Crowley v. United States, 93-72.

• Decision Date: 17 December 1975
• Docket Number: No. 93-72.,93-72.
• Citation: 527 F.2d 1176
• Parties: William CROWLEY et al. v. The UNITED STATES.
• Court: U.S. Claims Court

527 F.2d 1176

William CROWLEY et al. v. The UNITED STATES.

No. 93-72.

United States Court of Claims.

December 17, 1975.

Edward L. Merrigan, Washington, D. C., attorney of record, for plaintiffs; Smathers, Merrigan & Herlong, Washington, D. C., of counsel.

LeRoy Southmayd, Jr., Washington, D. C., with whom was Asst. Atty. Gen. Rex E. Lee, for defendant.

Before COWEN, Chief Judge, DURFEE, Senior Judge, and SKELTON, Judge.

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

COWEN, Chief Judge.

This case concerns the applicability of the Veterans' Preference Act to the termination of the temporary promotions of veterans' preference eligibles permanently employed by the Federal Government. Plaintiffs William Crowley, James Falconer, John H. Miller, Donald P. Severance and Harold C. Storjohann, employees of the Department of the Navy at the Portsmouth Naval Shipyard (Shipyard), Portsmouth, New Hampshire, each received, between December 1967 and March 1968, at least one temporary promotion to the next higher grade position. In each case, the respective temporary promotions were subsequently terminated and, after unsuccessful appeals to the Civil Service Commission's (CSC) Board of Appeals and Review (BAR), each plaintiff was returned to his former permanent position. Plaintiffs contend that when they were thus demoted, competing non-veteran employees, who had received similar temporary promotions subsequent to plaintiffs', were either retained or made permanent in the higher grade positions, in violation of plaintiffs' rights under the Veterans' Preference Act and the Civil Service Commission regulations promulgated thereunder. Plaintiffs, who have combined their cases inasmuch as they present substantially the same basic issues, seek back pay and permanent reinstatement to the higher level positions.

The three principal questions presented by the parties' cross-motions for summary judgment are whether plaintiffs' rights under the Veterans' Preference Act were violated or abridged by (1) defendant's promotion of competing non-veterans (or employees with fewer "job retention rights") over plaintiffs; (2) defendant's retention of non-veteran temporary promotees over plaintiffs; or (3) defendant's termination of plaintiffs' temporary promotions. As to the first two questions, we have concluded that the Act and applicable regulations guarantee veteran temporary promotees neither permanent promotions to nor retention rights in higher level Government positions. While the termination of the temporary promotions did, at the time plaintiffs were respectively promoted, constitute an "adverse action" within the meaning of 5 U.S.C. § 7512 and 5 C.F.R. Pt. 752, we hold that plaintiffs have failed to establish that such actions were arbitrary, capricious or otherwise not "for such cause as will promote the efficiency of the service," as that standard has been construed by this and other courts. Accordingly, we deny plaintiffs' motion for summary judgment and grant defendant's cross-motion.

The facts essential to our decision are not in dispute. However, inasmuch as the underlying circumstances differ somewhat from one claim to another, we set forth the facts of each plaintiff's claim individually.

1. Plaintiff William C. Crowley

Plaintiff Crowley was temporarily promoted on March 10, 1968, from the position of Production Shop Planner Pipefitter to that of Foreman (Leadingman) Pipefitter. Prior thereto, on February 23, 1968, he signed a standard form proposed temporary promotion agreement, stating thereon: "I understand and agree to the conditions of my proposed temporary promotion." The agreement, substantially identical to those signed by each of the other plaintiffs set forth the purpose, conditions and expected duration of the temporary promotion as follows:

a. Position: Foreman Pipefitter— Shop 56

b. Temporary—Not to Exceed: NTE 30 days. This temporary promotion is expected to continue for the period shown above. It may, however, be terminated earlier whenever the temporary condition for which it was made no longer exists, or whenever, for other reasons, it is determined to be in the best interest of the Shipyard to do so.

c. Why this Promotion is Temporary: To replace Mr. Philip J. Theberge who is on extended sick leave.

d. Termination of Temporary Promotion: You will return to your present position and pay step whenever the basis for your temporary promotion no longer exists, or whenever other reasons occur which warrant terminating your temporary promotion. Your promotion may be terminated at any time during the first 90 days. If it continues for more than 90 days, you will be notified of the proposed termination, and the reason for it, at least 30 days before its effective date.

After the permanent foreman's return, several extensions of plaintiff Crowley's temporary promotion were made in order "to provide supervision for personnel borrowed from other activities during a peak workload" (March 29, 1968, NTE May 25, 1968), and "* * * also to provide additional supervision coverage from the SSB(n)619" (May 15, 1968, NTE July 13, 1968; NTE August 24, 1968). In each instance, the reasons for the temporary promotion, and the conditions under which it was being offered, were clearly set forth in a standard form memorandum agreement signed by plaintiff.

On November 4, 1968, plaintiff Crowley was issued an advance notice of termination for the stated reason that "personnel borrowed from other activities are being returned to home yards and there is no longer need for additional supervisory coverage on SSB(n)619." The notice also stated that "although this termination is technically classified as an `adverse action,' it is not in any way a reflection on your performance." Plaintiff was returned to his regular permanent position on November 10, 1968.

Plaintiff Crowley appealed his termination on the ground, among other things, that at the time thereof, defendant retained in the higher level position the following competing non-veteran employees who, in several cases, had allegedly been temporarily promoted subsequent to his temporary promotion:¹

In a decision dated July 10, 1969, the CSC's Boston Regional Office found that plaintiff Crowley's return to the lower grade was warranted and was for such cause as would promote the efficiency of the Service. On November 25, 1969, however, the BAR reversed this decision, finding that plaintiff "was not returned to his former position as a result of the termination of the terms of his agreement but the return was also due to the making of additional permanent promotions in the meantime." Plaintiff was thereupon restored to the Foreman (Leadingman) Pipefitter position retroactively to November 10, 1968.

On February 2, 1970, plaintiff Crowley received a second notice of termination, this time pursuant to a reduction in force at the Shipyard in the Foreman (Leadingman) Pipefitter level. Plaintiff was thereupon returned to his permanent position on March 8, 1970. Upon appeal, the CSC's Boston Regional Office, in a decision dated April 8, 1970, reversed the Shipyard's action for reasons similar to those stated by the BAR in its decision concerning plaintiff's termination.² On August 21, 1970, however, the BAR reversed the Regional Office decision, and held that the agency action was "for such cause as will promote the efficiency of the service."

2. Plaintiff James Falconer

Plaintiff Falconer was temporarily promoted on December 31, 1967,³ from the position of Foreman (Leadingman) Pipefitter to that of General Foreman, Pipefitter, as a result of a Navy competitive promotion examination for the higher level position. Prior thereto, on December 26, 1967, he signed a standard form memorandum agreement similar to those signed by the other plaintiffs, stating thereon that "I understand and agree to the conditions of my proposed temporary promotion as explained above." The reason for the temporary promotion, as explained therein, was "because of the increased emphasis on third-shift work and to coordinate the efforts of the four Foremen on that shift and their employees." After several extensions for substantially the same reasons as the initial temporary promotion, plaintiff Falconer's promotion was terminated, effective November 3, 1968, and he was returned to his former permanent position. Plaintiff Falconer appealed the termination primarily on the ground that, at the time thereof, defendant retained and later permanently promoted a Mr. Trafton T. Sprowl, another veteran employee who had been selected for a temporary promotion to the General Foreman position from the same competitive promotion register, but who had fewer years of service than plaintiff.⁴

The Regional Office, in a decision dated July 10, 1969, sustained defendant's action. On November 28, 1969, the BAR affirmed the Office's decision on the grounds that (1) when plaintiff received his temporary promotion on December 31, 1967, Mr. Sprowl had already been serving in the higher level position on a temporary basis since February 12, 1967, which position was thereafter converted to permanent on February 25, 1968; (2) the increased work emphasis was tapering off so that a need for additional personnel as General Foremen on a temporary basis had ceased; and (3) plaintiff's termination was properly effected in accordance with defendant's established procedure of selecting first for demotion that person who was last (i. e., most recently) temporarily promoted.

3. Plaintiff John H. Miller

Plaintiff Miller, after selection from an established promotion register, was temporarily promoted on April 14, 1968, from the position of Pipefitter to that of Foreman (Leadingman) Pipefitter. Prior thereto, on April 5, 1968, he signed a standard form memorandum agreement, similar to those signed by the other plaintiffs, which stated that the purpose of the temporary promotion was "to replace Raymond Plourde,...