Rasmussen v. United States

• Decision Date: 20 October 1976
• Docket Number: No. 121-75.,121-75.
• Citation: 543 F.2d 134
• Parties: Alvin L. RASMUSSEN v. The UNITED STATES.
• Court: U.S. Claims Court

543 F.2d 134

Alvin L. RASMUSSEN v. The UNITED STATES.

No. 121-75.

United States Court of Claims.

October 20, 1976.

James C. Bull, Denver, Colo., atty. of record, for plaintiff. Quiat, Bucholtz & Bull, Denver, Colo., of counsel.

Lawrence S. Smith, Washington, D.C., with whom was Asst. Atty. Gen. Rex E. Lee, Washington, D.C., for defendant.

Before LARAMORE, Senior Judge, and DAVIS and SKELTON, Judges.

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

DAVIS, Judge:

This civilian pay case originated in a National Bureau of Standards reduction-in-force which took Alvin Rasmussen, a long-standing employee of the Federal Government, from his GS-13 Physicist position in Colorado and left him in a GS-7 Physicist slot. The focus of the several administrative appeals was Rasmussen's assignment rights under 5 C.F.R. §§ 351.701, 351.703 (1974); the Civil Service Commission had to decide whether Rasmussen was entitled to bump one of two GS-12 Electronics Engineers or whether, instead, he was properly denied those jobs because his placement in either of them would unduly interrupt the work program.

Early in 1973, plaintiff received a specific notice of reduction-in-force, informing him that his GS-13 position was to be abolished and offering him a GS-7 job. Plaintiff at first accepted the GS-7 spot¹ but subsequently appealed the reduction-in-force to the regional office of the Civil Service Commission. Pursuant to Rasmussen's request, the appeals examiner scheduled a personal appearance which agency representatives, plaintiff, and his representative attended. The appeals examiner's decision, against Rasmussen, followed the personal appearance and the parties' submission of further information and responses requested and authorized by the examiner. Rasmussen then appealed to the Civil Service Board of Appeals and Review (BAR), which rescinded the decision of the Region and remanded for more detailed review of plaintiff's qualifications for a GS-12 electronics engineer position. After obtaining a rating of those qualifications through its staffing division, the regional office issued its second decision, which was favorable to plaintiff; the Region found that he could perform the duties of the positions within 90 days and without undue interruption to the activity, and recommended that the agency offer him either of the positions or any other position with a rate of pay of GS-12 for which he was qualified. The agency appealed this decision and the BAR (which became the Appeals Review Board (ARB) during the pendency of this second appeal) reversed, withdrew the recommendation that plaintiff be offered a place at the GS-12 level, and sustained the agency's actions which it found error-free. Plaintiff asked the Commissioners to reopen and reconsider the ARB's decision, and initiated suit here after they denied his request.

It is important to set out in greater detail the administrative treatment of the over-riding issue of whether plaintiff could appropriately replace one or the other of the two GS-12 employees whom he was trying to bump. After he accepted the GS-7 job but before he filed his initial application to the Civil Service Commission, his division chief, H. S. Boyne, prepared statements on the undue interruption he believed would result from the placement of Rasmussen in either GS-12 slot.² After plaintiff filed his Commission application, Boyne wrote memoranda amplifying his earlier statements. These comments were submitted to the Commission's regional appeals examiner, as were additional materials and responses to Rasmussen's written allegations and oral statements made at the personal appearance.

At the personal appearance and in plaintiff's appeal to the BAR after the Region's first, adverse decision, plaintiff's representative stressed a change made in the Federal Personnel Manual (FPM) provisions on reductions-in-force by FPM Letter 351-7:

In no case, however, does undue interruption mean mere inconvenience. Serious inconvenience and even severe interruption of the work program are often the unavoidable results of reduction in force. Undue interruption, therefore, is a degree of interruption that would prevent the completion of required work within the allowable limits of time and quality. It naturally follows that any finding of undue interruption must be related directly to the nature of the particular work program to be affected. Depending upon the pressures of priorities, deadlines, and other demands, the ordinary work program probably would not be unduly interrupted if optimum quality and quantity of work were not regained within 90 days after a reduction in force. Lower priority programs might tolerate even longer interruption.

Before the BAR, on the first appeal, the employee's representative contended that the Region had ignored the intent of this provision and that the agency had failed to show either that plaintiff could not attain full performance within 90 days or that the program could not tolerate an even longer interruption. In response, the agency noted that Rasmussen and his representative had made the Region aware of FPM Letter 351-7 at the personal appearance, declared that the agency was "most familiar" with the letter and had tried to observe its requirements and intent, and submitted a further statement by Boyne (written after plaintiff had appealed to the BAR) emphasizing the non-ordinary nature of the GS-12 jobs. Boyne also pointed out that there was a difference between regaining optimum performance and achieving merely satisfactory performance, which his previous undue interruption statements had addressed. It was at this juncture that the BAR decided, on the first appeal, to remand for additional investigation.

The agency submitted no new evidence to the Region during the reconsideration of the case.³ The Region turned to its Staffing Division for advice. That Division reported that an expert examiner in the field had assigned Rasmussen's qualifications for both GS-12 positions a rating of 89, only slightly less than outstanding, and believed Rasmussen could perform the duties at a satisfactory level within a month or two. Upon consideration of the FPM Letter emphasized by plaintiff, supra, the agency's representations to the BAR about the non-ordinary nature of the GS-12 work, and the expert examiner's rating, the Region ruled in favor of plaintiff's assignment to one of the GS-12 positions.

Only on the second appeal to the BAR/ARB (i. e., the agency's appeal from the second regional decision) did the agency submit the evidence now challenged. The agency wrote a "brief" alleging several errors in the Region's decision and supplied the Board with two new memoranda, prepared by employees who had not previously made statements,⁴ detailing the work in progress at the time of the reduction-in-force and their views on the undue interruption that would have resulted from Rasmussen's assignment to one of the positions. The Board accepted these memoranda, which the agency termed "additional representations," and included them with the record sent to the Civil Service Commission's Bureau of Recruiting and Examining, Career Service Division, when the Board asked that Division for its opinion on Rasmussen's qualifications for the GS-12 positions. This solicitation of an advisory opinion, which was unfavorable to plaintiff and which the Board quoted almost in its entirety in the final decision against plaintiff, is also challenged here.⁵

In appraising plaintiff's contentions, we put aside the claim that it was error for the BAR to receive the additional material from the agency because that material contained evidence as to which plaintiff had the right of cross-examination. A reduction-in-force is not an adverse action to which cross-examination rights attach. See 5 C.F.R. §§ 752.103(b)(3), 771.202(b)(3), 772.301, 772.305(a) (1974); Wilmot v. United States, 205 Ct.Cl. 666, 679 (1974); Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755, 758, stayed pending filing of cert. petition, 409 U.S. 1055, 93 S.Ct. 549, 34 L.Ed.2d 509 (1972), stay dissolved, 409 U.S. 1100, 93 S.Ct. 888, 34 L.Ed.2d 682 (1973).⁶ Plaintiff neither had a right to nor received a trial-type hearing; at the regional level he was given only a personal appearance, which differs markedly from a full hearing and does not carry cross-examination with it. See Grover v. United States, 200 Ct.Cl. 337, 349-51 (1973).

We do, however, find merit in the allegation that the Board exceeded its scope of review when it considered the agency's newly presented additional evidence and the advisory opinion based thereon. The regulation governing the Board's proceedings required it to review the record and relevant written representations.⁷ The plain and ordinary meaning of "review" is "to examine again," and the reference to the "record of the proceedings" assumes a preexisting record. The Board could not examine again evidence not previously examined by the Region, and not already in the record. Cf. United States v. Carlo Bianchi & Co., 373 U.S. 709, 714-15, 717, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 1958-61, 48 L.Ed.2d 416, decided June 1, 1976. Apparently, the Board agreed with this interpretation of the regulation, for it began its "Analysis and Findings" with this sentence: "The Board has fully reviewed the appellate record developed and relied upon by the Denver Regional Office to determine whether, in light of the representations to the Board, the Region was correct in concluding that appellee was not afforded a reasonable offer of assignment." The difficulty is that the Board did not restrict itself to review of the record "developed and relied upon by the Denver Regional Office" but had before it (and placed before the other Civil Service division to which it turned for advice) significant factual materials that were not part of the Region's...