
    416 F. 2d 1277
    EDWARD J. SULLIVAN AND ELWOOD V. WILSON v. THE UNITED STATES
    [No. 290-63.
    Decided October 17, 1969]
    
      
      William E. Ciernes, attorney of record, for plaintiffs. Ciernes and White, of counsel.
    
      George M. Beasley, III, with whom was Assistant Attorney Geoieral William D. Buekelshaus, for defendant.
    
      Before CoweN, Ghief Judge, Laramore, Dureee, Davis, Colliks, Skeltok and Nichols, Judges.
    
   Per Curiam :

This case was referred to Chief Trial Commissioner Marion T. Bennett with directions to make findings of fact and recommendation for conclusions of law under the order of reference and a further order of May 15,1967. The commissioner has done so in an opinion (supplemental) and report filed on June 5,1969. Plaintiffs have filed no notice of intention to except nor exceptions to the opinion and report and the time for so filing under the rules of the court has expired. On July 25, 1969, defendant filed a motion requesting that the court adopt the commissioner’s report and opinion with a suggested modification by way of a deletion in the recommended opinion. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, with modifications, as hereinafter set forth, it hereby adopts the same, as modified, as the basis for its judgment in this case without oral argument. Therefore, plaintiffs are not entitled to recover and their petition is dismissed.

Commissioner Bennett’s opinion (supplemental), as modified by the court, is as follows:

Subsequent to the oral arguments presented on May 3,1967, the court, on May 15, 1967, granted the defendant’s motion to reopen proof, and remanded this civilian pay case to the commissioner to receive additional evidence. The case had initially been considered on a stipulation and the administrative record by agreement of the parties. By order of the commissioner under Rule 43(e), on June 13, 1967, additional proof was to be limited to the eight new issues raised by the defendant in its motion to the court. Thereafter, on March 4 and 5, 1968, in Washington, D.C., and on March 11, 1988, in Memphis, Tennessee, the parties presented evidence at trial as to these issues.

The original report in this case was filed on January 21, 1966. To the extent pertinent to this supplemental opinion, the commissioner held that the policy of the Federal Aviation Agency, requiring GS-8 assistant air traffic controllers to qualify under training for GS-10 journeyman air traffic controller positions, violated the Classification Act of 1949, 5 U.S.C. § 5101 et seq. (Supp. IV, 1965-68). The defendant excepted to this conclusion, and, since the validity of the Agency policy under the Act had not been questioned by the parties in their pleadings and briefs, motioned to reopen proof.

Proof was received regarding, inter alia, the details of plaintiffs’ duties as assistant air traffic controllers; their actual training under the FAA program; the duties and responsibilities of grade-6 (“trainees”) and grade-10 (“journeymen”) air traffic control specialists (center) ; the various employees included within the scope of the training program; the peculiar needs of the FAA for the training of air traffic control specialists; the range of tasks, assignments, and skills included within the training program; and the time plaintiffs devoted to training and to their other duties. On the basis of such proof, it is concluded that the FAA policy was not inconsistent with the Classification Act.

Since the mid-1940’s, the FAA (or a predecessor) has had a sophisticated training program, designed in the main to train journeymen air traffic controllers. At the time plaintiffs commenced their employment for the FAA, trainees were taken on as GS-6 airways operations control specialists (center) , given a 4-to-8-week “indoctrination” course in air traffic control fundamentals at the FAA Academy in Oklahoma City (or occasionally at other FAA installations), examined, certificated (Airways Operations Specialist Certificate), and assigned to an FAA air route traffic control center for approximately 6 months of on-the-job training. Thereafter, the trainees’ performance was evaluated by supervising assistant and journeymen air traffic controllers and, if satisfactory, they were assigned positions as GS-8 assistant air traffic controllers.

The new assistant air traffic controllers then underwent approximately 6 months of on-the-job training, under the direct supervision of journeymen controllers. The journeymen continually evaluated their assistants’ performance and, if satisfactory, they were selected for “up-grade training.”

Generally, up-grade training began with approximately 2 weeks of classroom instruction and laboratory work, during which simple control problems were set up. This was followed by approximately 2 weeks of additional, more difficult classroom and laboratory work. At this point, trainees whose performance was satisfactory were required to demonstrate their ability to control heavy simulated air traffic in the laboratory. Trainees who succeeded in doing this were then given additional on-the-job training, which included the supervised control of “live” air traffic.

Thereafter, trainees who were certified by their supervising journeymen to be ready to control traffic independently were assigned positions as acting air traffic controllers. Such acting controllers were closely observed for approximately 30 days; and, if their performance continued satisfactorily they were appointed to journeymen air traffic controller positions, at grade 10, when vacancies arose.

It was plaintiffs’ failure to complete up-grade training successfully which led to their dismissal by the FAA. They exhausted their administrative remedies. The Board of Appeals and Review of the Civil Service Commission in April 1962 refused to grant them any relief. Plaintiffs claim denial of due process and of their procedural rights in refusal of the Commission to permit a court reporter to make a verbatim transcript of their hearings so that it would be available for judicial review. The same argument was made but rejected by the court in Horn v. United States, 147 Ct.Cl. 234, 177 F. Supp. 438 (1959). The same reasons for rejection exist here: (a) the Commission’s regulations, 5 C.F.R. §22.605 (1961), do not require a verbatim transcript; (b) the summary of the proceedings prepared by the hearing officer appears comprehensive as to all testimony elicited and arguments made; and (c) an opportunity was afforded both the plaintiffs and the Agency representatives to criticize in writing the prepared summaries with the advice that the criticisms of both sides would then form a part of the record, which they now do. Thus, it does not appear that plaintiffs’ constitutional or statutory rights were violated by the procedure utilized.

The determinative issue in this case, it now appears, involves the proper characterization of the GS-8 assistant air traffic controller position. Section 5101, title 5 of the United States Code (Supp. IV, 1965-68) , in pertinent part, provides:

It is the purpose of this chapter to provide a plan for classification of positions whereby—
(1) in determining the rate of basic pay which an employee will receive—
(A) the principle of equal pay for substantially equal work will be followed; and
(B) variations in rates of basic pay paid to different employees will be in proportion to substantial differences in the difficulty, responsibility, and qualification requirements of the work performed and to the contributions of employees to efficiency and economy in the service; and
(2) individual positions will, in accordance with their duties, responsibilities, and qualification requirements, be so grouped and identified by classes and grades, * * *.

Section 5106, title 5 of the United States Code (Supp. IV, 1965-68), in pertinent part, states:

(a) Each position shall be placed in its appropriate class. The basis for determining the appropriate class is the duties and responsibilities of the position and the qualifications required by the duties and responsibilities.
(b) Each class shall be placed in its appropriate grade. The basis for determining the appropriate grade is the level of difficulty, responsibility, and qualification requirements of the work of the class.

If, as the defendant contends, the primary duty of the assistant air traffic controller was to assimilate the skills of the grade-10 journeyman, the statute will not have been violated. It is not inconsistent with the Act to require a trainee to qualify and perform the duties of the higher level position for which he is training; and the trainee’s lower grade level, even after so qualifying, is justified by the fact that his responsibilities, pending appointment, are fewer than those of the higher level position. If, on the other hand, as plaintiffs contend, the assistant’s position was a nontmining one, the statute will have been violated; for, in such case, the assistant’s grade level will have been determined not by the duties and responsibilities of that position, but by those attendant to another and higher position.

The reopened proof sheds some light on the FAA training program, its history, operation, and goals. It appears that since taking over the operations of the three then-existing air traffic control centers in 1936, the FAA (or a predecessor) has been the only civilian employer of air traffic controllers in the United States; that, because of this, the Agency has had to rely largely on its training program to meet its controller needs; and that, accordingly, as indicated earlier, the Agency training program is designed to produce fully qualified journeymen air traffic controllers.

The training of appointees in grades GrS-5 and GS-6 is facilitated and governed by a Training Agreement of the FAA, approved by the Civil Service Commission. This agreement provides for promotion of trainees more rapidly than otherwise permitted by Commission regulations and job standards.

The details of the training program, as affecting plaintiffs, are outlined above. Not indicated earlier, however, is the fact that while partaking of “on-the-job” training, grade-8 assistant air traffic controllers (and, to a lesser extent, grade-6 trainees) perform a variety of useful services for the Agency. These essentially clerical tasks axe indicated in the Civil Service Commission job standards for the grade-8 specialist (center) position, reprinted in the findings. Added to that list is the requirement, applicable to specialists of every grade, that assistance be rendered in the training of lower grade employees. See finding 38 (b). It is because assistants perform such tasks and because, unlike grade-6 specialists (center) they were not referred to as “trainees” and to plaintiffs’ belief were vitally needed by the Agency (journeymen, of course, are capable of performing these services, but the press of traffic generally precludes their doing so), that plaintiffs contend the assistant’s position was a nontraining one. Plaintiffs also cite the Agency announcement for GS-5 and GS-6 specialist positions as evidence of the Agency’s view that only such positions were primarily for training.

It is true, as plaintiffs contend, that the assistant’s services were useful and that, notwithstanding the training program, someone would have to be employed to perform such tasks. However, as defendant proves, the performance of such services was itself a form of training and, in the case of the grade-8 assistants, a necessary prerequisite to participation in the formal up-grade training program. Moreover, while assistants were not referred to as “trainees” by the Agency (while in on-the-job training), they were considered by it as such, and there is nothing in the announcements for GS-5 and GS-6 specialists suggesting how the Agency viewed its grade-8 specialist (center) positions.

It is unnecessary to belabor this point. That one performs useful services while in training is not per se inconsistent with his training status; many tasks one simply learns by doing. Agency titles also should not be relied on. Surely there is no hard-and-fast rule that all Government employees participating in training programs be designated or referred to as “trainees.” As a matter of fact, the Civil Service Commission which, in accordance with the Classification Act, 5 U.S.C. §5105 (Supp. IV, 1965-68), develops, with agency assistance, job standards for all Government positions covered by the Act (including training and excepted-service positions) , no longer designates holders of training positions as “trainees”; instead, the standards for such positions describe the training nature of the work. See 5 U.S.C. 5105 (c) (Supp. IV, 1965-68).

The Commission job standards for air traffic control specialist (center) positions are informative. In paragraphs describing the “nature and variety” of specialists’ work, the standards indicate that training is an integral part of the grades-6 and -8 specialists’ duties; there is no mention of training, however, with respect to grade-10’s (journeymen). “Incumbents of [grade-6] positions,” the standards note, “receive training and acquire competence in the performance of flight data duties,” the essentially clerical work-product of assistant controllers; grade-8 “positions * * * are characterized by (a) performing flight data duties * * *, and (b) receiving training in, and acquiring competence in, the performance of manual or interphone sector control duties.” Among other qualifications, another paragraph of the standards states, grade-8 specialists (center) must also have the “ability to learn sector control duties.” With respect to grade-10 specialists (center), the standards provide:

* * * positions of this class are characterized by responsibility for performance of control duties on sectors requiring no more than one control position or performance of duties of the manual or interphone control position on sectors requiring more than one position of operation.

Similarly, the standards indicate that “the 'principal differences [emphasis in original] between [grade-8 and grade-6 specialist (center)] positions * * * are the requirements for independent performance of flight data duties, for thorough knowledge of local procedures and features, and for receiving traming in sector control duties.” [Emphasis added.] “The principal difference [emphasis in original] between [grader-10 and grade-8 specialist (center)] positions * * * is the responsibility for independent control of air traffic.”

Finally, it is noteworthy that Mr. Donald It. McPherron, Assistant Chief, Standards Division, Bureau of Policies and Standards of the Commission, in unrebutted testimony, stated that the Commission regarded the grade-8 specialist (center) position as a training position, “the basic requirement” of which was “to learn and to absorb training.” According to Mr. McPherron the standards were written to reflect this view.

It is accordingly concluded that the grade-8 airways operations specialist (center) position was in fact a training position, the intermediate position in the three-step, unavoidably complex FAA controller training program. With this conclusion, as indicated earlier, the policy of the FAA, requiring GS-8 assistant air traffic controllers to qualify under training for GS-10 journeymen air traffic controller positions, and plaintiffs’ dismissal by that Agency for failure to do so, cannot be held to have been inconsistent with the Classification Act. Whether it is proper to measure a Government employee’s performance by the degree to which he has learned the skills of the next higher position depends upon whether he has been hired as a trainee whose primary duties are to learn such skills, or as a journeyman. As defendant succinctly states it, “a distinction may validly be made between Government employees who have been employed in order to learn (such as plaintiffs) and those who have learned in order to be employed at a certain level (such as the ordinary non-trainee) .”

It now need only be noted that plaintiffs’ dismissal also did not infringe their rights under the Civil Service Commission regulations setting up a probationary period after which plaintiffs were entitled to be free from further examination of their qualifications, 5 C.F.Ii. §§ 315.801-.807 (1969), since such regulations, which were designed to afford the Government a limited period during which it might peremptorily dismiss new employees, were not intended to preclude a post-probationary dismissal for failure to complete successfully up-grade training where such requirement has a direct bearing on promoting “the efficiency of the service,” 5 C.F.E. § 752.104 (1969). See Preble v. United States, 150 Ct. Cl. 39, 43 (1960). See also Burkett v. United States, 185 Ct. Cl. 631, 634-35, 402 F. 2d 1002, 1004 (1968); Greenway v. United States, 175 Ct. Cl. 350 (1966), cert. denied, 385 U.S. 881; Meyers v. United States, 169 Ct. Cl. 1, 6 (1965).

The adverse decision of the Civil Service Commission must be and it is upheld as to plaintiffs’ claims for alleged illegal dismissal. Plaintiffs have not established that the Commission erred or abused its discretion in upholding the FAA’s decision that their dismissal promoted the efficiency of the service nor have they proved that any of their procedural or statutory rights were violated either by the FAA or by the Commission. Absent such a showing, the administrative de-cisión will not be disturbed by the court. This is so well established as to require no citation of authority.

To the above, this caveat is added: this opinion necessarily deals only with the unusual, Commission-approved program whereby the Agency trains journeymen controllers; more particularly, with the GS-8 airways operations specialist (center) position. It must be made clear that there is no intent to adversely affect the tenure rights of employees with permanent status in the classified competitive Civil Service, even though they may not have qualified for their superiors’ jobs.

Finally, defendant contends that the doctrine of laches bars the prosecution of plaintiffs’ claims because they delayed about 18 months after adverse Commission action before filing their claims with the court. In light of the conclusions above, however, this contention need not be reached.

FINDINGS or Fact

Plamtiff Edward J. Sullivan

1. Plaintiff Edward J. Sullivan accepted a career-conditional appointment with the United States Aeronautical Administration as an Airways Operations Specialist (Center) in the grade of GS-2152-6, effective as of December 29,1957.

2. Plaintiff Sullivan’s appointment was made pursuant to Announcement 8-19 (1957) and all amendments thereto, issued January 21, 1957. The pertinent provisions of this announcement are as follows:

Special Conditions of Employment
1. Persons appointed to any of the positions covered by this announcement, in addition to performing the duties of the position to which assigned, constitute a reservoir from which promotions will be made to higher grades. The Civil Aeronautics Administration conducts up-grade training programs for Airways Operations Specialist personnel. Failure of personnel to qualify for and accept promotion as a result of up-grade training programs may constitute grounds for reassignment, demotion, or separation from employment.

3. The Federal Aviation Agency required that personnel engaged in air traffic control work undergo extensive training because these duties involved special skills including the control of air traffic to insure its safe and expeditious movement along air routes and at airports; the provision of pre-flight and inflight assistance service to aircraft; the development, coordination and implementation of air traffic control programs; and the performance of related duties requiring the application of a knowledge of laws, rules, regulations, and procedures governing the movement of air traffic.

4. (a) The training of appointees in airways operations specialist positions in grades GrS-5 and GS-6 was governed by a Training Agreement of the FAA, approved by the Civil Service Commission on January 10, 1957. The agreement, in pertinent parts, explains the necessity for training in these positions in line with finding 3, above, outlines a training program, and calls for the promotion of successful trainees to the grades of GS-7 or GrS-8 upon completion of their training. In addition, responsibility for the planning and review of the training programs at facility level and development of training directives is expressly delegated to the Agency regional office.

(b) Such an agreement is a management tool. When approved by the Civil Service Commission an Agency training program may provide for the promotion of trainees, as a result of intensive training, more rapidly than otherwise permitted by Commission regulations and job standards. The approved agreement may also authorize waiver of other Commission-prescribed promotion qualifications. For instance, Government employees generally must serve for at least 1 year in a given classification grade before they may be promoted to a higher grade. Because the FAA training program provided for the promotion of grade-6 airways operations specialists (center) to grade 8 in approximately 7 to 9 months after they began training, a Commission-approved Training Agreement was in order and required.

(c) When an Agency training program provides for several grade level advancements, a Commission-approved Training Agreement is required only as to that portion of the program which provides for promotions more rapidly than permitted under Civil Service Commission regulations and job standards. Because the FAA training program required that grade-8 airways operations specialists (center) remain in that grade for more than 1 year before advancing to grade 10, a Training Agreement covering such positions was unnecessary.

5. On July 27, 1958, plaintiff Sullivan was promoted to the position of Air Traffic Control Specialist (Center) at the grade of GS-2152-8. The personnel record of his promotion indicates that the promotion was in accordance with the Training Agreement described in finding 4.

6. Sullivan’s probationary period was certified by the Agency on October 28,1958, to have been satisfactorily completed. On that date he was also found by the Agency to be satisfactory for retention in the service.

7. Assigned to the duties of an assistant air traffic controller at the Air Boute Traffic Control Center, Memphis, Tennessee, plaintiff Sullivan received satisfactory annual performance ratings in that assignment.

8. (a) In accordance with the Classification Act of 1949, 5 TJ.S.'C. § 5101 et seq. (Supp. IV, 1965-68), the Civil Service Commission develops classification standards for all Federal service positions covered by the Act. Training positions and those in the excepted service (positions for which competitive examination is impractical, Schedule-C political appointees, etc.) are also classified. The Civil Service Commission standards for air traffic control positions contain the following language regarding grade-6 air traffic control specialists (center):

Nature and variety of worh :
Incumbents of positions in this class receive training and acquire competence in the performance of flight data duties.
They acquire and learn to apply to flight data work a basic general knowledge of: air traffic rules; airport traffic control; air route traffic control; communications operating procedures and Federal Communications Commission rules and regulations; flight assistance service procedures; air navigation and aids to navigation; aviation weather; the terrain, navigational aids, reporting fixes, and airways structure in various sectors of the center area; and the capabilities and operating characteristics of aircraft and aircraft equipment.
Person-to-person work relationships are generally limited to those with other center personnel. Monitored contacts with personnel of stations, towers, and airlines offices are made for training purposes.
Guidelines used for study and governing actions taken in positions in this class include: Civil Air Begulations, manuals, bulletins, and similar material governing the movement of aircraft; maps and charts showing the airways, terrain features, the location of radio aids to air navigation, and similar elements within the area under the control of the center; * * *.
Supervisory control over positions in this class is exercised by an air traffic control specialist in a higher grade and consists of: (1) detailed instructions in the specific duties to be performed and the methods to be used in their accomplishment; (2) advice, as requested or as indicated to be necessary by observation or review, regarding any aspect of the work; (3) direct observation and review of the work during its performance to insure adequacy, accuracy, and compliance with instructions; and, (4) written and oral examinations on both academic and practical aspects of the work.
Recommendations, decisions, conclusions, and commitments of incumbents of positions in this class are subject to review by air traffic control specialists in higher grade positions.
Qualifications statement:
Knowledges, abilities, and other gualities:
Basic knowledge of aircraft operations in general and of communications activities or radio operation (gained in previous experience) and ability to grasp the fields of knowledge described in nature and variety of work.

(b) The Commission standards contain the following language regarding grade-8 air traffic control specialists (center):

The principal differences between positions of this class and those classifiable at the next lower level of the specialization are the requirements for independent performance of flight data duties, for thorough knowledge of local procedures and features, and for receiving training in sector control duties.
The nature and variety of worh in positions of this class are characterized by (a) performing flight data duties at an Air Route Traffic Control Center, and (b) receiving training in, and acquiring competence in, the performance of manual or interphone sector control duties.
Person-to-person worh relationships in positions of this class include contacts made by interphone with personnel of stations, towers, airlines offices, and military bases to receive flight plans and to transmit clearances, arrival reports, and similar information.
Guidelines governing or influencing decisions made and actions tahen by employees in positions in this class are similar to those described in positions of Air Traffic Control Specialist (Center) GrS-6. Flight data problems not covered in standard procedures are characteristic of the class.
Supervisory control over positions in this class is exercised by an air traffic control specialist in a position in a higher grade and includes: (1) the assignment of work in general terms; (2) instructions in the interpretation and application of new or revised policies and procedures; (3) advice, as requested, with respect to any aspect of the work; and (4) continuing review of flight data during its use for control purposes.
Recommendations, decisions, commitments, and conclusions characteristic of positions in this class include: recognition of errors in content, terminology, and format of flight plans; determining the effects of meteorological conditions on specific flights; and determining the applicability of standard procedures to specific problems or the necessity for referring such matters to a higher grade specialist.
Qualifications statement:
Knowledges, abilities, and other qualities:
In addition to those described at the lower level of the specialization: a basic general knowledge of air traffic rules, airport traffic control, air route traffic control, communications operating procedures and Federal Communications Commission rules and regulations, flight assistance service procedures, air navigation and aids to air navigation, and aviation weather; knowledge of aeronautical maps and chart®, radio frequencies, and traffic control terminology ; complete knowledge of the cultural 'and terrain features, airways and navigational aids in sectors of the center area; knowledge of control procedures, flight assistance procedures, and notation systems as they have been adapted for local use; demonstrated ability to perform flight data duties; and ability to learn sector control duties.

(c) With respect to grade-10 air traffic control specialists (center), the Commission standards provide:

The principal difference between positions of this class and those classified in lower levels of the specialization is the responsibility for independent control of air traffic.
The natu/re and variety■ of work in positions of this class are characterized by responsibility for performance of control duties on sectors requiring no more than one control position or performance of duties of the manual or interphone control position on sectors requiring more than one position of operation.
Person-to-person work relationships in positions of this class include contacts with personnel of other traffic control facilities, military offices, and airlines offices for the purpose of receiving flight information and issuing-control instructions and advice. Where a single employee handles radio and interphone work on a sector, contacts are made with pilots to issue instructions and provide flight assistance service.
Guidelines governing or influencing decisions made and actions taken by employees in positions in this class ■include, in addition to those described at lower levels of the specialization, local adaptations of standard procedures, approach control and approach procedures for terminals within the center area, and aircraft movement identification and search and rescue procedures. Kespon-sibility for adapting procedures to existing circumstances is characteristic of the class.
Supervisory control over positions in this class is exercised by an air traffic control specialist in a higher grade and includes: (1) the assignment of work in general terms; (2) general instructions in new or modified policies and procedures; (3) advice, as requested, with respect to any unusual problem which does not require immediate action; and (4) post-review and occasional observation of the work performed to insure its accuracy, adequacy, and conformance with established policies and procedures.
Recommendations, decisions, commitments, and conclusions made by employees in positions in this class include: formulating and issuing control instructions to IFB, aircraft within the sector in order to assure standard vertical, lateral, or time separation between aircraft; determining the need for deviating from standard procedures as required 'by changes in weather conditions or variations in aircraft movement within the sector; and developing methods to handle control problems requiring immediate action and to which standard procedures cannot be applied.
Qualifications statement :
Knowledges, abilities, and other qualities:
In addition to those described at lower levels of the specialization: knowledge of approach control and approach procedures for terminals within the center area and of flight patterns and coordination procedures applicable to airports in the various sectors of the center; and demonstrated ability to perform control duties of manual or interphone positions.

9. In addition, the Civil Service Commission standards contain the following language pertaining to all air traffic control specialist positions (station, center, tower, general):

Glassification Factors
‡ ‡ $
There is a wide variety of duties to be performed at each major type of facility. * * * An employee may be qualified to perform only one class of duties or may be capable of performing any of them. After becoming qualified to perform the most difficult of the duties in a particular facility, an employee may be required to rotate through several or all types of duties during one or more shifts. The grade level of the employee’s position is based upon the highest type of duties that he is required regularly to perform for a significant portion of time.
There is an additional duties requirement in all air traffic control specialist positions. Incumbents of positions at a given level are required to undergo training for duties of the next higher level position at the facility.

10. Plaintiff Sullivan participated in the Federal Aviation Agency up-grade training program and participated in the Complex Course from August 18 through September 2,1960. Plaintiff Sullivan’s response to the simulated air traffic control problems administered during this course was unsatisfactory, resulting in his failing the course.

11. Because of unsatisfactory performance in the up-grade training program, it was recommended by his superiors that plaintiff Sullivan be evaluated by the Facility Evaluation Team to determine his ability and potential. Sullivan was advised of this recommendation. The evaluation team found Sullivan seriously deficient in several aspects and recommended that he be separated from the training position. Notice to this effect was also rendered to him.

12. Thereafter, an advance notice of proposed removal was issued on April 26, 1961. This notice charged plaintiff with “[fjailure to satisfactorily complete the FAA up-grade training program which is a requirement of your position.” The notice further stated that it was proposed to remove plaintiff from his position within 30 days from plaintiff’s receipt of the notice. He received it on May 2,1961.

13. Plaintiff Sullivan appealed his discharge to the Chief, Personnel and Training Division, Federal Aviation Agency, Fort Worth, Texas, on May 6, 1961, answering in detail the charges contained in the notice of April 26, 1961. Plaintiff Sullivan’s notice of appeal stated in pertinent part:

1. That the above employee was not covered by any upgrade training agreements or notifications.
2. That the proposed separation is unreasonable and amounts to arbitrary and capricious action in that the employee has received satisfactory efficiency ratings to date in the position he now holds as Assistant Controller, and that there are available such positions in Memphis, Tennessee, or other areas.
3. That proper notice has not been given employee of separation and that instant proposed separation violates the Veterans Preference Act of 1944, as amended and also the Civil Service Act and rules and regulations thereunder.
4. That the proposed separation of this employee does not come within the pnrview and meaning or construction of “promoting the efficiency of said service” as required by the Veterans Preference Act of 1944 or the Civil Service Act, rules and regulations and executive orders.
5. That the above employee has not had a reasonable amount or the proper type of training necessary to advance to the position of Controller.
6. That the above employee entered into the employment of instant agency as a regular Civil Service appointee and completed his one year probation period in a satisfactory manner and was retained by the agency as a cpmpetent Assistant Controller and any rule, regulation, or notification by the agency requiring the employee to successfully complete training, qualifying the employee for the next highest position is unreasonable and amounts to arbitrary and capricious action, particularly when such training is in connection with a program designed to eliminate all persons who hold positions that they are competent to perform the duties, but cannot advance to higher positions in an accelerated time specification.

14. On June 2,1961, plaintiff Sullivan was served by FAA with a notice of final decision on removal, terminating his employment as of June 28,1961.

15. Plaintiff Sullivan appealed his dismissal to the Ke-gional Office of the United States Civil Service Commission, Atlanta, Georgia, which conducted an investigation into his discharge and thereafter held a hearing on September 27, 1961, pursuant to section 14 of the Veterans’ Preference Act of 1944, as amended.

16. At this hearing, plaintiff Sullivan was represented by an attorney who requested that a court reporter be allowed to make a verbatim transcript of the hearing at plaintiff’s expense. The hearing officer denied this request as contrary to the Commission procedures but stated he would furnish a summary of the hearing.

17. Plaintiff Sullivan was f urnished with a summary of the hearing and through his attorney, on November 4,1961, submitted corrections and additions for the record.

18. The Eegional Office of the United States Civil Service Commission, Atlanta, Georgia, affirmed plaintiff Sullivan’s dismissal by its decision dated November 8,1961.

19. Thereafter, plaintiff Sullivan appealed his discharge to the United States Civil Service Commission Board of Appeals and Review by telegram dated November 12, 1961.

20. On April 2,1962, the United States Civil Service Commission Board of Appeals and Review denied plaintiff’s appeal.

Plaintiff El/wood V. Wilson

21. Plaintiff Elwood V. Wilson accepted a career-conditional appointment with the United States Aeronautical Administration as an Airways Operations Specialist (Center) in the grade of GS-2152-6, effective as of June 9,1958.

22. Plaintiff Wilson’s appointment was made pursuant to Announcement 8-19 (1957) and all amendments thereto, issued January 21, 1957. The pertinent provisions of this announcement are set forth in finding 2.

23. Plaintiff Wilson’s training as an appointee airways operations specialist in grade GS-6 was governed by Civil Service Training Agreement, dated January 10, 1957, as described in finding 4. In accordance with this Training Agreement, he was promoted on April 5,1959, to the position of Air Traffic Control Specialist (Center), grade GS-2152-8.

24. Certification of Wilson’s satisfactory completion of his probationary period was rendered by the Agency on April 10, 1959, and as of that date he was found satisfactory for retention in the service.

25. Assigned to the duties of an assistant controller at the Air Route Traffic Control Center, Memphis, Tennessee, nothing in the record indicates that plaintiff Wilson received other than satisfactory performance ratings in that position.

26. As an air traffic control specialist, GS-2152-8 (center), plaintiff Wilson was required to participate in further training, the same as plaintiff Sullivan. Findings 8 and 9 are pertinent with reference thereto.

27. Plaintiff Wilson participated in the Federal Aviation Agency up-grade training program during the period June 12 to August 8,1960. Plaintiff was unsuccessful in the training that would have qualified him for the nest higher grade. The evaluation team found that he was deficient as to his knowledge of pertinent air traffic control procedures and ability to apply them; lacked good planning and organization of work; and was indecisive and lacked self-confidence resulting in overall slowness of operation. Based on these findings, it was the recommendation of the evaluation team that he be separated from the position but be reassigned as an assistant controller pending final outcome of the recommendation.

28. As a result of the failure of Wilson in the training program, an advance notice of proposed removal was issued by the Agency on December 22, 1960, and received by plaintiff on December 25, 1960. The notice charged plaintiff Wilson with “[f]ailure to qualify for promotion in the FAA upgrade training program, a performance requirement of your position.”

29. Plaintiff Wilson appealed his discharge to the Chief, Personnel and Training Division, Fort Worth, Texas, on January 3, 1961, answering in detail the charges of the advance notice. Plaintiff’s notice of appeal stated, in pertinent part, the same contentions in the same language as advanced by plaintiff Sullivan and as set forth in finding 13.

30. On February 23,1961, plaintiff Wilson was served with a notice of final decision on removal terminating his employment as of March 3,1961.

31. Plaintiff Wilson, through his attorney, requested a hearing pursuant to the provisions of section 14 of the Veterans’ Preference Act of 1944, as amended, and further requested that a verbatim transcript of the hearing be made. Plaintiff was granted the right to have a hearing but was not permitted to have a court reporter make a verbatim transcript of the hearing.

32. A hearing without the presence of a court reporter was held on June 1, 1961, at Memphis, Tennessee. Plaintiff was represented by counsel at this hearing. A summary of this hearing was transmitted to plaintiff and to the Federal Aviation Agency for their corrections and comments thereon.

33. The Pegional Office of the United States Civil Service Commission, Atlanta, Georgia, affirmed plaintiff Wilson’s discharge by its decision of October 11,1961.

34. Plaintiff Wilson thereafter appealed his decision to the United States Civil Service Commission Board of Appeals and Beview, as noted by letter dated October 19, 1961.

35. The United States Civil Service Commission Board of Appeals and Beview denied plaintiff Wilson’s appeal on April 4,1962.

' The Tminmg Program

36. As indicated in finding 3, above, the Federal Aviation Agency, in the interest of aviation safety, exhaustively trains its air traffic controllers. The FAA (or a predecessor) has had an official interest in air traffic control since the passage of the Air Commerce Act of 1926, ch. 344, 44 Stat. 568, and since 1936, when the Bureau of Air Commerce of the Department of Commerce, an FAA predecessor, took over the operations of the three then-existing air traffic control centers (in .Newark,' Chicago, and. Cleveland), has been involved in the training of air traffic controllers. Since 1936, the FAA (or a predecessor) has been the only civilian employer of air traffic controllers- in the United States. Because of this, these agencies have had to rely, in the main, on their training programs to meet their personnel needs; and such programs have, accordingly, been designed to produce fully qualified grade-10 “journeymen” air traffic controllers.

37. (a) At the time plaintiffs commenced their employment with the FAA, the Agency training program began with the hiring of grade-6 airways operations specialists (center), who were regarded by the Agency and referred to in the air traffic control Training Manual as “trainees.” Such trainees were first sent to the FAA Academy (known also as the FAA Aeronautical Center) in Oklahoma City (or, in some cases, to other FAA installations), for a 4-to-8-week “indoctrination” course in air traffic control fundamentals, conducted by journeymen air traffic controllers. At the end of the course, the trainees were given an examination covering seven basic, air traffic control subjects. Trainees who passed the examination were awarded an Airways Operations Specialist Certificate, and assigned to an FAA air route traffic control center, where they received approximately 6 additional months of classroom and. on-the-job training. Thereafter, the trainees’ performance was evaluated by supervising assistant and journeymen air traffic controllers; and, if satisfactory, they were assigned positions as assistant air traffic controllers at grade 8.

(b) The new assistant air traffic controllers then underwent approximately 6 to 8 months of on-the-job training under the direct supervision of journeymen air traffic controllers. The journeymen continually evaluated their assistants’ performance; and, if satisfactory, assistants were selected for “up-grade training.”

Generally, up-grade training began with approximately 2 weeks of classroom instruction and laboratory work, during which simple control problems were set up. This was fol: lowed by approximately 2 weeks of additional, more difficult classroom and laboratory work. At this point, trainees whose, performance was satisfactory were required to demonstrate their ability to control heavy simulated air traffic in the laboratory. Trainees who succeeded in doing this were then given additional on-the-job training which included the supervised control of “live” air traffic.

Thereafter, trainees who were certified by their supervising journeymen to be ready .to control traffic independently were assigned positions as acting air traffic controllers. Such acting controllers were closely observed for approximately 30. days; and, if their performance continued satisfactorily they were appointed to journeymen air traffic controller positions, at grade 10, when vacancies arose.

38. (a) Although grade-8 assistant air traffic controllers were not referred to as “trainees,” they were considered as such by the FAA. As indicated above, the Agency was completely dependent on its training program as a source of journeymen air traffic controllers. In light of its ever-increasing need for journeymen controllers, the complexity of controller training, and the essentially clerical nature of the assistant controller’s work, the FAA was not interested in securing a raft of assistant controllers, unqualified to fill journeymen vacancies. Agency policy, therefore, was and is to remove those assistants who were unable, through training, to qualify to be journeymen.

(b) When partaking of “on-the-job” training, plaintiffs performed useful services for the Agency. The assistant controllers’ tasks are indicated in the Commission job standards for grade-8 specialists, reprinted in finding 9(b), above. Added to that list is the requirement, applicable to specialists of every grade, that assistance be rendered in the training of lower grade employees. Assistant controllers work under constant supervision, and their work is continually evaluated by supervising journeymen. The expertise acquired in performing various tasks of assistance to the journeyman is a necessary first step in the process of training for the journeyman position.

(c) Journeymen controllers, of course, were and are capable of performing the tasks performed by their assistants. The press of high-volume air traffic, however, generally precludes their doing so. It thus appears that notwithstanding the FAA training program, personnel would have to be hired to perform the functions now served by assistant controllers. There is no convincing evidence, however, that the Agency could employ qualified nontrainees at a lower classification grade to fill these positions. Some, but not all, of the computations made by assistant controllers can be done by computers but this does not eliminate the need for personnel to train for the journeymen controller positions by working with and under the supervision of such controllers.

Ultimate FINDINGS of Fact

39. The grade-8 assistant air traffic controller position was and is primarily a training position, the intermediate level in a two-step, unavoidably complex FAA training program designed to produce grade-10 journeymen air traffic controllers. Although assistants perform useful, albeit essentially clerical, services for the Agency, their main duty was and is to train to qualify for the journeyman position of controller with “the responsibility for independent control of air traffic.”

Dismissal of plaintiffs from their positions as air traffic control specialists, GS-8, for failure to qualify for the next higher grade was not, therefore, contrary to the Classification Act of 1949, since that Act requires that positions be classified on the basis of their responsibilities and duties, and the primary duty and responsibility of the grade-8 assistant’s position was to train to qualify for the grade-10 journeyman’s job. Plaintiffs’ rights under the regulations setting up a probationary period after which plaintiffs were entitled to be free from further examination of their qualifications for the grade-8 assistant’s position also were not infringed, since such regulations, which were designed to afford the Government a limited period during which it might peremptorily dismiss new employees, were not intended to preclude a post-probationary dismissal for failure to qualify for up-grade training, for such requirement had a direct bearing on the efficiency of the service.

CoNClttsioN or Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are not entitled to recover and their petition is dismissed. 
      
      The supplemental opinion, findings of fact, and conclusion of law are submitted under tlie order of the court dated May 15, 1967. The original report is withdrawn.
     
      
      
         Hereafter, the employing agency Is referred to as the FAA or simply as the Agency. Similarly, the united States Civil Service Commission will sometimes be referred to as the Commission.
     
      
       The terms airways operations control specialist, air traffic control specialist, and air traffic controller are used interchangeably.
     
      
       As veterans, plaintiffs are entitled to the procedures in dismissal of preference eligible provided for by tbe Veterans’ Preference Act of 1944, ch. 287, § 14, 58 stat. 390; 5 U.S.C. §§ 851, 863 (1958).
     
      
       Formerly 5 Ü.S.C. § 1071 (1964).
     
      
       Formerly 5 U.S.C. § 1092 (1964).
     
      
       The Commission standards do not include the Agency titles for tiie grades-fi, -8 and -10 trainee, assistant air traffic controller, and journeymen air traffic controller positions. All are described as air traffic control specialists (center).
     
      
       For the complete text of the standards for grades-6, -8, and -10 specialists (center), see finding 8.
     
      
       The Federal Aviation Agency as of August 23,1958.
     
      
       Tie Job standards do not include the Agency titles (trainee, assistant air traffic controller, journeyman air traffic controller) for the grades —6, —8, amd —10 air traffic control specialist (center) positions. As a matter of policy, the Commission no longer designates holders of training positions as “trainees”; instead, the standards for such positions describe the training nature of the wort. See 5 U.S.C. § 5105(c) (Supp. IV, 1965-68).
     
      
       A part of standard training program requirements for ARTC Centers, published and promulgated by the FAA and dated September 11, 1959.
     
      
      
         Military controllers, it appears, are qualified to assume positions at FAA tower installations without extensive training. They are not qualified, however, without training, for positions at FAA air route traffic control centers.
     