Barger v. United States

170 Ct. Cl. 207, 1965 U.S. Ct. Cl. LEXIS 90, 1965 WL 8261
CourtUnited States Court of Claims
DecidedApril 16, 1965
DocketNo. 356-63
StatusPublished
Cited by10 cases

This text of 170 Ct. Cl. 207 (Barger v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barger v. United States, 170 Ct. Cl. 207, 1965 U.S. Ct. Cl. LEXIS 90, 1965 WL 8261 (cc 1965).

Opinion

Laramore, Judge,

delivered the opinion of the court:

Plaintiff in this action seeks judgment against the United States for back pay as a GS-9 on the ground that her separation from Federal employment in a reduction-in-force at the Lowry Technical Training Center, Lowry Air Force Base, Colorado, was unlawful.

The case arises on cross-motions for summary judgment, and the facts are summarized as follows:

Plaintiff, a nonveteran, was employed as an Employee Utilization Officer (Placement, Employee Relations and Training) in the Lowry Technical Training Center at Lowry Air Force Base (hereinafter called the Lowry Center), GS-10, at a salary of $7,255 per annum. On January 5, 1960, she had 11 years, 9 months, and 15 days of service. On that day the Lowry Center notified her that she had been reached in a reduction-in-force, and the Center offered her a reassignment to the position of Placement Assistant (Typing), GS-5, at $1,940 per annum. She accepted the offer. On January 14, 1960, the Center issued a circular letter stating that upward reclassifications were under consideration, including Employee Utilization Officer (plaintiff’s former position) to GS-11 and Placement Assistant (the position offered to plaintiff) to GS-7. On January 21, 1960, the Lowry Center amended the notification of January 5, 1960 and informed the plaintiff that the offer of Placement Assistment, GS-5, was revoked and that she could have the position of [209]*209Supervisory Clerical Assistant (Medical), at the same grade and pay, GS-5. She rejected the new assignment, maintaining- that as against Placement Assistant, the Supervisory' Assistant position was not the-best possible' offer and that she was not qualified to perform- its statistical and medical f mictions. On February 2, 1960, the Center gave her the final notice of r edüctioii-in-force, effective February 7, 1960, and informed her that her name would be placed on the re-employment priority list for the Denver commuting area. She was accordingly separated.

Plaintiff appealed her reduction-in-force separation with the Civil Service Commission’s Denver Regional Office, alleging that she had not been given the best possible offer of re-assignment in lieu of separation.- ■ On March 3, 1960, the Denver Regional Office denied plaintiff’s appeal, holding that an offer of any GS-5 position at Lowry Air -Force Base' would constitute a reasonable offer within- the definition of the regulations. Plaintiff then, by letter of March 8, 1960, entered an appeal with the Civil Service Commission’s Board of Appeals and Review, on the same basis as her earlier appeal. On August 31, 1960, the Board of Appeals and Review reaffirmed the decision of the Denver Region.

On August 17, 1961, plaintiff alleged that her rights as a separated career employee had been violated. The matter was investigated by the Civil Service Commission’s Denver Regional Office, and on September 20, 1961 that office informed the Commander of the Lowry Air Force Base that plaintiff’s retention preference rights had been-violated. The Denver Region found that (1) the Air Force Accounting and Finance Center had filled -two GS-1L Personnel Management Specialists positions by transfer from other agencies without first, considering plaintiff for those positions, and (2) that a review of an application for Federal employment executed by plaintiff showed .that she was qualified for the position of Management Analyst (Manpower Utilization and Control), GS-9, which position Lowry Air Force Base did not offer plaintiff at the time of her reduction-in-force, and which was on; February 7,1961 filled by a new appointment. The Region held that plaintiff’s rights were violated as of the filling of the position on -February 7, 1961 and that she [210]*210should be offered a Management Analyst, GS-9, position and, if she accepted, to reinstate her as of February 7,1961.

The Lowry Technical Training Center of the Air Force appealed that decision to the Civil Service Commission’s Board of Appeals and Review pn the basis that plaintiff did not qualify for a Management Analyst GS-9 position, and that the Standard Form 57 used by the Commission’s Regional Office should not have been used to determine plaintiff’s experience, as it was executed by plaintiff after her reduction-in-force. The Board of Appeals and Eeview, after examination of her appeal, remanded the case to the Denver Region on November 3, 1961, holding that the earlier decision was not fully responsive to plaintiff’s appeal. On December 11,1961, the Civil Service Commission was notified that plaintiff had been employed as a Management Analyst, GS-11, at the Air Force Accounting and Finance Center, Denver, Colorado, from the re-employment priority list. By letter of December 13,1961, the Denver Regional Office notified the Air Force that plaintiff’s appeal was being closed since the appointment of plaintiff removed the restriction imposed by the Retention Preference Regulations and corrected any invalidity of the prior questioned appointments. Plaintiff appealed the dismissal of her re-employment priority list appeal to the Commission’s Board of Appeals and Review, stating that she thought she should be reinstated to the position of Management Analyst, GS-9, at Lowry Air Force Base, effective February 7, 1961. Plaintiff, by letters of November 30, 1961 and December 19, 1961, also requested a reopening of the reduction-in-force appeal which had been disposed of by the Board of Appeals and Review on August 31,1960.

On May 17, 1962, plaintiff was notified that the Commissioners had approved the reopening of plaintiff’s reduction-in-force appeal; had cancelled the Board of Appeals and Review decision of August 31, 1962; and ordered the Board to give concurrent consideration to her reduction-in-force appeal and re-employment priority list appeal. On June 27, 1962, the Board of Appeals and Review held that at the time of plaintiff’s reduction-in-force she was qualified for the position of Management Analyst, GS-9, and that the [211]*211offer of reassignment to the GS-5 position was not a reasonable offer under the retention preference regulations. The Board further held that the action separating plaintiff by reduction-in-force should be changed to reflect a change to a lower grade (GS-9) effective February 8, 1960, and that plaintiff assumed the GS-11 Management Analyst position by promotion and change ,of appointing office as of December 11, 1961. Plaintiff’s entitlement to entry on the re-employment priority list was cancelled retroactively and her appeal was closed without further action.

On August 10, 1962, the Department of the Air Force requested the Commissioners to reopen the appeal under section 20.506 of the Civil Service Regulations1 on the basis that plaintiff was not qualified for the position of Management Analyst, GS-9 or GS-11. The Air Force also requested that should a decision adverse to plaintiff be issued, a waiver of qualification be granted since it had no desire to separate plaintiff from the GS-11 Management Analyst position she tiren held.

On September 13,1963, the Commission issued its decision, holding that plaintiff did not meet the minimum qualification requirements for the position of Management Analyst, GS-9, at the time of her reduction-in-force, nor for the Management Analyst, GS-11, at the time of her reinstatement. The Commission further held the reduction-in-force action proper.

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Bluebook (online)
170 Ct. Cl. 207, 1965 U.S. Ct. Cl. LEXIS 90, 1965 WL 8261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barger-v-united-states-cc-1965.