325 Syllabus on a claim supported by the law as it is written. To relieve him of the harshness of the application of the law to this particular case plaintiff can only appeal to Congress. It results that plaintiff is not entitled to recover. It is so ordered. MADDEN, Judge; JONES, Judge; LITTLETON, Judge; and WHALEY, Chief Justice, concur. OTTO BRIMBERRY v. THE UNITED STATES [No. 44921. Decided February 1, 1943] On the Proofs Suit for salary; discharged employee of War Department who is Army veteran with honorable discharge; not under civil service.-Where plaintiff, a veteran of the World War I, honorably discharged from the Army, received a temporary, emergency appointment as a clerk in the Quartermaster Corps of the War Department, not under the civil service, and his salary was paid from funds of the Civilian Conservation Corps, which was a temporary agency; and where under an order directing the reduction in the force of civilian employees of the Civilian Conservation Corps, plaintiff was discharged on December 31, 1937, and was reinstated on May 24, 1938; it is held that plaintiff is not entitled to recover his salary for the interim. Same. The provisions of Section 4 of the Appropriation Act for 1912, (37 Stat. 360, 413), that "in the event of reductions made in the force of any of the executive departments no honorably discharged soldier or sailor whose record in said department is rated good shall be discharged or dropped, or reduced in rank or salary", and the pertinent provisions of the Civil Service Rules and Regulations issued pursuant to said statute (section 5 of Civil Service rule XII) do not apply to plaintiff, who was appointed outside civil service. Same; extension of civil service preference regulations to agencies that were to be made permanent; authority of the President.-Circular No. 146 of the Civil Service Commission, dated October 22, 1936, inviting attention of all Governmental agencies to the fact "that in making a reduction in force, even in an organization excepted from the Civil Service Act and Rules, it is necessary to observe the retention preference laws," and stating that "the President of the United States has informed the Civil Service Commisison that it is his desire that in making any reductions of force the Civil Service rules be applied by all agencies which are going to be on a permanent basis," conferred on plaintiff no right to his office or position Reporter's Statement of the Case 98 C. Cls. since it is not shown that said circular No. 146 was authorized by the President; nor is it shown that the President authorized the extension of the provisions of section 5 of Civil Service Rule XII to persons holding excepted positions in the regular branches of the Government; nor that plaintiff was an employee of an agency which was to be on a permanent basis. Same; status of plaintiff as temporary employee of War Department not under civil service.-While plaintiff was paid out of Civilian Conservation Corps funds, allocated to the War Department, plaintiff was an employee of the War Department, holding a temporary position under an emergency appointment, not under civil service. Same; status of Civilian Conservation Corps employees.-The Civilian Conservation Corps was an emergency agency, created by Congress to relieve unemployment, and under the statute (50 Stat. 319) its civilian personnel was appointed "without regard to the civil service law and regulations," and the President was without power to give to such employees a right of action against the United States in case the rules applicable to employees in the classified civil service were violated. Perkins v. United States, 58 C. Cls. 199, affirmed 116 U. S. 483, cited. Same; discretion to determine qualifications of employees; jurisdiction; Act of 1876 not violated.-Plaintiff's discharge was not in violation of the Act of 1876 (19 Stat. 143, 169), which provides that "in making any reduction of force in any of the executive departments the head of such department shall retain those persons who may be equally qualified who have been honorably discharged from the military or naval service of the United States" (U. S. Code, Ttitle 5, section 37,) since his superiors had determined that he was not equally qualified with those employees who were retained and this determination was fairly and impartially made; such determination is final and the Court has no authority to review it. Keim v. United States, 33 C. Cls. 174, affirmed 177 U. S. 290, 35 C. Cls. 628; and Bratton v. United States, 90 C. Cls. 604, cited. The Reporter's statement of the case: Mr. Otto Brimberry, pro se. Mr. Milton Kramer, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. The court made special findings of fact as follows: 1. On May 16, 1934, plaintiff received a temporary, emergency appointment, outside civil service, as a clerk, CAF-1, in the Quartermaster Corps of the War Department, Camp Custer Civilian Conservation Corps District, Camp Custer, 335 Reporter's Statement of the Case Michigan, with salary payable from funds of the Civilian Conservation Corps. Plaintiff's grade was raised to CAF-2 on May 1, 1935, and he was again promoted, to CAF-3, on October 1, 1937, in which grade he continued to serve until December 31, 1937, when he was dropped from the service in the course of a reduction of personnel. 2. Plaintiff was a member of Company A, 327th Infantry, United States Army, during World War I, and was honorably discharged. 3. At the time of plaintiff's separation from the service of the Quartermaster Corps section 4 of Civil Service Rule XII provided as follows: In harmony with statutory provisions, when reductions are being made in the force, in any part of the classified service, no employee entitled to military preference in appointment shall be discharged or dropped or reduced in rank or salary if his record is good; or if his efficiency rating is equal to that of any employee in competition with him who is retained in the service. 4. Departmental Circular No. 146, directed by the Civil Service Commission to the Heads of Departments, Independent Establishments, and Emergency Agencies, on October 22, 1936, reads as follows: Attention is respectfully invited to the fact that in making a reduction in force, even in an organization excepted from the Civil Service Act and Rules, it is necessary to observe the retention preference laws. The Acts of August 15, 1876 (19 Stat. 169), and August 23, 1912 (37 Stat. 413), grant preference of retention to exservice employees at the seat of government who are equally qualified with non-service employees being retained or whose records are good. Section 5 of Civil Service Rule XII directs: "In harmony with statutory provisions, when reductions are being made in the force, in any part of the classified service, no employee entitled to military preference in appointment shall be discharged or dropped or reduced in rank or salary if his record is good; or if his efficiency rating is equal to that of any employee in competition with him who is retained in the service." The President of the United States has informed the Civil Service Commission that it is his desire that in making reductions of force the civil service rules be 533123-43-vol. 98--23 Opinion of the Court 98 C. Cls. applied by all agencies which are going to be on a permanent basis. The provisions of. Section 5 of Civil Service Rule XII should therefore be applied regardless of the place of employment, and should also be applied in the regular branches of the Government in making reductions in force in excepted positions. 5. As a result of an investigation conducted by direction of the Inspector General of the Army, plaintiff was reinstated in his former employment and classification on May 24, 1938. It is not shown that at the time of his discharge plaintiff had been rated for efficiency by his superiors, and it is not shown whether or not at that time he was as equally qualified to perform the duties assigned to him as those who were retained. 6. On May 26, 1938, plaintiff addressed to the Quartermaster General his claim for "pay as Clerk CAF-3 Quartermaster General's Section, Headquarters Camp Custer CCC District from January 1, 1938, to May 23, 1938, inclusive"... During such period plaintiff had no employment, and was ready and willing to perform any duty which might have been required of him. 7. This claim was denied by the Acting Comptroller General on October 18, 1938, on the ground that appropriations available for the payment of Government employees may be used to pay salaries only for periods during which services were rendered, and, since no services were rendered by plaintiff, there was no authority of law under which plaintiff could be paid. 8. If plaintiff's employment had not been interrupted, his salary for the period in question (nine and one-half pay periods) would have amounted to $641.25. The court decided that the plaintiff was not entitled to recover. WHITAKER, Judge, delivered the opinion of the court: On December 31, 1937, plaintiff was a clerk, outside civil service, in the Quartermaster Corps of the War Department, Camp Custer Civilian Conservation Corps District, with salary payable from funds of the Civilian Conservation 335 Opinion of the Court Corps. On that date he was dropped from the service in the course of a reduction of personnel. He was reinstated on May 24, 1938. He sues to recover his salary in the interim, amounting to $641.25, on the allegation that his dismissal was unlawful. Apparently, it is his insistence that it was unlawful because of the provisions of section 4 of the Appropriation Act for 1912, c. 350, 37 Stat. 360, 413, and of section 5 of Civil Service rule XII, and of Departmental Circular 146 of the United States Civil Service Commission, dated October 22, 1936. Section 4 of the Act referred to directs the Civil Service Commission to establish a system of efficiency ratings "for the classified service in the several executive departments in the District of Columbia. ***" It provides that all promotions, demotions, or dismissals shall be governed by civil service rules, and contains this proviso, upon which plaintiff relies: In the event of reductions being made in the force of any of the executive departments no honorably discharged soldier or sailor whose record in said department is rated good shall be discharged or dropped, or reduced in rank or salary. This statutory provision was followed by Civil Service rule XII, sec. 5, reading as follows: In harmony with statutory provisions, when reductions are being made in the force, in any part of the classified service, no employee entitled to military preference in appointment shall be discharged or dropped or reduced in rank or salary if his record is good; or if his efficiency rating is equal to that of any employee in competition with him who is retained in the service. Both the statute and the rule plainly relate only to the classified civil service and, therefore, do not relate to plaintiff, who was appointed outside civil service. But he says both the statute and the rule were made applicable to persons outside civil service by Circular No. 146 of the Civil Service Commission, the first paragraph of which reads as follows: Attention is respectfully invited to the fact that in making a reduction in force, even in an organization |