Bright v. Macy

• Decision Date: 20 December 1967
• Docket Number: Civ. A. No. 18062.
• Citation: 278 F. Supp. 215
• Parties: Robert R. BRIGHT v. John W. MACY, Jr., L. J. Andolsek, and Robert E. Hampton, as Chairman and Members, respectively, of the U. S. Civil Service Commission, Stanley R. Resor, as Secretary of the Army, Col. Paul R. Cerar, as Commanding Officer, Edgewood Arsenal, a command complex of the Department of the Army, and William J. Foland, as Chief, Civilian Personnel Office, Edgewood Arsenal.
• Court: U.S. District Court — District of Maryland

278 F. Supp. 215

Robert R. BRIGHT v. John W. MACY, Jr., L. J. Andolsek, and Robert E. Hampton, as Chairman and Members, respectively, of the U. S. Civil Service Commission, Stanley R. Resor, as Secretary of the Army, Col. Paul R. Cerar, as Commanding Officer, Edgewood Arsenal, a command complex of the Department of the Army, and William J. Foland, as Chief, Civilian Personnel Office, Edgewood Arsenal.

Civ. A. No. 18062.

United States District Court D. Maryland.

December 20, 1967.

Robert R. Bright, in pro. per.

Stephen H. Sachs, U. S. Atty., and Nevett Steele, Jr., Asst. U. S. Atty., Baltimore, Md., for defendants.

NORTHROP, District Judge.

Since on or before August 1, 1962, the plaintiff, Robert R. Bright, has been the chief legal advisor to the Edgewood Arsenal Command Complex and its predecessor agency, the Chemical-Biological-Radiological Agency (CBR Agency), a command complex of the Department of the Army with headquarters in Edgewood, Maryland.

In 1962 there was an Army reorganization which, inter alia, resulted in the abolishment of the Chemical Corps Materiel Command and the Chemical Corps and the establishment of the United States Army Materiel Command and The United States Munitions Command. Pursuant to this reorganization plaintiff's position as Supervisory Attorney-Advisor (General) was abolished and he was subjected to reduction-in-force procedures and he was reassigned to the position of Attorney-Advisor (General) in the newly created United States Army CBR Agency. Both positions held by the plaintiff were allocated a GS-15 rank.

There is no question that plaintiff's reassignment in 1962 was properly processed by application of reduction-in-force procedures. The pertinent statutes and regulations follow:

Section 12 of the Veterans' Preference Act of 1944 as amended, 5 U.S.C.A. § 861:

"In any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings: Provided, That the length of time spent in active service in the armed forces of the United States of each such employee shall be credited in computing length of total service: Provided further, That preference employees whose efficiency ratings are `good' or better shall be retained in preference to all other competing employees and that preference employees whose efficiency ratings are below `good' shall be retained in preference to competing nonpreference employees who have equal or lower efficiency ratings: And provided further, That when any or all of the functions of any agency are transferred to, or when any agency is replaced by, some other agency, or agencies, all preference employees in the function or functions transferred or in the agency which is replaced by some other agency shall first be transferred to the replacing agency, or agencies, for employment in positions for which they are qualified, before such agency, or agencies, shall appoint additional employees from any other source for such positions."

5 C.F.R. 351.201:

"(a) Each agency shall follow this part when it releases a competing employee from his competitive level by separation, demotion, furlough for more than 30 days, or reassignment requiring displacement, when the release is required because of lack of work, shortage of funds, reorganization, or the exercise of reemployment rights or restoration rights." Emphasis added.

5 C.F.R. 351.203(g):

"`Reorganization' means the planned elimination, addition or redistribution of functions or duties in an organization."

In explaining reductions-in-forces based on reorganizations, Section 351.11, paragraphs 2-6, of the Federal Personnel Manual reads in pertinent part as follows:

"a. For reduction-in-force purposes, a reorganization occurs when management at any level adds to, takes from or redistributes the functions or duties of one or more positions. When a reorganization is the cause of a separation, furlough for more than 30 days, change to lower grade or reassignment involving displacement, the reduction-in-force procedures must be followed."

On October 28, 1964, plaintiff received notice that his position was being down-graded from GS-15 to GS-14 under reduction-in-force procedures pursuant to an Army reorganization in May of 1963. Presumably this reclassification was based on a judgment that the nature of the work assigned to plaintiff's position was of a different type than that designated prior to the 1963 reorganization. However, insofar as plaintiff was concerned, the reorganization did not change anything except the name of his agency and, after appealing to the Civil Service Commission, he was reinstated at his previous rank of GS-15 on January 26, 1965, when the notice of reduction-in-force was canceled.

On April 22, 1965, plaintiff received a preliminary notice of demotion to GS-14. The stated ground for this action was that the annual cyclic position audit demonstrated that a downgrading was warranted. Advance notice and the right to contest the action was given because this downgrading was processed as an adverse-action rather than a reduction-in-force. Section 14 of the Veterans' Preference Act of 1944, c. 287, 58 Stat. 387, 390, 5 U.S.C. § 863 provides in part:

"No permanent or indefinite preference eligible * * * shall be * * * reduced in rank or compensation * * except for * * * reasons given in writing, and the person whose * * reduction in rank or compensation is sought shall have at least thirty days' advance written notice * * * stating any and all reasons, specifically and in detail, for any such proposed action; such preference eligible shall be allowed a reasonable time for answering the same personally and in writing * * *."

Although the section makes no reference to any right of hearing or to crossexamination of witnesses, it does provide that the Civil Service Commission may promulgate regulations affecting the right of appeal thereunder. By such regulations veterans' preference eligibles are granted a right to present, examine, and cross-examine witnesses to contest the validity of the reasons stated for the action. See Coledanchise v. Macy, 265 F. Supp. 154 (D.S.C.1967). It is this which distinguishes the adverse-action from the reduction-in-force procedures. On appeal the second attempt to demote the plaintiff was canceled because of procedural deficiencies in that the reasons for the proposed action were not stated with sufficient specificity.

Then on January 6, 1966, the plaintiff was subjected to yet another attempt at demotion. This demotion was processed as a reduction-in-force because the agency claims to have found error in the initial allocation when the position was established in August of 1962 at the time of the Army reorganization. In the notice of January...