DESIGNATIONS OF JUDGES FOR SERVICE ON THE UNITED STATES COURT OF CLAIMS The Chief Justice of the United States, the Honorable Earl Warren, pursuant to the authority vested in him by Title 28, United States Code, designated and assigned the following judges to perform the duties of judges of the United States Court of Claims on the dates indicated below: January 17, 1961-Honorable Charles Fahy, Judge, United States Court of Appeals for the District of January 18-19, 1961-Honorable Stanley F. Reed, Re- February 27, 1961, to June 30, 1961-Honorable Stanley F. Reed, Retired Associate Justice of the Supreme Court of the United States. DESIGNATION OF A JUDGE OF THE UNITED STATES COURT OF CLAIMS FOR SERVICE ON THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The Chief Justice of the United States, the Honorable Earl Warren, pursuant to the authority vested in him by Title 28, United States Code, designated and assigned the Honorable J. Warren Madden, Judge, United States Court of Claims, to perform judicial duties in the United States Court of Appeals for the Second Circuit for the period commencing February 6, 1961, and ending February 11, 1961. XXI CASES DECIDED IN THE UNITED STATES COURT OF CLAIMS January 1, 1961, to March 31, 1961, and other cases not heretofore published. Opinions are not ordinarily published until final judgment is rendered. Cases in which motions have been filed are not published until disposition of such motions. JOHN J. FINN v. THE UNITED STATES [No. 254-58. Decided January 18, 1961. Plaintiff's motion for rehearing denied June 7, 1961] ON DEFENDANT'S AND PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT Civilian pay; dismissal.—In an action by plaintiff, a veteran preference eligible and former employee of the Bureau of Internal Revenue, to recover back pay lost as the result of his alleged illegal removal for cause from his Government position, it is held that plaintiff is not entitled to recover inasmuch as his removal was not procedurally defective nor were the actions of the employing agency and the Civil Service Commission arbitrary, despite the fact that in a criminal proceeding against the plaintiff on charges identical with those which brought about his removal, the judge of the United States District Court directed a verdict of acquittal on the ground that substantial evidence had not been offered sufficient to justify submission of the case to a jury. Petition dismissed. Civilian pay; dismissal; arbitrary and capricious action; charges not sustained in criminal action.-Where a trial court in a criminal proceeding against a discharged civilian employee of the Government directs an acquittal in connection with charges which were the same as those on the basis of which the employee was dismissed from his Government job, it does not necessarily follow that the civil authorities acted arbitrarily and capriciously in dismissing the employee. The discharge might still have been "for the good of the service". Opinion of the Court 152 Ct. Cl. George R. Jacobi for the plaintiff. Leo Bradspies was on the brief. Frances L. Nunn, with whom was Assistant Attorney General George Cochran Doub, for the defendant. JONES, Chief Judge, delivered the opinion of the court: The plaintiff, a veterans' preference eligible seeks back pay for alleged arbitrary and capricious action on the part of the Bureau of Internal Revenue in suspending and later removing him as an employee. He claims back pay in the sum of $31,417 from June 13, 1952, the date of his discharge, to May 1, 1958, shortly before the date of filing of his petition in this court. The facts in brief are as follows: On February 21, 1938, plaintiff became a Civil Service employee of the Bureau of Internal Revenue and continued as such until June 13, 1952. At the time of his removal he was a Deputy Collector, grade GS-9, at a salary of $5,310 per year. As a result of an investigation, a letter of charges was sent to plaintiff on November 27, 1951, notifying him that it was proposed to suspend him from duty and pay for an indefinite period pending further investigation. The substance of the charge as outlined in the letter was that he had conspired to submit a false report in violation of 18 U.S.C. § 1001. Full details of the alleged transaction were set out in this letter. Plaintiff was advised that he might submit affidavits in support of his reply and that full consideration would be given to his answer before a decision was communicated to him. Plaintiff denied the charges by letter dated November 29, 1951. On March 26, 1952, the Commissioner of Internal Revenue notified plaintiff that pending completion of an investigation of the charges preferred against him, he was suspended from duty and pay for an indefinite period effective at the close of business on March 27, 1952. The Bureau of Internal Revenue on April 3, 1952, issued a letter of proposed adverse action in which plaintiff was notified that it was proposed to remove or otherwise discipline him. The charges in that letter were substantially the same as the charges contained in the letter of proposed suspension. Plaintiff was given 5 days in which to reply, 1 Opinion of the Court and was again given an opportunity to present affidavits. Plaintiff was advised that full consideration would be given to any reply that he might make, after which a written decision would be furnished him. The plaintiff submitted a one-page reply in which he denied generally the charges in the letter of proposed adverse action. On June 3, 1952, plaintiff was notified of the final decision of the Bureau of Internal Revenue to separate him from his position with the Internal Revenue Service as of July 13, 1952. He was notified of his right to appeal the action to the Second Civil Service Region within 10 days from the effective date of his removal. The plaintiff had not appealed this suspension, but in a letter dated June 18, 1952, he did appeal the agency's action in removing him to the Civil Service Commission Regional Office in New York City. The Commission began its customary investigation under section 14 of the Veterans' Preference Act, 5 U.S.C. § 863. On April 18, 1952, an indictment had been filed in the United States District Court for the Eastern District of New York against the plaintiff and two others, in which it was charged that he conspired with James J. Andrews to submit a false report on Form 53, Deputy Collector's Report of Uncollected Taxes, in the matter of the income tax liability of one Anthony Struk; that the said Form 53 was improper in that false statements were made therein that the said taxpayer had no assets and that a diligent effort had been made by the plaintiff to collect the taxes due; and that the purported financial statement submitted by plaintiff in support of Form 53 was false in that it was not obtained from the taxpayer and that taxpayer's assets were not truly reflected therein. Since the indictment contained substantially the same charges as those pending before the Civil Service Commission, the investigation by the Commission was postponed pending disposition of the criminal case. The plaintiff was brought to trial in the United States District Court for the Eastern District of New York on November 30, 1953. After the evidence had been introduced, the judge directed a verdict of acquittal on the ground that |