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AMENDMENT TO RULES

JUNE 22, 1959.

ORDER

It is ORDERED this 22nd day of June 1959 that Rule 78 be amended by adding at the end of the paragraph the following as Rule 78(b):

No one serving as a Judge or Commissioner or as the Clerk or the Secretary of this court shall practice as an attorney or counselor in any court or before any agency of the Government while continuing in that position; nor shall he or she after separating from that position practice as an attorney or counselor in this court until two years have elapsed after such separation; nor shall he or she ever participate, by way of any form of professional consultation and assistance, in any case that was pending in this court during the period that he or she held such position; nor shall any law clerk or secretary to a Judge of this court or other employee ever participate, by way of any form of professional consultation and assistance, in any case in this court in which he or she participated in any way during the period that

he or she held such position. By the Court.

MARVIN JONES,

Chief Judge.

XVII

588587-62—2

DESIGNATION OF JUDGE 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 judge to perform the duties of a judge of the United States Court of Claims on the date indicated below:

June 4, 1959—Honorable Wilbur K. Miller, Judge,

United States Court of Appeals for the District of
Columbia Circuit.

XVIII

CASES DECIDED

IN

THE UNITED STATES COURT OF CLAIMS

June 1, 1959, to July 15, 1959, and other cases not heretofore pub

lished. 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.

LISTER SELLS v. THE UNITED STATES

(No. 559-57. Decided June 3, 1959)

ON DEFENDANT'S AND PLAINTIFF'S MOTIONS FOR

SUMMARY JUDGMENT

Civilian pay; dismissal; Performance Rating Act; Universal Military

Training and Service Act; Veterans' Preference Act.-In an action by a civilian employee of the Department of the Army, who, following military service, was reemployed by the Army in his former position and was dismissed from such position for inefficiency within one year of such reemployment, to recover back pay on the grounds that his dismissal was both procedurally defective and arbitrary, it is held that plaintiff was dismissed in a manner which was neither procedurally defective under the Performance Rating Act of 1950, 5 U.S.C. 8 2005, the Universal Military Training and Service Act, as amended, 50 U.S.C. App. $ 459 (c), or the Veterans' Preference Act of 1944, as amended, 5 U.S.C. 8 863, nor was his dismissal

arbitrary. Officers em 72(1) Civilian pay; dismissal; law applicable; 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. Omcers 72(1)

146 C. Cls. Opinion of the Court Civilian pay; dismissal; veteran reemployment tenure rights; Uni

versal 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. Oficers 68 Civilian pay; dismissal; 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' Pref

erence Act of 1944, as amended, 5 U.S.C. 8 863. Officers On 72(1) Civilian pay; dismissal; arbitrary and capricious action; Civil Service

Commission.—Where the plaintiff's claim that the employing agency acted arbitrarily in bringing about his dismissal was thoroughly gone into at the hearing before the Civil Service Commission and the decision of the Commission, adverse to plaintiff, directed careful attention 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. Officers om 72(1)

Mr. Carl L. Shipley for the plaintiff.

Mr. Francis J. Steiner, Jr., with whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant.

JONES, Chief Judge, delivered the opinion of the court:

This is a suit by a former civilian employee of the Department of the Army to recover pay alleged to be due him on the grounds that his separation from Government employment was illegal. Both parties have moved for summary judgment, relying on the pleadings as well as the exhibits which defendant has attached to and made a part of its motion.

The facts are these : Plaintiff upon his return from military service was reemployed by the Army on December 7, 1953, as a Supervisory Supply Officer (General) GS-12, which position he had held prior to his entry into military service. On April 16, 1954, plaintiff was notified that his

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