Perlman v. United States

• Decision Date: 05 April 1974
• Docket Number: No. 178-72.,178-72.
• Citation: 490 F.2d 928,203 Ct. Cl. 397
• Parties: Seymour PERLMAN v. The UNITED STATES.
• Court: U.S. Claims Court

203 Ct. Cl. 397, 490 F.2d 928 (1974)

Seymour PERLMAN v. The UNITED STATES.

No. 178-72.

United States Court of Claims.

January 23, 1974.

As Amended on Rehearing and Rehearing Denied April 5, 1974.^*

John I. Heise, Jr., Silver Spring, Md., attorney of record, for plaintiff. Leonard J. Meiselman, Mineola, N. Y., of counsel.

Karen A. Berndt, Washington, D. C., with whom was Acting Asst. Atty. Gen. Irving Jaffe, for defendant.

Before DAVIS, KASHIWA and KUNZIG, Judges.

As Amended on Rehearing and Rehearing En Banc Denied April 5, 1974.

ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANT'S ALTERNATIVE MOTION TO REMAND

KASHIWA, Judge.

The plaintiff, a classified Civil Service employee and a Veterans Preference Eligible, brought this action to recover salary for the period following the termination of his employment on May 31, 1971, from his position as GS-11, Space System Quality Control Specialist, at the Naval Plant Representative Office (hereinafter "NAVPRO"), Bethpage, New York, less such amount he has received in retirement pay since that date.

The case is presently before the court on defendant's motion for summary judgment or, in the alternative, for remand of the case to the Civil Service Commission, and on plaintiff's cross motion for summary judgment. For reasons hereinafter stated, we deny both parties' motions for summary judgment and allow defendant's alternative motion for remand to the Civil Service Commission.

The ultimate controversy involves the implementation of a reduction in force (hereinafter "RIF"). However, the Government has interposed a defense raising the issue of whether plaintiff's retirement on May 31, 1971, is to be treated as "voluntary." If so, argues the Government, the Civil Service Commission, as well as its Board of Appeals and Review, was correct in deciding that the retirement constituted a jurisdictional bar to appeal of the RIF. If the May 31, 1971, retirement was voluntary, the RIF, scheduled for June 24, 1971, could not and did not occur. Since we have chosen to limit our inquiry to the voluntariness of plaintiff's retirement, it is not necessary to recite, in detail, the various allegations with respect to the RIF issue except insofar as these allegations relate to the voluntariness of the retirement. For purposes of the motions and our limited inquiry, the facts of the case may be summarized as follows.

As we have noted, supra, at the time of the termination of his employment at NAVPRO, the plaintiff was serving as a Space System Quality Control Specialist at a grade GS-11 level in Bethpage, New York. He had the status of a Preference Eligible entitled to the guarantees of the Veterans' Preference Act.

Plaintiff was first employed by the Department of the Navy on February 19, 1947, as a Radio Mechanic, at the New York Naval Ship Yard in Brooklyn, New York. He continued his employment with the New York Naval Ship Yard until October 3, 1965, at which time he was employed by the Bureau of Naval Weapons, then located at Bethpage, New York. This facility later became known as NAVPRO. On May 22, 1966, plaintiff was promoted to the position of Space System Quality Control Specialist, GS-1955-11, and he served in this capacity until May 31, 1971. During the period of time between the date of his promotion and May 31, 1971, plaintiff also served for a time at grade GS-12 with the position assignment of Crew Chief in the Quality Division of the NASA Branch of NAVPRO. At all times during the course of his employment, plaintiff received a performance rating of "satisfactory."

Prior to June, 1970, NAVPRO, Bethpage Quality Division, had its inspection personnel at the GS-11 grade classified in series designations 1955, 1942, and 1936. In June, 1970, the Civil Service Commission issued a single GS-1910 classification series for Quality Control positions which was to supersede the old 1955, 1942, and 1936 titles. The new series designation was Quality Assurance Specialist (Aerospace). The new position standards were sent to the printer from the Civil Service Commission by September 28, 1970.

In 1970 it was decided to reduce the number of personnel assigned to its Quality Division as a result of a cutback in funds and a manpower ceiling reduction. On December 15, 1970, plaintiff and other co-workers requested the initiation of formal grievance procedures to correct what they viewed to be the wrongful establishment of competitive levels by NAVPRO at Bethpage. In the submission to the Regional Office of the Civil Service Commission, plaintiff and the other signatories claimed that improper establishment of competitive levels would allow the retention of low preference and tenure employees and cause a dismissal of high preference and tenure employees. The New York Regional Office, by letter of December 31, 1970, advised that since no RIF notices had been issued, a proper appeal had not been filed and thereby declined to pass upon plaintiff's request.

NAVPRO initiated its RIF program in December, 1970, and segmented it into three stages, with personnel being separated in February, April, and June or July, 1971. NAVPRO did not implement the new standards prior to the issuance of the RIF notices.

On March 26, 1971, plaintiff was issued a RIF notice advising of the abolishment of his position of GS-1955-11, Space System Quality Control Specialist, effective June 24, 1971. At the time, he had a service computation date of June 12, 1943, and was in retention subgroup 1A. The notice advised him that there were no employees in the commuting area whom he had a right to displace.

At approximately the same time as plaintiff's RIF predicament was developing, the Civil Service Commission, on March 16, 1971, issued Bulletin No. 831-34, which directed the attention of the agencies to the possibility of an annuity increase effective June 1, 1971, for employees retiring before that date. The eventual annuity increase of 4.5 percent was not, however, announced as definite until May 4, 1971, by Bulletin No. 831-35.

After the issuance of his RIF notice but before May 31, 1971, plaintiff met with a Personnel Specialist of the Personnel Branch of NAVPRO to determine his position on the retention register and to discuss his personnel rights. Plaintiff was advised that if he would elect to resign by May 31, 1971, he would receive the benefits of an increased annuity of 4.5 percent.

Subsequent to this meeting and a week prior to May 31, 1971, plaintiff inquired of the Personnel Specialist as to the amount of time which he would have subsequent to any retirement on May 31, 1971, in order to perfect an appeal of his rights. The Personnel Specialist was unable to answer but indicated that she would find out. No response was forthcoming so on May 28, 1971, a Friday which was plaintiff's last day of work, he again inquired as to whether he would have appeal rights. She then advised that he would have no appeal rights by reason of his going off the rolls on May 31, 1971. Plaintiff then requested a delay in his separation procedure in order to verify this information from the Civil Service Commission. The Personnel Specialist agreed to a delay until the following Monday in order for plaintiff to verify this information. Plaintiff tried to contact the Civil Service Commission by telephone to ascertain the extent of his rights of appeal and was unable to do so. With only hours remaining in which to make a decision, plaintiff drove to the Civil Service Commission in New York City on Friday, May 28, 1971. But between the time of his conversation with the Personnel Specialist at Bethpage and the time he reached the Regional Office of the Civil Service Commission in New York on the same day, the office closed. He was therefore unable to ascertain the answer from the Commission to his inquiry concerning his rights of appeal. Thus, the plaintiff, certain that a retirement was required by May 31, 1971, to insure the vesting of the 4.5 percent increase in his annuity, but with no firm knowledge of the effect, if any, of such a decision on his appeal rights, "chose" to retire.¹

On July 7, 1971, plaintiff appealed to the New York Regional Office of the Civil Service Commission from the RIF contending that NAVPRO did not implement the 1910 job series for the purpose of excluding qualified GS-1955 series positions from their proper level on the retention register. Plaintiff contended that lower retention employees at his competitive level were not subjected to the RIF procedure. Plaintiff further contended that the Senior Naval Officer at NAVPRO had advised personnel of the Quality Division that in the event of any RIF, all billets of the Quality Division would be combined by competitive level on one register. He further advised the Commission that subsequent to the announcement, various transfers and reassignments reflected the interchangeability. Plaintiff went on to claim that in the prior stage of the RIF (effective April 21, 1970), lower retention employees reached in this reduction were offered jobs by "bumping" non-veterans but that these same positions were not offered to the higher retention employees in the later stage of the RIF affecting plaintiff. Plaintiff contended that he had been denied his rights under Subchapter 7 of Chapter 351 of the Federal Personnel Manual in not being offered a continuing position which was held by an employee with lower retention points and standing.

On July 12, 1971, plaintiff furnished the Civil Service Commission with additional information concerning the RIF. By letter dated July 12, 1971, NAVPRO advised the Civil Service Commission that plaintiff "* * * was to be separated as a result of reduction-in-force effective 24 June 1971, applied for retirement on 27 May 1971, with effective date of 31 May 1971." By letter dated July 23, 1971, the New York Region of the Civil Service Commission declined to accept plaintiff's appeal on the ground that his separation was "* *...