Ruderer v. United States

• Decision Date: 16 July 1969
• Docket Number: No. 85-67.,85-67.
• Parties: Louis G. RUDERER v. The UNITED STATES.
• Court: U.S. Claims Court

412 F.2d 1285 (1969)

Louis G. RUDERER v. The UNITED STATES.

No. 85-67.

United States Court of Claims.

July 16, 1969.

Louis G. Ruderer, pro se.

Katherine H. Johnson, Washington, D. C., with whom was Asst. Atty. Gen., William D. Ruckelshaus, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

NICHOLS, Judge.

Plaintiff, a non-veteran, was employed by the United States Army Aviation Materiel Command at St. Louis, Missouri, as an equipment specialist (GS-11) until his removal in January, 1965 on charges of

* * * knowingly having made irresponsible, false and malicious statements against other employees, supervisors and other officials with the intent to harm and destroy the reputation, authority or official standing of those concerned and for insubordinate attitude and misconduct; thereby bringing discredit upon the Command, the Department of the Army and the Federal Service.

An agency review of plaintiff's removal upheld the Command's action. The St. Louis Regional Office of the Civil Service Commission affirmed, and subsequently the Board of Appeals and Review (BAR) did so too. Plaintiff then filed his petition in this court. Defendant moved to dismiss the petition on the ground that the claims alleged sounded in tort and therefore were not properly cognizable in this court, citing McCreery v. United States, 161 Ct.Cl. 484, 487-488 (1963). Defendant's motion was denied without prejudice, and plaintiff was given leave to amend his petition. His amended petition somewhat more clearly stated the basis of his claim for relief, but by order dated November 18, 1968, we granted defendant's motion for summary judgment on counts II-IV of the amended petition; we denied its motion as to counts I and V because it failed to designate the portions of the administrative record relied on to support its motion. The case is before us now on cross motions for summary judgment with respect to those counts. Count I is plaintiff's claim for pay for an allegedly wrongful denial of a periodic within grade pay increase, and count V is a claim for back pay for an allegedly wrongful discharge. For reasons that follow, plaintiff's motion for summary judgment must be denied; defendant's cross motion is granted, and plaintiff's petition is dismissed.

I. Count I

In a statement dated December 18, 1962, plaintiff's supervisor recommended against a within grade pay increase for plaintiff because he felt plaintiff was not performing at an acceptable level of competence for his grade. Among the reasons given for this determination were his poor attitude, his refusal to accept direction, and his inability to function as part of a team. Plaintiff was notified of the withholding of the increase. In October, 1963, he wrote the Commanding General of the Army Aviation Materiel Command claiming "redress for cumulative acts committed" against him, among them the withholding of his within grade pay increase. Plaintiff was given a grievance hearing which covered four areas including the matter of the within grade increase, and a report dealing with that matter was issued on January 25, 1966. Based on facts developed at the hearing, the grievance examiner recommended that the withholding of the step increase be sustained. Plaintiff received a copy of the report and was told that the decision to withhold the pay increase was final and "not subject to further review within the Department of the Army." Although plaintiff raised the issue of the wrongful withholding of his pay increase at the various stages of his appeal of his dismissal through the Civil Service channels, the Regional Office and the BAR opinions dealt only with his removal. At the time of this withholding there was no provision for review by the Civil Service Commission of the denial of a within grade pay increase, however, this situation has now changed. See 5 U.S.C. § 5335(c) (Supp. IV, 1965-1968). In the circumstances, we are reviewing the decision of the Department of the Army directly to determine if it was arbitrary or capricious. See Creamer v. United States, 174 Ct.Cl. 408, 416, cert. denied, 385 U.S. 819, 87 S.Ct. 42, 17 L.Ed.2d 57 (1966).

Plaintiff originally seemed to be arguing that the withholding of his increase violated the Classification Act (presumably of 1949) which provided for in-grade pay raises if one had a "current performance rating of `Satisfactory' or better." However, when notified that at the time his increase was withheld the Federal Salary Reform Act of 1962, 5 U.S.C. § 5335, (1964) was in effect and that to qualify for an increase under it plaintiff's work must be "of an acceptable level of competence as determined by the head of the agency," § 5335(a) (3) (B), plaintiff still argued that his increase was illegally withheld. He now maintains that his work was "of an acceptable level of competence" and that the reasons given for the withholding of the within grade increase were improper reasons under the standards of § 5335(a) (3) (B). In Creamer v. United States, supra, we held that "an acceptable level of competence" is not a "mechanical or automatic standard" and that the term "necessarily implies discretion and choice." Creamer, at p. 416. The agency in this case did exercise its discretion and, according to the grievance examiner, the withholding of plaintiff's increase was not —

based solely on technical competence, quality or quantity of work but was based on the employee\'s performance of a non-acceptable level of competence predicated primarily on the employee\'s deficiency in personnel relationship and attitude toward co-workers and supervisors, and his inability to bend or work for group results. (Emphasis in original.)

We think that this standard by which defendant measured plaintiff's competence was not improper; the term competence "plainly evokes evaluation, appraisal, and assessment." Creamer at p. 416. The statute does not specify mere technical competence. If a person cannot follow directions or work harmoniously with fellow employees when his job so requires, it is not arbitrary or abuse of discretion to hold he is not competent and is not entitled to pay increase under the terms of § 5335.

Plaintiff not only has not shown us that the decision to withhold his increase was arbitrary or unreasonable under the circumstances, but he has even in fact admitted that he deliberately provoked the withholding of the pay increase to take advantage of the Command's grievance procedures. When one consciously pursues a policy with a desired result in mind he cannot complain when he achieves that result. We find no basis for reversing the decision of the grievance examiner and the withholding of the pay increase is sustained.

II. Count V

In November, 1964, plaintiff received a Notice of Proposed Removal which cited 30 specific incidents as grounds for the proposed removal. Subsequently he was removed from the Federal service effective January 11, 1965. The charges against plaintiff were two-fold: first, that he knowingly made false and malicious statements against his fellow employees with the intent to harm their reputation, and second, that he displayed an insubordinate attitude and was guilty of misconduct. The allegedly false and malicious statements were made by plaintiff in letters to various officials in his Command and during sessions of plaintiff's above-mentioned grievance hearing. Plaintiff's alleged insubordination and misconduct stemmed from his actions at the grievance hearing and his "deliberate and flagrant misuse of Department of the Army grievance and appeals procedures," and specifically, that plaintiff deliberately provoked adverse actions against himself to be afforded a grievance hearing.

Plaintiff's charges and accusations against his fellow employees covered a wide range of matters. He accused them of deliberate falsehoods and fraudulent impropriety in the compiling of maintenance and training data on the equipment under the Command, of hiding communications from him about defects and problems within his branch of the Command rather than forwarding them to a higher authority or responding to them, of condoning inaccuracies in technical manuals at the expense of national security to effectuate a "yes" policy rather than hurt anyone's feelings, of actions tantamount to sabotage, and he accused one of his supervisors of being responsible for the loss of an airplane and the lives of 15 men in Viet-Nam. His accusations were quite specific, and he was not reticent about naming those he was accusing. The notice of removal to plaintiff specified the dates and places of his accusations in some detail. Plaintiff's response to the notice of proposed removal was to issue more accusations.

Among his other duties at the time it was proposed to remove him, plaintiff was responsible for compiling data on certain military equipment for a master data file and for revising maintenance and training publications when necessary. His Command was rapidly expanding and there were instances where errors and obsolete data were placed in the file, however, several investigations determined that this situation was not the fault of anyone specified by Mr. Ruderer and that this incorrect information had no significant effect on the operations of the Army in Viet-Nam. Plaintiff lodged his complaints with his superiors at the Command and also with Congressman Hebert of the House Armed Services Committee and Congressman Curtis from Missouri. Their inquiries into the situations plaintiff described revealed that the Army had been aware of the problems plaintiff described at least four years before plaintiff issued his first charges and that the Army had sought and was seeking to correct those problems long before plaintiff began to write his letters in 1963. Plaintiff's grievance hearing on the withholding of his step increase at which he made further accusations was held in June, 1964. The...