Kramer v. Secretary of Defense, CIV.A. 96-0497 (HHK).
| Decision Date | 25 March 1999 |
| Docket Number | No. CIV.A. 96-0497 (HHK).,CIV.A. 96-0497 (HHK). |
| Citation | 39 F.Supp.2d 54 |
| Parties | Mark Lee KRAMER, et al., Plaintiffs, v. SECRETARY OF DEFENSE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Daniel M. Schember, Michael J. Gaffney, Gaffney & Schember, P.C., Washington, DC, for Plaintiffs.
Claire Whitaker, Assistant United States Attorney for District of Columbia, Office of United States Attorney for District of Columbia, Washington, DC, for Defendant.
Pursuant to Fed.R.Civ.P. 58 and for the reasons stated by the court in its memorandum docketed this same day, it is this 25th day of March 1999 hereby
ORDERED and ADJUDGED that judgment is entered in favor of the plaintiff; and further ORDERED as follows:
1. Defendant shall change the effective date of plaintiff Kramer's competitive service appointment to September 5, 1994.
2. Defendant shall change the effective date of plaintiff Jones's competitive service appointment to September 26, 1994.
3. Defendant shall change the effective date of plaintiff Findlay's competitive service appointment to May 5, 1995.
4. Defendant shall change the effective date of plaintiff Fangerow's competitive service appointment to December 21, 1993.
5. Defendant shall offer plaintiff Fangerow appointment, effective December 21, 1993, to a competitive service position for which he is qualified and for which the basic rate of pay is no less than the rate he last received for technician service before separation from technician service.
6. Defendant shall change the effective date of plaintiff Ainslie's competitive service appointment to July 31, 1995.
MEMORANDUM OPINIONThe plaintiffs, former National Guard Technicians who were involuntarily separated from their employment, have brought this action under 5 U.S.C. § 3329 (1992) to revise the effective dates of their subsequent appointments in the competitive service. One plaintiff also seeks retroactive appointment to a higher-paying position. Before the court are the defendant's motion to dismiss or for summary judgment and the plaintiffs' motion for judgment on the pleadings or for summary judgment. Upon consideration of the motions, the responses thereto, and the entire record of this case, the court concludes that plaintiffs are entitled to judgment on the pleadings.
The following facts are undisputed. The five plaintiffs are former National Guard technicians, each with more than 15 years of individual service, who were involuntarily separated from their employment as technicians through no fault of their own. Following their respective separations, the plaintiffs submitted applications for Department of Defense ("Department") competitive service appointments pursuant to 5 U.S.C. § 3329. At the time of those applications, that statute provided in pertinent part:
The Secretary of Defense shall take such steps as may be necessary to ensure that, except [in the case of an involuntary separation for cause on charges of misconduct or delinquency, or a technician who is eligible for immediate or early retirement], any military reserve technician who is involuntarily separated from technician service, after completing at least 15 years of such service and 20 years of service creditable under section 1332 of title 10, by reason of ceasing to satisfy the condition described in section 8401(30)(B) shall, if appropriate written application is submitted within one year after the date of separation, be offered a position [in the competitive service, within the Department of Defense, for which the individual is qualified, and the rate of basic pay for which is not less than the rate last received for technician service before separation] not later than 6 months after the date of the application.
5 U.S.C. § 3329 (1992).1 Each of the five plaintiffs eventually was offered and received a competitive service appointment, but only after six months had passed in each case.2 In addition, Plaintiff Fangerow was appointed to a position that had a basic rate of pay lower than that assigned to the last technician position that he had held.3 In their amended complaint, the plaintiffs request the court to order the Secretary of Defense ("Secretary") to revise the effective date of their appointments and to change Fangerow's appointment retroactively to a position for which the basic rate of pay is no less than the rate he last received for his service as a technician. Plaintiffs do not waive their rights to entitlements that are consequences of the equitable relief they seek.
On a motion to dismiss, the court must take the allegations in the plaintiffs' pleading as true and must construe them in a light most favorable to the plaintiffs. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C.Cir.1983). Dismissal is appropriate only when it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley, 355 U.S. at 45-46, 78 S.Ct. 99.
The standard of review for motions for judgment on the pleadings is "virtually identical" to the standard of review for motions to dismiss. United Parcel Service v. Int'l Brotherhood of Teamsters, 859 F.Supp. 590, 592 n. 1 & 593 (D.D.C.1994).
A motion for summary judgment should be granted if and only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party's "initial responsibility" consists of "informing the [trial] court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).
If the moving party meets its burden, the burden then shifts to the non-moving party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). Such evidence must consist of more than mere unsupported allegations or denials and must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322 n. 3, 106 S.Ct. 2548. If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court reviewed the doctrine of implied rights of action and announced the following four-part analysis:
In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted" — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Id. at 78, 95 S.Ct. 2080 (citations omitted). Subsequently, in Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), the Court commented on the Cort analysis:
It is true that in Cort v. Ash, the Court set forth four factors that it considered "relevant" in determining whether a private remedy is implicit in a statute not expressly providing one. But the Court did not decide that each of these factors is entitled to equal weight. The central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action. Indeed, the first three factors discussed in Cort — the language and focus of the statute, its legislative history, and its purpose — are ones traditionally relied upon in determining legislative intent.
Id. at 575-76, 99 S.Ct. 2479 (citation omitted). In Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 23-24, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), the Court cited Touche Ross with approval and added: Thus, the Court has continued to find all four Cort factors relevant, but has shifted the emphasis among these factors to focus on legislative intent.4 But see Thompson v. Thompson, 484 U.S. 174, 189, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (Scalia, J., concurring) ().
The statute in question, 5 U.S.C. § 3329, was originally enacted by § 544 of the National Defense Authorization Act for Fiscal Year 1993, Pub.L. No. 102-484, 106 Stat. 2315, 2415 (1992). The accompanying House committee report shows that the Act's provisions for involuntarily separated civilian employees were enacted out of the concern that the Department of Defense had failed to manage reductions in operating budgets so as to "achieve the desired level of force reductions, minimize involuntary...
To continue reading
Request your trial
-
Kramer v. Gates
...marks omitted). On the merits the court concluded that § 3329 impliedly gave plaintiffs a right of action. Kramer v. Secretary of Defense, 39 F.Supp.2d 54, 57-59 (D.D.C.1999). Accordingly, the court issued a judgment ordering the defendants to change "the effective date" of each plaintiff's......
-
Ainslie v. U.S.
...He apparently did not accept the offer until the commencement day, at which time he immediately began work. Kramer v. Sec'y of Def., 39 F.Supp.2d 54, 60 n. 5 (D.D.C.1999). Ainslie, along with other similarly situated National Guard plaintiffs, commenced an action in the United States Distri......