(dissenting).
The plaintiff, holding a probational appointment as a physicist with the National Bureau of Standards, was suspended without pay on loyalty grounds. He was, after some eighteen months’ suspension, restored to duty for the reason that his suspension was unwarranted. The opinion of the court says that under the Lloyd-La Follette Act, as amended by the Act of June 10, 1948, 62 Stat. 354, 5 U.S.C.A. § 652, a person “in the classified civil service” who has been so. suspended and so reinstated is entitled to be paid for the period of his suspension. As the question is stated, our only problem is to determine whether the plaintiff was “in the .classified civil service.”
In 5 U.S.C.A. § 658, it is said:
“The .expression ‘classified civil service’ as the same occurs in acts of Congress shall, unless otherwise provided, be construed to include all persons who have been or may be given a competitive status in the classified civil service, with or without ’ competitive examination, by legislative enactment, or under the civil service rules promulgated by the President, or by Executive orders covering groups of employees with their positions into the competitive classified service or authorizing the appointment of individuals to positions within such service.” [Italics added.]
If, then, the plaintiff was given a competitive status under civil service rules promulgated by the President, he was a person’in the “classified civil service.”
Civil Service Rule III, relating to the question of the “acquisition of competitive status” as that rule was at the time of the events involved in this suit, said:
“Sec. 3.1 Classes of persons who may acquire status. — (a) A person may acquire a competitive status by *935probational appointment through competitive examination, or by staN ute, Executive Order, or this Rule.”
The Civil Service Regulations in Part IV — General Provisions, said:
Definitions
“4.301 * * *
(5) Competitive status means a status which permits a person to be promoted, transferred, reassigned and reinstated to positions in the competitive service without competitive examination, subject to the conditions prescribed by the Civil Service rules and regulations for such noncompetitive actions. A competitive status is acquired by probational appointment through competitive examination, or may be granted by statute, Executive Order, or the Civil Service rules.” [Italics added.]
Section 9.101(b) of the Civil Service Regulations (Part 9 of 5 Code of Federal Regulations) says:
“Employees serving under other than probational or temporary appointments in the competitive service * * * sháll not be removed, suspended, or demoted except for such cause as will promote the efficiency of the service and in accordance with the procedure prescribed in section 9.102.”
As the Government asks us to read this regulation it would.say:
“Employees in the competitive service, except those who are not in the competitive service, -shall not be removed, etc.”
Again in section 9.102 of 5 C.F.R. it is written:
“One of the following procedures shall be followed in connection with the * * * suspension * * * of any permanent or war service indefinite employee in the competitive service, unless he is .serving in a probationary or trial period.”
This would be made to read:
“One of the following procedures shall be followed in connection with * * * suspension of any * ' employee in the competitive service, unless he is not -in the competitive service * * *.” the *■
In Civil Service Commission Regulations, Section 20.4(c), 5 C.F.R. (1949 Súpp.), where retention rights in cases of reductions in force are '.defined; we find—
“(2) Group II — Career-Conditional. In the competitive service, this group includes career employees who are conditional because they are serving probationary periods, * * *.” [Italics added.]
Congress authorized the President to define who should be in the “classified civil service.” The President, acting through the Civil Service Commission, did so in express terms, which included probational employees. The civil service rules in the numerous instances recited above repeated that definition, either in express terms, or by necessary implication. Nowhere do they say the contrary. To be sure, Section 9.103(a) of 5 C.F.R. does not accord to probationary employees all the rights to which persons in the “classified civil service” are entitled under the Lloyd-La Follette Act; So far as we know, that is an error of the Civil Service Commission, but that error is not the subject of this suit.
If the question were as single as the opinion of the court has stated it, I would have no hesitation in answering it. The Civil Service Commission has repeatedly said that probational employees are in the classified civil service, that it had the statutory power- to place them there, and that is the end of it.
I am troubled by a somewhat narrow-r er question of statutory construction. Section 6(b) (l).'.of the Lloyd-La'Follette Act, quoted in the opinion of the court, is the back-pay section' here in-; volved. It does not say, as the opinion of the court suggests ‘,‘any person in the classified civil service.” It says:
“Any person removed or suspended without pay under subsection (a) who, after filing a written answer-to *936the charges as provided under such subsection or after any further appeal to proper authority after receipt of an adverse decision on the answer, is reinstated * * *”
is entitled to back pay.
Was the plaintiff suspended under subsection (a) ? If he was, as the repeated Civil Service Commission statements referred to above say he was, in the classified civil service, he could not have been suspended at all except under subsection (a). Subsection (a) says:
“No person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service * *
Whether the suspension is for inefficiency, loyalty, or other cause, it must be accomplished under subsection (a). The plaintiff was served with charges, answered, appealed to proper authority and was reinstated. The factual requisites of subsection (b) were fulfilled. If the plaintiff had been suspended for inefficiency, or any cause other than loyalty or security, he, being a probational employee, would not, as the civil service rules were then written, have had the rights accorded by subsection (a) to file an answer and receive a copy of the decision. As I have said above, this rule seems to have been in fiat contradiction of subsection (a) which guaranteed these rights to employees in the classified civil service, since the Commission, pursuant to other legislation, was required to specify what employees were in the classified civil service and had expressly and repeatedly placed probational employees in it.
But whether or not the civil service regulation denying these rights to a probational employee was void because it contradicted the statute, Executive Order 9835, of March 21, 1947, U.S.Code Cong.Service 1947, p. 1997, setting up the loyalty program, said,, in Part II, Section 4:
“The rights of hearing, notice thereof, and appeal therefrom shall be accorded to every officer or employee prior to his removal on grounds of disloyalty, irrespective of tenure, or of manner, method, or nature of appointment, but the head of the employing department or agency may suspend any officer or employee at any time pending a determination with respect to loyalty.” [Italics added.]
It will be observed that this Executive order relating to loyalty had been in effect for more than a year when section 6(b) was enacted in June 1948. I do not think that Congress intended that civil servants, having the express right to notice, hearing, appeal and, if the appeal was successful, reinstatement, and all this regardless of their tenure of office, should be denied the only benefit which section 6(b) provided, viz., back pay.
I would hold that the plaintiff is entitled to recover.
LITTLETON, Judge, joins in the foregoing dissent.