(dissenting).
Before discussing the case in the light of the opinion in Service v. Dulles, supra, I think it might be well to review the pri- or action of this court in the case.
On July 12, 1956, we dismissed plaintiff’s petition, because, we said, the Civil Service regulations, requiring that a probationary employee shall be “notified in writing of the reasons for his separation and of its effective date,” had been complied with. Plaintiff was notified that she was being removed because “your conduct — during the probational period of employment in this Installation as a Clerk-typist, CAF-2, $1,954.00 per an-num — has not been satisfactory to the Agency.” We said this was all that was required in the case of a probationary employee, because such an employee was not in the classified civil service and, hence, was not entitled to the protection of the Lloyd-La Follette Act, as amended. We had so held in Nadelhaft v. United States, 131 F.Supp. 930, 132 Ct.Cl. 316. See also Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46; Borak v. Biddle, 78 U.S.App.D.C. 374, 141 F.2d 278.
We said further, that the fact that Army personnel regulations had not been complied with did not give the plaintiff the right to a money judgment against the United States. We said that only the Civil Service Commission was empowered to issue regulations to carry into effect the Civil Service Act of 1883 (22 Stat. 403) and the Lloyd-La Follette Act (37 Stat. 555), as amended, and that since its regulations had been complied with, it was immaterial whether or not Army personnel regulations had been complied with. We said, “The United States is not liable for a money judgment for the violation of any regulation that does not have Congressional sanction. *760Only Congress can create, either directly or indirectly, a cause of action against the United States.”
Because the Army regulations did not have Congressional sanction, we said that failure to comply with them prior to her discharge did not give plaintiff the right to a money judgment.
Plaintiff filed a motion for a new trial, and a motion for leave to file an amended petition, so as to assert alleged rights arising under Revised Statutes 161, 5 U. S.C.A. § 22, and the regulations issued pursuant thereto. This section of the Revised Statutes gave authority to the heads of all departments to issue regulations for the government of the employees within the departments; but, we said, that the violation of such regulations gives to the employee no right to a money judgment. We repeated what we had said in the previous opinion that, “Only Congress can create a right of action against the United States.” In support of this statement we quoted at some length from the opinion of Mr. Justice Lurton, then Circuit Judge, in the case of Morgan v. Nunn, C.C., 84 F. 551, 553. In that case the petitioner relied upon a rule promulgated by the President of the United States on July 27, 1897, reading:
“No removal shall be made from any position subject to competitive examination, except for just cause, and upon written charges filed with the head of the department, or other appointing officer, and of which the accused shall have full notice, and an opportunity to make defense.”
Plaintiff alleged that this rule had not been complied with. We quoted in our opinion of March 6, 1957, denying motion for a new trial, what Mr. Justice Lurton had to say of this position, as follows:
“It is said that the civil service rules, so far as they deny the unrestrained power of removal, are not the law of the land, but are mere executive orders, dependent for their force upon the the vigilance and earnestness of the chief executive in compelling his appointees to regard and obey regulations voluntarily imposed by him as a regulation by the appointing power of its otherwise’ unrestrained liberty of removal. To’ this contention I am constrained to yield my assent. These rules regulating the power of removal were made by the president, and may be repealed, altered, or amended at his pleasure. Prior to November 2, 1896, no such restraints existed; and, if after that date they came into force, it was alone by virtue of an executive order. Law is not thus enacted, altered, or amended. Law must be an expression of a rule of action by the legislative authority. These civil service rules, so far as they deal with the executive right of removal, — a right which is but an incident of the power of appointment, — are but expressions of the will of the president, and are regulations imposed by him upon his own action, or that of heads of departments appointed by him. He can enforce them by requiring obedience to them on penalty of removal. But they do not give to the employés. within the classified civil service any such tenure of office as to confer upon them a property right in the office or place.”
In that opinion we also quoted from the opinion of this court in Ruggles v. United States, 45 Ct.Cl. 86, and referred to the opinion in Miller v. United States, 45 Ct.Cl. 509, and we also cited the cases of Carr v. Gordon, C.C., 82 F. 373; Flemming v. Stahl, C.C., 83 F. 940, and Page v. Moffett, C.C., 85 F. 38, all of which are in accord with what Mr. Justice Lurton said in Morgan v. Nunn, supra.
This is the past history of the case in this court. ,
I proceed now to consider the correctness of those decisions in the light of the Supreme Court’s opinion in Service v. Dulles, supra. That was a case brought in the District Court for the District of Columbia seeking “a declaratory judg*761ment that his discharge was invalid; an order directing the respondents to expunge from their records all written statements reflecting that his employment had been terminated because there was a reasonable doubt as to his loyalty; and an order directing the Secretary to reinstate him to his employment and former grade in the Foreign Service, with full restoration of property rights and payment of accumulated salary.” 354 U.S. 370, 77 S.Ct. 1156.
The court, on the authority of United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, held plaintiff had been discharged in violation of the regulations of the Department of State, and for that reason the Supreme Court reversed the judgment of the Court of Appeals, 2 Cir., 206 F.2d 897, dismissing plaintiff’s petition, and remanded the case to the District Court, '“for further proceedings consistent with this opinion.” It did not pass on plaintiff’s claim for accumulated salary.
Are our prior decisions in harmony with the holding in Service v. Dulles, supra?
It should be noted at the outset that Service was not in the classified civil ■service. State Department employees have no rights under the Civil Service Act. The tenure of their employment is governed by the Foreign Service Act of 1946, 60 Stat. 999. Section 611 of that Act, 60 Stat. at page 1013, provides:
“The Director General [an official in the State Department], acting under the general direction of the Board of the Foreign Service, shall be responsible for the keeping of accurate and impartial efficiency records. Under his direction there shall be assembled, recorded, and preserved all available information in regard to the character, ability, conduct, quality of work, industry, experience, dependability, and general usefulness of all officers and employees of the Service, including the reports of Foreign Service inspectors and the efficiency reports of supervising officers. The Director General shall undertake such statistical and other analyses as may be necessary to develop the validity and reliability of efficiency reporting forms and procedures.”
Section 637(a) provides for separation of an employee from the Service “for unsatisfactory performance of duty.” It reads at 60 Stat. page 1016:
“The Secretary may, under such regulations, as he may prescribe, separate from the Service any Foreign Service officer above class 6 on account of the unsatisfactory performance of his duties; but no such officer shall be so separated from the Service until he shall have been granted a hearing by the Board of the Foreign Service and the unsatisfactory performance of his duties shall have been established at such hearing.”
Section 638 provides for the separation of an employee from the Service “for misconduct or malfeasance.” This section reads 60 Stat. at page 1016:
“The Secretary shall separate from the Service any Foreign Service officer or Reserve officer who shall be guilty of misconduct or malfeasance in office, but no such officer shall be so separated from the Service until he shall have been granted a hearing by the Board of the Foreign Service and his misconduct or malfeasance shall have been established at such hearing. Any officer separated from the Service in accordance with the provisions of this section shall not be eligible to receive the benefits provided by title VIII of this Act, but his contributions to the Foreign Service Retirement and Disability Fund shall be returned to him in accordance with the provisions of section 841(a).”
Under section 1135, 22 U.S.C.A. § 801 note existing rules and regulations governing the Service were to remain in effect “until modified or superseded by *762regulations made in accordance with the provisions of this Act, unless clearly inconsistent with the provisions of this Act.”
Service was discharged in violation of regulations issued by the Secretary of State pursuant to the authority granted him by the Foreign Service Act of 1946, supra.
In the instant case, it was the. Civil Service Commission that was empowered by Congress to issue regulations under the Civil Service Act,1 and those regulations were complied with. The Secretary of War, and the heads of other Government departments, by R.S. § 161, were given general authority to issue regulations for the conduct of the employees in their departments. The congressional authority to do so made no mention of the removal of employees. When Congress took up this subject, it conferred authority to issue regulations governing removal, not on the heads of departments, but on the Civil Service Commission. Any regulations concerning removal issued by the head of a department were issued without congressional sanction, and, therefore, do not have the force and effect of law. Hence, a violation of them does not render the United States liable to a money judgment.
It must be concluded that it is only for violation of the civil service acts and the regulations of the Civil Service Commission issued pursuant thereto for which the United States is liable to respond in damages.
In Service v. Dulles, supra, it was held that an employee could not be lawfully discharged without compliance with the regulations issued by the head of the department, who in that case had authority to issue regulations governing removal of State Department employees. Plaintiff in the instant case was discharged without compliance with the regulations of the Department of the Army, but the Secretary of the Army had no power to issue regulations relative to removal of employees. Congress has not required compliance with regulations issued by the head of the department as a prerequisite to the discharge of an employee, and, hence, a failure to comply with them does not render the United States liable to a money judgment. Only Congress, either directly or indirectly, can • subject the United States to liability for a money judgment. I suppose this to be so well settled as to need no elaboration.
It will be noted that the Supreme . Court in Service v. Dulles, supra, did not say the United States was liable for Service’s salary from the time of his discharge to the time of his reinstatement; but even if it had, this would not require a holding that the United States was liable to plaintiff in the instant case. This is so, because in the Service case the Secretary of State was authorized to issue regulations relative to discharges of employees in the Foreign Service; whereas in the case at bar the Secretary of War had no such authority, that authority having been vested in the Civil Service Commission.
I think our former opinions are not in conflict with Service v. Dulles, supra, and that they are correct and should stand.
I think plaintiff’s petition should be dismissed.
LARAMORE, Judge, joins in the foregoing dissenting opinion.
. The Act of January 16, 1883 (22 Stat. 403), established the United States Civil Service Commission. In section 2 it was provided:
“That it shall be the duty of said commissioners :
“First. To aid the President, as he may request, in preparing suitable rules for carrying this act * * * into effect, and when said rules shall have been promulgated it shall be the duty of all officers of the United States in the departments and offices to which any such rules may relate to aid, in all proper ways, in carrying said rules, and any modifications thereof, into effect.” 5 Ü.S.O.A. § 633.
This authority has resided in the Civil Service Commission ever since.