TAMM, Circuit Judge:
The appellant, Floyd E. Washington, was employed by St. Elizabeths Hospital (hereinafter "Hospital" or "Superintendent") as a nursing assistant from July, 1961, to March 3, 1965, at which time he was escorted from the grounds of the hospital by the guard force and placed on enforced sick leave by the Superintendent. On that same day the Hospital applied to the Department of Health, Education and Welfare for appellant's disability retirement. This application was forwarded to the Civil Service Commission (hereinafter "Commission") for determination and pending the outcome thereof, the appellant was placed on enforced annual leave commencing April 20, 1965. While still awaiting the outcome of the Commission's decision, the appellant was placed on leave without pay by the Hospital effective June 5, 1965. On September 28, 1965, the Commission notified the Department of Health, Education and Welfare that the Hospital's application had been approved and also notified the appellant of the determination that he had been found totally disabled for useful service and that he would be retired from service on an annuity. On November 8, 1965, the appellant appealed this determination to the Commission. Upon consideration of the appeal the Hospital's application was affirmed and the appellant separated from service effective January 24, 1966. Mr. Washington then filed a petition for relief in the nature of mandamus in the District Court.
The central feature of the appellant's complaint in the trial court is that the Superintendent of the Hospital wrongfully discharged the appellant without notice or hearing as required by either the Lloyd-LaFollette Act, 5 U.S.C. § 7501 (Supp. III 1965-67), or the Veterans Preference Act, 5 U.S.C. § 7512 (Supp. III 1965-67). The complaint sought reinstatement and back pay from March 3, 1965. The Hospital answered the complaint on April 28, 1966, and defended on the ground that the complaint failed to state a claim upon which relief could be granted. Appellant thereafter served certain interrogatories on the Hospital requesting it, inter alia, to state the names of those in the Hospital's employ that were, in any way, connected with the discharge of the appellant and to state what circumstances led up to such a determination; from what disease or illness was the appellant suffering; who made that determination; upon what basis and certain other inquiries as to the incidents leading up to the appellant being placed on enforced sick leave. The Hospital objected to these interrogatories on the ground that they were irrelevant to the issues before the court. The appellant replied to these objections on September 30, 1966. Two months later the Superintendent filed a motion to dismiss, or in the alternative, for summary judgment. This motion was opposed by the appellant on January 10, 1967.
In the interim, between the filing of the motion for summary judgment and the appellant's response thereto, the Pretrial
After considering the points of the Government on appeal and concluding that since it is the business of the court to accord substantial justice, under the law, to both parties, appellant should be given an opportunity to explore his case in an effort to formulate genuine issues of material fact in order to properly meet the appellee's motion for summary judgment. An appraisal of each of the Government's points, in light of the Federal Rules of Civil Procedure and Title 28 of the United States Code, must lead to the conclusion that the learned trial judge was somewhat precipitous in granting the motion for summary judgment. Accordingly, we rule that the trial court's decision be reversed and the case remanded with instructions to permit discovery.
The Government's first point is that the appellant's failure to join the members of the Civil Service Commission as indispensable parties ousts the court of jurisdiction under Rule 19(b) of the Federal Rules of Civil Procedure. The Government's position is that it was the Commission that finally determined the appellant's dismissal and that any relief in the lower court would necessitate action on the part of the Commission. It cites, as authority for the point, the case of Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952), and the cases of this court in accord therewith.
Rule 19(b) of the Federal Rules of Civil Procedure sets out what determinations must be taken account of in deciding the indispensability of a party. It includes: "first, to what extent a judgment rendered in the [party's] absence might be prejudicial to [it] or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief * * * the prejudice can be lessened or avoided; third, whether a judgment rendered in the [party's] absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder." Meeting each of these considerations, suffice it to say that any prejudice resulting to the Commission will be incidental to the main relief here requested. A judgment in favor of the appellant will be directed at the Superintendent; namely, to reinstate the appellant, void the action of March 3, 1965, and thereby render moot the determinations of the Commission in that regard. In this way the relief could be
The Government argues in the alternative that appellant's behavior on the job at the hospital created "an emergency situation" justifying his removal by the Superintendent without 30 days notice as provided in 5 C.F.R. §§ 752.202(a) and (c) (1968). The Government does not dispute the ample authority requiring such notice before a qualified employee can be placed on enforced sick leave.
It is axiomatic that should a genuine issue of material fact exist in a dispute, the case cannot be ripe for disposition via summary judgment. The Government asserts that there existed, on March 3, 1965, an emergency situation entitling the Superintendent to dispense with the notice requirement. The appellant defends that no such situation existed and his suspension was wrongful in light of the applicable statutes. "Rule 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." (Citations omitted.) Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944). So goes the Supreme Court's view of Rule 56 and this court has followed suit in Underwater Storage, Inc. v. United States Rubber Co., 125 U.S.App.D.C. 297, 371 F.2d 950 (1966), cert. denied, 386 U.S. 911, 87 S.Ct. 859, 17 L.Ed.2d 784 (1967), where the court held that the "general rule that guides the District Court in the disposition of motions for summary judgment is that the moving party has the burden of showing the absence of any genuine issues as to * * * material facts." Id. at 300, 371 F.2d at 953. This court went on to quote Wittlin v. Giacalone, 81 U.S.App.D.C. 20, 154 F.2d 20 (1946) for the proposition that "one who moves for summary judgment has the
While the order of the trial court is silent as to the reasons why it granted the Government's motion, it is reasonable to conclude that it did so on a finding of "emergency situation." This finding was made solely on the administrative record brought in by the Government without providing an opportunity to the appellant to explore that record and its reasonings by way of interrogatories. The appellee below contended that the appellant's behavior on March 3, 1965, was such that he was a danger to himself and to others. Its support for this position is the administrative record on this man in the Civil Service files. The appellant, on the other hand, contends that his condition was not such that would require "emergency" action and requests answers to interrogatories directed at that issue. The trial court apparently took a broad view of the administrative record, denied interrogatories intended to dispute the record, and granted summary judgment in favor of the movant solely on that record. This procedure does not conform either with the Rules or the indicated judicial authority as we view them.
While interrogatories are not "depositions," they are exploratory devices intended to uncover facts so that the propounder may thereafter prove his law suit.
This holding in no way supports the view that a mere request for answers to interrogatories will operate to bar the trial court from acting on a motion for summary judgment. It is incumbent upon the party seeking answers to demonstate that his inquiry is directed toward establishing the "material facts" and that upon receipt of those answers he will be armed to defend against that motion. This holding does not support harassment tactics or requests for information that is equally accessible to both parties. We simply decide this case on its facts as applied to our reading of Rule 56(c).
The final point of the Government's brief is that even assuming that appellant's removal was wrongful he is not entitled to back pay for his period of suspension on the ground that he has been neither ready, willing nor able to perform his duties as a nursing assistant and therefore, under reasoning of certain Court of Claims cases, should be denied relief in this regard.
The Government cites the cases of Everett v. United States, 340 F.2d 352, 169 Ct.Cl. 11 (1965); Corrigan v. United States, 153 Ct.Cl. 392 (1961); Armand v. United States, 136 Ct.Cl. 339 (1956); and Nicholas v. United States, 53 Ct.Cl. 463 (1918) for the proposition that the appellant has the burden of establishing his readiness, willingness and ability to perform his duties during the time of his illegal separation. A reading of those cases does not convince us that something new has crept into the law of damages. These cases merely stand for the timeworn doctrine that one who pleads damages must prove both injury and loss. It is for the trial court to discern what, if any, damage the appellant suffered; if the appellee is liable; and to what extent. We therefore remand this case to the trial court with directions to proceed in accordance with the views expressed herein.
Reversed and remanded.