by another's influence.' Kasumi Nakashima v. Acheson, 98 F.Supp. 11, 12 (S.D.Cal.1951). And as was stated in the other case, 'it is * * * the general rule that a claim of duress cannot be sustained where there is full knowledge of the facts of the situation and ample time and opportunity for full and free investigation, deliberation and reflection.' Weisert v. Bramman, 358 Mo. 636, 216 S.W.2d 430, 434 (1948).
In the present case, the essential reason why the resignation must be held involuntary is that the choice was one which plaintiff was forced to make immediately, without time and opportunity -- which was specifically requested and denied -- 'for full and free investigation, deliberation and reflection,' Weisert, supra. There is no showing that the charges had to be filed immediately: they related to alleged incidents of a homosexual nature which had occurred some time before, including alleged incidents in his youth. There is no showing that national security was in any way involved, or that any other reason existed for immediate action. In fact, plaintiff's actual employment was not terminated until March 18, 1960, the date his resignation became effective. The Court of Appeals commented upon this fact as 'demonstrating that Mr. Davis did not consider immediate termination of employment essential to the good of the service.' 111 U.S.App.D.C. at 364 n. 4, 297 F.2d at 441. While there was thus no need for immediate action on the part of the government, there was, on the other hand, every reason to permit full and careful deliberation over a choice which would profoundly affect plaintiff's career possibilities and his reputation. Such deliberation was particularly important in view of plaintiff's fear that his case might become a cause celebre. Balancing these considerations, this Court -- in line with the standards indicated by the Court of Appeals -- must conclude that the need to make an immediate choice denied plaintiff the process which was due him under the circumstances, and that the resignation submitted on February 17, 1960, was involuntary.
Since plaintiff's resignation was involuntary it was void and of no effect; hence he was never legally separated from his position in the Weather Bureau of the Department of Commerce. This Court will therefore order plaintiff's reinstatement to his position as of the date of his unlawful removal, together with all rights, benefits and privileges that would have accrued from a continuity of service from the date of such unlawful removal to the present. This order will, of course, be without prejudice to the right of the Department of Commerce to institute charges against plaintiff, although the Court indicates no opinion as to whether such charges should be made in view of the honorable discharge which the Air Force issued after a full hearing on the merits, supra n. 1.
SUPPLEMENTAL MEMORANDUM AND ORDER
This Court's order of June 21, 1963 contained the following language:
'That plaintiff be reinstated to his position in the Department of Commerce as of the date of his unlawful removal, together with all rights, benefits and privileges that would have accrued from a continuity of service from the date of such unlawful removal to the present * * *.'
This language is substantially identical with that used by plaintiff in the prayer of his complaint. Now, after the Court has granted plaintiff's motion for summary judgment, the defendants, for the first time in any proceedings in this case, have informed the Court of objections to such language, on two grounds.
The first ground is based upon a possible interpretation of the last portion of the above language as awarding back-pay to plaintiff from the date of his involuntary resignation to the date of reinstatement. Defendants point to 28 U.S.C. § 1346(d)
as barring the District Court, as distinguished from the Court of Claims,
from making such an award. Jurisdictional defects, of course, must be noticed at any time, and this Court therefore hereby expressly restricts the application of its order solely to such 'rights, benefits and privileges' as do not amount to 'fees, salary, or compensation for official services * * *.' 28 U.S.C. § 1346(d), supra. Obviously, the order construed in this way cannot cover back-pay. See Borak v. Biddle, 78 U.S.App.D.C. 374, 377 n. 12, 141 F.2d 278 (1944), cert. denied 323 U.S. 738, 65 S. Ct. 42, 89 L. Ed. 591. And see Borak v. United States, 78 F.Supp. 123, 110 Ct.Cl. 236 (Ct.Cl.1948), cert. denied, 335 U.S. 821, 69 S. Ct. 43, 93 L. Ed. 375; Kaufman v. United States, 93 F.Supp. 1019, 118 Ct.Cl. 91 (Ct.Cl.1950). The government, of course, may well decide to grant such back-pay, subject to applicable principles of law, without forcing plaintiff to bring suit in the Court of Claims. Such disposition would appear completely proper in view of the extended litigation already required in this case.
The second ground for the defendants' objecting to the Court's language is based not on any jurisdictional defect, but rather upon the suggestion that the Court need not order plaintiff's reinstatement, since a mere declaration of plaintiff's right to reinstatement would lead, in the normal course of governmental routine, to plaintiff's reinstatement. The defendants point again to Borak v. Biddle, 78 U.S.App.D.C. 374, 141 F.2d 278, supra, which suggested that 'courts should be slow in issuing mandamus which may result in interfering with the internal management of executive departments of government.' 78 U.S.App.D.C. at 377, 141 F.2d at 281. In that case, the Court of Appeals suggested that the District Court should first issue a declaratory judgment establishing the employee's rights and should retain jurisdiction so that a mandatory writ could issue in the even that neither an appeal nor reinstatement were to follow. Following this suggestion, this Court will therefore amend its order -- and it is hereby so amended -- to read: 'That plaintiff is entitled to be reinstated to his position, etc.' The Court will also retain jurisdiction over the case so that a mandatory injunction can issue if the defendants do not appeal within the prescribed statutory period and if they do not reinstate plaintiff on their own initiative at an earlier date.