31 Opinion by Judge Laramore restored to duty effective July 9, 1954. Neither plaintiff received retroactive payment of salary during the period of removal. On August 3, 1955, plaintiffs wrote the Chief, Civilian Personnel Division requesting retroactive payment of salary pursuant to the Lloyd-La Follette Act, supra. This request was subsequently denied and this suit resulted. Plaintiffs' claims are based on two propositions: (1) their removal was unjustified or unwarranted, and (2) the charges lack specificity. In respect to claim 1, plaintiffs allege they were reinstated and restored to duty on the ground that the removal was unjustified or unwarranted. If this were true, each plaintiff would be entitled to back pay under section 6(b)(1) of the Lloyd-La Follette Act, supra, 5 U.S.C. § 652(b)(1), which provides in pertinent part as follows: (b) (1) Any person removed or suspended without pay under subsection (a) who, after filing a written answer to the charges as provided under such subsection. or after any further appeal to proper authority after receipt of an adverse decision on the answer, is reinstated or restored to duty on the ground that such removal or suspension was unjustified or unwarranted, shall be paid compensation at the rate received on the date of such removal or suspension, for the period for which he received no compensation with respect to the position from which he was removed or suspended, less any amounts earned by him through other employment during such period, and shall for all purposes except the accumulation of leave be deemed to have rendered service during such period. A decision with respect to any appeal to proper authority under this paragraph shall be made at the earliest practicable date. However, such was not the case. The restoration decision of the Commanding General carefully stated that the evidence justified the removal action taken. The decision then stated that because of the records of each plaintiff, action other than removal was justified. The Commanding General then approved the recommendation of the minority of the Grievance Committee. In addition, when the Commanding General informed plaintiffs' attorney of his action, he again explicitly stated that the charges against plaintiffs were sus Opinion by Judge Laramore 145 C. Cls. tained by the evidence. Again he stated that the original action was modified because of plaintiffs prior records. To qualify for retroactive pay under the Lloyd-La Follette Act, the restoration must have been "on the ground that such removal or suspension was unjustified or unwarranted ***” In other words, the Commanding General had to order restoration on the grounds that the removal was unjustified or unwarranted. This he did not do, nor has any other person or agency so found. As a matter of fact, all findings were to the contrary. Certainly if plaintiffs were guilty of the charges of failure to protect property of the Government in contract matters, even removal was justified in the circumstances. Hence the modified decision could in no wise be considered anything other than reasonable and proper under the circumstances. Accordingly, since plaintiffs' case is predicated on section 6(b)(1) of the Lloyd-La Follette Act, supra, and since that section requires that removal be deemed unjustified or unwarranted and plaintiffs were restored for other reasons, plaintiffs are not entitled to recover. Jordan v. United States, 138 C. Cls. 647; LaRuffa v. United States, 129 C. Cls. 25. Plaintiffs' next contention that the charges lack specificity in violation of section 6(b) (1), supra, and in violation of section 9.102(a)(1)(i) of the Civil Service Regulations, 5 CFR 1955 Supp., is also without merit. Said regulations provide in pertinent part as follows: No employee, veteran or non-veteran, shall be separated, suspended, or demoted except for such cause as will promote the efficiency of the service and for reasons given in writing. The agency shall notify the employee in writing of the action proposed to be taken. This notice shall set forth, specifically and in detail, the charges preferred against him. Section 9.106 provides that the Civil Service Commission. will not investigate any procedural defect in an employee's removal or suspension unless requested so to do within 10 days from the effective date of separation. The petition does not allege and obviously from the facts shown the alleged procedural defect was not appealed to the 31 Concurring Opinion by Judge Madden Civil Service Commission. Clearly the Civil Service Commission was clothed with authority to investigate and act in circumstances similar to the ones alleged. Plaintiffs having failed to appeal first to the Civil Service Commission cannot now resort to the court. Heffernan v. United States, 133 C. Cls. 839; Pollard v. United States, 138 C. Cls. 569; Bodson v. United States, 141 C. Cls. 532. Nor was the modified decision of the Commanding General appealed administratively to the Chief of Transportation. Since such an administrative remedy was available, plaintiffs were required to avail themselves of that opportunity before resorting to the court. See cases cited supra; Adler et al. v. United States, 134 C. Cls. 200, cert. denied 352 U.S. 894. In other words, two avenues were open to plaintiffsappeal to the Civil Service Commission, or appeal to the Chief of Transportation. Plaintiffs failed to do either. Furthermore, plaintiffs were provided with written charges and given an opportunity to reply in writing. They did reply at length, and if the charges were not specific enough to be intelligently answered, an appeal to the Civil Service Commission would have been proper and probably profitable in the circumstances. Majesic v. United States, 137 C. Cls. 188, cert. denied 355 U.S. 826. We can see no procedural defect, no non-compliance with the statute and regulations, no unjustified or unwarranted action, and no lack of specificity in the charges. In addition we also find, as do Judge Madden and Judge Fahy, a complete failure to exhaust the administrative remedies available. Accordingly, defendant's motion for summary judgment is granted, plaintiffs' motion is denied, and the petition is dismissed. It is so ordered. JONES, Chief Judge, concurs. MADDEN, Judge, concurring in the result: When the Commanding General rescinded his earlier decision that the plaintiffs should be discharged, he did so Concurring Opinion by Judge Fahy 145 C. Cls. because he concluded that, in view of the plaintiffs' "unblemished records of long Government service" their discharge was not the proper method of treatment. That meant that their discharge was, in his final opinion, after reconsideration, "unjustified and unwarranted.” His statement in his letter to the plaintiffs' attorney that "I am still of the opinion that the charges against the complainants were sustained by the evidence" is not inconsistent with his conclusion that, in the circumstances, discharge was too harsh a penalty. It perhaps showed that, in his opinion, it would have been within his discretion to let the discharges stand. But he did not let them stand. He concluded that the wiser exercise of his discretion called for the restoration of the plaintiffs to their positions. In a large percentage of cases of administrative restoration of persons discharged by their immediate superiors, the question is not whether the employee in question was guilty of the derelictions or incompetency with which he has been charged, but whether, in the administration of a wise and humane personnel policy, discharge was the right penalty. The agency superiors or the Civil Service Commission, in making these decisions, have a wide range of discretion which is not generally, of course, subject to judicial review. When their decision is that, in the circumstances, discharge was not the proper penalty, that is a decision that the discharge was unjustified and unwarranted. When, pursuant to that decision, the employee has been restored to duty, the provisions of the 1948 amendment to the Lloyd-La Follette Act, quoted by the court, automatically apply. I agree with the court's conclusion that the plaintiff's cannot recover because they failed to exhaust their administrative remedies. FAHY, Circuit Judge, sitting by designation, concurring in the result: I concur in the result on the ground that plaintiffs failed to exhaust their administrative remedies and deem it unnecessary to decide more. Syllabus GEORGIA KAOLIN COMPANY v. [Cong. No. 7-55. Decided February 11, 1959. Defendant's motion for rehearing denied April 10, 1959] ON THE PROOFS Congressional reference; lease-equitable claim. The court is asked by Congress to determine whether plaintiff has a legal or equitable claim against the United States and the amounts, if any, due from the United States. The claim is for the costs of restoring lands which plaintiff leased to the city of Macon, Georgia, which city in turn leased the lands to the United States for use as a military installation during World War II under a lease requiring the Government to restore the lands to their original condition upon termination of the lease. Because of the presence of a number of unexploded shells left embedded within the top six feet of part of the land, plaintiff has been unable to carry on its mining operations without incurring considerable additional expense. On the basis of the facts established at a hearing, it is reported to Congress that plaintiff has no legal claim against the United States, since the same issues have been litigated in a similar suit in the District Court, but that plaintiff does have a claim based upon moral and equitable principles which could be satisfied by Congress through the payment of a sum of money. Two of the judges recommend the payment of $105,000 and the other two recommend the payment of $50,000. The court unanimously recommends that there be deducted from any award the amount of the District Court judgment which plaintiff has refused to accept as unsatisfactory, but which it still has the right to receive. United States 74(3) Congressional reference; equitable claim-in general.-In determining, in a congressional reference case, whether the claimant has an equitable claim, the court is applying that concept in its broad moral sense so that any recovery on that basis amounts to a gratuity warranted by conscience rather than by law. Gay Street Corporation v. United States, 130 C. Cls. 341. Courts 451 Congressional reference; equitable claim; lease; breach of covenant to restore leased premises.-Where the United States leased for $1 a year land on which the plaintiff-owner had conducted a profitable kaolin mining operation, and where the defendant did not fulfill its covenant to restore the land to its original |