Opinion of the Court 145 C. Cls. Preference Act with respect to the treatment afforded these individuals in regard to their positions in the Veterans Administration. Plaintiff Wagner filed Civil Action 76-54 against H. V. Higley, individually and as Administrator of Veterans' Affairs and Phillip Young, Frederick Lawton and George M. Moore, individually and as Commissioners of the United States Civil Service Commission. Plaintiffs Cutting, Larsen and Maloney collectively sued these same individuals in Civil Action 5467-53. Both complaints were dismissed on summary judgment in favor of the defendants, which action was affirmed on appeal by the written opinions of the Court of Appeals, supra. Thus we are squarely faced with the question whether the plaintiffs, having once litigated the very facts and issue now in controversy in a sister court against individual officers of the Government still have standing to sue in this court. The identical issue was decided by this court in the case of Edgar v. United States, ante, p. 9, wherein the court held that the plaintiff was estopped from asserting her claim, since the same question of fact was decided adversely to her by the District Court in an action for reinstatement against the Postmaster General. While the question of privity was present in the Edgar case and the court's opinion is silent as to this issue, we believe the resulting adverse decision against plaintiff, and the overruling of the Levy1 and O'Brien 2 cases, necessarily results in a holding that there is privity between the United States and its individual officers acting in their official capacities as was held by this court in Williams v. United States, 134 C. Cls. 763. In the instant case plaintiffs sought reinstatement in the District Court in suits against the Administrator of Veterans' Affairs and members of the Civil Service Commission individually based upon the same facts as alleged in the present petition. These actions resulted in a dismissal by the District Court, affirmed on appeal. In this posture the Edgar case is controlling and plaintiffs are estopped from again litigating the same facts. 1118 C. Cls. 106. 124 C. Cls. 655. 178 Syllabus Defendant's motion for summary judgment is granted, and plaintiffs' petition is dismissed. It is so ordered. FAHY, Circuit Judge, sitting by designation; MADDEN, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur. HARRY C. MAYER v. THE UNITED STATES [No. 100-58. Decided March 4, 1959] ON DEFENDANT'S AND PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT Civilian pay; dismissal; reinstatement.-Plaintiff was separated from his position as an employee of the Corps of Engineers for inefficiency. This action was set aside by the Board of Appeals and Review of the Civil Service Commission on the ground that it was procedurally defective. The plaintiff was subsequently reinstated, but removed a second time on grounds of inefficiency. He has been denied the pay he would have received for the period between the first removal and the subsequent reinstatement, and for the period subsequent to the second removal. It is held that plaintiff is entitled to recover back pay for the period between the procedurally defective removal and the subsequent reinstatement, but not for the period subsequent to his second removal. United States 39 (8) Civilian pay; dismissal; reinstatement—right to back pay following. Where removal of plaintiff for inefficiency was set aside by the Board of Appeals and Review of the Civil Service Commission on the ground that the removal action was procedurally defective, the plaintiff is entitled to recover for loss of pay from the time of the removal until his subsequent reinstatement, the recovery to be limited to the amount allowed under the terms of the 1948 amendment (62 Stat. 354) to the LloydLa Follette Act (5 U.S.C. (1952 ed.) § 652(b) (2)). United States 39 (8) Pleading and Practice; special matters; allegation of arbitrarinessparticularity. Where plaintiff's petition in a suit for loss of pay, based upon an allegedly arbitrary separation from service on a finding of inefficiency, states conclusions and inferences and does not allege sufficient facts, it fails to raise the issue of arbitrary action or lack of substantial supporting evidence. United States 39 (13) 145 C. Cls. Opinion of the Court Mr. Robert L. Ackerly for the plaintiff. Mr. Earl L. Huntington, with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant. JONES, Chief Judge, delivered the opinion of the court: On December 31, 1953, and for some years prior thereto, plaintiff was a regular employee of the Corps of Engineers of the United States Army and on that date held the position of Realty Assistant in the Real Estate Division of the Walla Walla District of that branch of the Corps of Engineers. On November 30, 1953, plaintiff was given notice of a proposal to separate him from the service on the ground of inefficiency and undependability effective at the close of business on December 30, 1953. Specific dates and recital of instances were listed among the charges. The plaintiff made a reply on December 7, 1953. Effective December 31, 1953, plaintiff was removed from his position based on such charges. Appeal was taken to the Civil Service Commission's Eleventh Regional Office. The Regional Office of the Commission conducted an investigation during the period February 8 through February 12, 1954. Copies of some 18 affidavits and copies of reports have been filed with the court as defendant's exhibits A(1)-A (18), B, and C. There is also attached a report of the investigation by the Eleventh United States Civil Service Region, including an affidavit by the former supervisor of the plaintiff. Plaintiff requested and obtained a hearing before the Appeals Examiner of the Regional Office. The transcript of the testimony taken at the hearing is also filed with the papers as defendant's exhibit E. Following a consideration of the evidence, the Eleventh Regional Office affirmed the removal action. Plaintiff then appealed to the Commission's Board of Appeals and Review, asserting in connection therewith that other matters than those included in specific charges were allowed to influence the decision. As shown by letter dated August 27, 1954, the Board of Appeals and Review reversed the action of the Eleventh 181 Opinion of the Court Regional Office and directed plaintiff's restoration to duty. We quote the following part of that letter: It is evident on the basis of the agency's final decision letter that any and all reasons for Mr. Mayer's removal were not set forth in the notice of proposed adverse action. Consequently, the removal action is considered procedurally defective and the decision of the Regional Office is rescinded. It is recommended that Mr. Mayer be restored retroactively to his former position the day following the effective date of his removal. In compliance with the action of the Board of Appeals and Review, the plaintiff was restored to duty on September 16, 1954. However, he was not awarded compensation for the intervening period. On September 16, 1954, plaintiff was given another letter proposing his removal on grounds of inefficiency. This communication was eight pages in length and listed numerous specific instances relating to plaintiff's performance of the duties of his position. According to the Board of Appeals and Review, this would be considered an entirely new action and any further adverse action by the agency would give rise to a new appeal on the part of the plaintiff. Plaintiff replied in detail to the notice of the charges. This reply is also among the papers in this action. The Commission's Eleventh Regional Office conducted a further investigation on November 8 and 9, 1954. Numerous documents and affidavits were obtained during this investigation and are filed with the papers as defendant's exhibits Q(1)-Q(16). In an affidavit dated November 9, 1954, plaintiff stated: I have read the foregoing documents, affidavits, photostats, letters, and statements concerning my appeal of dismissal from my employment as Realty Assistant, and acknowledge them as adequate and correct, and I have nothing further to offer. I make this statement of my own free will and accord, this 9th day of November, 1954 at Walla Walla CountyCity Airport, County of Walla Walla, State of Washington. I do not desire another hearing before the Appeals Examiner. Opinion of the Court 145 C. Cls. After considering all the evidence obtained during the course of the investigation, the Regional Director, in a 25page opinion, affirmed the removal action, stating in part that he found the Corps of Engineers of the Walla Walla District had met all the procedural requirements of section 14 of the Veterans' Preference Act of 1944, as amended (5 U.S.C. 851 (1952 ed.)), and the regulations issued thereunder. He also found that the reasons stated to the appellant for the adverse action were substantiated to such an extent as to lead any reasonable person to believe that "the action of removal is for such cause as will promote the efficiency of the service." Plaintiff appealed this decision and the Board of Appeals and Review affirmed the decision of the Regional Office as justified on the basis of the collective charges, and found that such removal would promote the efficiency of the service. In a letter of notification they recited three different specifications which they regarded as substantiated by the evidence. Plaintiff asked for reconsideration and on May 28, 1956, plaintiff's request for reopening of the case was denied. Two distinct claims are involved in this case. One, the question of whether or not plaintiff is entitled to recover the pay which he would have received for the period between January 1, 1954, through September 15, 1954, had the recommendation of the Commission that he be restored retroactively been followed. Since the removal action was set aside by the Board of Appeals and Review of the Civil Service Commission on the ground that the removal action was procedurally defective, we find the plaintiff is entitled to judgment for the period from January 1, 1954, through September 15, 1954, the recovery to be limited to the amount allowed under the terms of the 1948 amendment, 62 Stat. 354, to the Lloyd-La Follette Act (5 U.S.C. (1952 ed.) § 652 (b) (2)). We find no basis, however, for allowing any recovery on the basis of the second removal. No procedural defect or irregularity is alleged or claimed. In such circumstances it is not in our province to consider the merits of the removal action in the absence of a showing that such action was arbitrary, capricious, or not supported by substantial |