Arbitrary and capricious action.
Civil Service Commission.
Where the plaintiff's claim that the employing agency acted arbi-
trarily in bringing about his dismissal was thoroughly gone into
at the hearing before the Civil Service Commission and the deci-
sion of the Commission, adverse to plaintiff, directed careful atten-
tion to plaintiff's assertions, and where the record at the hearing
furnished substantial support to the adverse ruling on this aspect of
plaintiff's appeal, the decision of the Commission was not arbitrary.
Sells, 1.
Officers 72(1)
Charges.
Specificity.
Where the plaintiff is charged with failure to act promptly with
respect to a letter, and the charge indicates the title of the letter
and the date on which it was due, and where plaintiff's failure to
complete action on the letter was called to his attention in writing
three months prior to receipt of charges, the charge is not void for
lack of specificity under the provisions of the Veterans' Preference
Act of 1944, as amended, 5 U.S.C. § 863. Sells, 1.
Performance Rating Act not applicable to Lloyd-La Follette Act
dismissal.
A dismissal of a civilian Government employee under the provisions
of the Lloyd-La Follette Act of 1912, 37 Stat. 539, 5 U.S.C. § 652(a),
need not satisfy the procedural requirements of the Performance
Rating Act of 1950, 64 Stat. 1098, 5 U.S.C. § 2005. Sells v. United
States, ante, p. 1. Monday, 6.
Performance Rating Act not applicable to Veterans' Preference
Act section 14 dismissal,
Where a Government employee is separated for cause pursuant to
the provisions of the Veterans' Preference Act of 1944, as amended,
5 U.S.C. § 863, the provisions of that act govern rather than the
provisions of the Performance Rating Act of 1950, 5 U.S.C. § 2005,
and the 90-day notice required by the latter act in connection with
a proposed unsatisfactory efficiency rating need not be given to an
employee dismissed for cause under the provisions of the Veterans'
Preference Act. Sells, 1.
CIVILIAN PAY-Continued
DISMISSAL-Continued
Veteran reemployment tenure rights.
Universal Military Training and Service Act.
Section 459 (c) of the Universal Military Training and Service
Act (50 U.S.C. App.) provides that a reemployed veteran shall
not be discharged from his position "without cause" for one year
after restoration but does not prevent a dismissal within one year
for cause. Sells, 1.
OVERTIME PAY.
Sleeping and eating time.
When compensable.
Where work performed during hours set aside for sleeping and
eating was insignificant and plaintiffs still had eight hours or more
for such activities, no obligation to pay overtime under the Federal
Employees Pay Act of 1945, 59 Stat. 295, arose. Bean, 267.
United States 39(4)
Statutes-construction and operation.
Federal Employees Pay Act of 1945, as amended.
In enacting the saving provision in section 401 (b) of the Act of
September 1, 1954, 68 Stat. 1109, amending the Federal Employees
Pay Act of 1945, 59 Stat. 295, Congress only intended to insure
against a reduction in pay for employees in service on November
1, 1954, and did not intend to provide that the 1945 Act should be
applicable where employees subsequent to that date would earn
more under that Act than under the 1954 law. Bean, 267.
United States
Bankrupt railroad under supervision of District Court.
Court of Claims-jurisdiction.
Employees of a railroad operated under the supervision of the Fed-
eral District Court in the course of a reorganization under section
77 of chapter VIII of the Bankruptcy Act, 47 Stat. 1474, 11 U.S.C.
§ 205, have no justiciable claim against the United States for wages
lost through the discriminatory practices of their private employer
who remained the owner of the railroad during the trusteeship.
Allen, 9.
CIVIL SERVICE RETIREMENT ACT. See Civilian Pay.
CIVIL SERVICE RETIREMENT ANNUITY. See Civilian Pay.
CONDEMNATION PROCEEDINGS. See Judgments.
CONGRESSIONAL REFERENCE. See also Judgments.
EQUITABLE CLAIMS.
What constitutes.
In general.
Where the record shows that the damage to plaintiff's waterfront
bulkhead was not the fault of the Government's nearby dredging
operations in a navigable channel of New York harbor but was
rather the result of the inherent weakness of the bulkhead and
other factors unrelated to the Government's activities, the plaintiff
has no equitable claim against the United States. F. & M. Schaefer
Brewing Co., 629.
Where the facts establish that plaintiff, through its own fault and
mismanagement of its zinc and lead mining business, made a poor
production showing, and that it failed to make the reports and
applications for a lowering of its production quota as required by
the Office of Price Administration regulations, there is no basis for
reporting to Congress that plaintiff is entitled, as a matter of equity
and good conscience, to the relief sought. De Soto Lead and Zinc
Co., 640.
War and National Defense 44
Shanghai Municipal Council employees' claim.
Where there has been no failure on the part of the United States to
fulfill its moral obligation to plaintiffs and the loss of civilian pay
for work at the Shanghai Municipal Council was occasioned by the
actions of others not within the control of the United States, there
is no obligation, equitable or moral, on the United States to reim-
burse plaintiffs for their losses. Burkhardt v. United States, 113
C. Cls. 658, distinguished. Blabon, 13.
United States 69(1)
JUDGMENTS.
Estoppel by judgment.
When applicable in congressional reference case.
Where Congress refers claims to the Court of Claims for a report
on whether or not the claimants have a legal or equitable claim
against the United States, notwithstanding the statutes of limita-
tions, Congress has waived only the defense of limitations, and
where a District Court has already rendered decisions on the same
claims of some of the plaintiffs, the Court of Claims will not review
the correctness of those holdings in its report to Congress. Abbott,
272.
CONSEQUENTIAL INJURY. See Eminent Domain.
CONSIDERATION. See Contracts.
CONSTITUTION OF THE UNITED STATES-COMMERCE CLAUSE.
See Eminent Domain.
CONTRACTS.
CHANGES.
Extra work.
When compensable.
In order to recover sums expended on extra work not required by
the contract, the contractor must show some extrinsic promise,
implied or express, such as an involuntary and compelled com-
pliance, an allowed extra, or a change in the contract brought about
by one authorized to make such change. Woodcraft Corp., 101.
Contracts 232(3)
United States 70 (28)
CONSIDERATION.
Forbearance to sue.
Where a dispute arose between the Grand River Dam Authority of
the State of Oklahoma and the Oklahoma State Highway Com-
mission in which the Highway Commission, supported by the State
Governor, instituted legal proceedings to stop construction of a
dam being built by the Authority, and the United States had ad-
vanced money to the Authority and purchased Authority bonds,
an agreement entered into by the United States and the State, under
which the United States agreed to expend a large sum on state
road projects in return for which the State agreed to dismiss with
prejudice its suit against the Authority, was lacking neither in
mutuality nor consideration and is enforceable against the United
States. State of Oklahoma, 185.
COST-PLUS-FIXED-FEE CONTRACT.
Reimbursable costs.
Required but unused facilities.
Where a cost-plus-fixed-fee contractor incurs expense in connection
with maintaining a facility required to be maintained by the terms
of the contract, even though the facility was leased prior to execu-
tion of the contract and, because of modifications demanded by the
Government, never actually used in the performance of the con-
tract, such expense is reimbursable under the terms of the contract
and section 15-201 of the Armed Services Procurement Regulation.
Mason & Hanger Co. v. United States, 56 C. Cls. 238, aff'd on other
grounds, 260 U.S. 323. DeLong, 289.
CONTRACTS—Continued
COVENANT TO RESTORE LEASED PREMISES.
Limitation of actions-accrual of cause of action.
Where a lease provides that the property used by the Army as an
artillery range will be returned to the owner in the same condition
as leased, the claim for breach of such promise accrues on the date
the Army finally determined that it had done all it was going to do
to dedud the area and notified the owner that part of the land was
still dangerous. Spitzel, Executrix, 399.
The measure of damages for breach of a covenant to restore land
to its original condition is not the cost of restoration where such
cost exceeds the market value, but is rather the amount of the dim-
inution in the market value of the land. Georgia Kaolin Co. v.
United States, 145 C. Cls. 39, distinguished. Spitzel, Executrix, 399.
Landlord and Tenant
Where the delays encountered by the contractor were not the fault
of the Government but were occasioned by the contractor's own
actions, the Government is not liable for extra costs incurred. E. J.
Albrecht Co., 299.
United States
Where delays encountered by the contractor were occasioned by
weather conditions which were normal in the area of the contract
and normal for the time of year in question, the contractor is not
entitled to be paid for extra costs incurred on account of the delay
caused by such weather. E. J. Albrecht Co., 299.
United States 70 (34)
Administrative remedies.
Failure to exhaust.
Where the dispute over extra costs involves a question of fact and
the contract provides that such disputes must be appealed to the
head of the contracting department or agency, fallure to take such
an appeal prevents a cause of action for such costs from accruing
at all. Acorn Decorating Corp., 394.
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