The opinion of the court was delivered by: MCGARRAGHY
Plaintiff is Postmaster of the first class at Maysville, Kentucky. He was appointed by the President in 1949, and is still serving in that capacity. On June 12, 1954, plaintiff was notified by the Post Office Department of proposed action to separate him from his position or take other disciplinary action. The letter charged inefficiency and failure to devote eight hours a day to the plaintiff's job of postmaster, as required by Post Office Department regulations. Accompanying the notice of proposed action were lists of alleged irregularities which were the basis for the charges against plaintiff. On June 21, 1954, plaintiff replied to the charges. On August 16, 1954, plaintiff was notified by an Assistant Postmaster General that 'After consideration of the evidence submitted, including your reply, it has been decided that the charges have been sustained. You will be removed as postmaster at Maysville, effective thirty days from the receipt of this letter or as soon thereafter as your successor can be installed.'
Plaintiff appealed the decision of the Post Office Department to the Sixth United States Civil Service Regional Office, and subsequently there was a hearing in which plaintiff appeared and participated. By letter of November 23, 1954, plaintiff was informed by the Regional Office that the action of the Post Office Department had been sustained. Plaintiff then appealed to the United States Civil Service Commission which, through the Board of Appeals and Review, affirmed the action of the Regional Office and the Post Office Department, saying:
'The Commissioners have given careful consideration to your case including the information developed during the processing of the appeal in the Regional Office and the information submitted subsequent to the Regional Office decision. As a result of this review, the Commissioners have found that the removal action by the Post Office Department is procedurally valid and that the charges preferred in the June 12, 1954, notice of proposed action are sustained by the evidence and show just cause for the discharge action.
'An examination of the evidence concerning Charge No. 1 discloses that out of thirty-eight irregularities set forth in the June 12, 1954, irregularity letter, sixteen are sustained in full (Nos. 8, 9, 21, 24, 27, 29, 33, 36, 46, 51, 68, 75, 76, 79, 93 and 101), ten are sustained in part (Nos. 3, 14, 58, 66, 67, 72, 74, 92, 95 and 98), and the remainder are not sustainable. In regard to the custodial inspection letter of June 12, 1954, it has been found that three of the irregularities charged are fully sustained (Nos. 7, 14 and 17), two are partially sustained (27 and 22), and the remainder are not sustainable. The second specification in Charge No. 1, concerning the postal account cashbook and the main stamp stock, was found not sustainable. On the basis of the foregoing, the Commissioners have determined that the charge of inefficiency is sustained.'
Plaintiff thereafter applied to the Civil Service Commission to reopen and reconsider the decision of the Board of Appeals and Review, which application was denied.
The cause then came on for hearing on cross-motions for summary judgment.
May Only the President Remove Plaintiff?
Plaintiff contends that under Myers v. United States, 272 U.S. 52, 47 S. Ct. 21, 71 L. Ed. 160, only the President may remove him. The Myers case was decided before enactment of Title 39, United States Code, §§ 31a and 31b, June 25, 1938, c. 678, 52 Stat. 1076, 39 U.S.C.A. §§ 31a, 31b. The statute in force at that time, 19 Stat. 80. Title 39 U.S.C. § 31, as amended, 39 U.S.C.A. § 31, read:
'Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law; * * *.'
The status of postmasters in these three classes was substantially changed by the 1938 Act, § 31a of which provides:
'Postmasters of the first, second, and third classes shall hereafter be appointed in the classified service without term by the President by and with the advice and consent of the Senate: * * *.'
Sec. 4 of the Act of June 25, 1938, 52 Stat. 1076, 39 U.S.C.A. § 31a note, repealed all acts inconsistent with the provisions of §§ 31a and 31b.
Plaintiff concedes that he is a member of the classified civil service and, while he accepts the benefits of such classification, he refuses to accept its procedures for removal. Plaintiff attempts to establish a unique ...