Slavitt v. United States

155 Ct. Cl. 606, 1961 U.S. Ct. Cl. LEXIS 159, 1961 WL 8729
CourtUnited States Court of Claims
DecidedDecember 6, 1961
DocketNo. 205-55
StatusPublished
Cited by3 cases

This text of 155 Ct. Cl. 606 (Slavitt 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
Slavitt v. United States, 155 Ct. Cl. 606, 1961 U.S. Ct. Cl. LEXIS 159, 1961 WL 8729 (cc 1961).

Opinion

Laramore, Judge,

delivered the opinion of the court:

Plaintiff, a nonveteran and former employee of the Navy Department, seeks to recover back pay from the date of her [608]*608separation on tbe ground that she was illegally separated by reduction in force. She contends that she was placed in the wrong group in her competitive level. Plaintiff also contends that the action of the Department of the Navy in separating her and the decision of the Civil Service Commission sustaining her separation were arbitrary.

Three questions are presented in this case: (1) whether plaintiff’s separation by reduction in force was properly effected; (2) whether plaintiff was properly placed in subgroup III-B on the retention register; and (3) whether the actions of the Department of the Navy and of the Civil Service Commission were arbitrary.

Eegarding the first question — plaintiff became employed by the Department of the Navy in 1951 and was given an indefinite appointment as a Contract Specialist, GS-12, effective April 9, 1951, under authority of Civil Service Certificate No. H-8689, Civil Service Commission, dated March 2,1951.

As the result of the anticipated decrease in work load for the fiscal year 1954 for the Navy Purchasing Office, the Chief of the Bureau of Supplies and Accounts directed in June of 1953 that the personnel ceiling of the purchasing office be reduced by 25 persons. It was decided that one GS-12 Contract Specialist would be eliminated. Therefore, plaintiff was placed in group III-B in her competitive level for the purpose of compiling the retention register. Since the only other two positions in plaintiff’s competitive level were held by subgroup A employees, plaintiff was separated.

The above gives rise to our problem. If plaintiff’s appointment was properly an indefinite one which did not confer civil service status, then she was properly placed in subgroup III-B on the retention register.

The defendant contends that at the time plaintiff received this appointment, it did not confer civil service status and such was the only type that could be given.

We must look to the record of employment, the statutes, and the civil service regulations for the answer.

Plaintiff contends that she did not resign her position with the Department of Labor; that she merely transferred to the Department of the Navy. She says this was done without [609]*609interruption in service and tbat her annual leave and sick leave were transferred.

The record shows that on March 26, 1951, plaintiff signed a Form 52 which was a request for personnel action. This form shows the nature of the action requested as “resignation to accept position with the Department of the Navy.”

The official records of the Department of Labor contain a Standard Form 50, which is a notification of personnel action. This form shows the nature of action “resignation (from excepted appointment)” and further states “reason for separation; To accept position with Department of the Navy.”

Thus it is apparent that not only did plaintiff in her signed Form 52 say that she was resigning from the Department of Labor, but that the Department of Labor also so understood as is shown by its notification of personnel action. Furthermore, the Navy Department also must have believed that plaintiff had resigned and was being given a new appointment because in its notification of personnel action it is noted that plaintiff was appointed under the authority of Civil Service Certificate H-8689, March 3, 1951. This indicates a new appointment.1

Since it was a new appointment, what then was plaintiff’s status in the Navy Department?

At the time of plaintiff’s appointment there was in effect the Whitten Amendment, 64 Stat. 1066, which provided that all appointments after September 1, 1950, and during the fiscal year 1951, should be indefinite appointments. The reasoning and purpose of Congress in enacting the Whitten Amendment is obvious. As a natural consequence of war, more than a normal amount of employees was necessary. After cessation of hostilities, naturally the inflated employee rolls would no longer be needed. Hence the Whitten Amendment was designed to give the various agencies the right to discharge employees under these circumstances. See Moyer v. United States, 150 Ct. Cl. 627.

Civil ServiceRegulation2.115(a), 5 C.F.E. (1952 Supp.), provides:

[610]*610Indefinite appointment — (a) In general. On and after December 1, 1950, all new appointments shall be indefinite appointments except those of postmasters in all classes of post offices and, in unusual circumstances, appointments to positions for which the Commission determines that probational appointments are in the interest of the service: Provided, that agencies may give probational appointments after that date to eligibles who were regularly selected from certificates issued prior to December 1,1950, for probational appointment. Such indefinite appointments shall be made from the Commission’s registers of eligibles unless there are insufficient available eligibles. The Commission may restrict certification for indefinite appointment to eligibles that are immediately available because of residence or other conditions. The first year of service under an indefinite appointment shall be a trial period similar to the probationary period established by § 2.113. Persons given such appointments do not thereby acquire a permanent civil service status.

Thus under the Whitten Amendment, supra, and the civil service regulation 2.115 (a), supra, plaintiff could only have received an indefinite appointment.

The question then is whether under this “indefinite appointment” plaintiff was properly placed in group Ill-indefinite.

The civil service retention preference regulation defines group III as follows:

Group III — Indefinite. This group includes persons serving under non-status, non-temporary appointments in positions in the competitive service. It also includes employees in positions excepted from the competitive service serving under any conditions or limitation other than a conditional promotion or reinstatement or a specific time limitation of one year or less. Within this group, persons entitled to veterans preference are in sub-group “A” and others in sub-group “B”. (5 C.F.B. 20.4(c)(3) (1952 Supp.).)

Plaintiff did not have competitive status as is demonstrated by her brief on page 23 thereof, wherein she states: “Plaintiff makes no claim to competitive status and urges less confusion on this point.” Since she was given the only appointment available; i.e., indefinite appointment, and [611]*611since she had no competitive status, it is clear that plaintiff was properly placed in group III. As a nonveteran she was also properly placed in subgroup “B”. Having been properly placed in group III-B for the purpose of computing a retention register, her rights naturally followed those having more retention points.

The retention register compiled under the aforesaid circumstances showed as follows:

Competitive Area: Navy Purchasing Office
Competitive Level: Contract Specialist, GS-12
Service Count Date: 6-26-63

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Related

Juanita A. Rosete v. Office of Personnel Management
48 F.3d 514 (Federal Circuit, 1995)
Dargo v. United States
176 Ct. Cl. 1193 (Court of Claims, 1966)
George v. United States
166 Ct. Cl. 527 (Court of Claims, 1964)

Cite This Page — Counsel Stack

Bluebook (online)
155 Ct. Cl. 606, 1961 U.S. Ct. Cl. LEXIS 159, 1961 WL 8729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slavitt-v-united-states-cc-1961.