Vukonich v. Civil Service Commission, 77-1226

Decision Date19 December 1978
Docket NumberNo. 77-1226,77-1226
Citation589 F.2d 494
PartiesBetty J. VUKONICH, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION and the United States of America, Defendants- Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Paul D. Cooper of Yegge, Hall & Evans, Denver, Colo., for plaintiff-appellant.

Jerre W. Dixon, Asst. U. S. Atty., Denver, Colo. (Cathlin Donnell, Interim U. S. Atty., Denver, Colo., on brief), for defendants-appellees.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Betty Vukonich was hired as a clerk typist, General Schedule (GS)-4, with the Environmental Protection Agency (EPA) in April 1971. In October of that year she was promoted to GS-5 after her Federal Civil Service Examination results demonstrated eligibility for both grades GS-5 and GS-7. In November 1972 she was promoted to GS-7. In March 1974, the Department of Health, Education and Welfare (HEW) announced an opening for a budget and accounting officer at a GS-9 grade. The work was of the type Vukonich was performing at a GS-7. She applied for the position and was ultimately chosen for the job. She was informed of her selection and arrangements were made for her to transfer to HEW and start work on May 13, 1974. However, her expectations were dashed on May 9 when she was informed, moments before her "farewell party," that her transfer and promotion would not occur as scheduled. This change resulted from HEW becoming aware that the Civil Service Commission (CSC) questioned her qualifications for the HEW position.

She was ultimately informed of CSC's decision that she was not qualified for the GS-9 grade. She never began work for HEW and no Standard Form 50, which documents transfers, promotions, and the like, was ever filed in connection with the GS-9 position.

The reasons for this last minute change were rooted in a running dispute between the CSC and EPA. CSC had been attempting to compel EPA to remove Vukonich from her GS-7 grade because CSC claimed she held it illegally. The illegality in CSC's view was that some nine months of pre-Civil Service experience was improperly credited by EPA in granting the GS-5 grade. It was this same nine months of experience which formed the basis of CSC's determination that she was unqualified for the GS-9 appointment. By the time Vukonich had continued as a GS-7 long enough to make up for the disallowed nine months of pre-Civil Service experience, thus qualifying her for GS-9 consideration, the GS-9 position was filled. She remained in her GS-7 position up to the time of trial. There was never any question that Vukonich performed her work satisfactorily at all grades.

Vukonich demanded a hearing in connection with the denial of the GS-9 appointment, but it was denied. CSC's determination of her lack of qualifications was reviewed administratively but without an opportunity for hearing. This suit was then commenced in the district court. 1 The substantive question before us is whether Vukonich was entitled to a hearing in connection with the refusal to proceed with the GS-9 appointment. Disallowing the nine month pre-employment experience by removing her from the GS-5 or GS-7 appointments would constitute what is known in Civil Service terminology as "adverse action" and would require notice and hearing. The question here is whether the CSC may disallow that experience in connection with a proposed transfer and advancement without that same notice and hearing.

Vukonich's first claim is that she was legally appointed to the GS-9 position and that the action in question constituted removal from that position. We agree with the trial court's rejection of this claim. 2 In the paper-laden world of Civil Service, an appointment becomes effective only after a Standard Form 50, "Notice of Personnel Action," has been completed. That was not done in this case. The reason for the reliance of CSC on Form 50 is set out in the Federal Personnel Manual. It provides:

The Commission requires the preparation of notifications of personnel actions primarily to provide basic documentation of a person's Federal employment, to notify the employee of the personnel action, and to provide basic records which permit agencies and the Commission:

(1) To determine the status and rights of employees as well as their eligibilities for...

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    ...to the formal jurisdictional allegation, but rather may consider the substance of the entire complaint. See Vukonich v. Civil Service Comm'n, 589 F.2d 494, 496 n. 1 (10th Cir.1978) (citing 5 Charles A. Wright & Arthur P. Miller, Federal Practice and Procedure §§ 1206, 1209 (1969)). "[F]ailu......
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