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149 C. Cls.

LIMITATION OF ACTIONS. See also Taxes-Claims for Refund.
CIVILIAN PAY CLAIMS.
Reduction in force.
Accrual of cause of action.

Civil Service Commission recommendation to reinstate veteran.
When an employing agency fails to obey a recommendation of the
Civil Service Commission to reinstate a veteran whom the Com-
mission has ruled has been illegally reduced in force, that recom-
mendation of the Commission creates a new statutory claim in the
veteran for his back pay in addition to the claim for pay which
accrued when the improper separation took place, but the claim
must be filed within six years of the date of the recommendation
in order to fall within the jurisdiction of the Court of Claims. 28

U.S.C. § 2501. Feldman, 22.
Courts em 461

Continuing claim theory not applicable.
While in some circumstances it may be proper to consider that in
a suit for back pay for wrongful separation a fresh and separate
cause of action accrues on each occasion that pay is due and wrong.
fully withheld, this theory is not applicable to claims arising out of
wrongful reductions in force since the application of the theory to
these situations will not properly implement the statutes and regu-

lations governing reductions in force. Feldman, 22.
Courts em 461
CONTRACTS.

Merchant Ship Sales Act.
Where all the payments sought to be recovered by the purchaser of
a ship under the Merchant Ship Sales Act were made within sis
years of the filing of the petition, the claim is not barred by the
six-year statute of limitations applicable to suits in the Court of

Claims. [28 U.S.C. g 2501). Colonial Navigation Co., 242.
Courts em 461
LLOYD-LA FOLLETTE ACT. See Civilian Pay.
MERCHANT SHIP SALES ACT. See Contracts; Limitation of Actions.
MILITARY PAY.
ACTIVE DUTY PAY.
Missing persons-prisoners of war.

Status and entitlement-how determined.
In denying the claims for pay under the Missing Persons Act of
1942, 50 Stat. 1001, et seq., of voluntary non-repatriates who had
elected to remain with the Communist forces after their capture id
the Korean conflict, the Department of the Army necessarily deter-
mined under the provisions and authority of that Act that such med
did not have the status of prisoners of war and were therefore not

149 C. Cls.

MILITARY PAY-Continued
ACTIVE DUTY PAY-Continued
Missing persons—prisoners of war-Continued

Status and entitlement-how determined-Continued
entitled to pay under the statute. Such decisions regarding status

and entitlement are final. Bell, 248. [Rev'd., 366 U.S. 393]
Armed Services On 23.1(6)
RETIRED PAY (NONDISABILITY).
Naval Reserve.
Service creditable.

Army service.
A person transferred to the Fleet Reserve prior to 1938 with 16
years of active duty, comes within the scope of section 203 of the
Naval Reserve Act of 1938 as amended, August 10, 1946, 60 Stat. 993,
and thus is entitled to elect to have his retired pay computed in
accordance with the formula set forth in section 204 of such Act as
amended, under the 5th and 7th provisos thereof, counting his years
of Army service in computing his years of “active Federal service"
for retired pay purposes. Hulse v. United States, 133 C. Cls. 848.

Jawitz, 274.
Armed Services Om 13.5(8)

Naval Militia service.
Prior to the Act of February 16, 1914, 38 Stat. 283, the Dick Act of
January 21, 1903, 32 Stat. 775, was not applicable to the Naval
Militia and accordingly a member of the Reserves entitled to retired
pay under the Act of June 29, 1948, 62 Stat. 1081, may not use such
service as credit toward his eligibility for retired pay or to increase

his retired pay. Fickett, 697.
Armed Services On 13.5 (6)

Recomputation of retired pay-right to.

Active duty pay increases.
Neither the Career Compensation Act of 1949, 63 Stat. 802, nor the
Career Incentive Act of 1955, 69 Stat. 18, were retirement statutes
with respect to longevity retirees whose retirement was authorized
by other laws. The statutes were rather pay legislation and did
not depart from the traditional practice of Congress to permit
retired pay to have the benefit of any increases in active duty pay

scales. Fagan, 716.
United States em 39 (15)

Career Compensation Act.
The Career Incentive Act of 1955, 69 Stat. 18, did not terminate the
right of longevity retirees retired prior to October 1, 1949, to have
their retired pay computed under either method (a) or (b) of
section 511 of the Career Compensation Act of 1949, depending upon
which method, from time to time, resulted in the highest retired
149 C. Cls.

MILITARY PAY—Continued
RETIRED PAY (NONDISABILITY)-Continued
Recomputation of retired pay-right to-Continued

Career Compensation ActContinued
pay. Ernest Cole Adams, et al. v. United States, 146 C. Cls. 489,
overruled to the extent that it is inconsistent with this holding.

Fagan, 716.
United States 39(15)

Section 511 of the Career Compensation Act of 1949, 63 Stat. 802,
gives to longevity retirees retired prior to October 1, 1949, the right
to have their retired pay computed under either method (a), i.e.,
old law in existence prior to October 1, 1949, or method (b) utilizing
the higher pay scales authorized by Title II of the 1949 Act, and it
further gives such retirees the right to have their retired pay recom-
puted under either method when conditions change in such a manner
that a recomputation under the other method would result in higher

retired pay. Fagan, 716.
United States On 39(15)
MISSING PERSONS. See Military Pay.
MISSING PERSONS ACT OF 1942. See Military Pay.
NATIONAL INDUSTRIAL RESERVE ACT. See Congressional Refer-

ence; Contracts.
NAVAL MILITIA. See Military Pay.
NAVAL RESERVE. See Military Pay.
NAVAL RESERVE ACT OF 1938. See Military Pay.
PATENTS.
DESIGN PATENT.
Pleading and practice.

Summary judgment on validity issue.
If a patent claim is manifestly invalid, the issue of validity may be
raised and determined on a motion for summary judgment, particu-
larly in the case of design patents. Fallon v. United States, 144 C.

Cls. 121. Ace Fastener Corp., 555.
Courts Cu 470

Validity.

Estoppel.
Neither the Government nor the purchaser of the alleged infringing
article, nor the third party defendant who supplied it, are estopped
from denying the inventiveness of plaintiff's design patent on the
ground that the Government's bid called for the alleged infringing
article and the third party supplied it rather than the earlier article
set up as prior art by the Government and the third party defendant.

Ace Fastener Corp., 555.
Estoppel au 62 (2)
Patents Om 129 (1)

149 C. Cls.

PATENTS

Continued
DESIGN PATENT-Continued
Validity-Continued

Prior art.
Where the only difference between the design patent in suit and
the prior art is a difference in the materials of manufacture and
there is no difference in the design, the patent in suit is anticipated.

Act Fastener Corp., 555.
Patents On 72(3)

Prior publication.
Where a trade publication carried an illustration of a staple remover
similar in all material respects with the patent in suit except for
the materials of manufacture, the patent in suit is invalid. Ace

Fastener Corp., 555.
Patents on 70
PERFORMANCE RATING ACT. See Civilian Pay.
PERMANENT CAREER SERVICE. See Civilian Pay.
PERSONAL HOLDING COMPANY TAX. See Taxes.
PLEADING AND PRACTICE.
SUMMARY JUDGMENT.

Arbitrariness—issue of.
Where the allegation of arbitrary and capricious dismissal is re-
futed by documents submitted by defendant in support of its motion
for summary judgment, the petition must be dismissed. Mulligan,

415.
Courts on 470

Patents—validity issue.
If a patent claim is manifestly invalid, the issue of validity may be
raised and determined on a motion for summary judgment, particu-
larly in the case of design patents. Fallon v. United States, 144 C.

Cls. 121. Ace Fastener Corp., 555.
Courts C 470
PRESIDENT'S COMMITTEE ON GOVERNMENT EMPLOYMENT POL-

ICY. See Civilian Pay.
PRESUMPTIONS. See also Taxes.
TAXES.
Presumption of receipt of claim for refund by Commissioner of

Internal Revenue.
Where there is evidence of the proper preparation, addressing and
mailing of a claim for refund which the tax authorities state was
not received in the Collector of Internal Revenue's office, there
arises a presumption of receipt strong enough to overcome the pre-
sumption that a Government official has acted correctly. But where
there is a failure of proof of mailing the claim for refund, the pre-
sumption of receipt by the Collector does not arise. Rosengarten,

287.
Internal Revenue 2137

625946-62-56

149 C. Cls.

PRISONERS OF WAR. See Military Pay.
PRIVATE CONTROVERSIES. See Court of Claims-Jurisdiction.
QUESTION OF FACT. See Contracts.
RECOUPMENT. See Taxes.
REDUCTION IN FORCE. See Civilian Pay.
REED-JENKINS ACT. See Civilian Pay.
REGULATION OF EXECUTIVE DEPARTMENT. See Civilian Pay.
RELEASE. See Contracts.
REQUIREMENTS CONTRACT. See Contracts.
SECURITY ACT OF AUGUST, 1950. See Civilian Pay.
STATUTES.
CONSTRUCTION AND OPERATION.

Context and related clauses.
In arriving at the intent of the Congress, it is necessary to construe
all the provisions of the law together even if sometimes it seems not
to be in strict accord with certain specific provisions when they are

lifted from the body of the law and read out of context. Bell, 248.
Statutes C 205
SUBROGATION. See Contracts.
SUMMARY JUDGMENT. See Pleading and Practice.
SURPLUS WAR PROPERTY. See Congressional Reference; Contracts.
TAXES.
ADMINISTRATIVE REGULATIONS.

Operation and effect.
A Treasury regulation cannot create an exemption of income from
taxation. Thus, a transaction which does not produce any income
for tax purposes will not produce income which is exempt from
taxation. For example, the increase in value over its basis of
treasury stock given as a bonus to corporate employees is not tax-
able income but the value of the stock is deductible by the corpora-
tion as a business expense in the form of salary or bonus or other

compensation to the employees. Hercules Powder Co., 77.
Internal Revenue en 317

Validity of regulation.
A Treasury Regulation which is contrary to statute is not valid.
Accordingly, a regulation relating to war loss deductions (Treasury
Regulations 111, § 29.127(a)-3) which provided that Rumania and
Hungary were not under enemy control until the date on which
the United States declared war on them, was invalid as contrary to
the war loss statute. 26 U.S.C. (I.R.C. 1939) $ 127(a) (2). Pas-

ternak, 306.
Internal Revenue Om 157

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