Costner v. United States, 167-79C.

• Citation: 665 F.2d 1016
• Decision Date: 18 November 1981
• Docket Number: No. 167-79C.,167-79C.
• Parties: James R. COSTNER v. The UNITED STATES.
• Court: Court of Federal Claims

665 F.2d 1016

James R. COSTNER v. The UNITED STATES.

No. 167-79C.

United States Court of Claims.

November 18, 1981.

Ronald J. Stites, Kansas City, Mo., attorney of record, for plaintiff; Koenigsdorf, Kusnetzky & Wyrsch, Kansas City, Mo., of counsel.

Frances L. Nunn, Washington, D. C., with whom was Acting Asst. Atty. Gen., Thomas S. Martin, Washington, D. C., for defendant.

Before DAVIS, NICHOLS and SMITH, Judges.

EDWARD S. SMITH, Judge, delivered the opinion of the court:

In this civilian pay case, before us on cross-motions for summary judgment, plaintiff, James R. Costner, claims entitlement to credit toward his civil service annuity for the period December 15, 1949, through June 23, 1963, during which time, he asserts, he was an employee of the Federal Government. Defendant answers that plaintiff was in fact Contract Technical Service Personnel, that is, an employee of RCA Service Company (RCA) which had contracted with defendant to provide technical personnel.

Plaintiff originally filed this claim with the Bureau of Retirement, Insurance, and Occupational Health (BRIOH) of the Civil Service Commission, which denied the claim on August 20, 1974. The commission's Appeals Review Board (board) affirmed BRIOH in an opinion dated May 15, 1975, on the ground that plaintiff was never "appointed" to a position with the Federal Government within the meaning of 5 U.S.C. § 2105.

Plaintiff then filed a class action in the United States District Court for the Western District of Missouri, on behalf of himself and others similarly situated.¹ While the suit was structured so as to avoid a direct claim for money damages against the United States,² the district judge found that the case was essentially one demanding money damages against the United States, and, the amount in controversy being more than $10,000, the district court had no jurisdiction under the Tucker Act.³ Accordingly, he transferred the case to this court pursuant to 28 U.S.C. § 1406(c).⁴

The issue to be decided is whether, during the contested period, Costner was a federal employee within the meaning of 5 U.S.C. § 2105(a). We hold that he was not.

I.

Because the parties have not been helpful in defining the jurisdictional basis of the suit in this court,⁵ our first task is to decide exactly who is before the court and in what posture.

First, jurisdiction in this court is based on the Tucker Act, 28 U.S.C. § 1491, because the claim is against the United States for money damages and is founded on an act of Congress. The case was therefore properly transferred to this court.⁶ An employee of the United States is entitled to an annuity based on the number of years of service for the Government.⁷ If plaintiff was an employee within the meaning of the annuity statute, then he has a substantive right to money damages under these provisions of title 5, and the Tucker Act grants us jurisdiction to hear the case.⁸ Under the Tucker Act, we may review the decision of the board for errors of law.⁹

Second, because the action was originally a class action and plaintiff has not appropriately changed his petition in coming to this court, it is also important to emphasize that Costner is the only plaintiff before this court. The district court denied the motion for class certification on the ground that plaintiff was an inadequate representative of the class,¹⁰ and so the only case transferred to this court was plaintiff's own. Furthermore, in this court, no other class member has appeared to litigate his claims. Therefore, only Costner's claims are before this court and it is only Costner's claims which we decide.

Finally, there is some confusion as to what constitutes the record before the court on these cross-motions for summary judgment. The pertinent documents before us are the administrative record, the board decision, plaintiff's exhibits attached to its motion for summary judgment, and the Government's deposition of Costner. Taken together, they present no genuine issue as to any material fact.

Defendant argues, alternatively to its cross-motion for summary judgment, that there are issues of disputed fact. However, the examples of disputed facts given by the Government are either conclusory statements in plaintiff's brief, which would in any event have to be tested against the affidavits supplied, or are immaterial in our view of the case and so have not been considered. In any case, defendant's claim that there are genuine issues of disputed fact is the fallback position to its motion for summary judgment. Taking defendant's motion as it stands — a motion for summary judgment — we may conclude that defendant accepts submission of this case on the basis of the documents referred to above. We proceed then to the merits.

II.

In 1949, plaintiff had had considerable experience in the electronics field. During and immediately after the Second World War he had held several civilian and military federal jobs, working in electronics at military installations in North Carolina, Hawaii, and elsewhere. In 1946 he had returned to the continental United States and had begun to work for a private firm. In late 1949, he answered an advertisement, placed by RCA in an Atlanta newspaper, for a person with his qualifications. Plaintiff responded with his resume and was given an examination in Atlanta by RCA to determine whether he possessed their minimum qualifications.

RCA assigned plaintiff to Wright-Patterson AFB, Ohio. Before going to Ohio from Georgia, however, he stopped at an RCA office in Gloucester, New Jersey, where he was informed that his employment by RCA was contingent on approval by military personnel. At the base he was interviewed as to his qualifications by a First Lieutenant Johnson, who found plaintiff acceptable for the job. As this interview assumes great importance in plaintiff's argument, we quote Johnson's recollection of it.¹¹

On or about 15 December 1949, I accepted Mr. J. R. Costner as an RCA contractor technician to perform services in teletype maintenance for the United States Air Force. Mr. Costner's services were more than satisfactory and a laudatory letter was sent to his company supervisor in RCA.

Costner was subsequently transferred three times to different air bases. Plaintiff described the process as the Air Force informing RCA of vacancies and RCA asking him specifically to fill them. He would subsequently be issued orders of the type normally given to regular military personnel.

In 1953, when plaintiff was transferred to Andrews AFB, he was again interviewed and accepted by a military officer. He was not accepted at first, but after contacting his former military commander at Wright-Patterson he was. RCA did not participate in plaintiff's maneuvering to obtain acceptance, but it was informed of the actions taken. The officer who accepted him described their interview this way:¹²

In approximately December 1953 I interviewed Mr. Robert J. Costner sic, an applicant on the RCA contract, and accepted him as an engineer on my staff. He worked directly under my supervision in the Receiver Engineering division * * *.

Throughout the period of employment as Contract Technical Service Personnel, his direct supervision came primarily from military personnel. He was periodically evaluated by RCA, but these evaluations were based on comments from military supervisors. It is agreed that his employment could have been terminated had the Air Force found him unacceptable. He was granted post exchange and officers' club privileges; however, he admitted that this was discretionary with the base commander and points to no uniform Air Force policy on the subject. He received his pay (regular, overtime, and raises) and paychecks from RCA; RCA kept his personal file; he was always listed as an RCA employee;¹³ he contributed to the RCA annuity plan and presently receives benefits under it; he did not contribute to the civil service plan; and he named RCA as his employer on his income tax returns. He received various RCA internal reports and documents. In fact, at one point, plaintiff was responsible for submitting his group's time sheets to RCA and informally evaluating other contract personnel for RCA.

This situation continued until 1963, when he was offered a permanent civil service position. He resigned from RCA, effective June 23, 1963, and began his civil service appointment on June 24, 1963. This job was advertised through usual Civil Service Commission procedures, and plaintiff applied for it in the standard way, with Standard Form 52. He served the 1-year probationary period required of all new Government employees. While he apparently took on new supervisory tasks upon being appointed to the civil service, his actual duties did not change substantially.

At the time of his appointment in 1963, Costner did not protest a starting date for annuity purposes of some time in 1957, which accounted for his federal employment in the early 1940's but not for his 1949-63 service. It was not until 1973 that plaintiff began his administrative endeavor to receive credit for his RCA contract work. Plaintiff retired in 1976 and receives civil service annuity payments on the basis of the 1957 date established in 1963.

III.

There is no dispute as to the applicable statutory provision. "Employee" is defined in the United States Code¹⁴ as a person who is

(1) appointed in the civil service by one of the following acting in an official capacity —

* * * * * *

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

* * * * * *

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

It is obvious from the statutory language that there are three elements to the definition — appointment by an authorized federal employee or...