Cobb v. Prokop, Civ. A. No. 81-3-T.

• Decision Date: 16 February 1983
• Docket Number: Civ. A. No. 81-3-T.
• Citation: 557 F. Supp. 391
• Parties: Elsie C. COBB, Plaintiff, v. Ruth D. PROKOP, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

557 F. Supp. 391

Elsie C. COBB, Plaintiff, v. Ruth D. PROKOP, et al., Defendants.

Civ. A. No. 81-3-T.

United States District Court, D. Massachusetts.

February 16, 1983.

COPYRIGHT MATERIAL OMITTED

William J. Lafferty, Boston, Mass., for plaintiff.

Marianne B. Bowler, Asst. U.S. Atty., Boston, Mass., for defendants.

OPINION

TAURO, District Judge.

Plaintiff, Elsie C. Cobb, appeals the findings of the Merit Systems Protection Board (MSPB) which rejected her claim that she was improperly denied an employment promotion opportunity at the Veterans Administration Medical Center (V.A.) after her discharge from military service. Relying on the provisions of the Veteran's Reemployment Rights Act of 1974, 38 U.S.C. § 2021 et seq., plaintiff has moved for summary judgment. The government, in turn, filed alternative motions to dismiss and for summary judgment.

Factual Background

Elsie C. Cobb was employed as a GS-11 social worker at the V.A. in Jamaica Plain, Massachusetts from October 11, 1965 until January 24, 1971. At that time, with the permission of the V.A., Cobb enlisted in the U.S. Army Medical Service Corps. As a Captain in the Medical Corps, Cobb's duties included working at a drug and alcohol rehabilitation center in Korea where she provided counseling for combat troops who had developed drug addictions during their tours of duty in Vietnam. While still in Korea, Cobb learned that her supervisor at the V.A., Margaret Morgan, had passed away. Cobb realized that her supervisor's death left a GS-12 vacancy at the V.A. On June 18, 1975, she wrote to the Personnel Department at the V.A. indicating her desire to be considered for that vacancy. In a letter dated June 24, 1975, Personnel Officer Thomas J. Hogan informed Cobb that Mrs. Morgan's position had been "filled through Merit Promotion Procedures by one of the staff Social Workers some months ago."¹ Cobb did not pursue the matter any further at that time.

Cobb was reinstated at the V.A. on January 22, 1976 at the conclusion of her military tour of duty. She was restored to the same position which she had formerly held as a GS-11 social worker. At the time of her return to the V.A., Cobb complained to Personnel Officer Hogan and others that she believed her restoration to be unfair. She was convinced that the Personnel Office had not considered her for the GS-12 openings that arose while she was in the service, and for which she believed herself to be well qualified. In addition, Cobb claimed that the V.A. had failed to credit her with 146 hours of sick leave which she had accumulated prior to her departure. Though Cobb voiced her dissatisfactions a number of times, she was never informed that she was entitled to have her claims heard by the MSPB (or its predecessor, the Civil Service Commission). She came to believe that any further pursuit of these matters would be futile.

Cobb continued to work at the V.A. despite dissatisfaction over her restoration. She did nothing more regarding her complaints until the fall of 1979. At that time, she attended a U.S. Army Reserve Drill where she learned from an officer of the Judge Advocate General Corps that, as a veteran, she could appeal an improper restoration. As a result, Cobb began to make inquiries about possible avenues of appeal. She spoke to personnel officers at a number of different agencies and eventually was referred to the U.S. Office of Personnel Management. A Personnel Staffing Specialist in that office, Helen Falkson Arnold, reviewed Cobb's case and suggested that she contact the MSPB. At that point, Cobb engaged an attorney who filed an appeal to the MSPB on December 5, 1979.

THE PROCEDURAL BACKGROUND

On February 11, 1980 the Boston Field Office of the MSPB rendered its decision and denied Cobb's claim that she had been improperly refused an employment promotion opportunity. It dealt with the sick leave issue in a separate opinion. The Field Office noted that under 5 C.F.R. § 353.401(a)(iv) (1976), "If an employee considers that he has been improperly restored, he may appeal to the Commission not later than fifteen calendar days after his restoration." That fifteen day limit may be extended under certain circumstances.

The Appeals Authority may extend the time limit on an appeal when the appellant shows that he (she) was not notified of the time limit and was not otherwise aware of it, or that he (she) was prevented by circumstances beyond his (her) control from appealing within the time limit. When an appellant has not been notified of a right of appeal, the Appeals Authority will accept an appeal only when the appellant has exercised due diligence in discovering and pursuing the administrative appeal available. 5 C.F.R. § 772.302(b) (1976).

The Field Office found that plaintiff had not been informed of her appeal rights. At the same time, it ruled that she had not exercised due diligence in discovering those rights, in that she had left many possible avenues of inquiry unexplored. Reasoning that "ignorance of the law is no excuse," and noting the passage of almost four years between the time of her restoration and the commencement of her appeal, the Boston Field Office concluded that plaintiff's appeal was untimely under 5 C.F.R. § 772.302 (1976). It concluded, further, that the four year delay barred plaintiff's appeal because of laches.

Cobb appealed this finding on March 5, 1980. The Appeals Council of the MSPB affirmed the decision of the Boston Field Office in its final ruling of January 27, 1982. The Appeals Council, however, reached its conclusion on very different grounds. It found, sua sponte, that at the time plaintiff wrote to the V.A. Personnel Office expressing her interest in the job vacancy, she had served more than four years in military service. The Council concluded that plaintiff was not entitled to be considered for the vacancy because 38 U.S.C. § 2024 provides that a person whose military service exceeds 4 years is not entitled to restoration or reemployment. The 4 year limitation may be extended if "such person was unable to obtain orders relieving such person from active duty." Id. The Appeals Council concluded that, at the time the vacancy was filled, the V.A. was not aware that Cobb was unable to obtain orders relieving her from active duty. "Since the vacancy arose during appellant's fifth year of service, appellant's right to be considered for the promotion had expired."² Having made this ruling, the Council held that it did not have to reach the questions of timeliness and laches which had formed the basis of the Field Office's decision.

The Boston Field Office of the MSPB ruled as to plaintiff's claim of sick leave credit on Dec. 20, 1979. The Board decided that it did not have appellate jurisdiction over the matter. Cobb appealed this finding. On December 3, 1980, the Appeals Council of the MSPB determined that the appeal did not meet its criteria for reviewability and, thus, it left the Field Office finding undisturbed. The Board's final rulings on each of these claims served to exhaust plaintiff's administrative remedies.

Jurisdiction

The government contends that the court lacks subject matter jurisdiction. It points out that since enactment of the Civil Service Reform Act of 1978, (CSRA) Pub.L. No. 95-454, 92 Stat. 1111, appeals from final rulings of the MSPB are no longer to be brought before the U.S. District Court but, rather, are to be filed with either a U.S. Court of Appeals or the U.S. Court of Claims. The government takes the position that this case is controlled by the new CSRA. This court concludes that the government's position is incorrect.

The CSRA became effective on January 11, 1979 but it is inapplicable to administrative cases pending prior to its effective date.

No provision of this Act shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if the Act had not been enacted.

Pub.L. No. 95-454, § 902(b) 92 Stat. 1111 (5 U.S.C.A. § 1101 (West Supp.1982)). This court's jurisdiction hinges, therefore, on the question of whether an administrative proceeding was pending in this matter prior to January 11, 1979.

The MSPB has promulgated an interpretive regulation concerning the CSRA's savings clause.

No provision of the Civil Service Reform Act shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. "Pending" is considered to encompass existing agency proceedings, and appeals before the Board or its predecessor agencies, that were subject to judicial review or under judicial review on January 11, 1979, the date on which the Act became effective. An agency proceeding is considered to exist once the employee has received notice of the proposed action.

5 C.F.R. § 1201.191(b) (1982).

An agency's notice to remove an employee, issued prior to the effective date of the CSRA has been held to constitute "existing agency proceedings." Kyle v. ICC, 609 F.2d 540, 542 (D.C.Cir.1979). In Kyle it was therefore determined that, even though the MSPB had rendered its decision after the effective date of the amended CSRA, its findings were subject to judicial review under the older statute. Id. In another instance reviewed by the Kyle court, an employee of the Department of Health, Education and Welfare was removed to a lower grade position within the Department prior to the January 11, 1979 effective date of the new Act. The employee appealed that removal on January 29, 1979. Despite the fact that the appeal was taken after the new Act's effective date, the locus of judicial review was controlled by the old statute. Id. at 542 n. 1. A reduction in pay grade prior to the effective date of the new Act has also been deemed an "existing agency proceeding." Karahalios v. Defense Language Institute, 534 F.Supp. 1202, 1206 n. 3 (N.D.Cal.1982).

Here, the V.A....