id.at 108,10 S.Ct. at 434.]

The view that public office is not property has been generally entertained in this country.

In Crenshaw v. United States,134 U.S. 99,104[10 S.Ct. 431,432,33 L.Ed. 825,827], Mr. Justice Lamar stated the primary question in the case to be: "Whether an officer appointed for a definite time or during good behavior had any vested interest or contract right in his office of which Congress could not deprive him." And he said, speaking for the court: "The question is not novel. There seems to be but little difficulty in deciding that there was no such interest or right." Butler v. Pennsylvania,supra; Newton v. Commissioners,100 U.S. 548[25 L.Ed. 710]; Blake v. United States,103 U.S. 227Page 1069[26 L.Ed. 462]; and many other cases.

The decisions are numerous to the effect that public offices are mere agencies or trusts, and not property as such. Nor are the salary and emoluments property, secured by contract, but compensation for services actually rendered. * * * In short, generally speaking, the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right. [Id.at 576-577,20 S.Ct. at 900.]

* * * If, * * * plaintiff's reliance is on some theory of contract law, his position would not be improved since it is plain that public employment does not, in a situation such as is here involved, give rise to a contractual relationship in the conventional sense. Borak v. United States,78 F. Supp. 123, 110 Ct.Cl. 236, cert. denied,335 U.S. 821,69 S.Ct. 43,93 L.Ed. 375(1948). Cf. Lawrenson v. United States,153 F. Supp. 790, 139 Ct.Cl. 370 (1957) * * *.

* * * If her status was merely that of anapplicantfor appointment,as we think it was, her nonappointment involved no procedural constitutional rights. Obviously, anapplicant for officehas no constitutional right to a hearing or a specification of the reasons why he is not appointed. * * * [Emphasis supplied.] [Id.182 F.2d at 55.]

* * * The due process clause provides: "No person shall * * * be deprived of life, liberty, or property, without due process of law; * * *." It has been held repeatedly and consistently that Government employ is not "property" and that in this particular it is not a contract. We are unable to perceive how it could be held to be "liberty". Certainly it is not "life". So much that is clear would seem to dispose of the point. In terms the due process clause does not apply to the holding of a Government office. [Id.182 F.2d at 57.]

On the issue of whether plaintiff was deprived of due process of law, the Court of Appeals for the District of Columbia in Bailey v. Richardson, supra, 182 F.2d at page 57 had this to say:

"It has been held repeatedly and consistently that Government employ is not `property' * * * the due process clause does not apply to the holding of a Government office." [Id.at 828.]

He was not working under a contract with a fixed time limit on the holding of the office. He held a public office with tenure, duties, and compensation established by law.The salary was an incident ofthe office and as this Court has repeatedly held, ispayable not to those who do the work but to those whohold the office.Jacobs v. United States, 41 Ct.Cl. 452; Whiting v. United States,Page 107035 Ct.Cl. 291, 301; Miller v. United States, 86 Ct.Cl. 609; Coleman v. United States, 100 Ct.Cl. 41. [Emphasis supplied.] [Id.78 F. Supp. at 125, 110 Ct.Cl. at 247.]

* * * This court has also said, "salaries fixed by Congress are the salaries payable to those who hold the office and not to those who perform the duties of the office." Coleman v. United States, 100 Ct.Cl. 41, reaffirmed, Dvorkin v. United States, 101 Ct.Cl. 296.

This is not an action for damages but an action by the holder of the office for the salary attaching thereto. * * * [Id.78 F. Supp. at 124, 110 Ct.Cl. at 246.]

It is a well-settled principle of law that federal government employees are entitled only to the salaries of the position to which they are appointed regardless of the duties they actually perform. That rule of law was reaffirmed in the case of Coleman v. United States, 100 Ct.Cl. 41, and Dvorkin v. United States, 101 Ct.Cl. 296, certiorari denied323 U.S. 730,65 S.Ct. 66,89 L.Ed. 586.

* * * [But] The salaries fixed by Congress are the salaries payable to those who hold the office and not to those who perform the duties of the office. * * *

And in theDvorkincase involving the same issues, it was held thatthe determinate test of a person'sright to salary is not the duties performed, but theposition or grade to which he was appointed.[Id.80 F. Supp. at 543, 112 Ct.Cl. at 200-201.] [Emphasis supplied.]

* * * It is a well-settled principle of law that Federal Government employees are entitled only to the salaries of positions to which they are appointed, regardless of the duties they actually perform, Price v. United States,80 F. Supp. 542,543, 112 Ct.Cl. 198, 200 (1948) and cases cited. * * *

[121]3. The Appointment of the Plaintiff to a Government Job bythe Court is an Unwarranted and Unauthorized Interferencewith and Usurpation of the Discretionary Function of anExecutive Agency

* * * If the power to appoint a clerk was vested exclusively in the District Court, and the office was held at the discretion of the Court, as we think it was; then this Court can have no control over the appointment or removal, or entertain any inquiry into the grounds of removal. If the judge is chargeable with any abuse of his power, this is not the tribunal to which he is amenable: and as we have no right to judge upon this matter, or power to afford redress if any is required, we abstain from expressing any opinion upon that part of the case. [Id.at 261-262.]

* * * The Court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion, or judgment. Nor can it by mandamus, act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties. [Id.at 515.]

The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them. * * * [Id.at 516.]

* * * But courts cannot perform executive duties, or treat them as performed when they have been neglected. They cannot enforce rights which are dependent for their existence upon aPage 1072prior performance by an executive officer of certain duties he has failed to perform. The right asserted by the claimant rests upon a condition unfulfilled. The judgment was therefore erroneous, and must be reversed, and the record remitted to the Court of Claims, with instructions to dismiss the petition; * * *. [Id.at 753.]

It has been repeatedly adjudged that the courts have no general supervising power over the proceedings and action of the various administrative departments of government. Thus, in Decatur v. Paulding, 14 Pet. 497, 515,10 L.Ed. 559, in which was presented the question of the right of the Circuit Court of the District of Columbia to issue a writ of mandamus to the Secretary of the Navy to perform an executive act not merely ministerial but involving the exercise of judgment, it was said by Chief Justice Taney:

"The court could not entertain an appeal from the decision of one of the Secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or judgment. Nor can it by mandamus act directly upon the officer and guide and control his judgment or discretion in the matters committed to his care in the ordinary discharge of his official duties. * * * The interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them."

The same proposition was reaffirmed in United States ex rel. Dunlap v. Black,128 U.S. 40[9 S.Ct. 12,32 L.Ed. 354], in an elaborate opinion by Mr. Justice Bradley. See also United States ex rel. Redfield v. Windom,137 U.S. 636[11 S.Ct. 197,34 L.Ed. 811]; Boynton v. Blaine,139 U.S. 306[11 S.Ct. 607,35 L.Ed. 183]. * * * [Id.177 U.S. at 292-293,20 S.Ct. at 575.]

The appointment to an official position in the Government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment. The appointing power must determine the fitness of the applicant; whether or not he is the proper one to discharge the duties of the position. Therefore it is one of those acts over which the courts have no general supervising power. [Id.at 293,20 S.Ct. at 575.]

* * * Appointment is an executive function, involving the exercise of executive discretion. Keim v. United States,177 U.S. 290,20 S.Ct. 574,44 L.Ed. 774. This court cannot exercise this function and in the absence of actual appointment, or facts equivalent thereto, we cannot award Plaintiff Donnelly compensation as commissaryman, chief. United States v. McLean,95 U.S. 750,753,24 L.Ed. 579; Amundson v. United States,120 F. Supp. 201, 128 Ct.Cl. 80; Coleman v. United States, 100 Ct.Cl. 41 [Id.134 F. Supp. at 636, 133 Ct.Cl. at 122.]

* * * The power of appointment is within the discretion of the head of a department. It is an executive function which involves exercising the discretion of the executive. Keim v. United States,177 U.S. 290[20 S.Ct. 574,44 L.Ed. 774] (1900); Amundson v. United States, 128 Ct.Cl. 80,120 F. Supp. 201(1954); Donnelly v. United States, 133 Ct.Cl. 120,134 F. Supp. 635(1955); Goldstein v. United States, 131 Ct.Cl. 228,130 F. Supp. 330(1955),Page 1073cert. denied350 U.S. 888[76 S.Ct. 143,100 L.Ed. 782] (1955). If this court were to grant recovery to plaintiff it would in effect bestow upon plaintiff a promotion which he never received. In so doing, this court would be making an administrative decision. Such action would be a clear usurpation by the judiciary of an administrative function. * * * [Id.at 80.]

We think it well to reiterate that in civil service cases the task of the courts is a limited one. Certainly they cannot undertake to pass on a plaintiff's qualifications for any given post, or to compare them with those of an incumbent.It is notwithin their province to weigh the merits of aperson's claim to a Federal job.Congress has established administrative machinery to make these determinations. [Emphasis supplied.] [Id.196 F.2d at 873.]

No function is more completely internal to a branch of government than the selection and retention or dismissal of its employees. * * * [Id.353 F.2d at 829.]

* * * It would be quite detrimental to the public service if an agency head had no discretion in selecting men to do important jobs. He is already circumscribed more than a little in his control over his subordinates. Further restraint upon him would be unwise. [Id.138 F. Supp. at 253, 133 Ct.Cl. at 860.]

[137]4. The Appointment of Plaintiff to a Government Job by theCourt is an Attempt by the Court to Exercise Equitable Powersit does not Possess.

* * * [T]he Court of Claims is without jurisdiction to restore plaintiff to his position. Ora Erakine Gaines v. United States [131 F. Supp. 925], 132 C.Cls. 408. [Id.at 650.]

The Court of Claims was established by Congress in 1855. Throughout its entire history up until the time that this case was filed, its jurisdiction has been limited to money claims against the United States Government. In 1868 this Court held that "the only judgments which the Court of Claims [is] authorized to render against the government * * * are judgments for money found due from the government to the petitioner." United States v. Alire, 6 Wall. 573, 575 [18 L.Ed. 947]. In United States v. Jones,131 U.S. 1[9 S.Ct. 669,33 L.Ed. 90]; this Court reaffirmed this view of the limited jurisdiction of the Court of Claims, and held thatthe passage of the Tucker Actin 1887 had not expanded that jurisdiction toequitable matters.More recently, in 1962, it was said in the prevailing opinion in Glidden Co. v. Zdanok,370 U.S. 530,557[82 S.Ct. 1459,1476,8 L.Ed.2d 671], on a point not disputed by any of the other members of the Court that "[f]rom the beginning [the court of Claims] has been given jurisdiction only to award damages * * *." No amendment purporting to increase the jurisdiction of the Court of Claims has been enacted since the decision inZdanok.

The foregoing cases decided by this Court therefore clearly show that neither ther the Act creating the Court of Claims nor any amendment to it grants that court jurisdiction of this present case. That is true because Colonel King's claim is not limited to actual, presently due money damages from the United States. Before he is entitled to such a judgment he must establish in some court that his retirement by the Secretary of the Army for longevity was legally wrong and that he is entitled to a declaration of his right to have his military records changed to show that he was retired for disability.This isessentially equitable relief of a kind that the Courtof Claims has held throughout its history, up to thetime this present case was decided, that it does nothave the power to grant.[Id.at 2-3,89 S.Ct. at 1502.]

[144]5. This Court Lacks Jurisdiction of Plaintiff's Suit Becauseof the Sovereign Immunity From Suit of the United States,which has not been Waived by an Act of Congress.

* * * [W]ithoutspecificstatutory consent, no suit may be brought against the United States.No officerby his action can confer jurisdiction.[Emphasis supplied.] [Id.at 500-501,60 S.Ct. at 661.]

* * * Absent that consent, the attempted exercise of judicial power is void. * * * [Id.at 514,60 S.Ct. at 657.]

* * * The objection to a suit against the United States is fundamental, whether it be in the form of an original action or a set-off or a counterclaim. Jurisdiction in either case does not exist unless there isspecific congressional authorityfor it * * * [Id.at 106,45 S.Ct. at 25.] [Emphasis supplied.]

The United States, as sovereign, is immune from suit save as it consents to be sued, United States v. Thompson,98 U.S. 486[25 L.Ed. 194]; United States v. Lee,106 U.S. 196[1 S.Ct. 240,27 L.Ed. 171]; Kansas v. United States,204 U.S. 331[27 S.Ct. 388,51 L.Ed. 510]; Minnesota v. United States,305 U.S. 382,387[59 S.Ct. 292,294,83 L.Ed. 235]; Keifer Keifer v. Reconstruction Finance Corp.,306 U.S. 381,388[59 S.Ct. 516,517,83 L.Ed. 784]; United States v. Shaw,309 U.S. 495[60 S.Ct. 659,84 L.Ed. 888] (see cases cited in The Pesaro, [D.C.] 277 F. 473, 474, et seq.), and the termsPage 1076of its consent to be sued in any court define that court's jurisdiction to entertain the suit. Minnesota v. United States, supra, [305 U.S.] 388 [59 S.Ct. 295,83 L.Ed. 235] and cases cited; cf. Stanley v. Schwalby,162 U.S. 255,270[16 S.Ct. 754,760,40 L.Ed. 960]. [Id.at 586-587,61 S.Ct. at 769.]

Except as Congress has consented there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States, or for the review of its decisions by appellate courts. Luckenbach Steamship Co. v. United States,272 U.S. 533,536[47 S.Ct. 186,187,71 L.Ed. 394], et seq. * * * [Id.at 587-588,61 S.Ct. at 770.]

§ 7151. Policy.

It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex, or national origin. The President shall use his existing authority to carry out this policy.

* * * When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts. United States v. Babcock,250 U.S. 328,331[39 S.Ct. 464,63 L.Ed. 1011]. It may limit the individual to administrative remedies. Tutun v. United States,270 U.S. 568,576[46 S.Ct. 425,70 L.Ed. 738]. * * * [Id.at 582,54 S.Ct. at 845.]

* * * Congress indicated its intent that5 U.S.C. § 7151,supra,be more than merely hortatory when it instructed the President to "use his existing authority to carry out this policy" of equal employment opportunity. * * * When it [the Congress] desires to exclude a class of claim from judicial review it knows how to do so. * * * But absent such a clear manifestation that access to the courts is prohibited where a specific right has been created, we think it is the intent of Congress that the general jurisdictional statutes are controlling. * * *

§ 2201. Creation of remedy.

In a case of actual controversy within its jurisdiction, * * * any court of the United States * * * may declare the rights and other legal relations of any interested party seeking such declaration, * * *.

* * * For the court below, it was sufficient that there was no clear indication that Congress affirmatively intended to exclude the Court of Claims from the scope of the Declaratory Judgment Act. We think that this approach runs counter to the settled propositions that the Court of Claims' jurisdiction to grant relief depends wholly upon the extent to which the United States has waived its sovereign immunity to suit and thatsuch a waiver cannot beimplied but must be unequivocally expressed.United States v. Sherwood,312 U.S. 584[61 S.Ct. 767,85 L.Ed. 1058]. [Emphasis supplied.] [United States v. King,395 U.S. at 4,89 S.Ct. at 1502.]

It is beyond argument that the United States may be sued only where its immunity has been specifically waived by statute, and thatsuch waiver may not beimplied in the construction of an ambiguous statute.[Id.at 354.] [Emphasis supplied.]

The government does not consent to be sued byimplication,and consent to be sued should not be extended beyond the plain terms of the authorizing statute. Price v. United States and Osage Indians,174 U.S. 373,19 S.Ct. 765,43 L.Ed. 1011; Eastern Transportation Co. v. United States,272 U.S. 675,47 S.Ct. 289,71 L.Ed. 472; * * *. [Emphasis supplied.] [Id.at 84.]

It is fundamental that the United States cannot be sued without its permission, and that permission must be specifically granted by Congress.It will not beimplied.It is a deep-rooted principle in the fabric of all English speaking countries that a sovereign is immune from suits in its own courts. In Nassau Smelting Refining Works, Ltd. v. United States,266 U.S. 101,106,45 S.Ct. 25,69 L.Ed. 190, the court said: "The objection to a suit against the United States is fundamental, whether it be in the form of an original action, or a setoff, or a counterclaim. Jurisdiction in either case does not exist, unless there is specific congressional authority for it. * * * [Emphasis supplied.] [Id.at 577.]

* * * There is no statute that precludes relief * * *.

* * * [W]hen plaintiff made application for employment with a Federal agency, she came under the protection of the Executive Orders, which by terms and byimplication,apply to applicants as well as employees. * * * [Emphasis supplied.]

The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.

* * * The sole question for our determination is whether, in the circumstances, E.O. 11478 provides a legal basis for awarding back pay to such anapplicantfor Federal employment. * * *

Executive Order 10988 represents in essence aformulation of broad policy by the President for theguidance of federal employing agencies.It had no specific foundation in Congressional action, nor was it required to effectuate any statute. It could have been withdrawn at any time for any or no reason. * * *

The President did not undertake to create any role for the judiciary in the implementation of this policy. * * *

* * * If appellants disagreed with the Postmaster General's decision as to this aspect of personnel policy, and believed it to be contrary to the President's wishes, it is obvious to whom their complaint should have been directed. It was not to the judicial branch.Congress has given the DistrictCourt many important functions to perform, but theydo not include policing the faithful execution ofPresidential policies by Presidential appointees.[Emphasis supplied.] [Id.350 F.2d at 456-457.]

1. One cannot sue the United States without its consent and a court has no jurisdiction of a suit against the United States to which it has not consented. United States v. Sherwood,312 U.S. 584,586-588,61 S.Ct. 767,85 L.Ed. 1058(1941); Mancilla v. United States,382 F.2d 269(9 Cir. 1967), cert. denied,390 U.S. 982,88 S.Ct. 1104,19 L.Ed.2d 1280. [Id.415 F.2d at 1276.]

The third or damage count remains. For the reasons set forth above, it, too, is dismissable as to all defendants named other than the United States. The plaintiff, however, bases the count specifically on the Tucker Act,28 U.S.C. § 1346(a)(2), which gives the United States district courts original jurisdiction, concurrent with the Court of Claims, of

"Any other civil action or claim against the United States, not exceeding $10,000, in amount, founded either upon the Constitution, or anyPage 1080Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort"

and thereby suggests the existence of consent to be sued. As to this, we adopt Judge Oliver's comments:

"The plaintiff does not allege that his alleged cause of action was created or authorized by any particular provision or section of the Constitution, Act of Congress, [or] regulation of any executive department. Nor does he allege what sort of an express or implied contract he attempts to base his claim.None of the executive orders orregulations which the complaint cites purports toconfer any right on an employee of the UnitedStates to institute a civil action for damagesagainst the United States, in the event of theirviolation,even if it should be established that plaintiff's failure to have been promoted as an employee of the Corps of Engineers was in fact due to discrimination in violation of the Executive Orders pleaded.Congress has complete power eitherto create or to refuse to create such a remedy. Itdid not authorize civil actions for damages underany of the laws (including the Executive orders andregulations) applicable to facts pleaded byplaintiff in this case.[Emphasis supplied.] [Id.at 1277-1278.]

We emphasize that Executive Order No. 11246 enunciates government policy by way of prohibiting discrimination because of national origin; imposes that policy on the "head of each executive department and agency"; and directs the Civil Service Commission to "supervise and provide leadership and guidance", to provide for the impartial consideration of all complaints of discrimination, for at least one impartial review within the department, and for appeal to the Commission.All this has been providedto plaintiffGnotta (except that he now challenges on appeal the impartiality of the trial examiner).But none of the Executive Order's language speaks interms of money damages or of a money claim againstthe United States.

The third count, too, was properly dismissed. [Emphasis supplied.] [Id.at 1278.]

* * * [T]he Administrative Procedure Act is not "to be deemed an implied waiver of all governmental immunity from suit." Blackmar v. Guerre,342 U.S. 512,514-516,72 S.Ct. 410,412,96 L.Ed. 534(1952); Bell v. Groak,371 F.2d 202,204(7 Cir. 1966). [Id.at 1277.]

"It follows that as the claimant * * * [was illegally discharged] he is still in office, and is entitled to the pay attached to the same." [Id.at 485,6 S.Ct. at 450.]

* * * [W]e think the plaintiff is entitled to recover the salary in question if the facts show, as they clearly do in this case, that during the period involved he was illegally deprived of the positionhe had heldand the salary thereof under the terms and conditions of the Act of 1883 [22 Stat. 403; 5 U.S.C. § 633] and the regulations made and promulgated thereunder. [Emphasis supplied.] [Id.at 194.]

* * * [A]n act merely fixing salaries of officers creates no contract in their favor and the compensation named may be altered at the will of the legislature. This is true also of an act fixing the term or tenure of a public officer or an employe of a state agency. The presumption is thatsuch a law isnot intended to create private contractual or vestedrights but merely declares a policyto be pursued until the legislature shall ordain otherwise * * * [Emphasis supplied.] [Id.at 78-79,58 S.Ct. at 100.]

Section 1491 of Title 28 of the United States Code allows the Court of Claims to entertain claims against the United States "founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort".But it is not every claiminvolvingPage 1083or invoking the Constitution, a federal statute, ora regulation which is cognizable here.The claim must, of course, be for money. Within that sphere, the non-contractual claims we consider under Section 1491 can be divided into two somewhat overlapping classes — those in which the plaintiff has paid money over to the Government, directly or in effect, and seeks return of all or part of that sum; and those demands in which money has not been paid but the plaintiff asserts that he is nevertheless entitled to a payment from the treasury. In the first group (where money or property has been paid or taken), the claim must assert that the value sued for was improperly paid, enacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation.In the second group, where no suchpayment has been made, the allegation must be thatthe particular provision of law relied upon grantsthe claimant, expressly or by implication, a right tobe paid a certain sum.See South Puerto Rico Sugar Co. Trading Corp. v. United States,334 F.2d 622,626-627, 167 Ct.Cl. 236, 244-245 (1964), cert. denied,379 U.S. 964,85 S.Ct. 654,13 L.Ed.2d 558(1965). [Emphasis supplied.] [Id.372 F.2d at 1007, 178 Ct.Cl. at 605.]

The second category includes the varied litigations in which we are urged to hold that some specific provision of law embodies a command to the United States to pay the plaintiff some money, upon proof of conditions which he is said to meet. Familiar examples are inverse eminent domain by a taking without formal proceedings (United States v. Causby,328 U.S. 256,66 S.Ct. 1062,90 L.Ed. 1206(1946)); a suit by a separated reserve officer for disability retired pay (Lemly v. United States,75 F. Supp. 248, 109 Ct.Cl. 760 (1948)); an action for back pay occasioned by a wrongful dismissal from the civil service (Elchibegoff v. United States, 106 Ct.Cl. 541 (1946), cert. granted,329 U.S. 704,67 S.Ct. 187,91 L.Ed. 613(1946), cert. dismissed,329 U.S. 694,67 S.Ct. 629,91 L.Ed. 607(1947)); or a claim for compensation for flood damage authorized by statute (United States v. Gerlach Live Stock Co.,339 U.S. 725,70 S.Ct. 955,94 L.Ed. 1231(1950)). See, also, United States v. Central Eureka Mining Co.,357 U.S. 155,162-165,169-179,78 S.Ct. 1097,2 L.Ed.2d 1228(1958); Bell v. United States,366 U.S. 393,81 S.Ct. 1230,6 L.Ed.2d 365(1961). In this type of case, we have held, "a claimant who says that he is entitled to money from the United States because a statute or a regulation [or the Constitution] grants him that right, in terms or by implication, can properly come to the Court of Claims, at least if his claim is not frivolous but arguable." Ralston Steel Corp. v. United States,340 F.2d 663,667, 169 Ct.Cl. 119, 125 (1965), cert. denied,381 U.S. 950,85 S.Ct. 1803,14 L.Ed.2d 723.

Monetary claims which cannot be brought withinthese limits are beyond this court's jurisdiction,even though they may intimately involve theConstitution, an Act of Congress, or an executiveregulation.This is the reverse of saying that this court is not concerned with any and all pecuniary claims against the Federal Government, simply because they rely upon (and in that sense are "founded upon") an aspect of federal, constitutional, statutory or regulatory law. Where the claimant is not suing for money improperly exacted or retained (the first class defined above),the historical boundaries of ourcompetence have excluded those instances in which thebasis of the federal claim—be it the Constitution,a statute, or a regulation—cannot be held tocommand, in itself and as correctly interpreted, thepayment of money to the claimant, but in which someother principle of damages has to be invoked forrecovery.A federal criminalPage 1084defendant, for instance, who has been invalidly convicted or deprived of his liberty because of a violation of the Constitution or an Act of Congress cannot obtain compensation under28 U.S.C. § 1491for his loss (although remedies may occasionally be available under the unjust conviction sections (28 U.S.C. § 1495,2513) or some parts of the civil rights legislation). The provisions which void the conviction do not direct the payment of damages for the consequences of the illegality. Under Section 1491 what one must always ask is whether the constitutional clause or the legislation which the claimant cites can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained. If not, this court cannot give relief under Section 1491, although some separate general principle — arising, for example, from tort law — might lead to a remedy in another forum or under some special relief provision. [Emphasis supplied.] [Id.372 F.2d at 1008-1009, 178 Ct.Cl. at 606-607.]

* * * There is not a word in the text suggesting that the United States will compensate an applicant who suffers a business loss because of the Commission's improper failure to grant the request. Nor are we pointed to anything in the Act's legislative history hinting at that result. There is no decision of this or any other federal court holding or intimating that the United States will be liable under the Tucker Act for such a commercial injury resulting from a failure or wrong done in the course of the regulatory process.We would have to break entirely new andtreacherous ground to find in Section 9 an implieddirective to allow such compensation.

We decline to take that giant step.* * * [Emphasis supplied.] [Id.372 F.2d at 1009, 178 Ct.Cl. at 608.]

§ 2680. Exceptions.Page 1085

The provisions of this chapter and section 1346(b) of this title shall not apply to —

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

* * * Congress has always withheld from this court and from the Tucker Act original jurisdiction over tort claims against the Government (Gibbons v. United States, 75 U.S. (8 Wall.) 269, 274-275,19 L.Ed. 453(1868); Langford v. United States,101 U.S. 341,25 L.Ed. 1010(1879); Bigby v. United States,188 U.S. 400,23 S.Ct. 468,47 L.Ed. 519(1903); J. Ribas y Hijo v. United States,194 U.S. 315,323,24 S.Ct. 727,48 L.Ed. 994(1904)); and liability for damages occasioned by wrongful regulatory action smacks more of tort than of non-tortious obligation. [372 F.2d at 1010, 178 Ct.Cl. at 609.]

Dalehite v. United States,346 U.S. 15,26-30,32-34,35-38,73 S.Ct. 956,97 L.Ed. 1427(1953), makes it absolutely plain that the Maritime Commission's function in acting under Section 9 was discretionary and that there would be no liability under the Tort Claims Act even if the agency abused its discretion (as plaintiff asserts). The discretion protected by § 2680(a) "is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law."Id.at 34,73 S.Ct. at 967. "Where there is room for policy judgment and decision there is discretion."Id.at 36,73 S.Ct. at 968. And "it is clear that the * * * clause as to abuse connotes both negligence and wrongful acts in the exercise of the discretion * * *. The exercise of discretion could not be abused without negligence or a wrongful act."Id.at 33,73 S.Ct. at 967. The legislative history of the Tort Claims Act fully and specifically supports these holdings.Id.at 27-30,73 S.Ct. 956. [372 F.2d at 1010, 178 Ct.Cl. at 610.]

* * * If plaintiff had sued under the Tort Claims Act, its action would undoubtedly have fallen afoul of Section 2680(a), the "discretionary function" exception. If the suit in this court had asserted, without relying directly on Section 9 as the basis of the claim, a wrongful refusal by the Maritime Commission to approve the transfer, the petition would clearly have to be dismissed as a demand, founded in tort, for business damages due to misconduct. See Part II,infra.We cannot evade these barriers by incorporating into Section 9 something which is not there, either in terms or by fair implication — a mandate for compensation. Rather, we must follow thePage 1086admonition of the Supreme Court, almost a century ago, "to be cautious that we do not permit the decisions of this court to become authority for the righting, in the Court of Claims, of all wrongs done to individuals by the officers of the General Government, though they may have been committed while serving that government, and in the belief that it was for its interest. In such cases, where it is proper for the nation to furnish a remedy, Congress has wisely reserved the matter for its own determination. It certainly has not conferred it on the Court of Claims." Gibbons v. United States,supra,75 U.S. (8 Wall.) at 275-276. [372 F.2d at 1011, 178 Ct.Cl. at 611.]

The Tort Claims Act, including its exceptions, is too well known and has been too frequently construed to justify here a detailed review of its terms or legislative history, or a general survey of the cases interpreting it. See Annotation 1 A.L.R.2d 222. The principle controlling in this case is that there can be no recovery against the Government on any claim based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved was abused.28 U.S.C.A. § 2680(a); annotation 19 A.L.R.2d 845.

Where the acts or omissions relied upon are those directly involving the exercise of discretion, the Courts have not hesitated to deny recovery, whether the discretion was regarded as properly, improperly or negligently exercised. Smart v. United States, 10 Cir., 1953,207 F.2d 841; Chournos v. United States, 10 Cir., 1951,193 F.2d 321, certiorari denied343 U.S. 977,72 S.Ct. 1074,96 L.Ed. 1369; Coates v. United States, 8 Cir., 1950,181 F.2d 816, 19 A.L.R.2d 840; North v. United States, D.C.D.Utah, Cent.D., 1950,94 F. Supp. 824, 19 A.L.R.2d 845. * * *

We recommend she be advised there was no discrimination based on race, color, religion or national origin. In her letter of June 27, 1967, she points out that we employed her cousin to fill the vacancy for which she was considered. Obviously, the selection was made between two minority applicants — one with no prior service whose references were good, and one with prior service whose last employer in Beckley would not reemploy her.

However, in doing so, he did not err under existing, applicable policies and regulations.

* * * [T]he complainant, in seeking employment wasnotdiscriminated against, because of race, by the Social Security Administration and/or the district manager.

In effect, I have found that SSA and/or the district manager committed no wrong against her.

However, she [the plaintiff] concedes that SSA and/or the district manager may not have discriminated against her directly * * *.

We recommend she be advised there was no discrimination based on race, color, religion or national origin.

After a careful evaluation of the investigative file, I have concluded that discrimination was not a factor in your non-selection for employment in the district office.

I feel that, based on the recommendation that he [Mr. Billings] received from the * * * Hospital, that it wasn't thoroughly evaluated or thoroughly investigated because this is where the basis of the racial discrimination existed and at this point it was picked right up by his office and I was right back where I started really.

Q. Miss Bennett [Chambers], as I take it, a central part of your charge is that, in acting on references received from the hospital, Mr. Billings and the Social Security office acted in a racially discriminatory way by not looking behind or into the events that led to the reference from the hospital. Is that correct?

Q. I believe it is your position that, if the references had been satisfactory, You would have been hired.

Q. So, that, without leading, aside from this point — the references, you would not make a charge of discrimination on the part of Mr. Billings or the Social Security office; that is, they were prepared to hire you.

Q. So, whatever discrimination you believed to have happened was not with respect to your being considered for the job from the very beginning, but only with respect to Mr. Billings' reaction to reference checks that he made.

So, actually, it was racial tension [at the hospital] and it was, in turn, transmitted to the Social Security office.Page 1088Whether Mr. Billings was aware of it, I have no knowledge of this, or what added to it in these regards.

* * * I truthfully couldn't say that Mr. Billings is prejudiced. I couldn't say this. Its just a matter that he got hung up through an unfavorable reference where racial tension was involved.

Q. Let me ask you this. If Miss Bennett [the plaintiff] had been white and you had gone to this depth that you did and received the same information that you did, would you or would you not have hired her?

Q. In other words, Miss Bennett's race had nothing to do with this consideration.

* * * Miss Bennett's charges amount to discrimination by a chain reaction. There have been no discriminatory practices charged to Mr. Billings or anyone in connection with the Social Security Administration in that they directly discriminated against Miss Bennett, but their discrimination allegedly came about when they accepted or acted on a reference which was given by someone who, according to Miss Bennett, is allegedly discriminatory.

As President of the Raleigh County NAACP, I am chiefly concerned about discriminating practices, you know; if that's the case, we are concerned; but, if not the case, then — That's all I have to say.

It is my conclusion, based on the testimony at the hearing, that there is no evidence of racially discriminatory behavior or action on the part of the Beckley Social Security Office.

We find that the denial of equal opportunity for employment in the instant case was based substantially on theapplicant's previous racialdiscrimination complaintand that such denial constituted a violation of Executive Order 11478 and Department regulations pursuant thereto. [Emphasis supplied.]

* * * [T]he SSA District Office in Beckley, West Virginia, failed to answer Mrs. Chambers' charge that it operated in and was unduly influenced by an environment of racial discrimination.

Mrs. Chambers was indeed discriminated against, and we feel that the SSA personnel involved in this case were cavalier in their denial of the serious charge of racial discrimination.

(Note: Mr. Payne's general charges of discrimination against the district office are not, in my judgment, well-founded. In addition, while I was not in Beckley to investigate such charges, I did receive testimony strongly indicating a propensity on Mr. Payne's part to make frivolous charges of racial discrimination against diverse and sundry institutions, individuals, and agencies.)

Rev. Mitchell said he feels that both the BARH [the hospital] and the district office have good records and images from a race relations standpoint. He cited this as the basic reason for lack of complaints of racial discrimination against the district office and hospital, where he serves as a member of the community's advisory council.

Also, the manager had some other reservations about Miss Bennett's [plaintiff] attitude from several contacts with her that he considered of minor importance until the former employer questioned her ability to get along with co-workers.