DESIGNATION OF A JUDGE OF THE UNITED

STATES COURT OF CLAIMS TO SERVE AS A CIRCUIT JUDGE OF THE DISTRICT OF COLUMBIA CIRCUIT.

The Chief Judge of the District of Columbia Circuit having certified that there is a necessity for the designation and assignment of a judge of the United States Court of Claims to serve as a circuit judge of the District of Columbia Circuit during the period commencing April 9, 1958, and ending April 30, 1958; and the Honorable Marvin Jones, Chief Judge of the United States Court of Claims having consented to the assignment of the Honorable J. Warren Madden, a judge of the United States Court of Claims, to serve as a circuit judge of the District of Columbia Circuit during the period commencing April 9, 1958, and ending April 30, 1958;

Now, THEREFORE, pursuant to the authority vested in me by Title 28, United States Code, § 291(a), I do hereby designate and assign the Honorable J. Warren Madden to serve as a circuit judge of the District of Columbia Circuit and discharge the official duties thereof during the period commencing April 9, 1958, and ending April 30, 1958, and for such further time as may be required to complete unfinished business.

(S) EARL WARREN, Chief Justice of the United States.

Dated: MARCH 12, 1958.

XXVI

LEGISLATION RELATING TO THE COURT OF

CLAIMS

PRIVATE LAW 85-364

85TH CONGRESS, S. 573

March 15, 1958

AN ACT

Conferring jurisdiction upon the United States Court of Claims to hear, determine, and render judgment upon a certain claim of Mrs. Walter E. von Kalinowski.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, notwithstanding any statute of limitations or lapse of time or any limitation upon the jurisdiction of the United States Court of Claims to hear, determine, and render judgment on claims against the United States, jurisdiction is hereby conferred upon the United States Court of Claims to hear, determine, and render judgment upon the claim of Mrs. Walter E. von Kalinowski. Suit upon such claim may be instituted by Mrs. Walter E. von Kalinowski at any time within three years after the date of enactment of this Act.

SEC. 2. The provisions of sections 1492 and 2509 of title 28, United States Code, shall be applicable to this Act. Approved March 15, 1958.

XXVII

TRIBUTE TO JUDGE BENJAMIN H. LITTLETON

FEBRUARY 12, 1958.

Judge Benjamin H. Littleton was honored at a special session of the court by members of the bench and bar on the occasion of the unveiling of the portrait of the judge presented to the court by lawyers who have argued cases before him. Bernard Gallagher of the District of Columbia Bar Association when presenting the portrait to the court stated that they wished to honor Judge Littleton's "great kindness and great understanding."

Chief Judge Marvin Jones, in accepting the portrait on behalf of the court, stated that the judicial qualities of a judge fit Judge Littleton "like a garment."

Chief Judge Bolitha J. Laws of the United States District Court recalled Judge Littleton's boyhood on a Tennessee farm and his outstanding services as Chairman of the United States Board of Tax Appeals, now the Tax Court of the United States, prior to his appointment to the United States Court of Claims.

The special session of the court was opened by Jerry Marcotte, court bailiff for almost 50 years until his retirement last year.

XXVIII

CASES DECIDED

IN

THE UNITED STATES COURT OF CLAIMS

January 1, 1958, to March 31, 1958, and other cases not heretofore published. 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.

JOHN J. EGAN v. THE UNITED STATES

[No. 50031. Decided January 15, 1958.

Defendant's motion for

reconsideration denied June 4, 1958]

On Plaintiff's and Defendant's Motions for Summary Judgment on Count II of Amended Petition

Pay and allowances; unlawful discharge of Naval Reserve officer; withheld promotion.-Because of a case of mistaken identity which led Navy authorities to believe that he was insane, plaintiff's promotion from first lieutenant to captain in the Marine Corps Reserve on March 1, 1943, was withheld and he was released to inactive duty on October 28, 1943. The following April he was discharged from the service. On March 17, 1948, the Board for the Correction of Naval Records found that plaintiff had never been insane and that the withholding of the promotion and subsequent discharge were illegal. The Commandant of the Marine Corps was directed to issue an honorable discharge to plaintiff and this was done, the same being made retroactive to April 11, 1944, the date of the original void discharge. Plaintiff sues for the pay and allowances of which he was deprived by the withheld promotion and subsequent discharge. It is held that the withholding of plaintiff's promotion, his release to inactive duty, and his discharge were all contrary to law. Plaintiff is entitled to recover the difference between the active duty pay and allowances of a captain and the active duty pay and allowances of a first lieutenant from March 1, 1943 to October 28, 1943, and to recover the active duty pay and allowances of a captain from October 29, 1943 to April 7, 1948, less his net earnings from civilian employment during the latter period. Deducted from the present judgment on count II is that part of the former judgment which represents civil service pay due plaintiff

1

Opinion of the Court

141 C. Cls.

prior to April 7, 1948, plus attorney fees and other necessary expenses and costs incurred in connection with obtaining judgment on count I. The amount of recovery under count II is to be determined pursuant to Rule 38 (c).

Armed Services 13.6 (1)

Same; administrative relief by boards for correction of military records.-Public Law 220 amending the Legislative Reorganization Act of 1946 authorized administrative payments of claims for losses of pay due as a result of the correction of military records. Plaintiff applied to the board for relief under this law and in a decision in 1956 such application was denied. It is held that this decision was unresponsive to the application and erroneous.

Armed Services 13.1 (15)

Same; retroactive discharge. The defendant's action in making plaintiff's honorable discharge retroactive to the date of his original invalid discharge was unauthorized. The right to recover pay or compensation lost because of an unjust and illegal discharge is not dependent upon the officer's reappointment to the rank or office to which the claim was connected, and lack of such rank or status during the period involved is no bar to recovery. The back-dating of the discharge in the instant case was contrary to the intent of the corrective action ordered by the Secretary of the Navy and contrary to law.

Armed Services ✪ 11, 13.1 (15)

Same; conditions for discharge.-Under laws applicable to the Naval Reserve an officer cannot be discharged at the whim of the Secretary of the Navy but only under certain specific conditions. None of those conditions existed in the instant case. Armed Services 11

Mr. Rees B. Gillespie for the plaintiff.

Miss Frances L. Nunn, with whom were Mr. Assistant Attorney General George Cochran Doub and Mr. Acting Assistant Attorney General George S. Leonard, for the defendant.

LITTLETON, Judge, delivered the opinion of the court: This case is before the court on plaintiff's and defendant's motions for summary judgment under the second count of plaintiff's amended petition.1

1 In Egan v. United States, 123 C. Cls. 460, amended in part by Egan v. United States, 123 C. Cls. 472, the court rendered judgment for plaintiff on his first count involving a claim for salary from the Veterans' Administration to which plaintiff was entitled during a period of wrongful suspension and discharge from his civilian position in that agency.