148 C. Cls.

to recover back pay claimed to be due on account of an illegal reduction in force. On January 20, 1960, the court rendered an opinion and denied defendant's motion for summary judgment, remanding the case to a trial commissioner of the court for the taking of evidence on certain issues. On January 29, 1960, the court issued an order as follows:

This case comes before the court on its own motion relative to the opinion rendered in this case on January 20, 1960, on defendant's motion for summary judgment which presented three questions for determination:

(1) The sufficiency of plaintiff's notice of discharge pursuant to a reduction in force;

(2) Plaintiff's qualifications for other agency positions, and

(3) Whether there was in fact a reduction in force pursuant to which plaintiff was discharged. Upon reconsideration thereof,

IT IS ORDERED this twenty-ninth day of January 1960 that the opinion of January 20, 1960, in this case be and the same is vacated and withdrawn, and upon said reconsideration it is found that plaintiff's notice of discharge met the requirements of 5 U.S.C. 861 and the applicable regulations; that plaintiff's showing with respect to the decision by the Civil Service Commission as to his job qualifications is insufficient to warrant further proceedings by the court on that question, MacCallum v. United States, 135 C. Cls. 336, and Ciaffone v. United States, 126 C. Cls. 532, but that with regard to the third question there is present an issue of fact upon which plaintiff is entitled to go to trial, and

IT IS THEREFORE ORDERED that defendant's motion for summary judgment be and the same is granted as to questions (1) and (2), but denied as to (3). The case is returned to the trial commissioner for further proceedings with regard to the question as to whether there was in fact a reduction in force pursuant to which plaintiff was discharged.

BY THE COURT.

MARVIN JONES,
Chief Judge.

On July 25, 1960, plaintiff filed a motion to dismiss his cause of action with prejudice which was allowed on August 9, 1960.

REPORT OF DECISIONS

OF

THE SUPREME COURT

IN COURT OF CLAIMS CASES

NATIONAL AIRCRAFT MAINTENANCE CORPORATION, PETITIONER, v. THE UNITED STATES

No. 386-55

[145 C. Cls. 505; 361 U.S. 895]

Plaintiff's petition for writ of certiorari denied by the Supreme Court November 16, 1959.

WILLIAM K. WARREN AND NATALIE O. WARREN, PETITIONERS, v. THE UNITED STATES

No. 73-55

HOWARD E. AND MABEL H. FELT, ET AL., PETITIONERS, v. THE UNITED STATES

No. 272-55

[145 C. Cls. 571; 361 U.S. 916]

Plaintiffs' petition for writ of certiorari denied by the Supreme Court December 7, 1959.

729

INDEX-DIGEST

ACTIVE DUTY PAY. See Military Pay.

ADMINISTRATIVE DECISIONS. See Contracts.

ADMINISTRATIVE REMEDIES. See Civilian Pay; Contracts; Military

Pay.

AIR FORCE DISCHARGE REVIEW BOARD. See Military Pay.

AIR FORCE REGULATIONS. See Military Pay.

ANNUAL LEAVE PAYMENT. See Civilian Pay.

ARMY OF THE UNITED STATES WITHOUT COMPONENT. See Mili-
tary Pay.

ATTORNEYS' FEES. See Taxes.

AUTHORITY OF GOVERNMENT AGENT. See Contracts.

BOUNDARIES. See Eminent Domain.

BURDEN OF PROOF. See Evidence; Patents.

Before the Court of Claims will consider a plaintiff's claim that
his employing agency denied him the right to personally answer
the charges brought against him in connection with his proposed
dismissal from civilian Government employment, it must be shown
that this procedural defect (section 14 of the Veterans' Preference
Act of 1944, 5 U.S.C. § 863) was made one of the grounds of the
plaintiff's appeal to the Civil Service Commission which agency
has been authorized by Congress to hear and decide such cases
in the first instance. When no evidence of a request for such an
interview is presented to the Civil Service Commission, the court
will not consider the question of the alleged failure of the employ-
ing agency to grant the interview. Long, 4.

Officers

72 (2)

731

148 C. Cls.

CIVILIAN PAY-Continued

CLAIM FOR BACK PAY.

How established.

In general.

To invoke the jurisdiction of the Court of Claims in a suit to re-
cover back pay lost following dismissal from civilian Government
employment, the plaintiff must allege and prove either that his
dismissal was procedurally defective or that the action taken was
arbitrary. Roitman, 18.

A request for a "hearing" and a chance to face one's accusers is not
a request for an opportunity to personally answer charges brought
against one under section 14 of the Veterans' Preference Act of 1944,
5 U.S.C. § 863. Hart, 10.

Unless a preference eligible asserts his right to answer personally,
i.e., have a personal interview in connection with charges brought
against him, he will be deemed to have waived that right. Hart, 10.
Officers 72(1)

Involuntary annual leave during notice period.

Right to pay for such leave.

The placing of an employee on involuntary annual leave is a sus-
pension action and when the employing agency also charges the
employee's regular pay against his leave account, the suspension is
one without pay. Under the provisions of the Lloyd-La Follette
Act, 5 U.S.C. § 652 (a), no classified civil servant may be suspended
without pay until the steps specified in that act have been taken
by the employing agency and thus, where an employee is placed on
involuntary annual leave without pay before such steps are taken,
the suspension is illegal unless some valid reason exists to justify
the suspension and the employee may recover the pay lost during

such period. Hart, 10.

Officers 72(1)

United States 39 (8)

Notice period.

What constitutes 30-day notice.

Where a civilian employee of the Government entitled to the benefits
of the Veterans' Preference Act of 1944, 5 U.S.C. §863, receives a

letter of charges on August 31, is thereafter on
notified that he is to be discharged immediately but

September 30

later the ef