Bredehorst v. United States, 672-80C.

CourtCourt of Federal Claims
Citation677 F.2d 87
Docket NumberNo. 672-80C.,672-80C.
PartiesReba BREDEHORST, Personal Representative of James C. Densley, Deceased v. The UNITED STATES.
Decision Date21 April 1982

677 F.2d 87

Reba BREDEHORST, Personal Representative of James C. Densley, Deceased

No. 672-80C.

United States Court of Claims.

Decided April 21, 1982.

Wayne S. Dryden, Pasadena, Cal., attorney of record, for plaintiff; Dryden, Soodik & Lowe, Pasadena, Cal., of counsel.

Judith E. Cohn, Washington, D. C., with whom was Acting Asst. Atty. Gen. Stuart E. Schiffer, Washington, D. C., for defendant; Stewart A. Broder, U. S. Postal Service, Washington, D. C., of counsel.

677 F.2d 88

Before FRIEDMAN, Chief Judge, and KASHIWA and SMITH, Judges.


SMITH, Judge:

This is a civilian pay case, before us on plaintiff's petition (through his personal representative) and defendant's motion for summary judgment, in which plaintiff appeals a decision of the United States Civil Service Commission Board of Appeals and Review (board). The case is decided without oral argument. We hold that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law.

The parties raise two issues. First, whether a veteran preference eligible employee of the United States Postal Service (Service) is entitled to the procedural rights of a competitive service civil servant in a suspension action. Second, whether the Service must give a preference eligible employee written notice of his right to appeal prior suspensions for periods of less than 30 days in order for those suspensions to be considered grounds for a subsequent dismissal.

Plaintiff, a veteran, was employed as a PS-5 distribution clerk at the Post Office's Monterey Park, California, branch. Plaintiff received satisfactory performance evaluations from his date of employment, September 29, 1970, to January 1973. In January 1973, plaintiff was transferred to the 3 a. m. work shift. Plaintiff's inability to wake up during the nighttime caused him to fail to report to work on time or to give notice to his supervisor that he would be late. Plaintiff's repeated tardiness resulted in his suspension for periods of 1 day (May 31, 1973), 5 days (July 6, 1973), and 15 days (July 27, 1973). Plaintiff on November 10, 1973, received a letter of proposed termination based on his prior suspensions and his failure to report to work on November 3, 1973, and on his failure to notify his superiors of the latter absence. Plaintiff orally answered the charges on November 12 and gave a written denial on November 16, 1973. The postmaster of the Monterey Park post office rejected plaintiff's arguments and informed plaintiff that his removal would be effective as of December 21, 1973. Plaintiff went on non-pay status with the Service from December 22, 1973, to February 7, 1974.

Plaintiff appealed the Service's action to the Federal Employee Appeals Authority, San Francisco Field Office (FEAA). The FEAA reversed the Service's action on the ground that the Service did not comply with required procedures when it failed to notify plaintiff of his appeal rights regarding the earlier suspensions. Therefore, ignoring the earlier suspensions, the FEAA found that the Service did not have adequate grounds to dismiss plaintiff and ordered his reinstatement.

The Service appealed the FEAA decision to the board. The board reversed stating that plaintiff's dismissal was proper.

Plaintiff's petition for review to the United States Court of Appeals for the Ninth Circuit was dismissed without prejudice on November 17, 1975, for lack of jurisdiction. Plaintiff's petition for review to the United States District Court for the Central District of California was dismissed without prejudice on March 21, 1977, in order that plaintiff could file a petition with this court. After plaintiff died in an accident in Los Angeles, California, on September 11, 1977, plaintiff's personal representative filed her petition with this court on December 15, 1980.

In a motion for summary judgment, any doubt as to issues of material fact must be resolved against the moving party, here the defendant.1 However, assuming, without deciding, that all material facts are as plaintiff alleges, we hold that plaintiff fails to state a claim upon which relief can be granted.

The Postal Service Reform Act2 (act) established the Service as an "independent

677 F.2d 89
establishment of the executive branch."3 Accordingly, "except as otherwise provided in this title * * * no Federal law dealing...

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13 cases
  • Horner v. Schuck
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • April 6, 1988
    ...agreement or they may appeal to the board. 39 U.S.C. Sec. 1005; 5 U.S.C. Secs. 7511(a)(1), 7513(d); Bredehorst v. United States Postal Service, 677 F.2d 87, 230 Ct.Cl. 399 (1982); Article 16 of the collective bargaining agreement. If respondents, as preference eligible veterans, choose to e......
  • Glenn v. U.S. Postal Service, 90-3751
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • August 30, 1991
    ...same rights as a federal employee in the competitive service but only the rights granted to veterans by the Veterans' Preference Act. Id., 677 F.2d at 89 (footnotes omitted). Bredehorst, and the legislative history, were relied upon by the district court in this case in its holding that the......
  • Miller v. US Postal Service, IP 91-748-C.
    • United States
    • U.S. District Court — Southern District of Indiana
    • March 9, 1993 the "postal career service," 39 U.S.C. § 1001(b), and are by definition "outside the competitive service." Bredehorst v. United States, 677 F.2d 87, 89, 230 Ct.Cl. 399 (1982). 7 Congress mandated that the Service establish procedures for fair hearings on adverse personnel actions. 39 U.S......
  • Erickson v. U.S. Postal Serv., s. 2008–3216
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • October 15, 2014
    ...1970 statute in the only case from this court or its predecessor that has focused on the language at issue here. In Bredehorst v. United States, 677 F.2d 87 (Ct.Cl.1982), a preference eligible in the Postal Service argued that he was entitled to the same rights enjoyed by a federal employee......
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