*1 any proposed sale stock in ratification of the tract rights action to enforce instituted appellant. the and to widow under con- Decedent’s that contract.2 So guardian appealed minor litem of decedent’s strued order not ad the from is ground objections adversely the children filed on one which affects because a conflict of interest existed party Since the was not a to appellee’s position and executor as proceeding any way subject or in to the challenged they purchaser; as also also jurisdiction Court, of the had Probate he competence the execute decedent’s to appeal. no to Fed.R.Civ.P. rule purchase agreement, was stock (a), U.S.C.A.; United Sei States v. day executed on the as decedent’s same gel, U.S.App.D.C. 88, 1948, 83 F.2d resigned Appellant execu- will. as then 143; App. Morgan, 1910, Barksdale discharged. duly tor and released was D.C. 549. Judge Holtzoff, presiding in Motions Appeal dismissed. against background Court, denied this petition stock confirmation agreement prejudice purchase without appropriate renewal action unless
its given by a date to set aside filed agreement. No such action was filed. remaining executor, Louis
The sole supplemental Ginberg, peti- then filed a developments reported
tion which Court and instruc- the Probate asked STOUPER, Appellant Mrs. Indiala Court tions. Thereafter the District purported special term as Probate Roger JONES, Chairman, W. U. S. Civil respect to instruct the executor with to performance Commission, al., Appellees. Service et appel- of the contract No. order, seeks review that contend- lant ing juris- (1) Probate Court had no Appeals United States Court of validity pass on ef- diction to District of Columbia Circuit. contract; (2) that the order fect Argued Sept. 28, 1960. binding on of the Probate appellant is not 10, 1960. DecidedNov. party not since was to the he proceeding. terms, is clear that
It whatever its probate proceedings in the order con- nothing more than instructions
stitutes executor; binding to the it is not rights
appellant and it does affect his ' agreement. purchase the stock Court, course, Probate any affecting
jurisdiction to make order rights appellant’s pur- under the stock agreement. appealed The order
chase going beyond need not be read
instructing steps the executor what as to take. That order
he any may appellant in claim he inhibit having appropriate and the court
assert
jurisdiction is free to construe the con- freely rights Appellee simply concedes that order under the contract but was adjudicate appellant’s question did direction executor. *2 Washington, Mr. Klinedinst, David M. C.,
D. Joelson, Mr. Mark Attorney, R. De- partment Justice, with whom Asst. Atty. George Doub, Gen. C. Messrs. Gasch, Oliver Atty., U. S. and Alan S. Rosenthal, Attorney, Department of Justice, brief, appellees. were on the Before Wilbur K. Chief' Miller, Judge, and Bazelon and Circuit Burger, Judges. MILLER, Judge.
WILBUR K Chief 1, 1953,appellant, On October who had completed more than ten of Gov- service, ernment was retired her from position plate printer’s as a assistant at Engraving Printing. the Bureau of and retirement, disability, Her due to was pursuant to Section 6 of the Civil Serv- May 29, 1930, ice Retirement Act of as amended,1 disability annuity 2anda granted her under that Act. receiving While disabil ity annuity payments, Congress enacted Public Law the Federal Executive Pay 1956,2 Act of Title IV amended the Civil Service Retirement Act of 1930. With reference to disabil ity annuities, the amendment altered the by adding provision Act a new that, earning capacity the effect if the were annuitant restored to a level fair ly comparable pay to the current rate of position immediately prior for the held annuity retirement, the would be discont inued.3 Physical 51, 52, “(c) 1. 62 Stat. examination. U.S.C.A. Each an- §§ nuitant retired under this section or un-
2. 70 Stat.
5 U.S.C.A. § 2251.
May
der section 6 of the Act of
Apparently
amended,
disability perma-
this is so under the now
as
unless his
Act,
character,
even if the
expiration
annuitant still suffers the
shall at
nent
disability
year
which caused his retirement.
of one
the date of such re-
7(c)
(d)
annually
Sections
thereafter,
the 1956
tirement and
until
amendment,
(c)
reaching age
sixty,
U.S.C.A. § 2257
be examined under
(d), are as follows:
the direction of the Commission. If the
6 of
under that section or under
31, 1958,
Section
Retirement
March
On
May
amended.
the Act of
Commis-
Civil Service
Division
following, pro-
7(d), immediately
been Section
appellant had
sion determined
fairly
that “such
shall
earning capacity
vides
annuitant”
to an
restored
*3
longer
disability
be entitled
benefits
of com-
to
rate
comparable
the
to
current
earning capac-
occupied when he is restored to an
position she
pensation for the
ity fairly comparable
rate
retirement,
her
that
to the current
in
her
of
at the time
occupied
per
compensation
position
of
80
of the
exceeded
for 1956 and 1957
income
posi-
salary
at the time of
It
clear
for the
retirement.
is
the current
cent of
Accordingly, her
that the words
to
“such annuitant” refer
in
held
tion she
annuity
disability
Feb-
those who retired either under Section
was discontinued
6 of the 1930
1956
ruary 28,
Act or under the
1959.4
amendment, and
the
therefore include
exhausting
administra-
available
After
present appellant.
brought
remedies,
Stouper
this
tive
Mrs.
argues
Appellant
that,
against
if
the Civil
further
even
of
the members
action
sought
judi-
the
literally
a
amendment was intended to and
She
Service Commission.
situation,
does cover
still entitled
her
it can-
cial declaration that she was
constitutionally
granted,
annuity originally
applied
not
in her case
be
the
to
directing
mandatory injunction
because at the
the Com-
time of her retirement
annuity
disability pay-
acquired
right
she
a vested
to
restore her
missioners to
granted
by
that
not
sum-
could
be taken from her
sub-
The
ments.
District
legislation.
sequent
mary judgment
Com-
to the Civil Service
Stouper ap-
whereupon
mission,
Mrs.
pension
It is well settled that a
pealed.
granted by the
Government confers
Act,
argues
under
the 1956
that
She
right
revised,
which cannot
modified
be
annuity
dis-
terms of which her
the
by
legislation.
subsequent
or recalled
erroneously in-
continued,
in her
case
Teller,
ex
United States
rel. Burnett v.
under the 1930
she
because
retired
voked
1882,
64,
39,
107 U.S.
2 S.Ct.
27 L.Ed.
enactment; that,
before the 1956
Act and
question
352. The
is
that
is
whether
by
rights
governed
therefore,
the
her
are
statutory arrangements
under
also true
termination
and that
the
ofAct
employees
to
for annuities
retired
who
apply
provision
the
Act does
of
required
have been
to contribute to the
her.
to
by
payroll
fund
retirement
of
de
means
ductions.
language
the statute
of
is
fifty years ago,
More than
unequivocal, and
no doubt that
this court
leaves
Bieber, 1909,
applies
7(d)
held Macfarland
Sec
to
Section
App.D.C.
that
7(d) provides
of
for an annual medical
District Columbia
tion
employee who
retired
had
the
of
annuitant
contributed to
each
examination
recovery,
(3)
year
to
examination
one
from the date
fails
submit
annuitant
payment
restored,
required
section,
of determination
that he is so
of
this
Earning capacity
annuity
suspended
whichever
is earliest.
shall
until con-
be
satisfactorily
disability
be deemed
restored
if
each
of
shall
of
tinuance
succeeding
n established.
calendar
two
the income
wages
Recovery
disability;
“(d)
dis-
of the annuitant
from
or self-em-
from
ployment
equal
annuity.
or both shall
If
an-
at least 80
continuance
such
percentum
age sixty,
reaching
nuitant,
of the current
rate of com-
re-
before
position occupied
pensation
disability
of the
im-
from his
or is restored
covers
mediately prior
earning capacity fairly comparable
to retirement.”
to an
compensation
current
rate of
to the
termination,
noted,
position occupied
be
it should
4. This
at
the time of re-
Stouper’s right
tirement,
payment
annuity
Mrs.
affect
receive
shall
annuity
upon
(1)
re-employment
by
will
she
be
deferred
cease
n Government, (2)
age
year
she
attained the
when
has
entitled
one
from
date
specified
showing
in the statute.
medical examination
such
disability
by
annuity
pension
payroll
deductions
fund
which was ter-
property
acquired a
minated.
vested
by a
him
not be taken
which could
argues
Stouper
Mrs.
that the dis
Congress.
subsequent
act
disability annuity
continuance
her
Flemming Nestor,
U.S.
In
February 28, 1950, only eleven months
609-610, 611,
80 S.Ct.
earning
after the determination that her
Supreme
ex-
4 L.Ed.2d
capacity
restored,
had been
was unlawful
respect
question with
a similar
amined
7(d)
because Section
of the 1956 amend
Although
Security
Act.
Social
year
ment authorizes discontinuance one
by
program
up
financed
Act is
set
argu
after the
As
determination.
this
*4
through
employees
payroll
on
a
tax levied
presented
ment was not
to the District
employment,
em-
and on their
in covered
Court, we need not consider it. Ameri
Supreme
ployers,
deemed
Court
Export
Import
O’Neill,
can Air
&
Co. v.
* *
*
“special importance
the fact
1954, U.S.App.D.C. 274,
95
L.Ed. 249.” 552, 557, 61 S.Ct. 312 U.S. 85 L.Ed. Anderson, 1953, U.S. 93 48, also See Ward 158-159, 50-
App.D.C. 156, F.2d *5 Sacks, Washington, C.,
Mr. D. Fred C. Harry Lewis, with whom Mr. Wash- C. RUCKER, Appellant, Jean L. ington, brief, ap- C.,D. was on pellant. GASCON, Appellee. Pedro C. Washington, C., Friedman, Mr. Sol D. No. 15743. Lipshultz, with whom Messrs. Leonard L. Hyman Appeals Roscoe A. Faretta and L. Rosen- United States Court berg, Washington, Columbia Circuit. District of C., on the D. were brief, appellee. Argued Oct. Before Burger, Edgerton, Fahy, 17, 1960. Decided Nov. Judges. Circuit
PER CURIAM. negligence plaintiff ap- The suit judgment peals from a for the defendant. jury deliberating, While judge permitted trial it to return to the drawings courtroom to look at blackboard of the scene of the accident. black- jury, board had been shown to the both counsel had it for used demonstra- purposes, tion it had but not been formal- ly introduced in evidence. It would have practice jury been better not to let the re-examine the blackboard outside the jury room, in the absence of court and counsel and without the consent of coun- sel, error, any, appear if but does not prejudice to have caused and the court denying did not abuse discretion in its new trial.
Affirmed.