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131 C. Cls.

SUIT FOR SALARY—Continued

It is held, on the facts, that it is not so required in

the instant case. Id.
Administrative Law and Procedure Om 229.
V. In the instant case, plaintiff, accused of taking lumber

from the Navy Yard, was discharged on September
18, 1952. He had been given an opportunity to
show cause why he should not be discharged but
had not done so. On separation he was notified
of his right to appeal, either directly to the Civil
Service Commission or through military channels.
He elected to appeal to the military authorities and
his separation was approved on appcal, except
that the Grievance Review Board, Civilian Person-
nel, in view of plaintiff's excellent record, rec-
ommended his restoration to duty as of a current
date. He was restored to duty August 3, 1953.
The instant suit is for pay during the period of his

separation, 320 days. Id.

United States Om 39 (11).
VI. On the showing made, on the motions for summary

judgment, where it is determined that the penalty
imposed by plaintiff's separation was a departure
from fair dealing and tolerable personnel policy,
with reference to a veteran with an excellent record,
it is held that the action of the Review Board was

arbitrary and unfair and should be set aside. Id.

Officers Emo 72 (1).
VII. Where it is found that a suspension of 30 days without

pay would have been sufficient punishment for the
offense with which plaintiff was charged, it is held
that plaintiff is entitled to recover for his wrongful

suspense for 290 days. Judgment suspended. Id.

United States C 39 (8).
VIII. Plaintiff, a veteran, brings suit to recover back pay al-

leged to be due him because of the failure of the Gen-
eral Services Administration to reemploy him in
conformity with an order of restoration by the Civil
Service Commission, pursuant to Section 14 of the
Veterans' Preference Act, which order subsequently
was vacated on appeal. Defendant's motion for
summary judgment is granted and the petition is

dismissed. Roberts, 108.
United States Om 39 (11).

131 C. Cls.

SUIT FOR SALARY_Continued

IX. Under the Regulations of the Civil Service Commission

(5 C. F. R. 22.11 (e)) the Commission has the author-
ity, within its discretion, to entertain a request from
either party to reopen an appeal, if the request is

made within a reasonable time. Id.
Officers C 72 (2).
X. In the instant case, where it is shown that an order of

restoration was received by the agency on August
26, and on September 4, plaintiff was informed by
the Commission that the agency was appealing the
decision, it is held that the request of the agency

was timely made. Id.

Officers On 72 (2).
XI. It is held, further, that the Commission, under the

applicable regulation, was fully authorized to enter-
tain the agency's request to reopen the appeal and
the Commission's subsequent final decision with-
drawing the restoration order served to eliminate
plaintiff's grounds for recovery in the Court of
Claims. Plaintiff's motion for summary judgment

denied. Id.

Officers Omw 72 (2).
XII. Where plaintiff, entitled to veteran's preference, sues

for loss of salary arising from his dismissal as a Civil
Service employee in the Public Health Service Hospi-
tal in Fort Worth, and where it is shown that in his
discharge and on appeal all procedural requirements
were substantially complied with, including 30 days
notice; it is held that plaintiff is not entitled to re-
cover except for 30 days when he was placed on

annual leave without pay. Taylor, 387.

United States Om 39 (8).
XIII. Where plaintiff was placed on annual leave for the

period of the 30 days notice, and was deprived of
his pay during that period; it is held that plaintiff
was entitled as of right to pay for the period of annual
leave, and plaintiff is entitled to recover the amount

due. Id.

United States Om 39 (8).
XIV. There is no provision in the statute which permits en-

forced leave, covering the period of 30 days notice,
to be charged against an employee's annual leave,
without pay, where he has sufficient annual leave

to his credit. Id.
United States em 39 (7).

131 C. Cls.

SUIT FOR SALARY-Continued

XV. Where plaintiff sues for salary of the position from

which he was separated, alleging that he was wrong-
fully separated from his civil service position in a
reduction in force, it is held, on all the evidence,
that no legal wrong was involved in the treatment
which plaintiff received, and of which he complains,

and he is not entitled to recover. Saxon, 408.

United States Com 39 (13).
XVI. Plaintiff in 1932 began work for the New Orleans Dis-

trict, Corps of Engineers, War Department, as
foreman of an asphalt plant. He was a temporary
employee, not under civil service. In 1933 civil
service status was accorded to the type of position
which plaintiff held. In 1946 he was made a general
foreman, Flood Control, Grade 23, a wage board

position within the classified civil service. Id.

United States Om 39 (13).
XVII. In August 1950, by reason of a faulty fuel feed system

on his unit, plaintiff was injured. Plaintiff requested
a grievance hearing, alleging gross neglect on the
part of the Chief, Operations Division. The Dis-
trict Engineer appointed a grievance board but
with instructions that plaintiff's request for disci-
plinary action was not a proper subject for the
board's consideration. Plaintiff then cancelled his
request for the hearing because of the limitations
imposed. Thereafter, plaintiff claimed that, because
of his charges, his superiors became prejudiced
against him and that his later separation was the
result of that prejudice. Upon consideration of all
the evidence and in view of all the facts and circum-
stances brought out by the testimony, it is held that

plaintiff's charge of prejudice is not sustained. Id.

United States Om 39 (13).
XVIII. Further, it is held that plaintiff's separation in 1951,

in a reduction in force, was justified by all the facts
and circumstances of the case, as shown by the

evidence. Id.

United States Om 39 (13).
XIX. Further, it is held that in effecting plaintiff's separation

all procedural requirements were met and oppor-
tunity for appeal was accorded. There is no basis
for concluding that his separation was arbitrary,

capricious or actuated by malice. Id.
Officers om 72 (1).

131 C. Cls.

SUIT FOR SALARY-Continued

XX. Where plaintiff, a Civil Service employee, between

September 9, 1947, and May 24, 1952, was employed
as a correctional officer at the Federal Reformatory
for Women, Alderson, West Virginia, sues for night
differential and overtime pay for overtime duty, it
is held that plaintiff is entitled to recover under the
provisions of the Federal Employees Pay Act of

1945, as amended. Farley, 776.
United States Om 39 (4).
XXI. The Federal Employees Pay Act (5 U. S. C. 911, 912,

921) requires the payment of overtime, in addition
to basic compensation, for all hours of employment
officially ordered or approved in excess of 40 hours
per week, and provides, further, for 10 percent
additional in excess of the basic rate of compensation
when the overtime work is performed between 6

p. m. and 6 a. m. Id.

United States Own 39 (4).
XXII. In the instant case, each correctional officer, such as

the plaintiff, was required to work regularly five
days each week, eight hours per day, a total of 40
hours per week. In addition each officer was re-
quired to remain on duty two nights one week and
three nights the alternate week. No compensation
was paid for this overnight service, which amounted
to an average of 43 hours for each 2-week period.
It is held that this night work was a duty assignment
and was in excess of the 40-hour regular weekly per-
formance of duty, for which overtime the plaintiff is

entitled to recover. Id.

United States Com 39 (4).
XXIII. While simple conditions of employment, such as wear-

ing of a uniform or badge, may properly be made
without incurring an obligation for extra compensa-
tion, it is held that an agreement to work overtime
without pay cannot be enforced contrary to the
clear provisions of the statute limitng the work-
week to 40 hours and providing overtime pay for

extra duty. Id.

United States 39 (4).
SURPLUS PROPERTY.

See Transportation of Freight I, II, III, IV, V.
TANKER “BLUE SUNOCO”.

See Report To Congress I, II, III.

131 C. Cls.

TAXES.
INCOME Tax.

I. (1) Plaintiff, during the taxable years i944, 1945, 1946,

and 1947, filed his individual income tax returns on
the cash receipts and disbursement beses of account-
ing. The Commissioner of Internal Revenue made a
deficiency assessment for each of these years, using
the increase in net worth computation method.
The Commissioner collected the deficiency for each
year, together with penalty and interest, and
plaintiff in turn filed a timely claim for refund. It
is held that the plaintiff is entitled to recover the
deficiency, penalty and interest collected for the
fiscal year 1944, with interest as provided by law.

Jacobs, 1.

Internal Revenue Om 1288.
II. (2) Under the applicable statutes, the Commissioner

is permitted to use another method of ascertaining
the taxpayer's taxable income where the method
used by the taxpayer in his return does not clearly
reflect his income. It is held that in the circum-
stances of the instant case the Commissioner's use

of the net worth method was proper. Id.

Internal Revenue Con 1288.
III. (3) The determine tion of the Commissioner of Internal

Revenue is prima facie correct unless arbitrary,
capricious or excessive, and the burden is upon the
taxpayer to show that the tax assessed is not due.

Id.

Internal Revenue me 1307.
IV. (4) In the years 1945, 1946, and 1947 the net worth

computation is approved where the taxpayer did
not show that the increase of his net worth from
his furniture business, returns on his investments
and market transactions in that period was not due

to unreported income. Id.
Internal Revenue Cms 1288.
V. (5) For the fiscal year ending October 31, 1944, it is

held that the Commissioner did not prove that the
taxpayer had understated his income by more than
25 percent. When the Commissioner made his
assessments for that year the normal 3-year statute
of limitations had expired and the Commissioner
was relying on the 5-year statute of limitations
where the taxpayer has understated his income by

more than 25 percent. In such case the burden of
301980_55_57

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