266 Opinion of the Court from those trees that had not been destroyed at the time of the taking of the easement, because as long as such profits are realized from a portion of the orange grove, its value is greater than it would have been as bare lands. In order to accomplish what we think is the correct result, scientifically, the case is remanded to the Trial Commissioner for the purpose of taking testimony to show the value after the taking of that portion of the orange grove in which the trees had been destroyed in 1955 and that portion of the orange grove in which the trees had not been destroyed in 1955. We are unable to follow plaintiffs' argument that the lemon grove was necessarily destroyed as a result of the destruction of the orange grove. Only one witness gave testimony to this effect. It seems to us completely illogical. It is said that the lemon grove was a losing enterprise before the canal was constructed and yet the testimony shows that it had a value of $2,200 an acre before the construction of the canal. This $2,200 is $1,550 more than its value as bare lands. No one would pay this premium for a losing enterprise. If it had no value independent of the orange grove, this would mean that a person purchasing both the orange grove and the lemon grove would in fact be paying $5,700 an acre for the orange grove instead of $3,500 an acre, which the testimony shows the orange grove was worth before the taking. We are unable to agree with plaintiffs' position. The lemon grove had not been damaged in 1955 and there seemed to be little prospect that it would be thereafter. There has been no taking of a seepage easement under the lemon grove and plaintiffs are entitled to nothing on this account. Therefore, except as to the amendment of the directions to the Commissioner on remand, as set forth above, plaintiffs' motion for rehearing will be denied. It is so ordered. DURFEE, Judge, LARAMORE, Judge; MADDEN, Judge; and JONES, Chief Judge, concur. Opinion of the Court 152 Ct. ClI. BEN W. ALPUERTO v. THE UNITED STATES [No. 193-60. Decided January 18, 1961] ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Military pay; active duty pay; Missing Persons Act.-In an action by plaintiff, a member of the Philippine Scouts, to recover additional active duty pay between April 1942 and March 1946, to which pay plaintiff claims he is entitled under the provisions of the Missing Persons Act, as amended, 71 Stat. 491, because of alleged promotions while serving with the Philippine Army Forces at Cebu, it is held that under section 9 of the Missing Persons Act, as amended, 58 Stat. 679, 680-681, the determination of the department that plaintiff's status during the period in question was that of a Private First Class and that he was entitled to the pay of that grade, was final and conclusive and the court is without jurisdiction of the claim. Moreno v. United States, 118 Ct. Cl. 30; Ferrer v. United States, 132 Ct. Cl. 422; Logronio v. United States, 132 Ct. Cl. 596. Petition dismissed. Military pay; missing persons' active duty pay; Court of Claims jurisdiction; departmental determination under Missing Persons Act. The determination of the department concerned under the Missing Persons Act as amended, 58 Stat. 679, relative to a missing person's status and entitlement to pay, is conclusive and not subject to judicial review. Moreno v. United States, 118 Ct. Cl. 30; Ferrer v. United States, 132 Ct. Cl. 422; Logronio v. United States, 132 Ct. Cl. 596. David Schlaifer for plaintiff. James M. Little on the brief. Thomas A. Hett, with whom was Assistant Attorney General George Cochran Doub, for defendant. LARAMORE, Judge, delivered the opinion of the court: Plaintiff seeks to recover additional pay and allowances as a member of the Philippine Scouts while serving with the Philippine Army, Cebu Area Command, during the period from April 16, 1942, to March 25, 1946, due to alleged promotions while so serving. He claims entitlement under the Missing Persons Act, 71 Stat. 491. Defendant has filed a motion for summary judgment, and two questions are presented: (1) Is plaintiff's claim barred 270 Opinion of the Court by the statute of limitations, 28 U.S.C. § 2501, and (2) is the administrative determination of plaintiff's status under the Missing Persons Act of 1942, 56 Stat. 143, as amended, 58 Stat. 679, 680-681, final and conclusive and not subject to judicial review. The facts as disclosed by the petition and exhibits are these: Plaintiff enlisted in the Philippine Scouts on March 1, 1941. He was captured by the Japanese on April 9, 1942. He escaped and joined the Philippine Army Forces at Cebu subsequently. While serving with the Philippine Army from April 16, 1942, to March 25, 1946, he received certain alleged promotions, and it is for the pay and allowances commensurate with the rank alleged to be held that claim is made. On October 25, 1945, the Secretary of War delegated to the Commanding General, Army Forces, Western Pacific, the authority to make determinations under the Missing Persons Act, supra. On May 15, 1946, said Commanding General determined under the Missing Persons Act that plaintiff had held the grade of Private First Class during the entire period from December 1, 1941, to March 25, 1946. Accordingly, plaintiff was paid under this determination for the entire period in suit as a Private First Class. While the question of the statute of limitations is the threshold question to be answered here, for the purpose of this opinion only we shall pass over the question and assume his petition is timely. We do this solely because we are of the opinion that plaintiff cannot recover under the Missing Persons Act, supra, upon which he apparently bases his claim. Plaintiff alleges no arbitrary action. He merely alleges that a claim for compensation under the Missing Persons Act, as amended by 71 Stat. 491, was denied him for salary due for four years of service in the Armed Forces of the United States while serving in the Cebu Area Command. The Missing Persons Act authorizes administrative determinations with respect to status and entitlement to pay of missing, interned or captive servicemen. Just such a deter Opinion of the Court 152 Ct. Cl. mination was made by proper authority on behalf of the Commanding General. It was determined on May 15, 1946, that the grade held by plaintiff was Private First Class from December 1, 1941, to March 25, 1946, and he was paid accordingly. Section 9 of the Missing Persons Act, 58 Stat. 679, 680–681, provides in pertinent part as follows: The head of the department concerned, or such subordinate as he may designate, shall have authority to make all determinations necessary in the administration of this Act, and for the purposes of this Act determinations so made shall be conclusive as to death or finding of death, as to any other status dealt with by this Act, and as to any essential date including that upon which evidence or information is received in such department or by the head thereof. *** Determinations are authorized to be made by the head of the department concerned, or by such subordinate as he may designate, of entitlement of any person, under provisions of this Act, to pay and allowances, including credits and charges in his account, and all such determinations shall be conclusive: ***When circumstances warrant reconsideration of any determination authorized to be made by this Act the head of the department concerned, or such subordinate as he may designate, may change or modify a previous determination. Since the departmental determination of plaintiff's status and entitlement to pay and allowances was made, under the plain language of section 9 above, his claim is not subject to judicial review. Moreno v. United States, 118 Ct. Cl. 30; Ferrer v. United States, 132 Ct. Cl. 422; Logronio v. United States, 132 Ct. Cl. 596. Nor does the 1957 amendment, supra, give plaintiff any additional rights. Section 9 of the original act is still in force and effect, and the determination of plaintiff's status by the department concerned is still final and conclusive. Defendant's motion for summary judgment is granted, and plaintiff's petition is dismissed. It is so ordered. DURFEE, Judge; MADDEN, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur. Syllabus ALBERT T. WATSON v. THE UNITED STATES INo. 107-57. Decided January 18, 1961] ON THE PROOFS Military pay; active duty pay and retired pay.—Plaintiff, a commissioned warrant officer in the United States Navy, was placed on the temporary disability retired list in 1952 pursuant to section 402(b) of the Career Compensation Act of 1949, 63 Stat. 802, 817, with a disability rating of 50% for psychotic depressive reaction. In 1955, a Physical Evaluation Board found plaintiff recovered and fit to perform active duty but upon the recommendation of the Physical Review Council found that plaintiff was unfit for duty with a disability rating of zero and the Seoretary of the Navy thereafter (1956) discharged plaintiff with severance pay pursuant to section 403 of the 1949 Act. The correction board to whom plaintiff applied, recommended that his record be corrected to show his continuance on the temporary disability retired list until 1957 and his reappointment to active duty with pay in accordance with the correction. Later, on reconsideration in the light of comments by the Chief of the Bureau of Medicine and Surgery, the correction board withdrew its recommendation for correction. It is held (1) that the Navy's refusal to restore plaintiff to active duty was not arbitrary or illegal in the light of its general policy to reject as unfit persons who have a history of psychotic disorders; (2) that the Navy's conclusion that plaintiff was unfit for active duty by reason of physical disability but that his percentage of disability was zero is strange but not particularly important in view of the fact that under section 402 (b) of the Career Compensation Act disability of at least 30% is necessary to warrant disability retirement with pay, and the disability had to be determined in accordance with the schedule for rating disabilities in use by the Veterans Administration which involved disability not for military service but for civilian life. Petition dismissed. Military pay; active duty pay; retention on active duty; psychotic illness-general policy concerning.-Where the medical and military reasons justify the adoption by the Navy of a general policy with respect to the retention of persons with a history of psychotic illness, the fact that the policy is general and takes no account of the individual situation of a particular member of the service or the extent of his possible recovery from a psychotic illness, does not render the policy or the refusal to retain the person on active duty, arbitrary. Armed Services 13.5(5) |