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SUROWITZ v. UNITED STATES

October 28, 1948

SUROWITZ
v.
UNITED STATES



The opinion of the court was delivered by: RIFKIND

This is an action brought under the Tucker Act, by a former employee of the United States suing for unpaid salary and reimbursement of travel expenses. He alleges an employment contract with the defendant and its breach. The following allegation of the complaint is admitted in the answer:

'Fourth: That on or about August 13, 1946, plaintiff entered into a contract of employment with the defendant to serve as a War Department Attorney for the prosecution of War Crimes in the European Theater for a period of one year.'

 Both parties have moved for summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. The defendant's motion is founded upon alleged want of jurisdiction and must therefore be considered first.

 The Tucker Act, 28 U.S.C.A. § 41(20) (now Sec. 1346(d)), provides, in part, as follows:

 'Nothing in this paragraph shall be construed * * * as giving to the district courts jurisdiction of cases brought to recover fees, salary, or compensation for official services of officers of the United States * * * '.

 The question is thus presented whether the plaintiff was an officer of the United States within the meaning of Sec. 41(20).

 The Government traces the authority and proceedings relating to the employment of the plaintiff as follows:

 (1) Article 2, Sec. 2, Clause 2 of the Constitution provides that

 ' * * * the Congress may be 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.'

 (2) Revised statutes, Sec. 169 as amended by the Act of June 26, 1930, 46 Stat. 817, 5 U.S.C.A. § 43, authorizes the heads of departments to appoint such number of employees of the various classes recognized in the Classification Act of 1923, as amended, 5 U.S.C.A. § 661 et seq. as may be appropriated for by Congress from year to year. The department head is further authorized to delegate to subordinates the power to employ necessary personnel for the field service. *fn1"

 (3) Acting under the authority so conferred, the Secretary of War delegated to various subordinate officials administrative authority to make appointments to the field service, in the exercise of which the plaintiff was appointed. In an affidavit annexed to its motion the Government sets forth the terms of War Department Orders C, 6 June 1946, signed by the then Secretary of War and so delegating administrative authority, a pertinent sentence of which reads:

 'Because of existing limitations in law, appointing authority in the departmental service must remain in the Secretary of War.'

 Nothing in the plaintiff's affidavit contradicts these allegations concerning his appointment, except insofar as the admitted allegation of the complaint concerning a contract of employment, heretofore mentioned, may be deemed to be inconsistent therewith.

 In construing the term 'officer' as used in the Tucker Act for purposes of determining district court jurisdiction I find myself dealing with a rule blindly. I do not know the reason for the rule. Nothing has been called to my attention to disclose what purpose Congress intended to serve in drawing the jurisdictional line between officers and other employees of the United States. I have not examined the legislative history but apparently one judge has, and has found that history uninformative. See Brooks v. United States, D.C.E.D.N.Y. 1939, 33 F.Supp. 68, 70. Superficially, it might be argued that Congress intended to allow run-of-the-mill employees to have convenient access to the federal courts of the districts of their residence but to require the more important officials of the government to assert their claims in the Court of Claims in Washington. This argument will not stand inspection. The judicial ...


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