
    395 F. 2d 993
    DOROTHY B. LOUKS v. THE UNITED STATES
    [No. 246-61.
    Decided June 14, 1968]
    
      
      Thomas M. Gittings, Jr., attorney of record, for plaintiff. King & King, of counsel.
    
      Alfred H. 0. Boudreau, Jr., with wbom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    
      Before Cowen, Chief Judge, Laeamoee, Dtjeeee, Davis, ColliNS, SkeltoN, and Nichols, Judges.
    
   Collins, Judge,

delivered the opinion of the court:

Plaintiff, a former civilian employee of the Air Force, sues to recover her salary from February 11, 1958 (the date of final separation from the Air Force), to the present on the grounds, inter alia, that the separation was arbitrary, capricious, and not supported by substantial evidence, and was not in conformance with applicable statutes and administrative regulations. After careful consideration, the court finds that plaintiff is entitled to recover for the reasons herein set forth.

Plaintiff was separated from her GS-11 position with the Air Materiel Command (hereinafter “AMC”) for alleged inability to accompany the transfer of her position from Headquarters, AMC, Wright-Patterson Air Force Base, Dayton, Ohio, to the Memphis Air Force Depot.

At the time of her separation and at all times relevant to this action, plaintiff held the position of Budget Administrator in the Budget Division of the Comptroller Department. It was the role of the Comptroller to advise the AMC Commander and to act for him in matters concerning budget, accounting, and statistical reporting. Plaintiff’s position involved budgetary and financial control of the Commissary Division, a division of the Air Force Stock Fund. That fund was a revolving fund which financed the acquisition of materiel, mainly food, for approximately 240 Air Force commissaries.

In the performance of her duties, plaintiff often worked closely with the Subsistence Branch of the Air Force Services Division. The Services Division, a separate component of the AMC, was also located at Headquarters, AMC, but was not within the Comptroller Department. This division was responsible for the general administration and management of the Commissary Division. Part of plaintiff’s duties included (1) determining the limitation on the amount of expenditures which could be incurred by the Services Division in the management of the commissaries and (2) providing that division with funds to procure the food necessary to feed the troops.

A management study was conducted in 1957 by Paul Hans-ford, a management specialist, investigating the advisability of decentralization of the Services Division. Hansford recommended the transfer of three branches of the division, including the Subsistence Branch, to Memphis Air Force Depot, Tennessee. He also recommended the transfer of plaintiff’s position because he considered it completely in support of some of the transferred functions. In his view, if the management function of the commissaries (performed by the Subsistence Branch of the Services Division) was being transferred, then the related accounting and budget duties should also be transferred.

Hansford’s proposals were eventually adopted by the Commander, AMC. On July 25, 1957, plaintiff attended a meeting conducted by the AMC personnel officer, at which time she was informed of the transfer of functions. Subsequent to the meeting, plaintiff received a letter from the Comptroller, dated July 29, 1957, advising her that several functions, one of which was plaintiff’s position, were to be transferred to either the Memphis Air Force Depot or to the Ogden Air Materiel Area. On August 9, 1957, AMC forwarded plaintiff a letter which stated that her position was being transferred to Memphis Air Force Depot and which offered her the opportunity to accompany her position.

On August 26, 1957, plaintiff accepted the offer under protest. On September 11,1957, plaintiff’s counsel submitted a formal request for a grievance hearing, alleging, inter aliay that the proposed transfer was invalid and that defendant had been continuously discriminating against her since 1952. Plaintiff’s acceptance, under protest, of the offer to transfer was confirmed by the personnel officer, AMC. A Grievance Committee was appointed to consider her claim of improper transfer, and a 2-day hearing was held on October 3-4,1957..

In the meantime, it was apparent that the decision to transfer the Commissary Division functions to Memphis had not yet been finalized. The Air Force gave some consideration to bases located at Mobile, Alabama, and at Middletown, Pennsylvania. Plaintiff received a letter dated October 21, 1957, advising her that “[s]ince it has been determined that your position will not be functionally transferred to Memphis Air Force Depot, this letter may be considered to cancel your functional transfer to Memphis Air Force Depot.” The letter further stated it was expected that her position would be transferred to Middletown, and she would be notified when the decision was finalized.

In December 1957, the Air Force again changed its decision and selected Memphis as the site of the transfer. On December 12,1957, the personnel officer, AMC, sent plaintiff a letter concerning “Decentralization of Hq AMC Responsibilities to Memphis Air Force Depot.”

The letter stated that employees were entitled and encouraged to accompany transferred positions to the new site. Plaintiff was advised that, since the major duties of her position were concerned with the functions transferred, the letter was an offer for her to “transfer with your position of Budget Administrator, GS-560-11, Position Number H4848,” and that failure to reply to the letter within 30 days would be considered as declining the offer to transfer.

Plaintiff was also informed that if she could not accept the transfer, “every effort will be made to reassign you at this base to any vacancy which may exist for which you can qualify and are accepted at your present grade or to a lower grade position which you are willing to accept.” She was also advised that, because of personnel reductions, “few vacancies are likely to occur.” The letter further stated that if she was unable to transfer and if it was not possible to assign her to a vacancy at Headquarters, AMC, it would be necessary to separate her for “inability to accompany the activity according to the provisions of Part 9 of the Civil Service regulations not earlier than 11 February 1958.”

Plaintiff was told that, in the event she declined the transfer offer, she could reply personally or in writing within 30 days of receipt of the letter, setting forth any reasons why the proposed separation action should not be taken.

In reply to a request that he be furnished the final recommendation and decision of the Grievance Committee, plaintiff’s counsel received a letter from the chairman of the committee, dated December 16, 1957. The letter stated that release of the recommendation of the committee was not authorized, but plaintiff would be allowed to submit a signed dissent to the portions of the transcript which she considered inaccurate.

In response to the offer to transfer contained in defendant’s letter of December 12th, plaintiff’s attorney replied by letter dated January 10,1958, in pertinent part as follows:

* * * please be advised that the inclusion of the referenced position with a functional transfer to any base or depot subordinate to Headquarters AMC is invalid and improper for the reasons set forth in her grievance letter of 11 September 1957 and the evidence presented at the grievance hearing on 3 and 4 October, 1957.
^ # }¡í iji ij:
Therefore, until there has been a final determination of the pending grievance, the renewed action against Dorothy B. Louks has the effect of again placing her in the same jeopardy and can only be regarded as harassing tactics which are highly unfair, improper and prejudicial to her rights.
* * * * *
The pending grievance and the evidence submitted is the answer of the undersigned to your letter of 12 December 1957 * * *.

Shortly after writing the above reply, plaintiff received from the personnel officer a letter dated January 10, 1958, containing the decision with respect to her first grievance. The letter was received by counsel on January 15, 1958, and by plaintiff on January 20, 1958. The letter stated that cancellation on October 21, 1957, of the original transfer had obviated the necessity for a decision on that grievance, but that a decision on her original grievance was now in order in light of the proposal of December 12, 1957. It was the decision of the Commander, AMC, that plaintiff’s position was properly identified and included in the functional transfer to Memphis Air Force Depot, and that a vigorous and conscientious effort would be made to locate, within Headquarters, AMC, a vacant GS-11 position for which plaintiff was qualified.

On January 20, 1958, plaintiff’s counsel filed a grievance appeal concerning the new offer to transfer to Memphis. A copy of the original grievance appeal of the first transfer was attached to this letter, and its contents were incorporated by reference as the grounds for requesting the second grievance hearing. In response to this letter, the personnel officer wrote to plaintiff on January 29,1958, stating that plaintiff would not be denied the right to a second hearing, but, inasmuch as the Commander, AMC, had decided the functional move of plaintiff’s position was proper, a second grievance hearing would be a costly and needless step. Nevertheless, plaintiff’s counsel, on February 8, 1958, advised defendant of plaintiff’s desire for a separate grievance hearing on the December 12th offer of transfer.

On January 31, 1958, plaintiff’s counsel wrote the Commander, Headquarters, AMC, requesting that the adverse decision on her first grievance be reviewed by the Command Grievance Beview Committee. This letter constituted the filing of an appeal to that committee.

On February 11, 1958, plaintiff was separated for alleged inability to transfer with her position. On the same day, plaintiff was sent a separate letter from the personnel officer in which he retracted his former statement that plaintiff would not be denied the right to a second hearing. In that letter, the personnel officer stated that her request for a grievance hearing on the December 12th offer to transfer was denied because there were no issues involved which had not been previously considered.

After plaintiff’s separation, her former functions were performed at Memphis until a further transfer to Middletown was accomplished in March or April 1958.

On March 10,1958, plaintiff appealed her separation to the Sixth Eegional Office of the Civil Service Commission. On the same day, plaintiff filed a grievance appeal to the Commander, AMC, protesting her separation. Among other tilings, she contended the separation was improper because she was “not unable to transfer with * * * [her] position, if it is being transferred or if it is being transferred properly.”

On March 19, 1958, the personnel officer, replying for the Commander, AMC, to plaintiffs letter of March 10, 1958, refused to grant a grievance appeal. Plaintiff’s claim that she was able to transfer with her position was rejected on the ground that she had not indicated her acceptance within the 80 days allowed.

On March 20, 1958, plaintiff’s counsel informed the personnel officer that plaintiff had requested a hearing on the validity of her separation, not on the validity of her transfer. The personnel officer responded on May 6, 1958, stating a hearing would be held on May 20, 1958, but that only the circumstances surrounding her separation and other new issues would be heard — the subject of transfer of plaintiff’s position would not be considered.

During the hearing, plaintiff denied that she had refused to make the transfer. She testified, in effect, that she was willing to go to Memphis. However, when defendant reinstated the first grievance and indicated it was applicable to the second notice of proposed transfer, plaintiff concluded that that action had reinstated her acceptance, under protest, of the first offer to transfer.

Meanwhile, the AMC’s Command Grievance Review Committee had considered the appeal, filed with the committee on January 31, 1958, on plaintiff’s original grievance. On May 10, 1958, plaintiff received a letter from the personnel officer, dated May 1, 1958, stating it was the decision of the Commander, AMC, that her position had been properly identified as providing budget support for the Commissary Division of the Air Force Stock Fund and had been properly scheduled for functional transfer to Memphis Air Force Depot. On May 28, 1958, plaintiff appealed this decision to the Secretary of the Air Force. The Secretary, on August 22, 1958, sustained the Commander’s decision.

On July 9, 1958, the Sixth Regional Office of the Civil Service Commission issued a decision on plaintiff’s appeal from ber separation. The Regional Office, noting that its review was limited to a determination of whether there had been compliance with the procedural requirements for effecting a valid separation, upheld her separation. This decision was affirmed by the Civil Service Commission Board of Appeals and Review.

On June 5,1958, the Grievance Committee, which held the hearing of May 20, 1958, to consider plaintiff’s grievance (dated March 10, 1958) concerning her separation, recommended the separation action be upheld. The recommendation of the committee was approved by the Executive, AMC, and plaintiff was notified by letter from the personnel officer, dated June 6,1958, that it was the decision of the Executive, AMC, that her separation be sustained.

Plaintiff appealed this decision to the Command Grievance Review Committee on June 23, 1958. On August 19, 1958, plaintiff was informed that the Commander, AMC, had determined the decision should be sustained. Plaintiff appealed the Commander’s decision to the Secretary of the Air Force, but the Secretary refused to consider it because the only alleged violation of Civil Service regulations had already been considered by the Civil Service Commission.

On December 31, 1959, plaintiff filed a complaint in the United States District Court for the District of Columbia against the Secretary of the Air Force and the Commissioners of the United States Civil Service Commission, seeking, inter alia, (1) a declaratory judgment that she had been improperly separated from her position, (2) a mandatory injunction restoring her to her job, and (3) back pay from the date of her separation. On April 18, 1961, counsel for the parties entered into a stipulation that the action in the district court should be dismissed without prejudice to plaintiff’s right to assert her petition for back pay in the United States Court of Claims.

The first major contention of plaintiff is that her separation was not accomplished because of her inability to accompany the transfer of her position. She believed it to be the final act in a chain of recriminatory actions taken against her by the Air Force between 1952 and 1958 because she had furnished information to the Senate Armed Services Committee in connection with the so-called “Deep Freeze” investigation.

The several alleged acts of discrimination against plaintiff since 1952 have been carefully considered. It is concluded that whatever occurred between 1952 and 1957 is more or less irrelevant to the instant action. The court finds that plaintiff’s separation was in fact effectuated because of a purported failure to accept the offer to transfer and not because of discriminatory action by the Air Force.

The transfer of plaintiff’s position was initiated by the management engineer, Paul Hansford, who, at the time he determined that plaintiff’s position should be transferred to Memphis, had never met her, had not spoken with her supervisors about her, nor heard anyone speak of her. Hansford’s reason for proposing the transfer of plaintiff’s position appears to have been based on his opinion that the functions which she performed in the Budget Division supported the management functions of the Subsistence Branch of the Services Division. Therefore, he concluded that her position logically should be transferred along with that branch. The total number of civilian personnel transferred as a result of Hans-ford’s recommendation was 41. Accordingly, no substantial basis in fact is found for plaintiff’s contention that the Air Force separated her in retaliation for her testimony before a Senate committee.

Nevertheless, plaintiff is still entitled to recover on other grounds. The court finds that plaintiff was at all times ready, willing, and able to accompany a transfer of her position. The defendant’s decision to separate her for failure to do so was arbitrary, capricious, and not supported by substantial evidence. In addition, there is no showing whatsoever that her dismissal was for the good of the service, as permitted by the provisions of 5 U.S.C. § 1501. This court has jurisdiction to redress arbitrary discharges of Government employees. Clark v. United States, 162 Ct. Cl. 477 (1963); Knotts v. United States, 128 Ct. Cl. 489, 121 F. Supp. 630 (1954).

The defendant’s contradictory and confusing actions in regard to plaintiff’s transfer led plaintiff to believe her first acceptance, under protest, was still in effect, and this belief eventually led to her separation. Under these circumstances, (1) plaintiff’s first acceptance, under protest, was all that was required, or (2) if an answer to the second offer was required, her first acceptance, under protest, as supplemented by her letter of January 10,1958, constituted a valid and sufficient acceptance of the offer.

As to the first point, although defendant’s letter of October 21, 1957, canceled the first offer to transfer, defendant nevertheless (a) rendered a decision on plaintiff’s first grievance protesting the first offer to transfer and (b) denied plaintiff’s request for a grievance hearing on the second offer to transfer, even though she had been told such a hearing would be granted. Defendant’s position in this regard was particularly contradictory and confusing. It treated the two offers to transfer as one operation in determining plaintiff’s entitlement to a grievance hearing, but separated them into two operations with respect to plaintiff’s obligation to accept or decline the offer to transfer. If, as defendant claims, the second offer to transfer was a totally separate action, requiring a separate reply, then why did defendant render a decision on the grievance protesting the first offer to transfer? If the first offer to transfer was canceled, no decision on it was necessary, and plaintiff was thus entitled to a grievance hearing protesting the new and separate proposed transfer action.

It cannot be doubted that such inconsistency and lack of clarity confused plaintiff. In the first place, a logical reaction by plaintiff to a second notice, asking for a decision on an offer to transfer, might well have been the thought that she had already accepted the offer. But, when defendant indicated that it would issue a decision on the first grievance, the confusion was further increased. Plaintiff could reasonably assume that, if the notice of December 12, 1957, reinstated the grievance on the original offer to transfer and the necessity for a decision thereon, it must have been the same offer to transfer which was being dealt with, and her acceptance, under protest, of that offer must also have been reinstated. While that was not the only conclusion which plaintiff could have reached in considering the correspondence and events surrounding the transfer, it was a reasonable one. Reasonableness is all that is necessary nnder tbe circumstances. It was defendant’s vacillation and inconsistency which, created the confusion.

Secondly, as pointed out above, plaintiff’s letter of January 10,1958, could be construed as an acceptance, under protest, of defendant’s proposal. Her answer incorporated by reference the first grievance hearing, and that hearing contained evidence to the effect that plaintiff did accept, under protest, the transfer to Memphis, but contested the validity of the transfer.

Admittedly, the letter is ambiguous, but if defendant had any doubts as to its meaning, the burden was on defendant to determine definitely plaintiff’s intentions before separating her for not transferring. Any ambiguity here must be resolved in favor of plaintiff, since it was the defendant’s actions which beclouded the situation. Thus, viewing plaintiff’s January 10, 1958, letter as an acceptance of the offer to transfer, we can only conclude that the administrative decision to dismiss plaintiff for failure to accompany her transferred position was arbitrary and capricious.

In finding for plaintiff on the above grounds, the court does not disturb defendant’s right and discretion to transfer functions or employees, or to effect decentralizations as it sees fit. However, in view of defendant’s indecision, bungling, and mishandling of plaintiff’s protests and requests for review, justice demands that she recover.

As a result of this finding, we need not consider plaintiff’s alternative grounds for recovery — various contentions regarding the legality of the transfer itself and alleged procedural errors in the grievance appeal processes.

For the reasons stated above, it is concluded that plaintiff is entitled to recover, with the amount of recovery to be determined pursuant to Buie 47 (c).

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff, a citizen of the United States, was employed by various Government agencies from 1941 until February 11, 1958, the date of her separation from Federal employment. At the time of her separation, plaintiff, a nonveteran in the classified civil service, was employed by the Air Materiel Command (AMC) in grade GS-11 at its Headquarters at Wright-Patterson Air Force Base, Dayton, Ohio.

2. Plaintiff was separated from Federal Service because of her purported inability to accompany the transfer of her position from Headquarters, AMC, to Memphis Air Force Depot in Tennessee. She sues here to recover back salary on the grounds, inter alia, that the separation was arbitrary and capricious.

3. At the time of her separation and at all times relevant to this action, plaintiff held position No. H4848, Budget Administrator, in the Budget Division of the Comptroller Department, AMC. It was the role of the Comptroller to advise the AMC Commander and to act for him in matters concerning budget, accounting, and statistical reporting. Plaintiff’s position involved budgetary and financial control of the Commissary Division, a division of the Air Force Stock Fund. That fund was a revolving fund which financed the acquisition of materiel, mainly food, for approximately 240 Air Force commissaries.

4. In the performance of her duties, plaintiff often worked closely with the Subsistence Branch of the Air Force Services Division. The Services Division, a separate component of the AMC, was also located at Headquarters, AMC, but was not within the Comptroller Department. This division was responsible for the general administration and management of the Commissary Division. When the commissaries furnished food for the feeding of troops, they did it under orders of the Subsistence Branch of the Services Division. Thus, it was the responsibility of the Services Division to determine the requirements of all commissaries worldwide.

5. Plaintiff’s duties included converting the materiel requirements of the commissaries into dollar figures which she used in preparing budget estimates. She also issued budget authorizations and allocations, which provided the required authority for commissaries to incur obligations against the Government to replenish their stock. Thus, plaintiff’s position, insofar as its relationship with the Services Division is concerned, involved (1) determining tbe limitation On the amount of expenditures which could be incurred by the Services Division in the management of the commissaries and (2) providing that division with funds necessary to feed the troops.

6. In order to investigate the advisability of decentralization of the Services Division, a management study was conducted in 1957 by Paul Hansford, a management specialist. During the period encompassed by the study, the Services Division at Headquarters, AMC, consisted of the following branches: Food Service Branch, Subsistence Branch, Memorial Affairs Branch, Laundry and Dry Cleaning Branch, and Air Force Ammunition Safety and Surveillance Branch.

7. The decentralization study resulted in a recommendation for the transfer of several of the branches to Memphis Air Force Depot in Tennessee. One such branch included in the recommendation was the Food Service Branch, because all of the food service equipment and dining hall equipment to be issued was located at Memphis. The Food Service Branch was responsible for the operation of the Air Force kitchen and the utilization of the dining equipment. Having the equipment supply function at Memphis and the Food Service Branch at Headquarters resulted in certain duplication of effort, particularly in the distribution and allocation of equipment.

8. The very close relationship between the functions of the Food Service Branch and the Subsistence Branch was the basis for the recommendation that the Subsistence Branch at Headquarters also be transferred to Memphis. The functions of those two branches have traditionally been performed together, and the decentralization study intended that this practice be continued.

9. The initial decentralization study resulted in a recommendation for the transfer of several branches of the Services Division and related accounting functions, but it did not specifically mention the Budget Division of the Comptroller Department. The inclusion of these accounting functions, carried on by the Accounting Division of the Comptroller Department, indicated an awareness on the part of Hansford that certain related financial functions of the Comptroller Department should be included in the transfer. At that time, Hansford had not made a determination with respect to the particular positions which should or would be transferred. In May or June 1957, Hansford began a detailed study of the possible transfer of such functions and in so doing interviewed several persons, including supervisors in the Services Division, the chief of the Revolving Funds Section of the Budget Division, and personnel classifiers. He also examined all position descriptions of the Services Division and of the Accounting and Budget Divisions of the Comptroller Department.

10. As a result of the manpower study, Hansford decided that two positions from the Budget Division should be transferred to Memphis. Plaintiff’s position, which Hansford considered to be completely in support of the Commissary Division of the Stock Fund, was one of those designated for transfer.

11. Hansford recommended the transfer of plaintiff’s position because he thought it was a logical move. In his view, if the management function of the commissaries (performed by the Subsistence Branch of the Services Division) was being transferred, then the related accounting and budget duties should also be transferred to provide adequate support for the management functions involved.

12. It is plaintiff’s contention that her separation from Federal Service was the culmination of a series of discriminatory acts to which she had been subjected after she testified, in 1951, before the Armed Services Committee of the United States Senate concerning incidents related to the so-called “Deep Freeze” investigation.

IS. The record indicates that whatever occurred between 1952 and 1957 is irrelevant to the action, since plaintiff’s separation was, in fact, effectuated because of her purported failure to accept the offer to transfer — not because of discriminatory action by the Air Force. At the time Hansford determined plaintiff’s position should be transferred to Memphis, he had neither met plaintiff nor spoken to her supervisors regarding her. The total number of civilian personnel transferred as a result of Hansford’s recommendation was 41. Accordingly, no substantial basis in fact is found for plaintiff’s contention tbat the Air Force separated lier in retaliation for ber testimony before a Senate committee.

14. Hansford’s proposals were eventually adopted by the Commander, AMC. Late in July 1957, plaintiff attended a meeting conducted by the chief of the Area Civilian Personnel Branch, at which time the purpose of plaintiff’s transfer was discussed. She was told that budget and accounting support of the Commissary Revolving Fund would be transferred to Memphis, and that that function would be performed in the Services Division.

15. Plaintiff received a letter dated July 29,1957, from the Comptroller, AMC, informing her that the Commander, AMC, had decided that certain functional activities, then being performed at Headquarters, could be performed with greater efficiency and economy at Memphis Air Force Depot and at Ogden Air Materiel Area. Those functional activities included the Food Service Branch, Subsistence Branch, Laundry and Dry Cleaning Branch, Air Force Ammunition Safety and Surveillance Branch, and accounting and budget support of Laundry and Commissary Revolving Funds. It was further stated that the planned transfer of these functions would begin about September 1,1957, and on or about August 12,1957, employees would receive specific statements as to how they would be affected by the changes contemplated. Since the complete function was to be transferred without a reduction in the number of positions, employees who had career status would have the right to accompany their positions to the new locations.

16. Plaintiff received a letter from AMC, dated August 9, 1957, which stated that AMC Letters 20-13 and 20-15 authorized the transfer of certain functions to the Memphis Air Force Depot and the Ogden Air Materiel Area. The letter also advised her that the Commander, AMC, had approved a study which recommended that certain functional activities then being performed at Pleadquarters, AMC, could be accomplished with, greater efficiency and economy at Ogden and Memphis. Plaintiff was advised that the position which she then occupied was included in the functions to be transferred to Memphis Air Force Depot effective September 1, 1957. In the same letter, plaintiff was offered the opportunity to accompany her position, Budget Administrator, GS-11, No. H4848. She was also informed that she was not eligible for reduction-in-force action and would be separated no sooner than September 12, 1957, if she declined to accept the offer to transfer or was unable to accompany her transferred function.

17. Hansford’s proposals were adopted by the Commander, AMC, and were reflected in the official action letter authorizing the transfer — AMC Letter 20-15, dated August 28, 1957. (This letter superseded AMC Letter 20-15, dated August 16, 1957, and hereafter all references to AMC Letter 20-15 will refer to the letter dated August 28, 1957, unless otherwise indicated.) This letter recommended the transfer of the following functions to Memphis:

2 * * *
a. Commissaries — Air Force Subsistence Program— AFB 145-1.
b. Food Service — Air Force Food Service Program — AFB 146-1.
c. Laundry and Dry Cleaning — Operation and Service — AFB 148-1.
d. Comptroller support functions:
$ $ $ $ ‡
(2) Budget — Beceive, review, analyze, and consolidate financial plans and budget estimates for the Commissary Division * * * ; provide financial management of budget authorizations/allocations and treasury cash * * *.

18. Although the above AMC letter did not specifically mention plaintiff’s position by its title, it is found that the letter did clearly identify plaintiff’s functions for inclusion in the transfer.

19. Manpower authorization forms, reflecting civilian personnel strength, issued August 21, 1957, show that effective September 1,1957,41 allotments (civilian billets) were withdrawn from Headquarters, AMC, and added to the complement at Memphis Air Force Depot “in connection with the decentralization of AF Services Division responsibilities (Commissary, Food Services, Laundry & Dry Cleaning & Comptroller support) to Memphis AFD.” Of these 41 spaces withdrawn, two were from the Budget Division of the Comptroller Department and were described as “budget support of the Commissary Division of the stock fund and the Laundry Division of the industrial fund.” Seven spaces were withdrawn from the Accounting Division of the Comptroller Department, and the remaining 32 spaces were withdrawn from the Services Division.

20. On August 21, 1957, plaintiff replied to the letter of August 9th, stating she had hired an attorney to formalize an appeal of proposed separation action and to take other appropriate action. On August 26, 1957, her counsel advised the Commander, AMC, that plaintiff (1) accepted the transfer under protest, but requested an appeal to the Sixth Eegional Office of the Civil Service Commission,- (2) intended to request an Air Force grievance proceeding; and (3) desired a postponement of the date of her departure to Memphis so she could be heard on her grievance.

The personnel officer of AMC replied, advising plaintiff’s attorney that (1) plaintiff’s acceptance of the offer to transfer was confirmed; (2) the function would not be moved until on or about October 15, 1957; (3) if plaintiff wished to appeal to the Civil Service Commission, she should write directly; and (4) the basis for her requested Air Force grievance hearing must be delineated clearly to the personnel officer, AMC.

21. On September 11,1957, plaintiff’s counsel submitted a formal request for a grievance hearing, alleging, inter alia, that the proposed transfer was invalid and that the defendant had been continuously discriminating against her since 1952.

On September 27, 1957, plaintiff was advised that a Grievance Committee had been appointed, which would restrict its consideration to plaintiff’s claim of improper transfer of her position and which would submit its findings and recommendations to the Commander, AMC, for his decision.

22. A hearing before the Grievance Committee was conducted on October 3-4, 1957. At the hearing, plaintiff contended, inter alia, that (1) the attempted transfer of her position from the Budget Division of the Comptroller Department to the Services Division and its decentralization to Memphis Air Force Depot were in violation of Air Force regulations; (2) the transfer was not authorized by AMC Letter 20-15; and (3) not all of the duties of her position were really being transferred from Headquarters.

23. One of the exhibits introduced at the Air Force Grievance Committee hearing was the draft of a letter which was subsequently issued under date of October 3,1957. That letter informed various AMC bases that the effective date of the transfer of the Comptroller and management functions of the Commissary Division from Headquarters to Memphis Air Force Depot would be October 14,1957, and described the procedure to be followed in carrying out the decentralization. On October 9, 1957, plaintiff was notified that the effective date of the transfer of her position to Memphis had been extended from October 14th to October 28,1957.

24. In the meantime, it was apparent that the decision to transfer the functions of the Commissary Division to Memphis had not yet been finalized. The Air Force was considering the use of bases at Mobile, Alabama, and Middletown, Pennsylvania, in lieu of Memphis. Plaintiff received a copy of a teletype message sent from Headquarters, AMC, to all major commands on October 11th, advising that the letter of October 3, 1957, was rescinded in its entirety, and that the decentralization was being held in abeyance. Shortly thereafter, plaintiff received a copy of a memorandum prepared by the Deputy Comptroller, dated October 14, 1957, which stated that the responsibility for the Commissary Division and various branches of the Services Division was being-transferred to the Middletown (Pennsylvania) Air Materiel Area rather than to the Mobile Air Materiel Area. Plaintiff also received a copy of a teletype message dated October 15, 1957, from Headquarters, AMC, to the Commander, Memphis Air Force Depot, advising him of a change of base from Mobile to Middletown.

25. Plaintiff received a letter dated October 21, 1957, advising her, in part, that:

Since it has been determined that your position will not be functionally transferred to Memphis Air Force Depot, this letter may be considered to cancel your functional transfer to Memphis Air Force Depot.
It is expected that your position will be transferred to Middletown Air Materiel Area in Pennsylvania. When this decision is finalized, you will be entitled to a new 30-day advance notice proposing your functional transfer to the Middletown Air Materiel Area.

26. After having already canceled plaintiff’s transfer to Memphis by letter of October 21, 1957, the Air Force again changed its plan and reselected Memphis as the site of the decentralization. On December 12,1957, the personnel officer, AMC, sent plaintiff a letter concerning “Decentralization of Hq AMC Besponsibilities to Memphis Air Force Depot.”

The letter stated that employees were entitled and encouraged to accompany transferred positions to the new site. Plaintiff was advised that, since the major duties of her position were concerned with the functions transferred, the letter was an offer for her “to transfer with your position of Budget Administrator, GS-560-11, Position Number H484-8,” and that “[i]f you fail to reply to this offer within the time allowed [30 days], it will be considered that you have declined the offer of functional transfer.”

Plaintiff was informed that if she could not accept the transfer, “every effort will be made to reassign you at this base to any vacancy which may exist for which you can qualify and are accepted at your present grade or to a lower grade position which you are willing to accept.” She was also advised “that because of personnel reductions, few vacancies are likely to occur.” The letter further stated that if she was unable to transfer and it was not possible to assign her to a vacancy at Headquarters, AMC, it would be necessary to separate her for inability to accompany the activity according “to the provisions of Part 9 of the Civil Service regulations not earlier than 11 February 1958.”

Plaintiff was told that, in tte event sbe declined the transfer offer, sbe could reply personally or in writing witbin 30 days of receipt of tbe letter, setting forth any reasons why the proposed separation action should not be taken. She was reminded that affidavits and other statements to support her views could be submitted and that she would remain in her present position in an active duty status during the advance notice period.

27. In reply to a request that he be furnished the final recommendation and decision of the Grievance Committee, plaintiff’s counsel received a letter from the chairman of the committee, dated December 16, 1957. The letter stated that release of the recommendation of the committee was not authorized, but plaintiff would be allowed to submit a signed dissent to the portions of the transcript which she considered inaccurate.

28. In response to the offer to transfer, contained in defendant’s letter of December 12th, plaintiff’s attorney replied by letter dated January 10,1958, in pertinent part, as follows:

* * * please be advised that the inclusion of the referenced position with a functional transfer to any base or depot subordinate to Headquarters AMC is invalid and improper for the reasons set forth in her grievance letter of 11 September 1957 and the evidence presented at the grievance hearing on 3 and 4 October, 1957.
*****
Therefore,_ until there has been a final determination of the pending grievance, the renewed action against Dorothy B. Louks has the effect of again placing her in the same jeopardy and can only be regarded as harassing tactics which are highly unfair, improper and prejudicial to her rights.
*****
The pending grievance and the evidence submitted is the answer of the undersigned to your letter of 12 December 1957 * * *.

29. On J anuary 10,1958, the personnel officer sent plaintiff the decision concerning her first grievance. Plaintiff did not know of the decision at the time her letter of protest was written and did not see it until J anuary 20,1958. She was out of town for her father’s funeral when it arrived at her home address. Plaintiff’s counsel received a copy of the decision on January 15,1958.

30. The letter from the personnel officer containing the above decision (finding 29) stated that cancellation on October 21, 1957, of the original transfer had obviated the need for a decision on her first grievance. The letter continued, in pertinent part:

However, on 12 December 1957, you were again notified in writing of the proposal to functionally transfer your position to Memphis Air Force Depot. In light of this new proposal a decision on your original grievance is now in order.
* * * it is the decision of the Commander that:
a. Position No. H4848 was properly identified and included in the functional transfer to Memphis Air Force Depot.
b. A vigorous and conscientious effort will be made to locate within Headquarters AMC a vacant GS-11 position for which you are qualified and which is acceptable to you; if such position is located, you will be assigned to it thus creating a new working environment. If such a position cannot be located, you will remain in your present position and accompany it to Memphis, if you so desire.
c. AMC Letter Number 20-15 will be amended so as to distinguish clearly between the levels of policy and procedural matter to be referred to Memphis Air Force Depot and Headquarters AMC respectively.
*****
If you are not satisfied with this decision, you have the right to appeal your grievance through this Headquarters to the Commander, Air Materiel Command, 'Wright-Patterson Air Force Base, Ohio for review and decision. This request must be submitted within ten working days following your receipt of tins notice of decision. You also have the right to review the minutes of the grievance hearing and exhibits, and to request copies for use in preparing your request for review. The notification dated 12 December 1957 informs you of your right to appeal the renewed proposal to functionally transfer your position to Memphis Air Force Depot. If you choose, you may supplement the record of the previous hearing thereby obviating the necessity of rehearing the same case. * * *

31. After receiving the decision of the Grievance Committee, plaintiff made no attempt to contact anyone connected with the defendant before her separation on February 11, 1958, to determine whether she could still transfer to Memphis.

32. On January 20, 1958, plaintiff’s counsel filed a grievance appeal concerning the new offer to transfer with her position to Memphis. A copy of the original grievance appeal of September 11, 1957, was attached to this letter, and its contents were incorporated by reference as the grounds for requesting the second hearing.

33. In response to plaintiff’s letter of January 20, 1958, constituting the filing of a second grievance appeal, the personnel officer, on January 29, 1958, wrote plaintiff’s counsel stating that plaintiff would not be denied the right to a second hearing. However, he pointed out that, inasmuch as the Commander had determined the functional move of plaintiff’s position was proper, a second grievance hearing would be a costly and needless step. Accordingly, plaintiff was urged to supplement the record by forwarding the original grievance case for higher level review, in lieu of insisting upon a second hearing.

The letter also stated, in part:

The initial notice of the functional transfer of Mrs. Louks’ position to Memphis Air Force Depot, which was given to her on 9 August 1957, was subsequently can-celled by letter dated 21 October 1957. * * * It is important to note that the decision affected all parts of the functional move including that part already moved to Memphis in September 1957, of which Mrs. Louks’ position is a part as it is in support of the main function.
The cancellation of the original notice to Mrs. Louks necessitated the issuance of a new notice giving her the required notice period and again affording her rights of appeal. To do otherwise would have resulted in an automatic reversal of the proposed action because of procedural error.

34. On January 31, 1958, plaintiff wrote the Commander, Headquarters, AMC, and requested that the adverse decision on her first grievance be reviewed by the Command Grievance Review Committee.

Plaintiff was unwilling to follow the procedure suggested by the personnel officer in his letter of January 29,1958, and on February 3,1958, counsel for plaintiff replied to that letter, in pertinent part, as follows:

Originally, we did not think that the filing of such a grievance proceeding was necessary; however, inasmuch as we have already filed the same, in compliance with these letters, the matter now pending is a separate grievance and should be so treated.

35. On February 11, 1958, plaintiff was issued a Standard Form 50, Notification of Personnel Action, which stated in the space provided for nature of action, “Separation — Unable to Accompany Activity to Memphis, Tenn.” Plaintiff also received a letter from the personnel officer under the same date which read, in part, as follows:

1. You are hereby notified that final decision has been made to effect your separation on 11 February 1958, for reason of your inability to transfer with the function to which you are assigned to Memphis Air Force Depot effective 11 February 1958.
2. In your reply you did not accept nor decline the offer directly, but you did contend that your position was improperly a part of the functional transfer. This information did not warrant a withdrawal of the proposed action.
3. Since you have already appealed this decision under the Air Force Grievance Procedure established by Chapter E2 of Air Force Manual 40-1, and a hearing was held 3 October 1957, no further appeal rights are granted. Your appeal of the decision by the Commander, Air Materiel Command, regarding your hearing is now pending before the Command Grievance Committee. You will be notified by that office of the final decision as soon as possible.

36. On the same day, plaintiff was sent a separate letter from the personnel officer which stated that her request for a second grievance hearing, i.e., a hearing on the December 12, 1957, offer to transfer, was denied because no new issues were involved. This denial contradicted the statement of the personnel officer in his January 29,1958, letter to the effect that the Air Force would not deny the right to a hearing, although he thought it would be a needless and costly step.

37. After plaintiff’s separation, her former functions were performed at Memphis until a further transfer to Middle-town was accomplished in March or April 1958.

38. On March 10, 1958, plaintiff appealed her separation to the Sixth Regional Office of the Civil Service Commission. On the same day, plaintiff also filed a grievance appeal with the Commander, AMC, protesting her separation and contending the decision to separate her was improper. She gave, inter alia, the following reasons:

3. I am not unable to transfer with my position, if it is being transferred or if it is being transferred properly. * * * * $
5. If * * * [an] answer must be given concerning the accompanying of the alleged transfer of my position, then the transfer was accepted by myself in the first proposed transfer and is part of my grievance now pending before the Command Grievance Review Committee. In that particular matter, I accepted the proposed transfer under protest, reserving the right to be heard on the grievance therein.

39. On March 19, 1958, the personnel officer, replying to plaintiff’s above letter of March 10th, refused to grant a grievance appeal. The letter of the personnel officer read, in part, as follows:

* * * you were informed that you had 30 days’ notice in which to accept or decline the offer to accompany your position to Memphis. The letter also stated that if you failed to reply to the offer within the 30 days’ time allowed it would be considered that you had declined the offer of functional transfer. Your claim that you were not unable to transfer with your position is not correct because you did not indicate your acceptance within the 30 days allowed.
It had been determined that your position was properly functionally moved to Memphis and you were notified of that in our letter of 10 January 1958. It is pointed out that administrative actions are not delayed by the filing of grievances or appeals.
An effort had been made to assign you to a vacancy for which you could qualify; however, a suitable vacancy was not available at the time.

40. On March 20, 1958, plaintiff’s counsel replied to the letter of the personnel officer of March 19th, informing him that plaintiff had requested a hearing on the validity of her separation, not on the validity of her transfer. The personnel officer responded on May 6, 1958, stating that a hearing would be held on May 20, 1958, but that only the circumstances surrounding her separation and other new issues would be heard — the subject of transfer of plaintiff’s position would not be considered at the hearing.

41. During the hearing, plaintiff denied she had refused to make the transfer. She testified, in effect, that she had been willing to go to Memphis. However, when the defendant reinstated the first grievance and indicated it was applicable to the second notice of proposed transfer, plaintiff concluded that that action had reinstated her acceptance, under protest, of the first offer to transfer.

42. At the grievance hearing, the personnel officer testified, inter alia, as follows: Mrs. Louks’ position, on paper, had been transferred to Memphis, effective September 1, 1957, along with all the other transferred positions. Most of the persons whose positions had been transferred had gone to Memphis. However, plaintiff and the duties of her position were retained at Headquarters, AMC, because such duties could not then be performed at Memphis. The cancellation notice of October 21,1957, was sent to plaintiff to advise her that she would not be moved to Memphis (although on paper her position was already there). She was, in effect, “an employee without a position.” AMC Letter 20-15 was never canceled and all other positions remained in Memphis during this period, both on paper and physically. When it was decided to leave the positions in Memphis, defendant sent plaintiff a notice dated December 12, 1957, for the purpose of affording her an opportunity to occupy the position which was already at Memphis.

43. Meanwhile, the AMC’s Command Grievance Review Committee had considered the appeal, filed with the committee on January 31,1958, on plaintiff’s original grievance. On May 10, 1958, plaintiff received a letter from the personnel officer, dated May 1, 1958, stating it was the decision of the Commander, AMC, that her position had been properly identified as providing budget support for the Commissary Division of the Air Force Stock Fund and had been properly scheduled for functional transfer to Memphis Air Force Depot.

44. On May 28,1958, plaintiff appealed this decision to the Secretary of the Air Force. On August 22, 1958, the Office of the Secretary forwarded plaintiff a letter, stating that (1) the complete record of her grievance had been reviewed by the Air Force Grievance Review Committee; (2) the Secretary of the Air Force had approved the findings and recommendations of the committee; (3) the committee found that her position had been properly scheduled for functional transfer to Memphis Air Force Depot, and (4) therefore, the decision of the Commander was sustained.

45. On July 9,1958, the Sixth Regional Office of the Civil Service Commission issued a decision on plaintiff’s appeal from her separation. The Regional Office held that the Air Force had complied with the procedural requirements of pertinent Civil Service regulations in effecting plaintiff’s separation and, therefore, that her appeal was denied. The decision emphasized that, under 5 C.F.R. §§ 9.102(a) (1) and 9.106(b) (1), review had been limited to a determination of whether there had been compliance with the procedural requirements for effecting a valid separation and did not encompass a review of procedural steps taken in the transfer process, the procedural processes employed in Air Force grievance appeals, or the validity of reasons assigned by the Air Force for effecting plaintiff’s separation.

46. On July 16,1958, plaintiff appealed the decision of the Sixth Civil Service Regional Office to the Board of Appeals and Review of the Civil Service Commission. Plaintiff contended that the Regional Office erred in finding that the Air Force had complied with the pertinent procedural requirements in separating her because, inter alia, the December 12, 1957, letter failed to (1) give her adequate notice of the proposed separation, or (2) list any charges preferred against her.

47. The Board of Appeals and Review referred plaintiff’s case to the Civil Service Commissioners for their personal attention. On June 23, 1959, the Chairman of the Board of Appeals and Review informed plaintiff that (1) the Board and the Commissioners had determined that the separation bad been effected in accordance with tbe procedural requirements of 5 C.F.R. § 9.102(a) (1), and (2) tbe decision of the Sixth Civil Service Regional Office was affirmed. The decision also stated that since plaintiff had been fully informed by defendant’s notice of December 12, 1957, of the proposed transfer and the consequences of her failure to accept, she had been on notice in advance of February 11,1958, that her decision not to specifically accept the transfer was the cause of her separation which became effective on February 11, 1958.

48. On June 5,1958, the Grievance Committee, which held the hearing of May 20,1958, to consider plaintiff’s grievance (dated March 10, 1958) concerning her separation, made findings and recommendations, including the following:

c. Mrs. Louks was given a clear concise statement in a letter dated 12 December 1957, wherein she was given 30 days to accept or reject a new offer to accompany the transfer of the position to * * * [Memphis Air Force Depot].
d. Mrs. Louks declined by failure to give a specific reply to letter of 12 December 1957, offering transfer to Memphis.
e. Correspondence received from Mrs. Louks and/or her attorney referring to the fact that a decision on the previous grievance was not received is not considered valid. This is based on the fact that during the sixty (60) days notice period the decision of the Executive, Headquarters AMC, was received and no effort was made to accept or reject the offer. Neither was there an attempt to contact the Civilian Personnel Officer to discuss the circumstances, even though the opportunity was offered. The only response was a request for another grievance.
f. Mrs. Louks was denied a new grievance based on the propriety of the transfer of her position to * * * [Memphis Air Force Depot], even though this constituted a new offer to transfer. This was predicated on the fact that a grievance had previously been heard on this matter and the same set of circumstances prevailed. Mrs. Louks contended that a new set of circumstances prevailed in that she was separated from the service; consequently, she was given an opportunity to appear before a grievance committee to present that issue.
5. Recommendations: After due inquiry and evaluation of the evidence, it is the recommendation of the committee that the action taken by management to separate Mrs. Louks be sustained.

The recommendation of the committee was approved by the Executive, AMC, and plaintiff was notified by letter from the personnel officer dated June 6, 1958, that it was the decision of the Executive, AMC, that her separation be sustained.

49. Plaintiff appealed this decision to the Command Grievance Review Committee on June 28, 1958. On August 19, 1958, the personnel officer informed plaintiff of the decision of the Commander, AMC, which is quoted, in part, as follows:

After a careful review and evaluation of all testimony and other evidence contained in the record, it has been determined that you failed to accept the transfer offer as alleged. Further, it was also determined that none of your reassignment rights were violated inasmuch as you were properly considered for vacancies which occurred during the advance notice period. It is therefore the decision of the Commander, Air Materiel Command, to sustain the action taken to separate you for causes which were made known to you.

50. On September 2, 1958, plaintiff appealed the decision of the Commander to the Secretary of the Air Force. Although a complete record of plaintiff’s grievance was forwarded by AMC to Air Force Headquarters for review and decision by the Secretary, it was returned without any action by the Secretary. The reason stated for inaction by the Secretary was that decisions of the Civil Service Commission on procedural compliance with its regulations were not subject to review by the Air Force. The only violation alleged in the appeal (violation of part 9.102(a) (1) of the Civil Service regulations) had already been previously reviewed by the Civil Service Commission.

51. On December 31,1959, plaintiff filed a complaint in the United States District Court for the District of Columbia against the Secretary of the Air Force and the Commissioners of the United States Civil Service Commission, seeking, inter alia, (1) a declaratory judgment that she had been improperly separated from her position; (2) a mandatory injunction restoring her to her job; and (3) back pay from the date of her separation. On April 18,1961, counsel for the parties entered into a stipulation that the action in the district court be dismissed without prejudice to plaintiff’s right to assert in the United States Court of Claims her petition for back pay. Plaintiff filed her claim here on June 23,1961.

52. Plaintiff was at all times ready, willing, and able to accompany a transfer of her position, and defendant’s decision to separate her for failure to do so was arbitrary, capricious, and not supported by substantial evidence. The defendant’s contradictory and confusing actions in regard to plaintiff’s transfer led plaintiff to believe her first acceptance, under protest, was still in effect, and this belief eventually led to her separation. Under these circumstances, plaintiff’s first acceptance, under protest, was all that was required or, if an answer to the second offer was required, her first acceptance, under protest, as supplemented by her letter of January 10,1958, constituted a valid and sufficient acceptance of the offer.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part •of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and judgment is entered to that effect. The amount of recovery is reserved for further proceedings under Eule 47(g). 
      
      The court acknowledges the assistance it has received from the report of Trial Commissioner Paul H. McMurray.
     
      
       AMC Letter 20-15 Is the official action letter which authorized decentralization to Memphis, and AMC Letter 20-13 authorized the decentralization to Ogden.
     
      
       There is no explanation in the record for a seeming discrepancy in dates. The letter to plaintiff, dated August 9, 1957 (see finding 16), referred to AMC Letter 20-15. However, as noted above in the text, the original AMC Letter 20-15 was dated August 16,1957, or 7 days later.
     