dissenting:
The plaintiff had “competitive status” in the Federal Civil Service. Having that status and having served for more than five years, he was eligible, under section 7.101 (1) of the Civil Service Eegulations, 5 C. F. E. 7.101 (1), for reinstatement without time limitation. Being a veteran, he was, for that reason also, eligible for reinstatement without time limitation, and would have been so eligible even if he had had only one year of prior service, barely enough to have acquired competitive status. 5 C. F. E. 7.101 (3). That means, for example, he could have been hired as an Economist or Statistician by any agency of the Government, in any civil service grade which the agency, by interview or *382examination of records of bis experience or training, thought he was qualified to fill. If he had been so hired, he would, of course, have had all the rights accorded by the Lloyd-La-Follette Act and the Veterans’ Preference Act.
The court holds that the plaintiff had none of these rights; that he held his position merely at the will of his superior who could discharge him without any pretense of complying with the procedural requirements of the statutes just referred to.
The vast difference between the full and complete rights which the plaintiff would have had in the circumstances outlined above, and the complete absence of rights which he suffers in the actual circumstances, would seem to call for an explanation. The explanation which the court accepts as sufficient is that the Post Office Department did not choose to hire him by the reinstatement route. It chose to hire him “off the street”, so to speak, as it would hire any person who desired to become a mail carrier.
The plaintiff applies for a job as a mail carrier. By oral statement or by filling out a form he advises the postmaster that he has held a civil service position for more than five years; that he acquired a competitive status during the first of the five years; and that he is a veteran. The postmaster says that it may be assumed from the plaintiff’s having held a position as an economist and statistician in the Department of Commerce that he can read and write and cipher; that it is obvious from looking at the plaintiff that he can walk; that if he would pick up a mail bag the postmaster could tell whether he could carry it. The postmaster says, I could put you to work immediately, with all the rights and privileges of an old civil servant and a veteran, but I do not choose to do so. So will you please take these papers indicating the time and content of the next competitive examination for mail carriers. If you qualify as a result of the examination, you will have a job, but you will not have any legal protection whatever for the first year of your employment. This is the way I choose to do it, and you may take it, or leave it.
The plaintiff took the competitive examination, along with other applicants who had no “competitive status”, and who had never been Government Economists or Statisticians, and, *383not unnaturally, got the job. But he apparently turned out to be a very bad mail carrier. The record indicates that he could and should have been discharged, even if the procedural requirements of the Veterans’ Preference Act and the Lloyd-LaFollette Act had been complied with. If they had been complied with, we would not, of course, have presumed to review the merits of the plaintiff’s competence as a mail carrier.
The issue in this case, and I think it is an important issue, is whether the regulations creating and defining eligibility for reinstatement of experienced civil servants to the civil service can be, in effect, nullified by an agency executive, who, having a place for which an applicant for reinstatement seems to be qualified, chooses not to reinstate him, but to put him completely outside the classified civil service and make him start all over again to win competitive status.
The quotation'in the opinion of the court from section 2.113 of the Civil Service Begulations does not, it seems to me, shed any light upon our question. It concerns only the original acquisition of status. If it means what the court holds it to mean, that one must acquire status every time he changes to another Government agency, or even changes to another line of work in the same agency, it is violated with impunity many times every day. If any general attempt were made to administer the regulation as the court has construed it, the demoralizing effect of such a change would require the rewriting of the regulation.
The court points out that Regulation 7.101 provides that persons having a competitive status who have left Government employment may be reinstated, if certain conditions are met. The court concludes, rightly, that a hiring executive is not obliged to give a former Government employee a job; that he may, instead, fill the job from the outside by taking an eligible from civil service rosters, or in any other lawful way. But the court also concludes, erroneously, I think, that this discretion includes the right to haggle with the former Government employee who has competitive status and is eligible for reinstatement, and strike a bargain with him that he may have the job if he will waive his competitive status and submit to a new probationary period. I think he can *384no more do this, than he could require an applicant to waive a part of the statutory salary as a condition to getting the desired job.
Happily, what was done in the instant case seems to have been unusual. Ambitious civil servants who acquire their competitive status as elevator operators or file clerks can go to night school and learn to be economists or statisticians or other more highly skilled persons; can find jobs calling for those skills in the same or another agency; and do not have to go outside the pale in order to come in again and serve a probationary period as employees at will. In short, as the law and the regulations are actually administered, one’s competitive status is not competitive status as an elevator operator, or a mail carrier, or a statistician, or an information specialist. It is competitive status in the classified civil service of the United States. I think that the way in which the law is actually administered is the only lawful way in which it can be administered. I think that the plaintiff could no more bargain away his statutory civil service status than he could bargain away a part of the salary which the law prescribed for the position which he held. Glavey v. United States, 182 U. S. 595.
To give to the occasional agency executive the capricious power which was exercised in the instant case doesn’t do the Government any real good. In the rare case in which the person who is reinstated turns out to be incompetent, the procedures of the Lloyd-LaFollette Act and the Veterans’ Preference Act are not seriously burdensome to the Government. A few more days’ notice, the reading and consideration of an answer are not too much to accord one who has, at another time, served the Government competently.
I think there is danger that the instant decision may put new and regrettable ideas in the heads of agency executives. As I have said, they have not, except possibly on rare occasions, done what was done in the plaintiff’s case. I suppose that it had not occurred to them that it could be done. I think we should say that it cannot be done.
LittletoN, Judge, joins in the foregoing dissenting opinion.