Opinion of the Court 131 C. Cls. It will be noted that the Act is permissive only, and does not require an appeal as a condition precedent to suit. The regulations promulgated under the Act are also permissive, and not mandatory. Where an Act requires resort to administrative procedure before bringing suit, either directly or indirectly, of course that procedure must be followed, but where an administrative remedy is provided and it is not expressly or impliedly required that it should be followed before suit is brought, it is at least doubtful that a claimant is required in all cases to pursue the administrative remedy as a prerequisite to suit. Under the facts of this case we do not think he was so required. In the cases relied on by defendant, the administrative procedure was clearly required before suit. In Aircraft and Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, there was involved the necessity of an appeal to the Tax Court in renegotiation proceedings. There is no doubt that in such a case a party was obliged to appeal to the Tax Court. Indeed, the Second Renegotiation Act provided that the decision of the Tax Court should be final and conclusive and that no court or agency should have the power to review its decision. Renegotiation proceedings were also involved in Meyer v. United States, 303 U. S. 41. In ship requisition cases a plaintiff is obliged to pursue his administrative remedy before he can resort to the courts because the Act provides that the Maritime Commission shall make an award of just compensation and shall pay plaintiff the award, or, if the award is unsatisfactory to the shipowner, he shall then be paid 75 per cent of the award and shall be entitled to bring suit for the balance of just compensation. In these cases it is clear that the administrative procedure is a condition precedent to suit. The law makes the filing of a claim for refund of taxes a condition precedent to suit. There are quite a number of other classes of cases where the administrative remedy must be exhausted before resort can be had to the courts; but in the present case the statute does not say that an appeal to the Civil Service Commission must be had before suit can be 60 Opinion of the Court brought. The Act and the regulations of the Civil Service Commission give a person aggrieved the right to file an appeal with the Civil Service Commission, but they do not require that he should do so before he can bring suit. Where the right to pursue an administrative remedy is given, but not required, it is at least within the discretion of the courts to entertain a suit before the administrative procedure has been exhausted. In United States v. Abilene & Southern Railway Co., 265 U. S. 274, the Interstate Commerce Commission moved to dismiss the suit of the Railway Company because it said the railroad had not exhausted its administrative remedy, since it had not taken an appeal from the decision of Division 4 of the Commission to the entire Commission. Mr. Justice Brandeis, speaking for the court, said that the order of Division 4 under the Interstate Commerce Act had "the same force and effect *** as if made *** by the Commission, subject to rehearing by the Commission." Although it appeared that plaintiff had the right to appeal to the entire Commission and had not exhausted its administrative remedy until it had done so, the Supreme Court said that, nevertheless, the Court had jurisdiction to entertain the suit, citing Prendergast v. New York Telephone Co., 262 U. S. 43, 48, 49, and Chicago Rys. Co. v. Illinois Commerce Commission, 277 Fed. 970, 974. The Court said, at page 282: * Whether it [the Court] should have denied relief until all possible administrative remedies had been exhausted was a matter which called for the exercise of its judicial discretion. We cannot say that, in denying the motion to dismiss, the discretion was abused. [Italics ours.] In Moore v. Illinois Central Railroad Co., 312 U. S. 630, 634, et seq., there was involved the necessity for a discharged person to pursue his administrative remedies under the Railway Labor Act, 44 Stat. 577, as amended, 48 Stat. 1185; 45 U. S. C. 151, et seq. Section 153 (i) of 45 U. S. C. provides that disputes growing out of grievances "shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes Opinion of the Court 131 C. Cls. may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes." The Supreme Court called attention to the fact that section 153 (i) of the Railway Labor Act provides that the dispute "may" be referred to the Adjustment Board, and that it was significant that a prior Act had provided that the dispute "shall" be referred to the Adjustment Board. Accordingly, the Court held that it was not obligatory on a person aggrieved to appeal to the Adjustment Board as a condition precedent to suit. In Levers v. Anderson, 326 U. S. 219, it was alleged that the plaintiff had not exhausted his administrative remedy because he had not filed a motion for reconsideration of an order of the supervisor of the Alcohol Tax Unit of the Bureau of Internal Revenue of the United States revoking plaintiff's permit to operate a wholesale liquor business. The Treasury regulations provided in part as follows: (a) *** Within 20 days after an order is made by the Commissioner or district supervisor revoking a basic permit, the permittee may file an application with such Commissioner or district supervisor, for a reconsideration of such order, on one or more of the following grounds: (1) The order is contrary to law, or (2) Is not supported by the evidence, or (3) Because of newly discovered evidence which the permittee, with due diligence, was unable to produce at the hearing. The Court held that, although plaintiff had the right to file such a motion, it was not required to do so as a prerequisite to suit. See also Smithmeyer v. United States, 147 U. S. 342, 356-358. We have held a number of times that the statute of limitations is not tolled while a party is seeking redress before an administrative body. This ruling applies only to those cases where pursuit of an administrative remedy is not required. Where it is required, the statute is tolled, since the party cannot sue until the administrative remedy has been ex 60 Opinion of the Court hausted. Where he is not required to pursue the administrative remedy, the statute is not tolled while he is doing so, as we have held a number of times. If we hold that a person must pursue his administrative remedy as a prerequisite to suit, although not required, then we must overrule our decisions holding that the statute is not tolled while he is doing so. In Martilla v. United States, 118 C. Cls. 177, we held that under the facts of that case a veteran was required to exhaust his administrative remedy before resorting to the courts; but the case we have before us differs from the Martilla case, in that this veteran was advised by the Chief of the Civilian Personnel Branch who discharged him that he had the election of appealing to the Civil Service Commission, or of appealing to higher authorities in the Army. He was not advised that his appeal to higher authorities in the Army would necessarily deprive him of the right to appeal to the Civil Service Commission, but he was warned that it might do so. He must have thought that he had lost his right to appeal to the Civil Service Commission, because he did not do so, although he had been quite diligent in pursuing his remedy through Army channels; after the Commanding General at the Port of Embarkation had affirmed the decision of his immediate superior, he went to the length of requesting a review in Washington by the head of the Transportation Service, and a hearing was had before the Civilian Personnel Grievance Review Board. Having pursued the matter this far, it would seem that plaintiff in all probability would have appealed to the Civil Service Commission had he not been informed by his superiors that his right to so appeal had probably expired. There was reasonable ground for him to believe that the ten days, within which the regulation required that an appeal should be taken, had expired, since the regulations say that this ten days began to run "from the date he received his notice of the action to be taken." Indeed, it may be true that under the regulations plaintiff's right to appeal had expired. If so, he should not be penalized for having resorted to a remedy suggested to him by the officer discharg Opinion of the Court 131 C. Cls. ing him, instead of having appealed directly to the Civil Service Commission. Especially is this true in this case, because the Act and the regulations of the Civil Service Commission did not require an appeal to it, but merely granted the right of appeal. There is nothing in the Act to indicate that Congress meant to take away from a veteran or to circumscribe the right to sue in this court given him by 28 U. S. C. sec. 1491. On the authority of the cases cited above, and in view of the fact that the Act and the regulations of the Civil Service Commission did no more than permit an appeal to it, but did not require it, and since the Chief of the Civilian Personnel Branch had indicated to plaintiff the probability that he had his election to appeal to the Civil Service Commission or to pursue his remedy through military channels, and since he diligently pursued the latter course, we do not think his failure to appeal to the Civil Service Commission precludes him from bringing suit in this court. It results that defendant's motion for summary judgment must be denied. Plaintiff has also filed a motion for summary judgment, which should be granted. We think the punishment inflicted on plaintiff was out of all proportion to the offense. A committee was appointed to hear the case and make recommendations to the Commanding General, Port of Embarkation. A majority of this Committee recommended suspension without pay for 30 days. A minority recommended removal. The Civilian Personnel Grievance Review Board, on appeal from the action of the Commanding General, said in its decision: In considering this case [the Board] *** consulted the Department's Civilian Personnel Regulations CPRS-1, Appendix A containing a Table of Standard Penalties. Theft is listed therein as one of the offenses for which a one to ten days suspension or removal for a first offense is warranted. However, the penalty imposed will be determined "primarily by value of the articles stolen, whether property was recovered, and employee's explanation." |