Carman v. United States, 51-78.

• Citation: 602 F.2d 946
• Decision Date: 18 July 1979
• Docket Number: No. 51-78.,51-78.
• Parties: David E. CARMAN v. The UNITED STATES.
• Court: Court of Federal Claims

602 F.2d 946

David E. CARMAN
v.
The UNITED STATES.

No. 51-78.

United States Court of Claims.

July 18, 1979.

602 F.2d 947

Alan E. Wolin, Mineola, N. Y., for plaintiff. Jack B. Solerwitz, Mineola, N. Y., attorney of record.

Donnie Hoover, Washington, D. C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D. C., for defendant. Lynn J. Bush, Washington, D. C., of counsel.

Before DAVIS, KASHIWA and BENNETT, Judges.

602 F.2d 948

ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

BENNETT, Judge:

This civilian pay case comes before the court on the motions of the parties for summary judgment. Plaintiff is now employed as a special agent with the Federal Bureau of Investigation. He initially served with the FBI from June 23, 1969, until January 22, 1971, at which time he resigned to enlist in the United States Army. After completion of approximately 3 years of military service, plaintiff requested and received reinstatement as a special agent on February 14, 1974. He was reinstated in grade GS-10, step 4, thereby giving him the benefit of two within-grade increases which he would have received had he remained in continuous employment with the FBI.

Plaintiff would have been eligible to be considered for promotion to GS-11 on June 23, 1971, in accordance with Bureau policy that a special agent is to be so considered after 2 years of satisfactory service in grade GS-10. His promotion was not granted, although it was considered in 1971. Instead, it was recommended that plaintiff be considered for promotion to GS-11 sixty days after his reinstatement. He was, in fact, promoted to GS-11, step 3, on April 14, 1974, approximately 60 days after his return to duty with the FBI. Plaintiff unsuccessfully sought relief from his agency. It is his contention that he should have been promoted one grade level upon his reinstatement to the FBI, pursuant to 50 U.S.C.App. § 459 (1970). Further, plaintiff's motion alleges that it has been the consistent practice of the FBI to make regular promotions of special agents with satisfactory performance records such as his. Defendant, on the other hand, gives us authority that promotions are not regular or ministerial but discretionary, and that this is reflected by the FBI procedural manuals.

We are uncomfortable with the meager evidence we have before us on these motions as to the plaintiff's legal entitlement to promotion because we are unclear what was, in fact, the actual practice of the FBI as to the normal promotion of special agents with satisfactory records, as contrasted to what the manuals would have us believe. This conflicting factual issue can be clarified by a remand to the trial division to develop the facts on this issue.

Plaintiff also claims that he is entitled, under section 459, to credit for sick leave accrued during the period of his military service. Defendant asserts that this court lacks jurisdiction over this claim, and, alternatively, that plaintiff is not entitled to credit for such leave on the merits of the case. We conclude that this court does have jurisdiction but hold for defendant on the merits.

There is no question that if plaintiff's sick leave were the sole claim before the court, we would not have jurisdiction over it. Sick leave is credited to an employee's account on the basis of a certain amount of leave per pay period. 5 U.S.C. § 6307. The mere crediting of sick leave to an employee's account, however, confers no present right to payment, but, instead, only confers the right to the continuation of pay and employment benefits upon absence due to illness and potential credit for retirement benefits. As this case comes before the court, there is no allegation that plaintiff has been absent due to illness and that the FBI has failed to pay him because the agency has unlawfully failed to credit his account with the proper amount of sick leave. Where no money damages are presently due and owing, this court does not have jurisdiction over such a claim standing alone, Jankovic v. United States, 204 Ct.Cl. 807 (1974), for any judgment would be in the nature of a declaratory judgment which this...