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Crowley v. United States

527 F.2d 1176, 208 Ct. Cl. 415, 1975 U.S. Ct. Cl. LEXIS 161
CourtUnited States Court of Claims
DecidedDecember 17, 1975
DocketNo. 93-72
StatusPublished
Cited by28 cases

This text of 527 F.2d 1176 (Crowley 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
Crowley v. United States, 527 F.2d 1176, 208 Ct. Cl. 415, 1975 U.S. Ct. Cl. LEXIS 161 (cc 1975).

Opinion

Cowen, Chief Judge,

delivered the opinion of the court:

This case concerns the applicability of the Veterans’ Preference Act to the termination of the temporary promotions of veterans’ preference eligibles permanently employed by the Federal Government. Plaintiffs William Crowley, James Falconer, John EL Miller, Donald P. Severance and Harold C. Storjohann, employees of the Department of the Navy at the Portsmouth Naval Shipyard (Shipyard), Portsmouth, New Hampshire, each received, between December 1967 and March 1968, at least one temporary promotion to the next higher grade position. In each case, the respective temporary promotions were subsequently terminated and, after unsuccessful appeals to the Civil Service Commission’s (CSC) Board of Appeals and Review (BAR), each plaintiff was returned to his former permanent position. Plaintiffs contend that when they were thus demoted, competing non-veteran employees, who had received similar temporary promotions subsequent to plaintiffs’, were either retained or [420]*420made permanent in the higher grade positions, in violation of plaintiffs’ rights under the Veterans’ Preference Act and the Civil Service Commission regulations promulgated thereunder. Plaintiffs, who have combined their cases inasmuch as they present substantially the same basic issues, seek back pay and permanent reinstatement to the higher level positions.

The three principal questions presented by the parties’ cross-motions for summary judgment are whether plaintiffs’ rights under the Veterans’ Preference Act were violated or abridged by (1) defendant’s promotion of competing non-veterans (or employees with fewer “job retention rights”) over plaintiffs; (2) defendant’s retention of non-veteran temporary promotees over plaintiffs; or (3) defendant’s termination of plaintiffs’ temporary promotions. As to the first two questions, we have concluded that the Act and applicable regulations guarantee veteran temporary pro-motees neither permanent promotions to nor retention rights in higher level Government positions. While the termination of the temporary promotions did, at the time plaintiffs were respectively promoted, constitute an “adverse action” within the meaning of 5 U.S.C. § 7512 and 5 C.F.R.. Pt. 752, we hold that plaintiffs have failed to establish that such actions were arbitrary, capricious or otherwise not “for such cause as will promote the efficiency of the service,” as that standard has been construed by this and other courts. Accordingly, we deny plaintiffs’ motion for summary judgment and grant defendant’s cross-motion.

The facts essential to our decision are not in dispute. However, inasmuch as the underlying circumstances differ somewhat from one claim to another, we set forth the facts of each plaintiff’s claim individually.

1. Plaintiff William, C. Crowley

Plaintiff Crowley was temporarily promoted on March 10, 1968, from the position of Production Shop Planner Pipe-fitter to that of Foreman (Leadingman) Pipefitter. Prior thereto, on February 23,1968, he signed a standard form proposed temporary promotion agreement, stating thereon: “I understand and agree to the conditions of my proposed temporary promotion.” The agreement, substantially identi[421]*421cal to those signed by each, of the other plaintiffs set forth the purpose, conditions and expected duration of the temporary promotion as follows:

a. Position: Foreman Pipefitter — Shop 56
b. Temporary — Not to Exceed: NTE 30 days. This temporary promotion is expected to continue for the period shown above. It may, however, be terminated earlier whenever the temporary condition for which it was made no longer existe, or whenever, for other reasons, it is determined to be in the best interest of the Shipyard to do so.
c. Why this Promotion is Temporary: To replace Mr. Philip J. Theberge who is on extended sick leave.
d. Termination of Temporary Promotion: You will return to your present position and pay step whenever the basis for your temporary promotion no longer exists, or whenever other reasons occur which warrant terminating your temporary promotion. Your promotion may be terminated at any time during the first 90 days. If it continues for more than 90 days, you will be notified of the proposed termination, and the reason for it, at least 30 days before its effective date.

After the permanent foreman’s return, several extensions of plaintiff Crowley’s temporary promotion were made in order “[t]o provide supervision for personnel borrowed from other activities during a peak workload” (March 29, 1968, NTE May 25, 1968), and “* * * also to provide additional supervision coverage from the SSB (n) 619” (May 15, 1968, NTE July 13, 1968; NTE August 24, 1968). In each instance, the reasons for the temporary promotion, and the conditions under which it was being offered, were clearly set forth in a standard form memorandum agreement signed by plaintiff.

On November 4, 1968, plaintiff Crowley was issued an advance notice of termination for the stated reason that “personnel borrowed from other activities are being returned to home yards and there is no longer need for additional supervisory coverage on SSB (n) 619.” The notice also stated that “although this termination is technically classified as an ‘adverse action,’ it is not in any way a reflection on your performance.” Plaintiff was returned to his regular permanent position on November 10,1968.

[422]*422Plaintiff Crowley appealed his termination on the ground, among other things, that at the time thereof, defendant retained in the higher level position the following competing non-veteran employees who, in several cases, had allegedly been temporarily promoted subsequent to his temporary promotion:

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Bluebook (online)
527 F.2d 1176, 208 Ct. Cl. 415, 1975 U.S. Ct. Cl. LEXIS 161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowley-v-united-states-cc-1975.