
    373 F. 2d 915
    BERNARD G. BROWNING v. THE UNITED STATES
    [No. 75-65.
    Decided March 17, 1967]
    
      
      Charles F. Wheatley, Jr., attorney of record, for plaintiff. Billy Dwight Perry, McCarty and, Wheatley, and W. C. Whitlow, of counsel.
    
      Isaac D. Benkin, with whom was Assistant Attorney General Barefoot Sanders, for defendant.
    Before Cowen, Chief Judge, Laramore, Dureee, Davis, Collins, Skelton and Nichols, Judges.
    
   Per Curiam::

This case was referred to Trial Commissioner Bichard Arens with directions to mate findings of fact and recommendation for conclusions of law. The commissioner has done so in a report and opinion filed on June 9, 1966. Exceptions to the commissioner’s findings, opinion and recommended conclusion of law were filed by defendant. The case was submitted to the court on oral argument of counsel and the briefs of the parties. Since the court is in agreement with the opinion, findings and recommendation of the commissioner, with slight modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is therefore entitled to recover and judgment is entered for plaintiff with the amount of recovery to be determined pursuant to Buie 47(c).

OPINION OE COMMISSIONER

Arens, Commissioner:

The principal question presented by this case is whether plaintiff’s separation in February 1963, from his employment as agricultural engineer in the Soil Conservation Service (hereinafter referred to as the Service), an agency of the United States Department of Agriculture was “involuntary” within the meaning of 5 U.S.C. § 2256(d) (1964 edition) relating to retirement, which reads:

(d) Any employee who completes twenty-five years of service or who attains the age of fifty years and completes twenty years of service shall upon involuntary separation from the service not by removal for cause on charges of misconduct or delinquency, be paid a reduced annuity computed as provided in section 2259 of this title.

The reason for plaintiff’s separation was his failure to accept a transfer from the Fulton, Missouri to the Springfield, Missouri office of the Service at the same position and grade (GS-9). Plaintiff contends that at the time of his separation ■ he was entitled to an immediate annuity because his separation was involuntary. Defendant admits that at the time of his separation plaintiff had more than 25 years of Government service and was over fifty years of age, and that he was not removed for cause on charges of misconduct or delinquency. Defendant contends, however, that plaintiff’s discharge for failure to accept the transfer was a voluntary separation and that he, accordingly, failed to qualify for the immediate annuity.

The essential facts relating to plaintiff’s separation, which are detailed-in the accompanying findings, may be capsuled as follows:

Plaintiff, a non-veteran, a qualified registered land surveyor and professional engineer, at all pertinent times, received satisfactory performance ratings in his work at the Fulton, Missouri office of the Soil Conservation Service where he had been employed as agricultural engineer since January 1954.

In December 1957, plaintiff was granted approval by Mr. Oscar Bruce, the State Conservationist [head of the Service in Missouri] to engage, with certain conditions, in private survey work during his annual leave time, and plaintiff, thereafter, engaged in profitable private work in the vicinity of Fulton, Missouri, under the name of Bernard Browning, Professional Engineer and Land Surveyor.

In May 1962, Mr. Howard Jackson, who succeeded Mr. Bruce as state conservationist in Missouri, requested a report from all employees of the Service regarding their outside activities which were within the scope of a regulation which had been issued on the subject by the Department of Agriculture ; and in June 1962, plaintiff submitted a memorandum regarding his private survey work. Shortly thereafter the position of area engineer, GS-9, was established with headquarters at .Springfield [about 160 miles from Fulton which is located in central Missouri] to serve areas 6 and 7 which encompassed most of the southern part of the state. A week or so later Mr. Jackson sent a memorandum to plaintiff’s immediate supervisor, which plaintiff was permitted to read to the effect that although plaintiff had made an effort to follow the general intent of the authorization given to him in 1957 to engage in the private survey work, it was diverting his attention from the Service work, and he should discontinue it within 90 days.

Over the course of the next several months, plaintiff conferred or exchanged memoranda with his superiors regarding both his private survey work and a proposal made to him by Mr. Jackson that he'accept a transfer to the newly created position in Springfield. Plaintiff advised his supervisor that he planned to discontinue active management of the private survey work, but to retain controlling interest in the business. He was never told whether this would be agreeable to the Service. Plaintiff also advised his superiors that he could not accept the transfer for various reasons, including the financial Sacrifice involved in the move and his wife’s health. Plaintiff’s wife suffered from a nervous condition for which she was recurrently under the care of a physician who expressed the opinion that it would be to her best interest to remain in Fulton.

In January 1963, plaintiff was notified that if he did not accept the transfer and did not elect to resign, he would be separated. On February 3,1963, he was separated from the Service for failure to accept a new assignment; and on the same date he submitted an application for an immediate discontinued-service annuity. Thereafter, the Bureau of Retirement and Insurance advised plaintiff that his separation must be considered voluntary for retirement purposes and that his application for a discontinued-service annuity had been disallowed; and this decision of the Bureau was subsequently affirmed by the Board of Appeals and Review of the Civil Service Commission.

In resolving the legal question as to whether plaintiff’s separation was “involuntary” within the meaning of the above-quoted statute, it is pertinent to note at the outset that although plaintiff may have believed that the transfer order was because of his private survey work, the evidence does not establish that the transfer order was improper or improperly motivated. (Finding 16(a)). Keener v. United States, 165 Ct. Cl. 334, 339 (1964). It is obvious, moreover, that his separation, admittedly not “for cause on charges of misconduct or delinquency” was against the will and without the consent of plaintiff. (Finding 16(b)). Within the commonly accepted and dictionary definition of “involuntary,” that is, not of one’s own free will, it is clear that plaintiff’s separation was involuntary. If he had wanted to be separated, he would have simply resigned, as suggested by his superiors. He did not, however, want to be separated, nor did he want to be transferred; but he did want to remain in his position in Fulton. An appraisal of the facts in the instant case by the yardstick of the literal language of the statute also compels the conclusion that plaintiff’s separation was involuntary. In Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607 (1944), l.c. 618, Mr. Justice Frankfurter wrote:

* * * After all, legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.

Defendant contends, however, that the legislative history of the statute establishes that the word “involuntary” should apply only to the type of situation which caused the enactment of the original (1922) version of the statute, namely, to a situation in which employees of the Government lose their jobs by a reduction-in-force or a similar situation, and not to a situation in which an employee is separated because some personal circumstance precludes his acceptance of a new assignment. There can be little doubt that the original version of the statute which came into the retirement law with the Act of September 22, 1922, was intended as a measure to relieve certain Government employees who lost their jobs as a result of the 1921 Conference on the Limitation of Armaments. However, this does not mean that the plain language of the statute need necessarily be restricted in its application to situations similar to that which impelled the enactment of the original version, nor has it been so restricted by the administrative regulations applying the statute. H. B. Zachry Co. v. United States, 170 Ct. Cl. 115, 344 F. 2d 352 (1965). The Administrative Regulations of the Department of Agriculture, ch. 24, § 1.5, entitled Separation — Failure To Accept New Assignment, which were in effect at the time of plaintiff’s separation read:

810. Purpose. The purpose of this section is to provide policy and procedures for the separation and placement assistance of employees who, because of personal reasons are unable to accept a new assignment directed by the agency.
811. Policy. It is the policy of the Department to place elsewhere, whenever possible, employees who are unable to accept a new assignment directed by the agency. When this is not possible, and the employee does not resign, it will be necessary to effect his separation.
í]í í[í íjí í» x «i»
816. Rights Upon Separation. 'Separations for failure to accept new assignment are considered involuntary for retirement purposes.

Defendant argues that the foregoing regulations of the Department of Agriculture conflict with regulations on the subject by the Civil Service Commission, and that since only the Commission has the power under appropriate statutes to issue regulations with respect to eligibility for civil service retirement benefits, its regulations should prevail. The weakness in defendant’s argument is that although the above quoted regulations of the Department of Agriculture fit plaintiff’s situation exactly, the Commission regulations do not categorically preclude the same end result, namely, for plaintiff’s separation to be deemed involuntary. Applicable regulations of the Civil Service Commission read in parts as follows :

Meaning oe Involuntary Separation
Whether a separation is involuntary depends upon all the facts in a particular case; it is the true substance of the action which governs rather than the methods followed or the terminology used.
_ The term “involuntary separation” means any separation against the will and without the consent of the employee, other than for cause on charges of misconduct or delinquency. Examples are: reduction in force; abolishment of position; lack of funds; expiration of term of office; liquidation of an office or of an entire agency; inefficiency (unless due to the employee’s misconduct) ; disability (provided the separation action is initiated by the agency); separation during probation because of failure to qualify; or separation of an indefinite or temporary employee under the Commission’s instructions for displacement (section 9.105 of the Regulations).
A separation under one of the cited circumstances is considered involuntary for retirement purposes.' If an employee, after receiving notice that he will be separated for any such reason, resigns before the scheduled separation date, his separation is involuntary. If the notice also contains an offer, in lieu of separation, of promotion, reassignment, or demotion to another available position, the employee’s resignation in lieu of accepting such other position will constitute an involuntary separation. However, if the employee resigns before receiving official separation notice or after he enters on duty in the new position, the separation is voluntary.
* * $ $ *
The right of an administrative officer to direct reassignment of an employee for the good of the service is well established. Refusal by an employee to accept such reassignment ordinarily results in removal for cause or voluntary resignation. * * *
When the location of an office or unit is changed because of decentralization, or because of the transfer of the functions of an organizational unit, and an employee is separated or resigns solely because he is unable for family or personal reasons to accompany the office or unit to its new location, the action is considered involuntary. However, in order for such action to be considered involuntary, the change in the location of the office or unit must be such that the employee would be compelled to change his place of residence in order to continue in employment. If the new location is within reasonable and ordinary commuting distance from the home of the employee and he fails to accompany the office or unit to the new location, his separation would not be considered involuntary.

The only specific reference in the Commission regulations to a situation in which an employee refuses to accept a reassignment is the statement that such refusal ordinarily results in removal for cause or voluntary resignation, neither of which occurred in the instant case. The tone of the regulations is set by the opening language which prescribes that in determining whether a separation is involuntary, it is the true substance of the action which governs rather than the methods followed or the terminology used, and that the term “involuntary separation” means any separation against the will and without the consent of the employee. Although the examples given do not include a refusal to accept a reassignment, they are obviously not intended as an exclusive list of situations in which a separation may be deemed involuntary. It is pertinent to note, moreover, that under the Commission regulations when the location of an office is changed and an employee is separated solely because he is unable for family or personal reasons to accompany the office to the new location, the action is considered involuntary.

Colbath v. United States, 169 Ct. Cl. 414, 341 F. 2d 626 (1965), cited by defendant is inapposite. The employees in Colbath claimed back pay on the grounds that their dismissals for failure to accept transfers in the Navy Department violated their rights under the Veterans’ Preference Act of 1944 and were arbitrary and capricious. Although this court sustained the dismissals, the issue as to the nature of the dismissals, posed in the instant case, was not considered. Defendant also cites Corrigan v. United States, 153 Ct. Cl. 392 (1961), which is clearly factually distinguishable from the case at bar. The plaintiff in Corrigan took extended leave from her position as a clerk at the Bureau of Mines of the Department of the Interior in order to accompany her husband, who was in poor health, to California. She was not transferred; nor did she signify her intention to return to her position at the end of her leave period, although she was requested to do so by the agency. For all practical purposes, she abandoned her position, and she was deemed by the agency to have resigned. Eight years after her separation she applied to the Civil Service Commission for an immediate annuity commencing on the date of her separation. This court sustained the finding of the Civil Service Commission that her separation was not an involuntary separation and that she was not entitled to an immediate annuity.

In the instant case, we observe a plaintiff who wanted to continue the employment in which he was engaged, and who felt he could not accept the transfer to another city because of personal reasons, including the health of his wife. The Service was empowered to remove him for cause but it chose not to do so. He did not elect to resign and thereby manifest the voluntary nature of his separation. The regulations of his agency, the Department of Agriculture, clearly prescribe that in such a situation, the separation shall be considered involuntary for retirement purposes. The regulations of the Civil Service Commission at least do not prohibit such result.

It is concluded that plaintiff is entitled to recover, with the determination of the amount of recovery to be reserved for further proceedings under Rule 47 (c).

Findings of Fact

1. (a) Plaintiff, a non-veteran was separated on February 4, 1963, from his employment as agricultural engineer (GS-9) at the Fulton, Missouri office of the Soil Conservation Service (hereinafter referred to as the Service), an agency of the United States Department of Agriculture.

(b) The reason for plaintiff’s separation was his failure to accept a transfer from the Fulton office of the Service where he had served as agricultural engineer since January 1954, to the Springfield, Missouri office of the Service at the same position and grade.

(c) Plaintiffs contention is that at the time of his separation he was entitled to an immediate annuity because his separation was involuntary within the meaning of 5' U.S.C. § 2256(d), 1964 edition, relating to retirement, which reads:

(d)Any employee who completes twenty-five years of service or who attains the age of fifty years and completes twenty years of service shall upon involuntary separation from the service not by removal for cause on charges of misconduct or delinquency, be paid a reduced annuity computed as provided in section 2259 of this title.

Plaintiff asserts that his separation was involuntary because (1) his inability to accept the transfer was due to the ill-health of his wife, (2) the transfer was reasonably linked to plaintiff’s non-service activities, and (3) plaintiff believed that the transfer was because of his outside activities.

(d) Defendant admits that at the time of his separation, plaintiff had more than 25 years of Government service and was over 50 years of age; and that he was not removed for cause on charges of misconduct or delinquency. Defendant contends, however, that plaintiff’s discharge for failure to accept the transfer was a voluntary separation.

(e) The amount of recovery, if any, is reserved for further proceedings under Bule 47(c).

2. The field operations of the Missouri office of the Soil Conservation Service are conducted through areas, each of which contains several counties and is supervised by an area conservationist whose offices are located at the area headquarters. Prior to June 1962, each area, except area 6, had an agricultural engineer whose duties included surveying and designing of water storage structures and other flood and erosion control work. The overall supervision of the Service activities in the state is vested in the State Conservationist who is headquartered at Columbia, Missouri, which is located about 28 miles from Fulton, Missouri, the headquarters of area 4 where plaintiff was employed.

3. (a) At all pertinent times, plaintiff was a qualified registered land surveyor and professional engineer, and received satisfactory performance ratings in his work with the Service. There was a shortage of qualified land surveyors in the vicinity of Fulton, Missouri, and plaintiff had received several requests for private land surveys in such vicinity from real estate agencies and landowners.

(b) On December 2,1957, plaintiff sent a memorandum to Mr. 3ohn Gibson who was then area conservationist in area 4, in which plaintiff stated that he would like to make some of the private land surveys outside of regular working hours, or when taking annual leave; that all such surveys would be cleared through the county engineer before being made; and that no Government supplies or equipment would be used. Plaintiff requested a blanket clearance for making such surveys. Mr. Gibson transmitted plaintiff’s request to Mr. Oscar Bruce, the then State Conservationist, with the recommendation that plaintiff’s request be approved.

(c) By memorandum dated December 18,1957, Mr. Bruce advised Mr. Gibson that he concurred in his recommendation that plaintiff’s request be approved, but with the conditions that the private survey work would not be of a character which would likely be the subject of litigation, that it would be performed during annual leave time that would not be detrimental to performance of Service work, that no Government equipment be used, and that the person or organization requesting the survey work furnish a written statement that an effort had been made to locate a private engineer and that none was available for the work.

(d) Thereafter, plaintiff engaged in profitable private work under the name of Bernard G. Browning, Professional Engineer and Land Surveyor. He devised a form which prospective clients signed which included a statement that no professional engineer and/or land surveyor was available or acceptable to the client for the engagement. Plaintiff instructed his clients not to call him at the Service, and attended to his outside work during leave time which he took frequently, but in each instance, with the approval of his immediate supervisor. Before undertaking any job, plaintiff cleared with Mr. Nelson West, the other practicing professional, registered engineer or land surveyor in the county, who had a 3-year backlog of work and never objected to any work undertaken by plaintiff. Plaintiff felt that his private work was in compliance with the conditions set forth in the above memorandum of December 18,1957.

4. In February 1961, Mr. Oscar Bruce retired and was succeeded as State Conservationist by Mr. Howard Jackson.

5. (a) On March 26, 1962, plaintiff filled in a personal appraisal form in which he was requested to indicate his special interest in accepting other assignments, transfers, details, foreign assignments and additional training, as follows:

I am interested in any training which would enable me to furnish better professional engineering services as a [sic] Area Engineer.
Since the engineering work in this area is broad in scope and challanging [sic] in nature, it requires continual study and research. This fulfills one of the greatest requirements of the job satisfaction. I would only be interested in a transfer in the engineering field with additional responsibilities and compensation.

(b) On April 2,1962, plaintiff’s immediate supervisor, Mr. Melvin Thompson, area conservationist of area 4 at Fulton, Missouri, filled in the personnel appraisal form of plaintiff in which Mr. Thompson stated, in part, as follows:

This man is a [sic] outstanding engineer when consideration is given to the limited formal training he has had. He has trained & developed himself.
This man has outside professional interests which are important to him both professionally and financially. They would effect [sic] his decisions regarding moves.
Performance has been satisfactory but not outstanding. Much of his energy goes into his outside interests. He doesn’t try to find new methods of operations which may increase production. He is cooperative but resents changes which involve him.

,6. (a) On May 18, 1962, Mr. Howard Jackson, the State Conservationist, issued an advisory notice to all employees in which he quoted a new regulation which had been issued by the Department of Agriculture with respect to employees serving as consultants and advisors which read:

No employee shall accept compensation for service as consultant or adviser to any organization or enterprise, public or private, without prior approval of the Director of Personnel, in any matter which draws upon the experience, competence or professional standing acquired or enhanced by or through his position in this Department. This restriction shall apply to all situations in which retainers, fees, honoraria, or any other form of remuneration is received or to be received, and whether directly, or indirectly through corporate or other entity. Before committing himself to serve as consultant or adviser, an employee shall submit, through the head of his agency, a full statement of the proposed relationship including the nature and extent of services to be rendered, and financial benefit to be received.

The advisory notice requested a report of outside activities of employees within the scope of the regulation.

(b) After receipt of the above advisory notice, plaintiff consulted an attorney regarding the applicability of the regulation to his outside work.

(c) On June 11, 1962, plaintiff submitted to Mr. Thompson a memorandum regarding his outside work, the body of which stated:

At the present I am part owner of and act as one of the consultants and advisors [sic] to the firm d/b as Bernard G. Browning, Professional Engineer & Land Surveyor.
This is a small firm with a gross income of less than $10,000.00 per year and the personnel employed are either students or have other employment.
An average of 8 hours per week is planned to be spent on outside work.
This firm has two strict policies (1) That no government supplies or equipment are permitted to be used (2) That no job or client be accepted where there is a chance of a conflict of interest. That all jobs accepted be outside the scope of activity of the Soil Conservation Service.
This firm has limited its activity to the following fields: 1. Mining, 2. Land, surveys,' city and urban, 3. Subdivision, development, including survey design, layout, streets and sewage disposal systems.
We believe the above fields are outside the activities of the Soil Conservation Service.
The firm maintains a complete record of all activities. A list of clients, the services performed and the amount of fees charged are available if you so desire.
After reviewing Advisory Notice MO-630, I believe that my outside work does not conflict with Departmental Administrative Regulations, Title 8.

7. (a) In June 1962, parts of area 3 and of area 6 of the Service were combined into a new area, designated area 7, with headquarters at Springfield, Missouri, which is about 160 miles from Fulton, Missouri, the headquarters of area 4 where plaintiff was employed.

(b) In July 1962, when the operating budget was prepared for fiscal year 1963, the position of area engineer, GS-9, was established with headquarters at Springfield, Missouri, to serve areas 6 and 7 which encompassed most of the southern part of the state.

8. (a) On August 8,1962, Mr. Howard Jackson, the State Conservationist, sent a memorandum, designated administratively confidential, to Mr. Melvin Thompson, area conservationist at Fulton, Missouri, in which it was stated that although plaintiff had made an effort to follow the general intent of the authorization given him in 1957 to engage in outside work, there was evidence that his activities had broadened to such an extent that the best interest of the Service was not being served; that plaintiff’s activities had not been restricted to land surveying but had expanded to mining and design and layout of sewage disposal systems; that the use of annual leave by plaintiff was of such a pattern that he could not give full mental attention, interest and physical energy to his position; that there had been evidence of telephone contacts while plaintiff was on duty which diverted his attention; that it was believed desirable for plaintiff to discontinue his outside work as soon as practical; and that 90 days seemed a reasonable time within which he should do so.

(b) Shortly after the above memorandum of August 8, 1962, was received, Mr. Thompson let plaintiff read it and subsequently permitted him to take notes from it, but not to copy it. Plaintiff discussed the contente of the memoran-dumwith his attorney.

9» (a) On September 5, 1962, Mr. Virgil Bay, the State Administrative Officer of the Missouri office of the Soil Conservation Service, sent a memorandum designated administratively confidential, to Mr. Thompson in which he stated that tentative plans were to fill the GS-9 Agricultural Engineer position for the headquarters at Springfield, Missouri, about November 1,1962, and that it was believed that plaintiff could fill the position in a very acceptable manner. Mr. Thompson was requested to discuss with plaintiff his interest in the position and to let the state headquarters know of plaintiff’s reaction to the proposal.

(b) On September 7,1962, plaintiff was called to the office of Mr. Jackson, the State Conservationist, at Columbia, Missouri, for a conference in which Mr. Jackson advised plaintiff that he would like to have him accept the position at Springfield. Mr. Jackson did not order plaintiff to take the position and plaintiff construed the conference as one in which plaintiff was being advised of the opening, but that his acceptance or rejection would be “on a voluntary basis.” There was no discussion at the conference of plaintiff’s outside work.

(c) On September 10, 1962, Mr. Thompson wrote to Mr. Jackson that he had discussed the memorandum of August 8, 1962 [pertaining to plaintiff’s outside work] with plaintiff several times; that plaintiff advised that it was his intent to discontinue his outside work within 90 days; and that it appeared that plaintiff was going to try to get out of active management of his outside business, but still maintain controlling interest in it.

10. (a) On September 11, 1962, Mr. Thompson sent a memorandum to Mr. Jackson, which stated that plaintiff had advised that he was not interested in the Springfield position but asked that his thanks be conveyed for considering him for the position. Plaintiff had advised Mr. Thompson that there were several factors upon which he based his decision, including (1) his plan to retire in 4% years, upon reaching the age of 55, (2) his work with the Society of Professional Engineers of which he was a chapter vice-president, and (3) the financial sacrifice of the proposed move.

(b) On September 19, 1962, plaintiff met with Mr. Jackson and Mr. Bay relative to the memorandum of August 8, 1962 [pertaining to plaintiff’s outside work] at which time plaintiff proposed that he hire an engineer-manager who would handle all active client work; and that plaintiff’s outside work would consist solely of research work, but that plaintiff would retain his interest in the company. • . .

(o) Plaintiff at no time received any response from Mr. Jackson, nor did Mr, Jackson reach a decision as to whether or not plaintiff’s plan for getting out of the active management of his outside business would satisfy the requirements of the August 8,1962, memorandum (finding 8(a), supra).

11. (a) On October 5, 1962, plaintiff again met with Mr. Jackson, at which time Mr. Jackson advised plaintiff that he had decided to transfer plaintiff to the Springfield position. Plaintiff stated in effect that he could not accept the transfer, principally because of his wife’s health. Mr. Jackson then told plaintiff that if he refused to accept the transfer and did not resign, he would be separated from the Service.

(b) Plaintiff’s wife suffered from a spastic irritable bowel syndrome caused by a nervous condition for which she was recurrently under a physician’s care. The prospect of plaintiff’s transfer and the consequent uprooting and resettling of her home caused a recurrence of her illness. Her physician expressed the opinion that it would be to the best interests of plaintiff’s wife for plaintiff and his family to remain in Pulton where they had lived since 1954. Mr. Jackson was generally aware of the physical condition of plaintiff’s wife, but did not regard her condition as a serious impediment to plaintiff’s transfer.

(c) On October 8, 1962, plaintiff advised Mr. Thompson that he had decided to resign from the Service and that he preferred to take his annual leave while completing some of the engineering plans and commitments that had been made for the Service, and to do so in such a way that it would extend his Service time. By memorandum of the same date, Mr. Thompson notified Mr. Jackson of plaintiff’s decision.

12. (a) On December 7,1962, Mr. Jackson sent to plaintiff a memorandum, designated administratively confidential, in which he recited the necessity of filling the Springfield position with a qualified, experienced Service employee, and the policy of the Service to transfer employees to gain additional experience and to broaden their knowledge of Service operations. Plaintiff was advised that it was therefore necessary that he transfer to the Springfield area. He was asked to accept the transfer within 14 days and was advised that if he was unable to transfer, it would be necessary to take action to effect bis separation, but tbat if be felt tbat be was unable to transfer and should not be separated, it would be necessary for him to show cause why bis separation should not take place.

(b)On December 20,1962, in response to the above memorandum, plaintiff wrote to Mr. Jackson that be was unable to accept a transfer to Springfield because of (1) bis wife’s health and the corresponding fear of reactivation of her case, (2) the additional expense of the move, and (3) the greater amount of travel involved in working a larger territory. Plaintiff requested tbat be be permitted to remain in Fulton, but that if action was taken to effect bis separation, it be delayed a short time to allow for completion of some unfinished engineering plans in the Fulton afea and to allow plaintiff to make repayment of retirement funds which be had withdrawn.

13. (a) On January 2, 1963, Mr. Jackson sent plaintiff a written advance notice of the proposal to separate him if he did not accept the transfer and did not elect to resign within 14 days, and reiterated the reasons set forth for the transfer in the December 7, 1962, memorandum (finding 12(a), supra). Plaintiff was again advised that if he felt that he was unable to transfer and should not be separated, it would be necessary for him to show cause why his separation should not take place.

(b) On January 17, 1963, in response to the foregoing advance notice, plaintiff repeated the essence of his response to Mr. Jackson’s letter of December 7, 1962 (finding 12(b), supra).

(c) On January 18, 1963, a letter was sent to plaintiff from the office of the State Administrative Officer of the Service notifying him that he would be separated effective February 4, 1963. The letter also furnished plaintiff with information on his appeal rights.

(d) Shortly after plaintiff was separated, another agricultural engineer in the Service was transferred from his position in area 1 to fill the vacancy in area 7 at Springfield. The vacancy at Fulton caused by plaintiff’s separation was also filled shortly thereafter. There was no reduction-in-force at Fulton at or about the time that plaintiff was separated.

14. (a) On February 4,1963, plaintiff was separated from the Service for failure to accept a new assignment.

(b) On the same date, plaintiff submitted an application for an immediate discontinued-service annuity.

(c) On April 17,1963, the Bureau of Retirement and Insurance advised plaintiff that his separation must be considered voluntary for retirement purposes and that his application for a discontinued-service annuity had been disallowed.

(d) On October 14, 1963, plaintiff appealed the decision of the Bureau of Retirement and Insurance to the Board of Appeals and Review of the Civil Service Commission.

(e) On July 14, 1964, the Board of Appeals and Review of the Civil Service Commission found that plaintiff’s separation was not an involuntary separation for purposes of section 6 (d) of the Retirement Act, and accordingly affirmed the decision of the Bureau of Retirement and Insurance dismissing plaintiff’s application for a discontinued-service annuity.

15. (a) The Administrative Regulations of the United States Department of Agriculture, Chapter 24, Section 1.5, entitled Separation — Failure To Accept New Assignment, which were in effect at the time of plaintiff’s separation read in pertinent parts as follows:

810. Purpose. The purpose of this section is to provide policy and procedures for the separation and placement assistance of employees who, because of personal reasons are unable to accept a new assignment directed by the agency.
811. Policy. It is the policy of the Department to place elsewhere, whenever possible, employees who are unable to accept a new assignment directed by the agency. When this is not possible, and 'the employee does not resign, it will be necessary to effect his separation.
812. Definition. Separation — Failure to Accept New Assignment is applicable when the new assignment is from a competitive position, to another competitive position, or from an excepted position to another excepted position, occasioned by an established rotation policy within the agency, or by direction of the agency in the best interest of the Government.
813. Commission’s Regulations. Chapter SI, Section 9.102(a) and Part 22 of Chapter Z1 of the Commission’s regulations are applicable m cases of separation of career, career-conditional, and indefinite employees who fail to accept a new assignment. Chapter B.1 contains instructions which shall be followed in reporting resignations or separations of employees who fail to accept a new assignment.
* * * * *
816. Eights Upon Separation. Separations for failure to accept new assignment are considered involuntary for retirement purposes.

(b) Applicable regulations of the Civil Service Commission with reference to discontinued-service retirement read in parts as follows (Federal Personnel Manual, E-5-44, dated February 15,1962) :

Meaning oe Involuntary Separation
Whether a separation is involuntary depends upon all the facts in a particular case; it is the true substance of the action which governs rather than the methods followed or the terminology used.
The term “involuntary separation” means any separation against the will and without the consent of the employee, other than for cause on charges of misconduct or delinquency. Examples are: reduction in force; abolishment of position; lack of funds; expiration or term of office; liquidation of an office or of an entire agency; inefficiency (unless due to the employee’s misconduct) ; disability (provided the separation action is initiated by the agency); separation during probation because of failure to qualify; or separation of an indefinite or temporary employee under the Commission’s instructions for displacement (section 9.105 of the Eegulations).
A. separation under one of the cited circumstances is considered involuntary for retirement purposes. If an employee, after receiving notice that he will be separated for any such reason, resigns before the scheduled separation date, his separation is involuntary. If the notice also contains an offer, in lieu of separation, of promotion, reassignment, or demotion to another available position, the employee’s resignation in lieu of accepting such other position will constitute an involuntary separation. However, if the employee resigns before receiving official separation notice or after he enters on duty in the new position, the separation is voluntary. # $ ‡ ‡ $
The right of an administrative officer to direct reassignment of an employee for the good of the service is well established. Befusal by an employee to accept such reassignment ordinarily results in removal for cause or voluntary resignation. * * *
When the location of an office or unit is changed because of decentralization, or because of the transfer of the functions of an organizational unit, and an employee is separated or resigns solely because he is unable for family or personal reasons to accompany the office or unit to its new location, the action is considered involuntary. However, in order for such action to be considered involuntary, the change in the location of the office or unit must be such that the employee would be compelled to change his place of residence in order to continue in employment. If the new location is within reasonable and ordinary commuting distance from the home of the employee and he fails to accompany the office or unit to the new location, his separation would not be considered involuntary.

Ultimate Findings

Ifi. (a) The weight of the credible evidence does not establish that the transfer of plaintiff from his position as agricultural engineer at the Fulton, Missouri office of the 'Service to the samé position at the Springfield, Missouri office of the Service was improper or improperly motivated.

(b) The separation of plaintiff, admittedly not “for cause on charges of misconduct or delinquency,” was against the will and without the consent of plaintiff.

Conclusion oe Law

Upon the foregoing findings of fact and opinion, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover on his claim and judgment is entered to that effect, with the determination of the amount of recovery to be reserved for further proceedings under Rule 47 (c).

In accordance with the opinion of the court, a stipulation of the parties and a memorandum report of the commissioner, it was ordered on June 5,1967, that judgment for the plaintiff be entered for $12,716.37, of which $11,977.45 shall be paid to plaintiff and $738.92 shall be paid to the Employees Health Benefits Fund on plaintiff’s behalf, the Government agreeing to pay $350.21 to the Employees Health Benefits Fund as its contribution thereto on account of plaintiff’s health benefits coverage. 
      
       The opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule 57(a).
     
      
       Webster’s New Collegiate Dictionary, 1959 edition.
     
      
       42 Stat. 1047.
     