
    JOSEPH A. BAXTER v. THE UNITED STATES
    [No. 49994.
    Decided July 13, 1954.
    Plaintiff’s motion for rehearing overruled October 5, 1954.]
    
      
      Mr. Joseph A. Baxter pro se.
    
    
      Mr. Francis X. Daly, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   Jones, Chief Judge,

delivered the opinion of the court:

The plaintiff brought this action under the court’s general jurisdiction to recover pay due him as a result of his alleged illegal discharge from the Federal service. It has now come before the court on the merits. [See 122 C. Cls. 632.]

Plaintiff, an honorably discharged veteran of World War I, has been a member of the New York bar since 1932. During 1944 and the early months of 1945 he was working as a P-5 attorney in the legal section of the Madison Square Area office of the Manhattan District, which was the unit in the War Department charged with the development of the atomic bomb. In this office there also worked two other civilian attorneys, both nonveterans, one in the grade of P-6 at the time of the incidents here in question, who was plaintiff’s immediate supervisor, and one in the grade of P-4. Sometime during the latter part of plaintiff’s employment in that office it became evident that the work was decreasing in volume and that soon only two lawyers would be needed to handle the load. Because his superiors felt that the plaintiff was less efficient than the P-4 attorney working with him, they determined to make the necessary cut in personnel by dropping the plaintiff.

On March 1,1945, plaintiff received a letter headed “SUBJECT: Notice of Reduction in Force” informing him that, effective March 30, 1945, he would be “involuntarily separated from the service due to a necessary reduction in force.” Plaintiff appealed this action on the part of the agency to the regional Civil Service office which found that plaintiff had not been accorded his rights under section 9 (c) of Departmental Circular No. 510 and ordered his reinstatement. Plaintiff was restored on July 9,1945, and on that same day received a letter headed “SUBJECT: Furlough”, whereby he was notified that “due to the abolishment of your position as Attorney, P-5, you will be placed in furlough status for 90 days effective at the close of business this date.” Plaintiff again appealed to the Civil Service authorities and they again ordered him restored on the ground that plaintiff did not receive a 30-day advance notice as required by section 14 of the Veterans’ Preference Act of 1944,58 Stat. 387 (5 U. S. C. 851-869,1946 Ed.). He was restored on July 20,1945, and on that day was given a letter under the heading “SUBJECT: Furlough”, which stated in the first paragraph

1. You are hereby notified that due to lack of work you will be placed in a furlough status for a period of one year effective at the expiration of all accrued annual leave to your credit. Your last active day of duty will be 18 August 1945. During the 30 day notice period you will be assigned to such work as this office may determine.

Plaintiff once more had recourse to the Civil Service Commission but this time without success. By letter of November 19, 1945, he was informed that “the retention preference regulations then in effect have been complied with by the U. S. Engineer Office and that your appeal is disapproved.”

Plaintiff was unable to get a further reconsideration of his case by the Civil Service Commission. Except for the periods of reinstatement he remained out of work until September 3,1946, when he was given a position as P-4 attorney in the New York Quartermaster Purchasing Office. He has been there ever since.

Plaintiff’s efficiency ratings over the period in question varied. As of March 31, 1944, his rating was “good.” A notice of efficiency rating of “unsatisfactory” as of March 31, 1945, was issued May 21, 1945. Plaintiff appealed this determination and, by decision dated October 29, 1945, it was changed to “fair”.

Plaintiff’s contention, in the main, is that the attempted dismissal of which he received notice on March 1, 1945, was defective under the ruling of the Civil Service Commission and that the two subsequent actions in regard to furlough were defective because they deprived him of his rights under section 14 of the Veterans’ Preference Act, supra, specifically, the requirement for “at least thirty days’ advance written notice”, and the right to a personal appearance on appeal to the Civil Service Commission. Defendant, in reply, contends that none of the notices here in issue were defective and that the action in each case was according to law.

We agree with plaintiff and the Civil Service Commission that the dismissal of which he was notified on March 1,1945, was improper and that he is entitled to pay which he lost as a result until his restoration on July 9, 1945. As to the latter two actions we agree with defendant that they were proper since their legality must be judged primarily in the light of section 12 rather than section 14 of the Veterans’ Preference Act.

Plaintiff contends that the last two personnel actions were for “furloughs” and as such governed by the provisions of section 14 of the act. It is true that section 14 specifically mentions “furloughed without pay” but that fact alone is not sufficient to prevent the application of section 12 where the personnel action is one pursuant to a reduction in force. Section 12 reads in part:

In any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings: * * * Provided further, That preference employees whose efficiency ratings are “good” or better shall be retained in preference to all other competing employees and that preference employees whose efficiency ratings are below “good” shall be retained in preference to competing nonpreference employees who have equal or lower efficiency ratings * * *

We think that an employee furloughed pursuant to a reduction in force has been “released” (or not “retained”) within the meaning of section 12. We hold, furthermore, that plaintiff was furloughed in each case pursuant to a reduction in force. The separation notice of March 1 explicitly stated that plaintiff’s proposed separation was due to a reduction in force. The two furlough notices did not so state but it is clear from the evidence that the amount of work in plaintiff’s section continued to drop throughout that year so that it became ever more imperative to reduce the total number of personnel. In fact, by the end of 1945 plaintiff’s supervisor, the P-6 attorney, also left because he felt it was no longer necessary for him to be there.

Since plaintiff was furloughed pursuant to a reduction in force the agency is governed primarily by the provisions of section 12 in executing this personnel action. Plaintiff’s efficiency rating at the time of the furlough notices was “unsatisfactory” but it was later changed to “fair.” There is, however, no evidence in the record to indicate that the other two lawyers in plaintiff’s office had anything but an efficiency rating of “good” or better. We may assume, arguendo, that they and plaintiff were “competing employees.” Still under section 12, plaintiff, who had an efficiency rating of “fair”, had no right in a reduction in force to displace these two non-veteran attorneys when they had an efficiency rating of “good” or better. Moreover, there is no evidence nor did plaintiff attempt to prove that there were any other “competing employees” whom plaintiff would have been entitled to displace.

Nor can plaintiff fall back on section 14. He asserts a right to a 30-day notice and to an appearance on appeal to the Civil Service Commission. But he is not entitled to these rights when his furlough was pursuant to a reduction in force since section 14 relates primarily to dismissals, furloughs, etc., for cause. Ashley v. Ross, 191 F. 2d 655; Laden v. Crosson, 108 F. Supp. 240. As stated above, plaintiff’s dismissal was not for cause but due to a reduction in force.

For these reasons plaintiff is entitled to recover only for the dismissal pursuant to the notice of March 1,1945, i. e., for the period March 30 to July 9, 1945. Entry of judgment is suspended to await the filing of a report by the General Accounting Office showing the amount due plaintiff in accordance with this opinion.

It is so ordered.

Laramore, Judge; Maddek, Judge; Whitaker, Judge; and LittletoN, Judge, concur.

FESTDnsrGS OF FACT

The court, having considered the evidence, the report of Commissioner W. Ney Evans, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff is a citizen of the United States, an honorably discharged veteran of World War I, and a member of the bar of the state of New York.

2. During the period of four or five years from 1939 through 1943, plaintiff was engaged in clerical and administrative work, being employed, throughout most of the period, by the War Department. After a brief respite from Government employment in the fall of 1943, plaintiff was again employed by the War Department (United States Engineer Office, Manhattan District) as a head administrative assistant, CAF-12, and assigned, in January 1944, to the legal section of the Madison Square Area (of the Manhattan District) in New York. The work for which he was employed and to which he was assigned was legal work. His status was officially changed from a CAF-12 administrative position to that of an attorney, P-5, on June 1,1944. On and after June 1, 1944, plaintiff held a permanent, classified (P-5), civil service position.

The legal section of the Madison Square Area had a small staff which, throughout most of 1944, was hard pressed by the volume of work assigned to it. Among the civilians on the legal staff in January 1944 were two lawyers other than plaintiff. One was a brilliant young law school graduate who had joined the staff as a P-1 attorney in 1942. By January 1944 he was a P-5 attorney and civilian head of the section. The other lawyer had been assigned to a P-4 (attorney) position, which he retained at all times material to this recitation. Both of these lawyers were nonveterans and war service indefinite appointees.

Plaintiff was added to the staff of the legal section to do much the same kind of work that was being performed by the P-4 attorney. After several months the civilian head of the section concluded that plaintiff was unable to perform the work to his satisfaction and limited plaintiff’s assignments to the simpler and routine tasks of the office.

When, early in 1945, the volume of work began to decline to the point where a reduction in force was contemplated, the civilian head of the section nominated plaintiff for severance in preference to the P-4 attorney. This suggestion was later underscored by the assignment to plaintiff of an efficiency rating of unsatisfactory (changed on appeal to fair). The volume of work continued to decline throughout 1945 so that by the end of the year only one attorney remained in the section.

3. The Notice of Reduction in Force which was addressed to plaintiff was dated March 1, 1945. It was given to the civilian section head who handed it to plaintiff on March 2. The notice contained the following:

* * * 1. You are hereby notified that you will be involuntarily separated from the service due to a necessary reduction in force, due to the near completion of the job to which you have been assigned. Your active work status will terminate 30 March 1945. * * *
6. If you feel that there has been a violation of your rights under military preference laws or the regulations of the Civil Service Commission, you may appeal * * * within 10 days after receipt of this notice.

4. Plaintiff appealed in due time. He believed then, and for some time thereafter, that his rights on the retention register were superior to those of the P-4 attorney. (The civilian section head had moved up to P-6 in the meantime.) The retention preference regulations of the Civil Service Commission then contained the following provision:

* * * Whenever a retention group A employee with a classified (competitive) civil-service status cannot be retained in his present position, he shall be given an opportunity for transfer or reassignment to a continuing position at the same geographical location, provided that there is available a position under the Civil Service Act and Rules, not occupied by a retention group A employee with a classified (competitive) civil-service status, which may reasonably be expected to continue for one year or more, which the retention group A employee is qualified to fill without undue interruption to the activity involved. * * *

In the course of plaintiff’s appeal from the reduction-in-force notice issued March 1, and of subsequent appeals from later actions by his employer, as hereinafter noted, the Civil Service Commission sifted the actions of the employing agency in compliance with the regulation quoted above, and ultimately concluded that the terms of the regulation had been met. These conclusions of the Civil Service Commission are not now in issue in this case. The issue relates only to the legal sufficiency of the separation notices served on plaintiff by the employing agency.

5. On June 22,1945, the Regional Director, Second United States Civil Service Region, wrote the Area Engineer of the Madison Square Area, advising:

* * * we * * * disapprove the separation of Mr. Baxter by reduction in force. * * *
Mr. Baxter was not granted the benefits to which he is entitled * * *. * * *
Please restore Mr. Baxter to active duty in the position from which he was separated so that he may be given an opportunity for transfer or reassignment * * * .

Plaintiff was advised of this action by a letter of the same date.

6. On July 9,1945, at the Madison Square Area office, plaintiff was handed a letter addressed to him which contained the following:

Reference * * * Notice of Reduction in Force. * * * previous action * * * is rescinded and you will be returned to duty * * * effective this date. * * *

Plaintiff was asked to report to the Personnel Section, where he was handed a second letter, as follows:

* * * You are hereby notified that due to the abolishment of your position as Attorney, P-5, you will be placed in a furlough status for 90 days effective at the close of business this date.
* * * This action is taken since there are no positions other than those occupied by Group A employees, to which you can be transferred or reassigned which are reasonably expected to continue for a year or more. You will however be circularized throughout the War Department offices within this geographical locality in an effort to secure a transfer to another installation prior to the expiration of your furlough status.

7. Plaintiff appealed the furlough action to the Civil Service, and the employing agency was again directed to restore him to active duty, in order that he might be given 30 days’ notice of separation. He was again restored to active duty status on July 20,1945, and on the same day was handed the following letter:

* * * You are hereby notified that due to lack of work you will be placed in a furlough status for a period of one year effective at the expiration of all accrued annual leave to your credit. Your last active day of duty will be 18 August 1945. During the 30 day notice period you will be assigned to such work as this office may determine. * * *
* * * the Civil Service regulations governing this action, retention register and records are available for your inspection * * *.
* * * you may appeal * * * within ten days * * *.

Plaintiff did appeal, with the results noted in finding 4. It does not appear from the evidence whether or not the Civil Service Commission considered the adequacy of the notice issued on July 20, directing that the last day of active duty would be August 18. Plaintiff’s last day of active duty was August 18,1945.

8. Plaintiff’s efficiency ratings over the period in question varied. As of March 31, 1944, his rating was “good.” A notice of efficiency rating of “unsatisfactory” as of March 31, 1945, was issued May 21, 1945. Plaintiff appealed this determination and, by decision dated October 29, 1945, it was changed to “fair.” There is no showing in the record that the efficiency rating of the other two attorneys in the section was not “good” or better. Whatever inferences may be drawn from the evidence indicate that their performance was such as would have entitled them to a “good” or better efficiency rating. There is also no showing in the record that there were any other employees with efficiency ratings of “fair” or below to whose positions plaintiff might have had a claim.

9. On September 3,1946, plaintiff was again employed by the War Department, and assigned to a position as P-4 attorney in the New York Quartermaster Purchasing Office. He continued to be so employed at the time of the trial of this action.

Between April 1,1945, and September 2,1946 (both dates inclusive), plaintiff was unemployed, and received no income, except for his restorations to duty, being for one day on July 9,1945, and for the 30 days from July 20 to August 18, 1945 (both dates inclusive).

Plaintiff has been paid for his services through March 31, 1945, and for all annual leave accrued to that date, and for the periods of restoration to duty listed in the preceding paragraph.

If plaintiff is entitled as a matter of law to recover, the parties have agreed that the amount of his recovery shall be subject to computation by the General Accounting Office under standards prescribed by the court.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is entitled to recover.

Entry of judgment is suspended pending the filing of a report by the General Accounting Office showing the exact amount due plaintiff in accordance with the foregoing opinion. 
      
       Relevant parts of the text are set out In finding 4, injra.
      
     
      
       Sometime during the month of March a modification was Issued changing this date to March 81.
     
      
       Departmental Circular No. 510, section 9 (c) ; g 12.809 (c) 9 F. K. 13702, Nov. 16, 1944.
     
      
       The issue of Mas and lack of good faith on the part of responsiMe officials of the employing agency was abandoned by plaintiff during the course of trial.
     
      
       The appeal was directed, properly, to the Second Region. It was denied on November 19, 1945, by the Regional Director. On November 21, 1945, plaintiff appealed the Regional Director’s decision to the Civil Service Commission. No reply from the Commission is in evidence.
     