Power v. United States, 439-74.

• Decision Date: 18 April 1979
• Docket Number: No. 439-74.,439-74.
• Parties: Luther G. POWER, Jr. v. The UNITED STATES.
• Court: U.S. Claims Court

597 F.2d 258

Luther G. POWER, Jr. v. The UNITED STATES.

No. 439-74.

United States Court of Claims.

April 18, 1979.

Philip E. McCleery, Waco, Tex., attorney of record, for plaintiff. Sheehy, Lovelace & Mayfield, Waco, Tex., of counsel.

Donnie Hoover, Washington, D.C., with whom was Asst. Atty. Gen., Barbara Allen Babcock, Washington, D.C., for defendant.

Before DAVIS, KASHIWA and SMITH, Judges.

OPINION

PER CURIAM:^*

This is a Rule 131(c) proceeding to determine the amount of the plaintiff's recovery under the court's decision of March 17, 1976, Power v. United States, 531 F.2d 505, 209 Ct.Cl. 126, which held that the defendant was liable to the plaintiff and remanded the case to the trial division for a determination of the amount of the plaintiff's recovery.

Employment

The plaintiff was formerly a civilian employee of the Department of the Army in the competitive civil service. After successfully completing a 2-year period of training at the AMC Ammunition School, Savanna Army Depot, Savanna, Illinois, the plaintiff was promoted from GS-7 to GS-9, step 1, effective February 2, 1970, and was assigned to a position as an ammunition inspector (surveillance) at the Fort Wingate Army Depot, Gallup, New Mexico. At Fort Wingate, the plaintiff was advanced to step 2 in grade GS-9 effective December 27, 1970; and then, because of superior service, he received an advancement to step 3 in grade GS-9 on January 10, 1971.

On April 9, 1971, the plaintiff was transferred from the Fort Wingate Army Depot in New Mexico to the Red River Army Depot, Texarkana, Texas. In connection with this transfer, the plaintiff was entitled to certain travel allowances for the transportation and subsistence of himself and his dependents, and for the shipment of his household goods and personal effects. Claims for such allowances were subsequently submitted by the plaintiff.

While serving at the Red River Army Depot, the plaintiff was advanced to step 4 in grade GS-9 effective January 9, 1972.

Removal

On September 18, 1972, the plaintiff was involuntarily removed from his position at the Red River Army Depot. The removal was based upon charges which, as ultimately upheld by the Board of Appeals and Review of the Civil Service Commission at the end of a series of administrative appeals by the plaintiff, alleged that the plaintiff, in submitting a voucher for reimbursement of expenses incurred as a result of his transfer from the Fort Wingate Army Depot in New Mexico to the Red River Army Depot in Texas, had submitted a false document indicating the expenditure of $175 for temporary lodging, when in fact this expenditure was in the amount of only $125, and that he had submitted false documentation indicating expenditures for meals supposedly eaten by his wife during the move, although in fact the plaintiff's wife did not accompany him on the move from New Mexico to Texas.

Judicial Proceedings

Having exhausted the administrative remedies available to him in connection with his involuntary separation from the government service, the plaintiff instituted the present action in this court on December 23, 1974. In the petition, the plaintiff asked for a judgment for back pay from September 18, 1972, and for reinstatement in the position from which he was involuntarily removed.

On May 27, 1975, the defendant filed a motion for summary judgment; and the plaintiff thereafter filed a cross-motion for summary judgment on June 30, 1975.

On March 17, 1976, the court rendered a decision denying the defendant's motion for summary judgment, granting the plaintiff's cross-motion, entering judgment for the plaintiff on the issue of liability, and remanding the case to the trial division for a determination of the amount of the plaintiff's recovery under Rule 131(c). Power v. United States, 531 F.2d 505, 209 Ct.Cl. 126. The court held that the penalty of dismissal which the Department of the Army, with the subsequent approval of the Civil Service Commission, assessed against the plaintiff "was so unconscionably disproportionate as to be an abuse of discretion by defendant." Id. 531 F.2d at 507, 209 Ct.Cl. at 129. The court said that the plaintiff was entitled to recover back pay, but that it had "determined not to order reinstatement in this action in the light of the unusual nature of this case" (emphasis in original). Id. 531 F.2d at 510, 209 Ct.Cl. at 135.

On May 5, 1976, the defendant filed a motion for rehearing in the case. This motion was denied by the court in an order dated June 25, 1976. 210 Ct.Cl. 742.

Over a period of months, the parties attempted, through negotiations, to reach an agreement on the amount due the plaintiff under the court's decision of March 17, 1976. Such negotiations ultimately proved to be unsuccessful; and, after the parties had engaged in discovery procedures, a trial on the issue of damages was held in Waco, Texas, on November 14, 1977. The customary post-trial procedures by the parties under the rules of the court were conducted thereafter.

Termination of Right to Pay

One of the questions to be decided in the present proceeding under Rule 131(c) relates to the termination date of the plaintiff's right to receive pay under the court's decision of March 17, 1976.

With respect to this question, the defendant contends that the plaintiff's right to receive pay terminated on the date of the court's decision, i. e., on March 17, 1976.

The plaintiff, on the other hand, contends that he is entitled to receive pay through November 14, 1977, i. e., the date of the trial on the issue of damages under Rule 131(c).

The trial judge opted for March 17, 1976, but the court rejects both of the dates urged by the parties and holds that the termination of plaintiff's right to receive pay occurred in this case on June 25, 1976, when the Government's motion for rehearing was denied in a "speaking" order. That order declared in pertinent part:

In denying rehearing en banc the court emphasizes that it deems that plaintiff, in his opposition to the defendant's petition for rehearing en banc and for rehearing, has rejected the position that he had to be reinstated, and the court concludes that he is content with the relief he has been accorded. In that situation reinstatement is certainly not mandatory, just as it would not be if plaintiff had failed to ask for reinstatement in his petition See Rule 35(g) or other papers. If defendant remains fearful that, despite plaintiff's position on the rehearing petition, he will be able to recover back-pay indefinitely, it can always reinstate him voluntarily. The court's decision reported at 531 F.2d 505, 209 Ct.Cl. 126 (1976) does not preclude such action by the Government. (Power v. United States, 210 Ct.Cl. 742, 743)

Plaintiff never challenged that statement nor sought rehearing or modification of it.

We construe the statement in the June 25, 1976 order as a holding by the court that plaintiff, by his position and conduct with respect to the defendant's rehearing motion, had waived all claim to further back pay (as well as to reinstatement). The court did not, at that time, consider that plaintiff could recover further back pay even though he affirmatively rejected reinstatement. If plaintiff believed that he could,¹ he should have sought clarification or change in the order of June 25, 1976.

The parties have stipulated that, if the termination date is June 25, 1976 (as we hold), plaintiff is entitled to back pay of $59,199.36 (including a retirement deduction of $3,710.06 and a lump-sum for annual leave of $6,169.28).²

Level of Pay

The plaintiff argues that the computation of back pay should take into account a promotion of the plaintiff from grade GS-9 to grade GS-11 as of October 1, 1972, and subsequent step increases in grade GS-11 on October 14, 1973, October 14, 1974, and October 12, 1975. The argument on this issue is based upon the plaintiff's testimony in the record to the effect that at about the time of his transfer from the Fort Wingate Army Depot to the Red River Army Depot, he was informed by his superiors (not identified by name) that he was slated for a subsequent transfer overseas; that at the time in question, a number of ammunition inspectors were being transferred by the Department of the Army to the Far East, principally to Vietnam; and that he was told such a transfer resulted in a promotion from GS-9 to GS-11 in accordance with a then-current Department of the Army policy designed to encourage service in the Far East (although the policy was not incorporated in a statute or regulation).

In the absence of conflicting evidence, the plaintiff's testimony, together with the excellent record that he had made in the performance of his duties as an ammunition inspector, warrants the inference that if the plaintiff had continued in the service after September 18, 1972, he might well have been transferred to the Far East within a reasonable period of time and, in connection with such transfer, might well have received a promotion from grade GS-9 to grade GS-11.

The possibility or mere probability of promotion, however, is not sufficient for this factor to receive consideration in connection with a determination as to the level of pay on which the plaintiff's recovery is to be computed.

There are numerous decisions by this court announcing the general rule that a civilian employee of the Government, or a member of the Armed Forces, is entitled only to the rights and salary of the position to which such person has been administratively appointed. E. g., Bielec v. United States, 456 F.2d 690, 696, 197 Ct.Cl. 550, 560 (1972); Peters v. United States, 534 F.2d 232, 234, 208 Ct.Cl. 373, 377 (1975). In order to recover on the basis of the salary of a higher position than that to which a claimant has actually been appointed, the claimant must normally show a legal entitlement to the pay of the higher position. Selman v. United States, 498 F.2d 1354, 1358, 204 Ct.Cl....