59 Opinion of the Court receiving them on the date of his discharge, and that is the fact that must be controlling in this situation. Finally, plaintiff seeks to have the other factor in the equation, the interim earnings, reduced by the amount expended on legal fees required to have himself cleared of the charges and reinstated by the Government. He does not, however, claim any of the costs of pursuing his action in this court. He argues that net interim earnings should be analogized to the tax concept of net income and offers the familiar principle that a person who, on account of or in connection with, his business or profession, expends funds for legal fees in successfully defending a criminal or quasicriminal proceeding may deduct those fees from income as an ordinary and necessary business expense. Plaintiff claims support for his theory that internal revenue precedents should apply and that the net earnings of 5 U.S.C. 22-1 should be diminished just as net income would be by referring to Decision No. B-125362 of the Comptroller General (35 Comp. Gen. 268). It seems to us, however, that that decision merely said that all of the personal business activities of a wrongfully discharged employee should be considered in arriving at his actual earnings during his separation. Moreover, that decision, as well as Decision No. B-122555 (34 Comp. Gen. 382) states that the legal expenses incurred in seeking job restoration may not be deducted from interim earnings. Furthermore, the record does not convince us that plaintiff's action in vindicating himself before the courts was a necessary prerequisite to retaining his right to employment as a professional educator. For the foregoing reasons plaintiff will not be permitted to deduct his legal expenses from his interim earnings to arrive at interim net earnings. We believe that the plaintiff should recover the 25 percent territorial differential, the monetary equivalent of the annual leave which would have accrued, and per diem payments from the date of his suspension until the date that the statutory hearings were completed; we believe that he should not receive the periodic increases or legislative raises which occurred during his separation nor should he be permitted to Dissenting Opinion by Chief Judge Jones 150 Ct. Cl. exclude his legal fees from interim net earnings, and the petition will be dismissed as to those claims. Accordingly, the plaintiff's motion for summary judgment will be granted in part and denied in part. The defendant's motion for summary judgment will be granted in part and denied in part. The amount of the judgment will be determined pursuant to Rule 38 (c). It is so ordered. LARAMORE, Judge and MADDEN, Judge, concur. JONES, Chief Judge, dissenting in part: Stripped of nonessentials, the primary issue in this case narrows to interpreting and finding the meaning of the applicable statute. The special provision, Act of August 26, 1950 (5 U.S.C. § 22-1), is as follows: ** any person whose employment is so suspended or terminated *** may, in the discretion of the agency head concerned, be reinstated or restored to duty, and if so reinstated or restored shall be allowed compensation for all or any part of the period of such suspension or termination in an amount not to exceed the difference between the amount such person would normally have earned during the period of such suspension or termination, at the rate he was receiving on the date of suspension or termination, as appropriate, and the interim net earnings of such person [Emphasis supplied.] The plaintiff was reinstated pursuant to a court order after being discharged as a security risk. He has been paid his basic salary for the period of suspension, but at the time the question of his dismissal was raised, he was working in the Pacific islands. Consequently, he was receiving a post differential of 25 percent in addition to his basic salary. He claims to be entitled to this differential notwithstanding the fact that he was brought home and spent no part of the interim period outside of the continental United States. I disagree with the interpretation which the majority has placed on this provision of the statute quoted above. It will 59 Dissenting Opinion by Chief Judge Jones be noted that there are at least two bases of discretion. The statute provides that on reinstatement the employee shall be allowed compensation "for all or any part of the period of such suspension." Following that provision it is stated that such compensation shall be in an amount "not to exceed the difference between the amount such person would normally have earned during the period of such suspension or termination, at the rate he was receiving on the date of suspension or termination *** and the interim net earnings of such person." This statute has been construed by the majority as if the expression "or any part" and the expression "not to exceed" had been deleted from the statute. There must be a reason why these two limitations were inserted. In addition, this court has already decided the question of an employee's entitlement to the differential payments during the period when he was not located abroad. The same question was before the court in Kalv v. United States, 128 Ct. Cl. 207 (1954), from which we quote at page 211: *** Every provision of law and every executive order which we have been able to find which bears upon this subject indicates that the reason for the differential is either the increased expense of living abroad, or the difference in environment involving physical hardship, health or extraordinarily difficult living conditions. Plaintiff was abroad not a single day during the period for which he is claiming the additional compensation. All the reasons, therefore, for allowing the additional compensation are removed from the case, and this portion of the claim is left hanging on a bare technicality. The same conclusion was reached in Casman v. United States, 143 Ct. Cl. 16. The plaintiff in the instant case spent no time in the Pacific during the period of suspension. For the double reason that I do not regard the 25 percent differential as being applicable when the plaintiff during the period involved was in the continental United States and that I regard the statute quoted above as not mandatory, but only as placing a ceiling on the amount an employee may recover, the plaintiff's claim for differential payment should be denied. Syllabus 150 Ct. Cl. In the circumstances involved in this case I would dismiss plaintiff's entire petition. WHITAKER, Judge, dissenting in part: The majority opinion has much to support it, but I do not think it can stand unless we overrule the Kalv and Casman cases, supra. In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on December 30, 1960, that judgment for plaintiff be entered for $10,630. JOSE V. BACA, ET AL. v. THE UNITED STATES [No. 489-57. Decided June 8, 1960. Plaintiffs' motion for rehearing denied July 15, 1960. Plaintiff's (Verney R. Bunch (3)) motion to amend judgment denied May 9, 1962]* ON THE PROOFS Civilian pay; overtime pay of bus drivers; waiting time-when compensable. In an action by civilian bus drivers employed by the Army to drive buses to and from White Sands Missile Range, to recover overtime compensation required to be paid by the Act of March 28, 1934 (48 Stat. 509, 522), as amended (5 U.S.C. § 673c (1958)), for four hours each day in addition to the eight hours of required duty, during which four hours plaintiffs were not actually performing any labor for the Army but were expected to be on hand at the end of the four hours in order to drive the bus on its return trip, it is held that such "off-duty" times were not "hours of labor" within the meaning of the term in the overtime statute since plaintiffs were not required to do their waiting at any particular place or to be on call during such waiting period. Civilian pay; overtime pay; wage board employees; waiting timewhen compensable. Where civilian bus drivers employed by the Army to drive buses to and from White Sands Missile Range have a four-hour waiting period intervening between driving periods, during which period the drivers are not required to perform any duties and are free to do their waiting anywhere they please as long as they are back at the base in time to drive the buses on schedule, such waiting time is not Plaintiffs' petition for writ of certiorari denied by the Supreme Court, 364 U.S. 892. 70 Syllabus working time or "hours of labor" within the meaning of the Act of March 28, 1934, 48 Stat. 509, 522, and such time is not compensable. Skidmore V. Swift & Co., 323 U.S. 134, distinguished. Armed Services 27 Civilian pay; overtime pay; wage board employees; waiting time— limitation on-left to discretion of officer. Where a departmental regulation of the Army forbids the scheduling of offduty or waiting time of more than one hour occurring during periods of work unless the commanding officer of the installation determines that the limiting of such time to only one hour would seriously handicap performance of a necessary function or would result in substantially increased costs, a formal written finding to that effect is not essential if the circumstances are such as to warrant an inference that the commanding officer must have concluded that longer off-duty periods were necessary. Civilian pay; overtime pay; wage board employees; regulation of executive department-violation of-when actionable.-Where a departmental regulation forbids scheduling of off-duty time of more than one hour during periods of work unless the commanding officer determines that an exception is required to prevent serious handicaps in the work or increased costs, and that regulation is violated by the commanding officer, he is answerable to his superiors in the departmental hierarchy but no claim for pay during those additional off-duty hours would accrue to the men required to take the time off unless they were actually performing some work or service for the Government. Armed Services 27 Civilian pay; overtime pay; wage board employees; waiting time when compensable. Where periods of waiting time intervening between periods of actual work are not long enough to permit the employee to leave his post for the purpose of effectively engaging in his own activities, such off-duty time must be deemed spent in readiness to perform the next tour of duty and therefore such periods are "hours of labor" and are compensable. Armed Services 27 Master and Servant 70(1) Civilian pay; overtime pay; wage board employees; voluntary serv ices during off-duty time.-Where, during his off-duty time, an employee voluntarily performs duties for his employer knowing that he will not be compensated therefor, no claim for compensation for such time arises. Goode v. United States, 25 Ct. CI. 261, 267. Master and Servant - 72 |