150 Ct. Cl.

CAUSE PROMOTING EFFICIENCY OF SERVICE. See Civilian Pay.
CERTIFICATE OF NEED. See Contracts.

CHANGED CONDITIONS.

See Contracts.

CHARITABLE ORGANIZATIONS. See Income Tax.

CIVILIAN PAY.

DISMISSAL.

ANSWER PERSONALLY.

How requested.

A request for a "hearing" made by a civilian Government em-
ployee who has received a notice of proposed adverse personnel
action, is not a request for an opportunity to answer charges
personally, granted by section 14 of the Veterans' Preference Act
of 1944, 5 U.S.C. § 863. LaMarche, 631.

Officers

72(1)

CAUSE PROMOTING EFFICIENCY OF SERVICE.

What constitutes.

Where plaintiff, a disabled veteran civilian employee of the Post
Office, was assigned to a night shift despite medical advice that he
could not work the night shift, but where the assignment was in
accordance with the department's seniority system, plaintiff's re-
moval on the ground that he was absent from duty without per-
mission and had refused to return to work, was a removal for
such cause as would promote the efficiency of the service within
the meaning of section 14 of the Veterans' Preference Act of 1944
(58 Stat. 387) and was not arbitrary. Rubin, 28.
Officers 68

HEARING BY EMPLOYING AGENCY BOARD.

Personal knowledge of facts by board members.

Agency regulations requiring a fair hearing in connection with the
dismissal of an employee are not violated where it is shown that
the chairman of the agency hearing board had some personal knowl-
edge of the facts of the case, since personal knowledge of such
facts does not create a presumption of bias. Keeney, 53.
United States

36

HEARING UNDER VETERANS' PREFERENCE ACT.

Board of Appeals and Review.

A veteran preference eligible who appeals his dismissal to the
Board of Appeals and Review of the Civil Service Commission is
not entitled to a hearing before the board under the provisions of
section 14 of the Veterans' Preference Act of 1944, 58 Stat. 387.
Washington v. United States, 137 Ct. Cl. 344, distinguished.
Steele, 47.

150 Ct. Cl.

CIVILIAN PAY-Continued

DISMISSAL-Continued

HEARING UNDER VETERANS' PREFERENCE ACT-Continued

Board of Appeals and Review-Continued

Where, at the hearing before the Regional Office of the Civil
Service Commission, a discharged veteran preference eligible ad-
mits most of the material charges on which his dismissal was
based, the Board of Appeals and Review did not act arbitrarily in
denying plaintiff a further hearing, which denial was within its
discretion. Steele, 47.

Officers 72(1)

Civil Service Commission.

Post-hearing statement to examiner.

Section 22.401(c) of the Civil Service Commission's regulations pro-
viding that all relevant representations must be discussed with
both parties in a removal action and must be available for review
by them, is not violated when the Appeals Examining Officer solicits
a post-hearing statement from an employee of the Post Office De-
partment, covering the Department's official interpretation of postal
regulations. Such a statement is a representation as to the law
rather than as to a fact and thus is not covered by the regulation of
the Commission. Vogt, 636.

The mere possibility of an improper motive, such as retaliation, in
connection with the dismissal of a veteran preference eligible from
his civilian Government employment, will not invalidate an other-
wise legally consummated dismissal based on substantiated charges
of inefficiency. Preble, 39.

Officers 68

INDEFINITE APPOINTMENT UNDER WHITTEN RIDER.

Status of employee.

A person who has an indefinite appointment as a result of the opera-
tion of the Whitten Rider (64 Stat. 1066) does not have competitive
status and thus does not become a member of the "classified civil
service" within the meaning of section 6(a) of the 1948 amendment
to the Lloyd-La Follette Act (62 Stat. 354). Moyer, 627.
Officers

69.5

United States 39 (8)

INVESTIGATION BY CIVIL SERVICE COMMISSION.

Adequacy of investigation.

Section 14 of the Veterans' Preference Act of 1944 (58 Stat. 387)
does not define the scope of the investigation which the Civil Service

150 Ct. Cl.

CIVILIAN PAY-Continued

DISMISSAL-Continued

INVESTIGATION BY CIVIL SERVICE COMMISSION-Continued

Adequacy of investigation-Continued

Commission is supposed to make in connection with a veteran's ap-
peal from a dismissal action of his employing agency, but where the
preference eligible is unable to demonstrate in what manner the
investigation was incomplete, he has not shown that his rights under
this provision of section 14 have been violated. Preble, 39.
Officers 68

LIMITATION OF ACTIONS.

Accural of cause of action.

Although the appeal of a veteran to the Civil Service Commission
under section 14 of the Veterans' Preference Act is permissive, once
a veteran elects to exercise this statutory right within the time al-
lowed, the adverse action of his employing agency is deprived of
finality and since the subsequent decision of the Commission is
binding on the employing agency, the dismissal action is not final
until the Commission has acted. Accordingly, a claim filed within
six years of final action of the Civil Service Commission is therefore
timely. 25 U.S.C. § 2501. See Cuiffo v. United States, 131 Ct. Cl. 60.
Keeney, 53.

Courts 461

United States 39 (12)

NONDISCIPLINARY DISMISSAL.

Regulations of employing agency covering disciplinary dis-
missals.

Where a dismissal carried out under section 14 of the Veterans'
Preference Act of 1944 (58 Stat. 387) is not a disciplinary action,
Navy Civilian Personnel regulations dealing with disciplinary ac-
tions are not applicable and thus it is immaterial whether or not the
Navy complied with such regulations in affecting plaintiff's nondis-
ciplinary removal. Preble, 39.

Officers 68

NOTICE UNDER VETERANS' PREFERENCE ACT.
Sufficiency of notice.

Where a veteran preference eligible employed by the Government
has failed to establish that retaliation was a reason for his dis-
missal from his position, the notice of dismissal was not procedur-
ally defective under section 14 of the Veterans' Preference Act (58
Stat. 387) for failure to include such a reason therein.
39.

Officers 68

Preble,

Where the notice relative to the dismissal of a veteran preference
eligible contained so-called "examples" of inefficiencies which, in

150 Ct. ClI.

CIVILIAN PAY-Continued

DISMISSAL-Continued

NOTICE UNDER VETERANS' PREFERENCE ACT-Continued

Sufficiency of notice-Continued

reality, amounted to charges of inefficiency containing sufficient
detail to adequately inform the plaintiff in what respects his work
was unsatisfactory, and to which charges he might have prepared
responses, the notice complied with the requirements of section 14
of the Veterans' Preference Act, 58 Stat. 387. Preble, 39.
Officers

68

RECOVERY-MEASURE OF.

Normal earnings.

Accrued annual leave.

Inasmuch as the Act of August 26, 1950, 5 U.S.C. § 22-1, places no
limitation on the amount of accrued annual leave for which a re-
instated employee may be paid, and since it is presumed that the
employee would have used rather than have forfeited his leave
had he not been wrongfully dismissed, such employee is entitled
to be paid for all of such leave. Hynning v. United States, 141 Ct.
Cl. 486. [Overruled in Zeiger v. United States, No. 389–60, decided
November 1, 1961]. Vitarelli, 59.

United States 39 (8)

Foreign post differential.

A civilian Government employee dismissed under the provisions of
the Act of August 26, 1950, 5 U.S.C. § 22-1, as a security risk, while
serving in an overseas post, and later reinstated under the provi-
sions of the same act, is entitled to be paid the amount which he
would "normally have earned *** at the rate he was receiving
on the date of suspension or termination" and this includes the
foreign (or territorial) post differential which he was receiving
when he was suspended. Kalv v. United States, 128 Ct. Cl. 207, dis-
tinguished. Vitarelli, 59.

In the Act of August 26, 1950, 5 U.S.C. § 22-1, authorizing the ad-
ministrative payment of back pay to a reinstated employee in an
amount "not to exceed the difference between" normally expected
earnings on the job and the employee's interim net earnings, there
is no indication that Congress intended the court to exercise any
discretion in awarding an amount less than the full compensation
for each item of pay to which a reinstated employee might be en-
titled, the purpose of the language in question being to provide an
exact method of computation of the amount of back pay and not
an invitation to render a jury verdict. Vitarelli, 59.
United States 39 (8)

150 Ct. Cl.

CIVILIAN PAY-Continued

DISMISSAL-Continued

RECOVERY-MEASURE OF-Continued

Normal earnings-Continued

Interim net earnings-legal fees incurred.

Legal expenses incurred by a dismissed employee in seeking job
restoration may not be deducted from his interim outside earnings
during the period of wrongful dismissal under the Act of August
26, 1950, 5 U.S.C. § 22-1, to determine his "interim net earnings".
35 Comp. Gen. 268, distinguished; 34 Comp. Gen. 382. Vitarelli, 59.
United States 39 (8)

Pay increases.

Under the Act of August 26, 1950, 5 U.S.C. § 22-1, legislative pay
increases and in-grade raises to which a discharged employee
would have been entitled had he not been wrongfully dismissed,
are not part of the "normal earnings" he would have received "at
the rate he was receiving on the date of suspension or termination"
and may not be included in computing the back pay due him under
the 1950 Act. Vitarelli, 59.

United States 39 (8)

Per diem allowance.

While per diem payments for the period during which an employee
dismissed under the Act of August 26, 1950, 5 U.S.C. § 22-1, are
not clearly part of his normal pay computed at the rate he was
receiving on the date of his dismissal, an employee who was sus-
pended overseas from his foreign post and was called back to the
United States under suspension to answer charges, is considered
to be traveling on official business until he has completed his ap-
pearance before the security board convened under the above act,
and during such period he is entitled to be paid his per diem al-
lowance. 5 U.S.C. § 836. Vitarelli, 59.

United States 39 (8)

REGULATION OF EXECUTIVE DEPARTMENT.

Post Office Department regulation-construction of.

Where a Post Office Department regulation provides that clerks
over 55 years of age are exempt from examinations unless they have
been transferred from other positions in the service and have not
completed basic schemes required in the position to which trans-
ferred, plaintiff, who was over 55 but who had been transferred from
another position to outgoing air mail distribution, was required to
take the examinations applicable to the new position. Vogt, 636.
Post Office 9

The Post Office Department regulation providing that at city de-
livery offices substitute clerks must be assigned to and must
qualify on primary schemes, does not apply to clerks assigned to the