336 F2d 742 Tobriner v. J O'Donnell

336 F.2d 742

118 U.S.App.D.C. 354

Walter N. TOBRINER et al., Appellants,
v.
John J. O'DONNELL, Jr., Appellee.

No. 18317.

United States Court of Appeals District of Columbia Circuit.

Argued May 14, 1964.
Decided June 18, 1964.

Mr. Richard W. Barton, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellants.

Mr. Joseph B. Calandriello, Washington, D.C., with whom Mr. Joseph Sitnick, Washington, D.C., was on the brief, for appellee.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and WASHINGTON, Circuit Judge.

PER CURIAM:

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1

Appellee became disabled, not in performance of duty, after serving four years and nearly ten months as a member of the Metropolitan Police Department of the District of Columbia. Read in connection with 4-521(1), D.C.CODE (1961) 4-526 provides that when a member of the Police or Fire Department 'completes five years of police or fire service and is * * * disabled due to injury received or disease contracted other than in the performance of duty', he shall be retired on an annuity of at least 40 per cent of his salary. Appellee contends that former military service should be counted and that he therefore has five years of 'police or fire service.' This contention contradicts the plain meaning of the quoted words. Moreover, 4-521(10) of the Code defines 'police or fire service' as 'honorable service in the Metropolitan Police Department, White House Police force, Fire Department of the District of Columbia, the United States Park Police force, and the United States Secret Service * * *' The District Court erred in entering summary judgment for appellee. Summary judgment should be entered for appellants.

2

Reversed.