O'Hare v. United States

2 Citing cases

  1. Crowley v. United States

    527 F.2d 1176 (Fed. Cir. 1975)   Cited 18 times
    In Crowley, the Court of Claims declined to accord veterans' preference under the VPA stating, "[t]here is perhaps no principle more settled in this area of the law than that promotion and non-promotion of employees within a department or agency of Government is a matter of supervisory discretion not ordinarily subject to judicial review."

    This interpretation of the regulations, moreover, is consistent with the Veterans' Preference Act. Such, indeed, was the holding of Elder v. Brannan, 341 U.S. 277, 283, 71 S.Ct. 685, 95 L.Ed. 939 (1951), which sustained the retention of non-veteran permanent employees over veteran temporary employees in a reduction-in-force situation on the ground that the regulations group employees by tenure and limit the reach of veterans' preference to competing employees of the same group. See O'Hare v. United States, 288 F.2d 705, 707, 153 Ct.Cl. 55, 59-60 (1961); Cohen v. McNamara, 282 F. Supp. 308, 312 (E.D.Pa. 1968). The obvious rationale underlying this initial grouping by tenure instead of by veterans' status was to avoid the result of permitting veteran temporary promotees, during every reduction in force, to automatically displace non-veterans with greater seniority holding the same positions on a permanent basis.

  2. Smith v. Missouri Pacific Transportation Co.

    208 F. Supp. 767 (E.D. Ark. 1961)   Cited 4 times

    In approaching the problems which arise under the statutes in this case it is well to keep in mind that the reemployment provisions of both the 1940 and the 1948 statutes are to be construed liberally in favor of the veteran, but the constructions given must be reasonable and must be in keeping with the intent of Congress to require restoration of the veteran to the same but to no better position jobwise than he would have occupied had he not gone into service. See Fishgold v. Sullivan Drydock Repair Corporation, 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230; O'Hare v. United States, Ct. Cl., 288 F.2d 705; Horton v. United States Steel Corporation, 5 Cir., 286 F.2d 710; Rix v. Turnbull-Novak, Inc., 8 Cir., 260 F.2d 785; Sularz v. Minneapolis, St. Paul Sault Ste. Marie R. Co., 8 Cir., 259 F.2d 122; Meehan v. National Supply Co., 10 Cir., 160 F.2d 346. Insofar as here pertinent, section 8 of the 1940 Act, 50 U.S.C.A. Appendix, ยง 308, provided in substance that any person who should be inducted into the armed forces of the United States, and who should satisfactorily complete his military service and receive a certificate to that effect, and who had left a position in private employment to go into military service, would be entitled, upon the completion of his service, to be restored to his old position, or to a position of like status, seniority, and pay, provided that he made timely application for such reinstatement and was capable of performing the duties of his employment, and provided that the employer's circumstances had not changed to such an extent as to make it impossible or