Urbina v. United States, 113-63.

• Decision Date: 15 July 1970
• Docket Number: No. 113-63.,113-63.
• Citation: 192 Ct. Cl. 875,428 F.2d 1280
• Parties: Daniel S. URBINA v. The UNITED STATES.
• Court: U.S. Claims Court

192 Ct. Cl. 875, 428 F.2d 1280 (1970)

Daniel S. URBINA v. The UNITED STATES.

No. 113-63.

United States Court of Claims.

July 15, 1970.

COPYRIGHT MATERIAL OMITTED

Moreland G. Smith, Jr., Washington, D. C., for plaintiff. Carl L. Shipley, Washington, D. C., attorney of record. Rufus W. Peckham, Jr., and Shipley, Akerman, Pickett, Stein & Kaps, Washington, D. C., of counsel.

Peter J. Brickfield, Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant. Katherine H. Johnson, Washington, D. C., of counsel.

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

OPINION

PER CURIAM.

This case was referred to Trial Commissioner Saul Richard Gamer with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 134(h). The commissioner has done so in an opinion and report filed on January 26, 1970. Exceptions to the commissioner's report and recommended conclusion of law were filed by plaintiff and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the trial commissioner's opinion, findings and recommended conclusion of law, with minor changes in calculations, as hereinafter set forth, it hereby adopts the same, as modified, as the basis for its judgment in this case. Therefore, plaintiff is entitled to recover and judgment is entered for plaintiff in the amount of $68,300.80 as back salary, plus $15,684.90 as living quarters allowance not paid, plus $645.54 as living quarters allowance paid but erroneously recouped by deductions from plaintiff's salary, making a total amount of $84,631.24, less $30,483.85 representing plaintiff's outside earnings and less $983.06 representing a reimbursement to the Government of the lump sum leave payment made to plaintiff at the time of his separation, or the net sum of $53,164.33 of which $4,439.97 should be credited to the plaintiff's Civil Service Retirement Fund account, and $457.25 should be credited to plaintiff's Federal Employees' Group Life Insurance account; the balance of $48,267.11 shall be paid to plaintiff.

OPINION OF COMMISSIONER

GAMER, Commissioner:

Plaintiff was, on October 16, 1961, separated from his position with the Department of the Air Force for alleged submission of false claims for reimbursement of living quarters allowances. By its decision of May 12, 1967,¹ on the parties' motions for summary judgment, the court held that such separation was improper. It accordingly granted plaintiff's motion and entered judgment in his favor, with the amount of the recovery to be determined pursuant to Rule 47(c) (now Rule 131 (c)).

Following the court's decision, the agency, on November 18, 1967, reinstated plaintiff and made a payment to him of back salary (less appropriate deductions) for the period commencing May 15, 1967 (the first workday following the court's decision), to the date of reinstatement. There is no dispute concerning the amount of such payment. Accordingly, the issue now is the proper amount of recovery resulting from plaintiff's having been off the payroll from October 16, 1961 through May 14, 1967.

Despite extensive attempts by the parties to agree upon the amount due for such period, the effort failed, necessitating a trial.

Based upon the record herein, the amount to which plaintiff is entitled is calculated as follows:

1. At the time of his separation on October 16, 1961, plaintiff was employed at Fuchu Air Station, Japan, as a Supervisory Construction Management Engineer, Grade GS-12, at a salary of $10,515 per annum. He had been serving in such position since February 5, 1961. The gross pay during the period herein involved that plaintiff would have received in such position and at such Grade GS-12 level was $68,300.80. This amount includes the increases in salary to which plaintiff would have become entitled subsequent to October 16, 1961. There is no dispute between the parties concerning plaintiff's entitlement to such increases. The Back Pay Act of 1966 (80 Stat. 94, 5 U.S.C. § 5596 (Supp. IV, 1965-1968)) specifically provides therefor. The amount of the recovery to which plaintiff is entitled is governed by such Act even though plaintiff's separation took place prior to its enactment. Ainsworth v. United States, 399 F.2d 176, 185 Ct.Cl. 110 (1968).

Plaintiff contends, however, that the back salary to which he is entitled should be calculated at the higher Grade GS-13 level instead of the Grade GS-12 level he occupied at the time of his separation. He says his assignment on February 5, 1961, to the Supervisory Construction Management Engineer Grade GS-12 job was improper, and that instead, he should have been assigned to a position which, subsequent to February 5, 1961, was classified as Grade GS-13.

The contention cannot be accepted. The record is wholly insufficient to support it. The record simply shows that, after serving with the Air Force in Japan since March 14, 1960, plaintiff was advised by a letter dated December 28, 1960, that as a result of a reorganization, the Inspection Specialist GS-12 position in which plaintiff was then serving was canceled, but that, as a career employee, he was entitled to reassignment to some other position in the competitive area. Accordingly, the letter offered a reassignment to the position of Construction Management Engineer in the same Grade GS-12 and at the same salary, a position which was at the time being occupied by a career-conditional employee. The letter further stated that the effective date of the reassignment, provided plaintiff accepted, would be on or about February 5, 1961, but that if he did not accept, he would be given a notice of reduction in force.

On December 30, 1960, plaintiff accepted the offer of reassignment.

However, by another letter of February 3, 1961 — two days before the reassignment was to become effective — plaintiff was advised that the previous letter of December 28, 1960, was thereby "corrected" and that instead of being reassigned to the position then occupied by the career-conditional employee (which would have resulted in such employee's displacement), plaintiff would, again effective February 5, 1961, be reassigned to the newly established position of Supervisory Construction Management Engineer. Plaintiff entered upon such new position, which was also in Grade GS-12, on February 5, 1961, and this was the position he was occupying when he was separated on October 16, 1961.

Other than plaintiff's uncorroborated testimony at the trial that at some later (but unestablished) date, the position to which he was first scheduled to be reassigned was subsequently upgraded to GS-13, there is nothing else in the record upon which plaintiff relies to support this basic fact.² Further more, even assuming there was in fact such a subsequent upgrading, there is nothing to show that what was done constituted a violation of any regulation or statute, or was in any other way improper. Plaintiff's brief offers the court no theory upon which his February 5, 1961 reassignment to the newly created GS-12 position could be held to be unlawful. Agencies have wide discretion in effecting reassignments. Madison v. United States, 174 Ct.Cl. 985 (1966), cert. denied, 386 U.S. 1037, 87 S.Ct. 1481, 18 L.Ed.2d 601 (1967). There is no showing at all that despite plaintiff's acceptance of the first offer of reassignment, the agency could not, before such reassignment became effective, appropriately cancel it and instead reassign him to another position which was vacant. This is especially so in view of the presumption of validity with which official action is clothed. Harrington v. United States, 161 Ct.Cl. 432 (1963). If, based on such acceptance (plaintiff says he protested the second reassignment, but the record otherwise contains no evidence of any such protest) plaintiff's reliance is on some theory of contract law, his position would not be improved since it is plain that public employment does not, in a situation such as is here involved, give rise to a contractual relationship in the conventional sense. Borak v. United States, 78 F. Supp. 123, 110 Ct.Cl. 236, cert. denied, 335 U.S. 821, 69 S.Ct. 43, 93 L.Ed. 375 (1948). Cf. Lawrenson v. United States, 153 F.Supp. 790, 139 Ct.Cl. 370 (1957) (an employee's right to a pension or retirement pay is not contractual and, prior to the time the annuity actually becomes payable, may be revoked or altered by the same authority that granted it).

Nor is there any showing that, if plaintiff did feel aggrieved by the reassignment to the newly created position, he took the necesary administrative steps to appeal the allegedly unlawful action. It is true that in his administrative appeals with respect to his dismissal, plaintiff did make reference to his reassignment to the newly created position rather than to the position being occupied by the career-conditional employee, but this reference was made only as one item of evidence offered to support his contention that the dismissal proceedings against him were motivated by malice. The contention was that favoritism to the career-conditional employee and discrimination against plaintiff were the bases for the second reassignment. However, these oblique references to this February 1961 reassignment incident in his administrative appeal on the October 1961 dismissal certainly cannot be considered as constituting a timely appeal in its own right on the reassignment matter. It was never presented in that manner by plaintiff nor consequently was it ever understood as such by the Air Force or the Civil Service Commission. Similarly, plaintiff cannot, under the circumstances, use this proceeding to determine the amount of his back pay recovery resulting from his wrongful separation as the mechanism to question at this late date the correctness of the grade classification of the position ...