632 Opinion of the Court that since these charges were pending, he would await the Department's decision on them. In reply, the Administrator wired plaintiff telling him that he was withholding until the following day final decision on the charges, to provide him an opportunity to reconsider his refusal to accept reassignment. No further word having been received from plaintiff, the charges of insubordination were sustained, and he was removed from the service. Plaintiff appealed to the Regional Director for the Seventh United States Civil Service Region, in which he alleged that his reassignment was motivated by the desire and ultimate aim to appoint a schedule A employee recommended by the opposite political party, or to create a patronage position. His appeal set forth the reason he had for making this allegation. The Regional Director replied setting out that he had been separated because of "refusal to accept such reassignment," and that a "decision in your case, therefore, must rest upon the separation action rather than the reassignment, because the latter had never been consummated. The contents of your letter of July 27 have been given every consideration and it is the conclusion of this office that you have not established a prima facie case that your separation was effected for political reasons." Plaintiff appealed to the Civil Service Commission in Washington, stating that he did "not feel that proper consideration was given my appeal as presented," and that he was "of the opinion that the facts warranted a complete investigation. It appears to me that the decision of your Regional Office is based upon what one could term a 'technicality' rather than on the merits of the case." In his appeal he set forth his reasons for believing that his reassignment had been motivated by political considerations. The Chairman of the Board of Appeals and Review of the Civil Service Commission wrote plaintiff in part as follows: As you know, the Seventh Region determined that you had not established a prima facie case that your separation was effected for political reasons. After carefully reviewing the record in your case in the light of representations made by you and in your behalf, no basis has been found for a change in the Seventh Region's decision and it is affirmed. Opinion of the Court 145 C. Cls. In arriving at this decision, the Board gave consideration to your contention that political motives entered into the decision of the agency to reassign you from your position at Madison, Wisconsin to a position of the same grade and pay at Washington, D.C. However, as pointed out by the Seventh Region, this reassignment was never consummated in view of your refusal to accept it, and your separation was based upon this refusal. It will be noted that the Regional Office of the Civil Service Commission refused to consider whether or not the reassignment was motivated by political considerations, and considered only whether or not plaintiff's separation had been motivated by political considerations. The Board of Appeals and Review stated that it had considered his contention that "political motives entered into the decision *** to reassign" him; "however", it said, "this reassignment was never consummated in view of your refusal to accept it, and your separation was based upon this refusal." While the Board considered the motive for the reassignment, it did not rule on it, because it regarded it as immaterial, not having been consummated, and based its decision on his refusal to accept the assignment, regardless of whether or not political motives had prompted it. In this the Commission was in error. If the order of reassignment was issued to serve political purposes and not to promote the good of the service, it was an unlawful order. Cf. Knotts v. United States, 128 C. Cls. 489. Being unlawful, it did not have to be obeyed. Hence, a refusal to obey was not insubordination. It was therefore incumbent on the Civil Service Commission to decide whether plaintiff's reassignment was for political purposes. Because the Civil Service Commission refused to do this, it denied him the protection the Civil Service Act of 1883, 22 Stat. 403, 407, affords him. Plaintiff's letter to the Regional Director, in our opinion, made out a prima facie case of the reassignment having been made for political reasons. That prima facie case was: On April 21, 1954, plaintiff's position as State Director was reclassified from a position in the competitive civil service to a Schedule A, or "excepted" position, and plaintiff was noti 632 Opinion of the Court fied "that the tenure is indefinite and terminable upon proper notice," but, after the promulgation of Department Circular 789 on January 24, 1955, plaintiff was notified by the Civil Service Commission that, although he held an excepted position, he was still in the classified civil service. Hence, no one could be appointed to that position so long as plaintiff held it, and so, in order to create a vacancy in that position, plaintiff had to be transferred from it. After his transfer, the position of State Director was open for the appointment of a person who was not in the classified civil service. When this is taken in conjunction with the fact that some time prior to January 1, 1955, one of the Senators from the State of Wisconsin had written to the headquarters of his political party in Wisconsin, asking for a recommendation for a person to fill this position, and in conjunction with the order of March 19, 1955, reassigning plaintiff, there was reason for him to believe that his reassignment had been motivated by political considerations. Plaintiff detailed all these facts in his appeal to the Civil Service Commission. We are of opinion that this made out a prima facie case; by this meaning, a case sufficient to demand inquiry by the Civil Service Commission. The refusal of the Civil Service Commission to rule on whether his reassignment, which plaintiff refused to accept, was for political purposes, denied plaintiff the protection to which he was entitled under the Civil Service Act. Since plaintiff has been denied his right to have his discharge reviewed by the Civil Service Commission, we must deny defendant's motion for summary judgment. We cannot grant plaintiff's motion for summary judg ment, because we do not know that plaintiff's reassignment was for political reasons. The Administrator of the Farmers Home Administration had a right to reassign plaintiff, if the reassignment of him was for the good of the service and not for political reasons. We must, therefore, refer the case to a trial commissioner to ascertain whether or not plaintiff's reassignment was for political considerations. If it was, plaintiff did not have to accept it, and his refusal to do so did not constitute insubordination, and his discharge on Syllabus 145 C. Cls. that ground was unlawful and has deprived him of the salary to which he otherwise would have been entitled. It is so ordered. BRYAN, District Judge, sitting by designation; LARAMORE, Judge; MADDEN, Judge, and JONES, Chief Judge, concur. EUGENE C. OTTINGER, d/b/a OTTINGER CONSTRUCTION COMPANY v. THE UNITED STATES [No. 539-57. Decided May 6, 1959] ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Contract; interpretation; specifications versus drawings.—In an action to recover the extra cost incurred in using riprap ditch checks in drainage ditches instead of the less expensive method of broadcast sodding with Bermuda grass, on the ground that while the contract drawings indicated riprap ditch checks the specifications, which allegedly called for Bermuda grass sodding, were controlling, it is held that the plans and specifications should be read together as a harmonious whole wherever possible, and where, as here, the specifications provided for Bermuda strip sodding "at locations shown on the plans" and the plans showed the locations where grass or riprap was to be used in the ditches, it was not a breach of the contract for the contracting officer to require riprap at the locations shown on the drawings since the specifications clearly required riprap ditch checks to be used in the bottom of some of the ditches. The petition is dismissed. Contract; interpretation; specifications versus drawings.-Wherever possible contract plans (drawings) and specifications should be read together as a harmonious whole; and where construction contract specifications called for ditch flooring of either Bermuda grass or riprap and provided that the Bermuda grass should be placed at certain locations shown on the contract drawings, which drawings also indicated other ditch locations for the placing of riprap, it was not a breach of the contract for the contracting officer to require the contractor to place riprap at the locations shown on the contract drawings. United States 70 (8) 638 Opinion of the Court Mr. Gaines V. Palmes for plaintiff. Miss Mary K. Fagan, with whom was Mr. Assistant Attorney General George Cochran Doub, for defendant. Mr. Sheldon J. Wolfe was on the briefs. WHITAKER, Judge, delivered the opinion of the court: This case is before the court on plaintiff's motion for judgment on the pleadings, and defendant's motion for summary judgment. Plaintiff, doing business as the Ottinger Construction Company, had a contract for the construction of 37 powder magazines, roads, railroads, etc., at the United States Naval Ammunition Depot at McAlester, Oklahoma, which included a number of drainage ditches. It sues the defendant for the difference in cost in using riprap ditch checks in the bottom of certain of the drainage ditches and "broadcast sodding" them with Bermuda grass. The parties agree that the riprap ditch checks were shown on the drawings, but plaintiff claims that they were not specified in the specifications for the floor of the ditches, but that, on the contrary, the floor of drainageways were to be "broadcast sodded with Bermuda grass." The plans, which showed the riprap ditch checks in controversy on the floors as well as the sides of the ditches, were made a part of the specifications by paragraph 1-08, but the specifications provide that, if there is a conflict between the plans and the specifications, the specifications should govern. It is, therefore, necessary for plaintiff to show that the specifications specifically called for the sowing of Bermuda grass or Bermuda strip sodding in those places where the drawings call for riprap ditch checks. In our opinion, plaintiff has been unable to show this. Section 4-10 of the specifications, headed "Bermuda Strip Ditch Checks," provides: (a) Scope. This item shall consist of planting and watering Bermuda strip sodding for ditch checks and protection of slopes at locations shown on the plans. [Italics ours.] This of course calls for Bermuda strip ditch checks at only those locations where they were shown on the plans. Where |