Neufeld v. United States , 138 F. Supp. 271 ( 1956 )

Littleton, Judge,

delivered the opinion of the court:

Plaintiff, a veteran, who occupies a civilian position with the Navy which was reclassified from GS-13 (Civil Engineer) toGS-12 (General Engineer) sues to recover the difference in salary between the two grades alleging arbitrary action and procedural defects in violation of section 14 of the Veterans’ Preference Act of 1944.¹

On October 18,1951, plaintiff was given notice to be effective November 21, of the reclassification of his position in the Budget Division with the Naval Ordnance Test Station, Inyokern, China Lake, California. Finding 3. As part of a reorganization of that division, plaintiff’s position as well as all technical positions in the division were desk audited in July of 1961, during which time the duties of plaintiff’s position and the reclassification thereof were discussed with plaintiff. This consideration, discussion and audit resulted in the reclassification of plaintiff’s position in addition to others in the Budget Division.

On October 29,1951, plaintiff appealed the reclassification and his appeal was rejected by the Navy in a notice received by plaintiff on October 21, 1962. Decision on this appeal within the Navy had been delayed because of the possibility of additional appeals affecting other positions in the Budget Division. Plaintiff then pursued his appeal under section 14 of the Veterans’ Preference Act, first to the Twelfth Region of the Civil Service Commission and then to the Board of Appeals and Review of the Civil Service Commission. Both upheld the reclassification action that had been taken.

Plaintiff alleges that the reclassification was wrongful on the following grounds: (1) He was denied his right to a hearing as authorized by section 14; (2) The notice of reclassification failed to sufficiently specify the reasons as required by section 14; (3) The failure of the Navy to rule on his appeal for almost one year was in violation of Civil Service Regulation, 5 CFR 9.102 (a) (1), which requires that the employee “be furnished at the earliest practical date with a written decision”; and (4) The reclassification of his position, not being taken in accordance with Government-wide standards, was arbitrary and capricious.

On the record in this case we find no merit in these contentions. Plaintiff received no personal hearing simply because he requested none. Section 14 provides that “such preference eligible shall have the right to make a personal appearance, * * * in accordance with such reasonable rules and regulations as may be issued by the Civil Service Commission; * * The regulation, 5 CFR 22.9 (a) requiring that if a hearing is desired it be requested is certainly not an unreasonable one. Efficient administration fully justifies it.

The assertion that the notice of reclassification was not in compliance with section 14 because it lacked specificity must also fail. Position allocation or reclassification presents a different personnel action than that which involves specific and definite charges which are customarily appealed under section 14. While it may result, as it did here, in a reduction-in-pay for a particular employee, it is not directed against the individual but rather against the position which he holds. The qualifications and capabilities of the individual are not in issue. What are involved, of course, are the duties of a position, and generally, as was also the case here, attention must be given to more than one position. The many considerations involved are to be found in the lengthy decision by the Twelfth Eegion of the Civil Service Commission in the instant case. While we do not believe that because of this distinction, reclassification actions cannot come within the purview of section 14, as urged by defendant, we do believe that a different criterion exists where reclassification is involved in so far as the requirement of specificity of reasons is concerned. Stringer v. United States, 117 C. Cls. 30, 49. Civil Service Commission, Federal Personnel Manual, p. Sl-29, as set forth in finding 11. We are of the opinion that the notice received here was sufficient. The suggestion to the contrary in McNulty v. United States, 126 C. Cls. 573, relative to the non-applicability of section 14 to reclassification proceedings should not be applied too broadly.

Because of the reclassification of other positions within plaintiff’s office or division, and since the reclassification of one position may of necessity affect others, plaintiff waited •eleven months for a decision by the Navy on his appeal. While a wait of that duration should not be required, it is, .at the same time, not to be unexpected where, as here, the reclassification involves several interrelated positions. The Naval Civilian Personnel Instructions provide that if corrective action is granted, it is to be retroactive to the effective date of the personnel action.

The proof fails to sustain plaintiff’s allegation of arbitrary and capricious action. The contrary is shown by the decision of the Twelfth Eegion which deals at length with the standards imposed and the many factors considered.

Plaintiff’s petition is dismissed.

It is so ordered.

LaRamoee,. Judge; Madden, Judge; Whitaker, Judgef and Jones, C7¿i<s/ Judger concur.

EINDINGS OR RACT

• The court, having considered-the evidence, the briefs and argument of counsel, and the report of Commissioner William E. Day, makes the following findings of fact:

1. The plaintiff is a veteran entitled to the benefits of the-Veterans’ Preference Act of 1944, 5 U. S. C. A. 863. He entered- on duty at the Naval Ordnance Test Station, Inyo-kem at China Lake, California, as a civilian employee under the Federal civil service in the position of Scientific Staff Assistant, grade GS-12. On April 1, 1951, he was-promoted to the position of Civil Engineer, grade GS-13.

2. This action is brought to recover the difference between the salary he received at grade GS-13 and the salary of the lower gradé to which he was reclassified.

No testimony was heard, the parties having closed proof on the record of exhibits filed.

3. Shortly after plaintiff’s assignment to the above position there was a reorganization of some of the staff activities and the basic function of plaintiff’s position was assigned to the Budget Division, and new position descriptions were prepared on all technical positions in that division. These-positions were desk audited in July 1951 by the Area Wage and Classification Office and submitted to the Office of Industrial Relations of the Navy Department for allocation.. Position No. 18123, which replaced the position occupied by plaintiff, was allocated by the Office of Industrial Relations-as General Engineer GS-12 on September 27, 1951. On October 18, 1951, plaintiff received an “Advance Notice of Proposed -Reassignment and Change to Lower Grade,”' wherein the plaintiff was advised as follows:

1. The duties and responsibilities of the position you now occupy, as described in Position Description No. 18123. have been analyzed and evaluated, by proper classification authorities, in accordance with government-wide classification standards. As a result, it has-been determined that the proper classification of the-position is General Engineer, GS-12.

2. This notice of proposed adverse action is provided you in accordance with Section 14 of the. Veterans’ Preference Act of 1944. You are hereby given thirty days’ advance notice of the proposal to change you to the lower grade. The notice period will begin on 22 October 1951 and will end 21 November 1951. During the notice period you will remain in an active-duty status in your present classification and grade.

3. The above proposal will also result m a reduction in compensation. However, it has been administratively determined that your salary will be $7,400.00 per annum. This is the top increment in the grade of GS-12.

4. You are hereby advised of your right to answer this notice both personally and in writing to the Commander, U. S. Naval Ordnance Test Station, within the first ten calendar days of the notice period. You may furnish any affidavit or other authenticated documentary material that you consider necessary. If you believe the classification of the position to be in error, you may answer this notice by submitting an appeal from the classification action to the. .Commander, U. S. N. O. T. S., during the ten-day period allowed for your answer. Information concerning the appeal procedures may be obtained from your department administrative office or the Wage and Classification Division of the Personnel Department. ■.

4. On October 29, 1951, the plaintiff filed with the Commander, Naval Ordnance Test Station, an “Appeal from classification action on FPD 18123” in which he stated as follows:

*****

2. I believe that classification to be. in error and I therefore appeal said classification in accordance with the provisions of NCPI 156.8-5 and request that the position be allocated at grade GS-13 as originally recommended by my supervisor. Inasmuch as I am a veteran, I understand that this appeal in no way affects or prejudices my right to appeal under the Veterans’ Preference Act of 1944.

3. Nothing has been made available to me to show how the position description was evaluated and how the classification was derived. . In order to show error, it is necessary, I believe, to indicate where the errors were committed, in the evaluation and classification process. That is manifestly impossible unless the data are made known to me. Such data are particularly essential in this instance, because, as I understand it, no clear and certain classification “standards” are available. I request, therefore, that all data showing how subject position description was evaluated and classified be made available to me at the earliest practicable time. Pending availability of the said data to me and a reasonable time to analyze it, I request that further proceedings under this appeal be stayed, this part of the appeal being considered to satisfy notice requirements of reference (a).

4. I further request, since adequate data have not been made available to me on which I can base an appeal, that notice be held in abeyance until such data are furnished; and that reference (a) be cancelled insofar as notice provisions are concerned.

5. My general belief that the classification action is in error arises from the following considerations:

(a) My present duties and responsibilities, I believe, are similar to and exceed those or PD 18001, Civil Engineer, GS-13, due to the fact that the scope and variety of the work is now greater.

(b) My present duties and responsibilities, I believe, exceed those of certain other positions at this activity classified at higher levels than GS-12. I refer specifically to PD’s 13064,18055 and 11726.

6. Based on actual experience performing tions described in subject PD, the following information is submitted:

the func-additional

(a) Supervision by the Head of the Budget Division and the Head of Staff has been nominal, and has been exclusively for coordination and transmission of established policy. In actual practice, contacts are directly with the Commander, Executive Officer, Technical Director, or Associate Director in matters falling within the purview of the position description.

Said appeal was filed by plaintiff pursuant to section 156.8-5 of Naval Civilian Personnel Instructions.

5. On November 1, 1951, the following memorandum was sent from the Head, Personnel Department, Naval Ordnance Test Station, to the plaintiff:

Subj: Notification of Decision on Advance Notice of Proposed Keassignment and Change to Lower Grade.

Ref: (a) Hd, Personnel Dept Itr NP45-651/JFS/ms of 19 October 1951 to Milton Neufeld.

(b) Veterans Preference Act, Section 14.

1. You were afforded an opportunity to reply to reference (a) during the first ten days of the notice period; however, since no reply has been forthcoming, it is the decision of this Command that you shall be reassigned from Civil Engineer, GS-13, to General Engineer, GS-12, effective 25 November 1951. This action will not, of course, reflect adversely on your employment record.

2. You are hereby advised of your right to appeal this adverse decision under the provisions of reference (b) to the Director, Twelfth U. S. Civil Servicé Region, 630 Sansome Street, San Francisco, California, immediately or within ten days of the effective date of the adverse action. Information concerning the appeal Erocedures, should you desire to appeal, may be obtained mm your department administrative office or the Employee Delations Division of the Personnel Department.

(s) R. W. Anderson

R. W. AndeRson.

In the lower left hand corner of the above letter appears the following notation:

Timely appeal was received from M. Neufeld and logged in the Classification Division 30 Oct 1951

/s/ N. J. Sempp

6. On November 23, 1951, the plaintiff was advised by a Notification of Personnel Action that his position was to be changed to a lower grade on November 25, 1951, pursuant to civil-service regulation 8.108 (a). The notice indicated that from the position Civil Engineer, grade GS-13, salary $8,360, the change would be made to the position General Engineer, grade GS-12, salary $8,040.

The notice contained the following statements under “Remarks”:

* * * *

Change to lower grade in accordance with letter to employee from R. W. Anderson, Head, Personnel Department, dated 1 November 1951. Advance 30 days’ notice of this action sent to employee under date of 18 October 1951.

The classification grade of this position is' subject to post-audit and correction by the appropriate classification authority or by the Civil Service Commission.

7. Naval Civilian Personnel Instructions, section 156.6 through 156.9, contain agency instructions applicable to such processing of job position descriptions as occurred in respect to plaintiff’s position. Section 156.7-15 provided as follows:

5. A personnel action to effectuate a classification action may be held in abeyance for the minimum time necessary to meet specified conditions in the following instances.

* * * * *

(3) Where the employee must he given an advance written notice prior to effecti/ng a reduction in his grade or salary. — (See NCPI 160.6-1.) In such cases, personnel action shall be made effective on the first day of the first pay period following expiration of the advance notice period. In such cases, notice of proposed adverse action must be given the employee within 10 days_ of receipt of notice of classification action by the activity.

Section 156.7-2 provided as follows:

7-2. RETROACTIVE GRADE OR SALART ADJUSTMENT RESULTING from an appeal. — The filing of an appeal from an AWCO classification action will not stay its effectuation.

a. Retroactive adjustment when Navy is the appellate body. — If, in any case where an employee will undergo a reduction in grade or salary as a result of classification action, a timely appeal is filed with the cognizant AWCO, such classification action is thereby made provisional in nature pending adjudication of the appeal. To be considered timely, an appeal must be filed within the following periods:

(1) An appeal made by an employee must be filed with his Commanding Officer within 10 calendar days following his receipt of the advance notice required by NCPI 160.1.

(2) An appeal made by an activity must be submitted to the AWCO within 30 calendar days following receipt by the activity of notice of the classification action which necessitated' the reduction.

If, as a result of Navy adjudication of such timely appeal, it is found that restoration or partial restoration of the grade or salary the employee received prior to reduction is required, such restoration or partial restoration shall be retroactive to the effective date of the personnel action which effected the reduction (27 Comp. Gen. 63; B-67618 of 5 August 1947).

b. Retroactive adjustment when the Civil Service Commission is the appellate body.

(1) Section 14 appeals. — When an employee appeals to the Civil Service Commission under Section 14 of the Veterans’ Preference Act of 1944, as amended, from an adverse administrative action resulting from a downward classification of his position and the Civil Service Commission finds that the position should have been classified in a higher grade asid recommends retroactive restoration of the appellant to such higher grade, such restoration (including any indicated adjustment of salary) shall be made retroactive to the effective date of the adverse action, provided that such adjustment shall apply only for such period as the employee remained in the position and continued to perform the duties substantially as theretofore (29 Comp. Gen. 107; B-87481 of 2 September 1949).

(2) Section 501 (5) appeals. — Existing law makes no provisions for retroactive adjustment of grade or salary (beyond the current pay period) when an employee appeals under Section 501 (b) of the Classification Act to the Civil Service Commission for review of the downward classification of his position and the Commission finds that the position should have been classified in a higher grade.

Section 156.8-5 provided as follows:

8-5. SUBMISSION OB APPEALS.

a. An employee-initiated appeal shall be submitted via the commanding officer of the employing field activity to the cognizant AWCO. The commanding officer’s endorsement should include comments on the accuracy of the employee’s statements and, if desired, a recommendation as to disposition of the appeal. The commanding officer will notify the appellant immediately of the date the appeal is forwarded to the AWCO.

b. An activity-initiated appeal shall be submitted to the cognizant AWCO.

c. Ail appeals submitted to AWCO’s shall be in duplicate.

Section 156.8-6 provided as follows:

8-6. Disposition op appeals.

a. If the AWCO approved the classification requested, prompt notice of the decision will be furnished the appellant.

b. If tbe AWCO cannot approve the classification requested, it will forward the appeal to OIR unless the appellant has specified that he is willing to accept reconsideration by the AWCO as final in which case t notice of the decision will be furnished the ant.

o. An appeal submitted to the OIR will be referred to a committee consisting of a representative of the Wage and Classification Division, OIR, and a representative of the management control bureau or office for the field activity concerned. The OIR committee member is responsible for analyzing and evaluating the appealed position in the light of technical classification considerations to insure conformance with applicable classification standards. The bureau or office member is responsible for reviewing the appealed position in the light of organizational considerations of concern to management, relation of the position to other positions in the same organization, and classification of comparable positions in other field activities of the same bureau or office. Agreement between the representatives on this committee shall constitute final disposition of the appeal. If the committee cannot reach an agreement, the case shall be referred to the Chief of OIR for final disposition. Upon final disposition, prompt notice of the decision will be furnished the appellant.

d. The activity concerned will be given notice of disposition in each appeal. Üpon receipt of notification of disposition, the activity shall take any personnel action necessary to effect the disposition in accordance with NCPI 166.7.

Section 156.9-4 provided as follows:

9-4. CLASSIFICATION ACTION BY THE CIVIL SERVICE COMMISSION. — The Civil Service Commission may supersede the Navy Department in the classification of any Group IVb position in the following instances:

a. On its own motion at any time under authority of Section 501 (a) of the Classification Act.

h. At the request of the Nary Department under Section 501 (b) of the Olassifioation Act. — Such requests will be made only by the Office of Industrial Relations and only when OIR concludes that action by the CSC is necessary to assure proper classification.

8. On October 21, 1952, the Chief, Office of Industrial Relations of the Navy Department, wrote to the plaintiff as follows:

Sub]: Appeal from classification of Position No. 18123, U. S. Naval Ordnance Test Station, Inyokern, California.

Kef: (a) Appeal ltr of 29 Oct 1951 and End-1 thereon, (b) AWCO ltr OIK:495.15:MC:jj of 10 Sep 1952.

1. The Field Classification Appeal Committee has reviewed and analyzed the duties and responsibilities of this position as presented on appeal.

2. It has been determined that the position is correctly classified as General Engineer, GS-801-12. Accordingly, the request for a higher classification has not been approved.

The letter from the AWCO (Area Wage Classification Office) of 10 September 1952, referred to above, is not in evidence. Action on plaintiff’s appeal had been held pending the possibility of appeals affecting other positions in the Budget Division.

9. In the meantime, the plaintiff on August 18, 1952, appealed to the Civil Service Commission, Twelfth Region, under the provisions of the Veterans’ Preference Act of 1944, from the action of the personnel department in reducing his grade. There is no evidence that a request for a hearing was included therein.

In reply to the above-mentioned appeal letter, the plaintiff was advised to request a final decision from the Navy Department.

On November 6,1952, after receipt of the letter of October 21, the plaintiff wrote a letter to the Director, Twelfth IT. S. Civil Service Region, appealing from the adverse action contained therein. No request for a hearing was included in such letter of appeal.

10. On January 30,1953, the Acting Regional Director of the Twelfth Region, Civil Service Commission, sent to the plaintiff by registered mail “Findings and Recommendations of the Civil Service Commission.” Included therein was a 10-page statement under the heading “Evidence and Analysis,” which contained the following findings:

1. The appellant’s change to lower grade is considered to be for such cause as will promote the efficiency of the [service], and for this reason it is recommended that no change be made in the personnel action effecting such change to lower grade.

2. No further appeal from this decision will be entertained' from either Mr. Neufeld or the U. S. Naval Ordnance Test Station, Inyokern, China Lake, California, unless it is submitted to the Commissioners, U. S. Civil Service Commission, Washington 25, D. C., within seven. (7) days after receipt of this decision. Notification of a further appeal should be given to this office so the case files can be transmitted promptly to the Commissioners.

Since there is no further right to a hearing, additional representations should be made in writing and submitted in duplicate with the appeal to the Commissioners.

11. The procedures prescribed in the Civil Service Commission, Federal Personnel Manual, p. S 1-29, provide in pertinent part as follows:

4. A notice to a preference eligible involving a reduction in rank (grade) as a result of a position allocation obviously cannot contain complete information regarding all the factors which were considered in determining the proper allocation. The employee is adequately informed of the reasons when the notice informs him:

а. That the downward allocation of his position is based upon a classification study and analysis and evaluation of the duties and responsibilities of his position in accordance with the Classification Act of 1923, as amended, and

б. That a determination has been made that his position was allocated too high on the basis of applicable allocation standards or as compared with similar positions, or the position is properly allocated at a certain grade, consistent with similar positions.

12. The plaintiff, on February 4, 1953, sent the following letter addressed to The Commissioners, U. S. Civil Service Commission:

This is in reference to an appeal I have made to the Twelfth IJ. S. Civil Service Regional Office under the provisions of section 14 of the Veterans’ Preference Act, concerning substantial procedural defects connected with a reduction in rank and compensation I suffered as a result of the classification of a position I occupied; and concerning also the incorrect classification of the position.

The Twelfth Region’s findings dated 30 January 1953, denied the procedural defects and upheld the existing classification. I am, therefore, appealing those findings in accordance with the procedures set forth therein. You are hereby advised that I received these findings on 2 February 1953. _ Your attention is invited to page 11 of these findings which indicate that “Since there is no further right to a hearing * * implying that a hearing has been held, or that I have in some way forfeited my rights to a hearing. No hearing has been held at which I have been present; and I accordingly assume that such statement is invalid and void.

To give me an opportunity to study the lengthy findings and to seek the advice of counsel, which requires travel from this isolated place to Bakersfield or Los Angeles each about 150 miles away, I respectfully request that I be granted a delay of 45 days in further proceedings under this appeal.

The above-quoted letter contains the only evidence in the record regarding the matter of a hearing or personal appearance by the plaintiff.

13. By letter of March 7, 1953, the plaintiff appealed the decision which had reduced his grade and asked that the findings of the Twelfth Civil Service Regional Office be set aside. Such letter reads in part as follows:

In view of the substantial procedural defects noted, I submit that the proceedings are void and I respectfully request that they be set aside, and that I be restored to my original grade and status retroactively until such time as the position is classified at the GS-13 level, or until proper notice is given of any proposed reduction in grade.

14. The Chairman of the Board of Appeals and Review of the Civil Service Commission, on July 24,1953, sent the following letter to the plaintiff:

Further reference is made to your appeal under Section 14 of the Veterans’ Preference Act of 1944 from the decision of the Twelfth U. S. Civil Service Region sustaining the action of the U. S. Naval Ordnance Test Station, Inyokern, China Lake, California, in effecting your change to lower grade from the position of Civil Engineer, GS-801-13 to General Engineer, GS-801-12, as a result of a classification audit of your position by the Department of the Navy.

The Board of Appeals and Review has made a careful study of all the facts of record, including the information furnished by you in the material you submitted to this office in support of your appeal. Upon review of the notice of proposed adverse action dated October 18,1951, it has been determined that the U. S. Naval Ordnance Test Station complied with the procedural requirements of Section 14 of the Veterans’ Preference Act with regard to notice. It also has been determined that the method used in arriving at the ap-

Hriate grade level for your position was made in ac-mce with Title V, Section 502 (a) of the Classification Act, wherein it is authorized that if no published standards directly apply, evaluation is made on the basis of consistency with published standards. The latter method was used in arriving at the GS-12 allocation, and was used in the absence of published standards directly applicable. Therefore, your position was compared with published standards of other engineering series, which were found to be applicable and valid in accordance with the act, and which are government-wide in nature. As a result, it has been determined that your current assignment is properly allocated as General Engineer, GS-801-12, the same title, series, and grade as assigned by the agency. No facts have been found which would warrant allocation of your current position in a grade higher than GS-12.

After carefully analyzing all the facts in your case, it is the decision of the Board of Appeals and Review that you received due notice of the proposed change to lower grade and that the adverse action was not taken arbitrarily or capriciously but for such cause as would promote the efficiency of the service. Accordingly, the Board has affirmed the previous decision of the Twelfth Region sustaining the action of the agency in effecting your change to lower grade through classification action.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that tire plaintiff is not entitled to recover, and the petition is therefore dismissed.

1 58 Stat. 387, 390, amended 61 Stat. 723; 5 U. S. C. (1952 ed.) 5 863.