155 F. Supp. 240 | Ct. Cl. | 1957
delivered the opinion of the court:
Plaintiff, a veterans’ preference eligible having classified Civil Service status, sues to recover the difference between the compensation which he has been receiving in grade GS-12 from August 16,1953, and the salary of grade GS-15 which he alleges he should have been receiving since August 16, 1953.
Plaintiff alleges that his claim arises under the provisions of the Veterans’ Preference Act of June 27,1944, in that certain benefits conferred on him under sections 12 and 14 thereof were illegally denied him by his employer, General Services Administration. (58 Stat. 387, 390, 5 U. S. C. 861, 863.) Plaintiff also claims that his rights under the Classification Act of October 28,1949 (63 Stat. 954,5 U. S. C.
Plaintiff, a civil service employee entitled to veterans’ preference, was employed by the War Assets Administration from March 1946 until July 1,1949. For most of that period he was Chief of the Non-industrial or General Real Estate Branch, Office of Real Property. As branch chief, plaintiff supervised other employees, and his job was classified as grade GS-15. In 1949 the volume of work in War Assets Administration diminished to such an extent that a series of reductions in force took place. Eventually that agency and several other agencies were merged into the newly created General Services Administration pursuant to the Act of June 30, 1949, 63 Stat. 377, 381, providing in section 105 as follows:
The functions, records, property, personnel, obligations, and commitments of the War Assets Administration are hereby transferred to the General Services Administration. The functions of the War Assets Administrator are hereby transferred to the Administrator of General Services. The War Assets Administration, the office of the' War Assets Administrator, and the office of Associate War Assets Administrator are hereby abolished. Personnel now holding appointments granted under the second sentence of section 5 (b) of the Surplus Property Act of 1944, as amended, may be. continued in such positions or may be appointed to similar positions for such time as the Administrator may determine.
Section 108 of that act covered the status of transferred employees as follows:
Subject to other provisions of this title relating to personnel, employees transferred by the provisions of this title shall be deemed to be employees of the General Services Administration and their reappointment shall not be required by reason of the enactment of this Act.
Pursuant to the above legislation, plaintiff and three other branch chiefs were transferred to General Services Administration following the reductions in force at War Assets Administration and the transfer of the functions of the latter agency to GSA. All four branch chiefs were transferred to the Appraisal Staff Public Buildings Service of
On April 9,1953, the Director of Personnel of GSA wrote to the Chief, Position Classification Division, U. S. Civil Service Commission, requesting that the Commission take classification action for the four positions occupied by plaintiff and the other three branch chiefs who had been transferred to GSA from WAA in 1949. The request for classification action was made under Section 501 (b) of the Classification Act of 1949, supra. Section 501 of that act provides as follows:
(a) Notwithstanding section 502, the Commission [Civil Service Commission] shall have authority, which may be exercised at any time in its discretion, to—
(1) ascertain currently the facts as to the duties, responsibilities, and qualification requirements of any position;
(2) place in an appropriate class and grade any newly created position or any position coming initially under this Act;
(3) decide whether any position is in its appropriate class and grade; and
(4) change any position from one class or grade to another class or grade whenever the facts warrant.
The Commission shall certify to the department concerned action taken by the Commission under paragraph (2) or (4). The department shall take action in accordance with such certificate, and such certificate shall be binding on all adminisrative, certifying, pay roll, disbursing. and accounting officers of the Government.
(b) Any employee or employees (including any officer or officers) affected or any department may request at any time that the Commission exercise the authority granted to it umder subsection (a) and the Commission shall act upon such request. [Italics supplied.]
Such action is considered necessary because of the unusual nature of the activities of our Appraisal Staff. These activities embrace the appraisal of an extremely wide variety of properties. The Civil Service Commission Standards for the Assessing and Appraising Series, GS-1171-0, and the Valuation Engineering Series, GS-897-0, do not appear to cover positions encompassing such a wide variety of properties.
There are enclosed descriptions of the four positions listed above. To supplement these descriptions, it is recommended that a representative of the Commission visit GSA to inspect the appraisal reports in our files. These reports graphically reflect the complexities involved in the types of appraisals members of the Appraisal Staff are called upon to perform.
Pursuant to the above request for classification action, a representative of the Civil Service Commission performed an audit of the four appraisal staff positions including the one occupied by plaintiff. On June 29, 1953, the Civil Service Commission notified the Director of Personnel of GSA that certification of the allocation action arrived at by the Commission for the position held by plaintiff in GSA would result in the downgrading of the position so held from GS-15 to GS-12, and that accordingly the certification was being postponed until the employing agency should give plaintiff the 30 days’ advance written notice of such action required in the case of an employee having veterans’ preference rights. The letter stated that the Commission proposed to certify the allocation action as of August 13, 1953, and that the agency should therefore take prompt action to give plaintiff the required 30 days’ notice.
On July 2, 1953, the Director of Personnel for GSA gave plaintiff 30 days’ written advance notice that on August 13, 1953, his job classification would be changed from Appraiser GS-1171-15-4875, at $11,800 per annum to Appraiser, GS-1171-12, at $8,040 per annum, pursuant to a notification by the Civil Service Commission that the appropriate classification of plaintiff’s position, on the basis of tasks performed therein since the transfer was Appraiser, GS-1171-12, and
Insofar as the other three former branch chiefs transferred from WAA to GSA were concerned, the Civil Service Commission classified the position held by Mr. May, as chief of the Appraisal Staff, in the grade GS-15; the position held by Mr. Dibble, as deputy chief, was classified in grade GS-14, and the classification action taken with respect to Mr. Cop-lan’s position is not indicated in the record.
At sometime prior to the request for classification action, Dibble, who was occupying the position of deputy to May, informed GSA that he intended to retire in the spring of 1953. On March 24,1953, May issued a request for personnel action asking that a Mr. Shankey be transferred from his GS-14 position with the Renegotiation Board, Division of Procurement Affairs, to a position on the Appraisal Staff of GSA, on a 30-day reimbursable detail. Shankey’s grade on the Appraisal Staff was to be GS-14, and the title of his former position and the one to which he was to be temporarily assigned in GSA was that of “Industrial Specialist”. The reason for the requested transfer was stated to be that a vacancy in the Appraisal Staff was expected to occur by reason of the retirement of one of its members.
On April 21, 1953, and again on May 19, 1953, Shankey’s 30-day reimbursable detail was extended for additional 30-day periods. On May 29,1953, GSA requested that Shankey be permanently transferred from his GS-14 position on the Renegotiation Board to a GS-15 position on the Appraisal Staff of GSA, to fill the vacancy created by the retirement on May 31, 1953, of Dibble. Shankey’s actual appointment apparently coincided with the date on which the position vacated by Dibble was certified as being a grade GS-14. On the same date, July 2,1953, plaintiff was notified that it was
Shankey was a nonveteran. At no time prior to the permanent transfer of Shankey to GSA was any consideration given to whether or not plaintiff could qualify for assignment to the deputy chief’s position which would fall vacant upon the retirement of Dibble.
Following receipt of the July 2, 1953 notice of proposed adverse action, plaintiff took a timely appeal. One aspect of his appeal alleged that his rights under the Veterans’ Preference Act of 1944, supra, had been violated in that he was not advised in full of the reasons for his demotion; that he had not received a proper notice of adverse action, and that in any event he was entitled to reassignment to the GS-14 position left vacant by Dibble’s retirement, in preference to Shankey, a nonveteran.
The other aspect of plaintiff’s appeal dealt with the classification action itself and urged that the classification action of the Commission was not based on the actual duties and responsibilities of the position held by plaintiff but rather on “administrative action personal to” the plaintiff; that a full description of plaintiff’s duties and responsibilities was never given to the Commission, and that no proper application of the Commission’s position classification standards had been made to the duties and responsibilities of plaintiff’s position.
Insofar as plaintiff’s appeal was concerned with the merits of the new classification of his job, the appeal was considered by the Chief of the Classification Audit Section, Position Classification Division, Civil Service Commission, and on October 23, 1953, plaintiff was notified that a review of the facts in his case did not warrant classification of the position held by him to a grade higher than GS-12. Plaintiff was advised that he might appeal to the Commission’s Board of Appeals and Review.
Plaintiff’s appeal under the Veterans’ Preference Act of 1944, supra, was considered by the Chief Law Officer of the Commission. A hearing was held on October 14, 1953, on this aspect of plaintiff’s appeal, and on November 20, 1953, plaintiff was advised that the downgrading action was
With respect to plaintiff’s claim that under the provisions of the Veterans’ Preference Act of 1944, supra, he should have been reassigned to the GS-14 position on the Appraisal Staff to which position a nonveteran from outside the agency was appointed on the same date that plaintiff received his notice of proposed downgrading, the Chief Law Officer of the Civil Service Commission merely stated that the claim was “without merit” and that
There is no law or regulation of the Commission which requires such a reassignment in a classification case such as that presently being considered. The appellant’s contention that his retention rights under the reduction in force regulations have been adversely affected through his demotion and the simultaneous appointment of a non-veteran by reason of placing him in a vulnerable competitive level, is not a matter for consideration in the instant appeal nor is it germane to the issue at hand. [Italics supplied.]
On May 4,1954, the Chairman of the Civil Service Board of Appeals and Review affirmed the decision of the Chief Law Officer, sustaining under Section 14 of the Veterans’ Preference Act, the action of GSA downgrading plaintiff from GS-15 to GS-12 as a result of classification action. With respect to the notice of.proposed downgrading, the Board stated that the notice was of the type provided for in the Federal Personnel Manual and was adequate to enable plaintiff to prepare and submit his defense to the proposed action.
With respect to plaintiff’s claim that he should have been reassigned to the GS-14 position which was given to the nonveteran transferred to the Appraisal Staff, the Board of Appeals and Review merely repeated the statement made by the Chief Law Officer that “There is no law or Commission regulation which requires such a reassignment in a classification case of this nature.”
On June 9, 1953, the Board of Appeals and Review wrote to plaintiff refusing to reopen the Veterans’ Preference Act aspect of plaintiff’s appeal.
We are of the opinion that the Civil Service Commission was correct in its conclusion that plaintiff’s rights under section 14 of the Veterans’ Preference Act of 1944, supra, were not violated with respect to the types of notices given him in connection with his downgrading. On the other hand, there appears to be considerable merit to plaintiff’s contention that his rights under section 12 of the Veterans’ Preference Act were infringed when, on the occasion of the downgrading of plaintiff’s position, he was not reassigned to the GS-14 position to which a nonveteran was transferred from another government agency on the day plaintiff was notified of the proposed downgrading.
In any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings: Provided, That the length of time spent in active service in the armed forces of the United States of each such employee shall be credited in cOmputing length of total service: Provided Further, That preference employees whose efficiency ratings are "good" or better shall be retained in preference to all other competing employees and that preference employees whose efficiency ratings are below "good" shall be retained in preference to competing nonpreference employees who have equal or lower efficiency ratings: A'nd provided further, That when any or all of the functions of any agency are transferred to, or when an~y agency is replaced by, some other agency, or agencies, all preference employ~es in the function or functions transferred or in the agency which is replaced by some other agency shall fir~t be transferred to the replacing agency, or agencies, for employment in positions for which they are qualified, before such agency, or agencies, shall appoint additional employees from any other source for such positions. [Italics supplied.]
Tbe Civil Service regulations issued to carry out the above-quoted section 12 are found in Part 20 of Title 5 of the Code of Federal Regulations.
Upon the liquidation of War Assets Administration and the consolidation of its remaining functions with the newly formed General Services Administration, plaintiff, a veterans’ preference eligible with civil service status, was transferred to the new agency in accordance with section 12 above and the Civil Service Regulations issued thereunder. The position to which plaintiff was transferred was not that of a branch chief, but rather that of an appraiser. However, the grade and pay of the new position was the same as the job which plaintiff had occupied in WAA, i. e., GS-15. Defendant says that this was because the new General Services Administration had not yet had time to properly classify its many positions. Over three years later, in the spring of 1953, GSA got around to the problem of securing proper
Nothing in this Act shall be construed to affect the application to officers and employees to whom this Act applies of the veteran-preference provisions in the Civil Service Act, as amended, and the Veterans’ Preference Act of 1944, as amended.
We have had occasion in the past to rule on the applicability of section 12 of the Veterans’ Preference Act of 1944 to demotions, as distinguished from discharges, of veterans. In Adler, et al. v. United States, 129 C. Cls. 150, reductions in grade of certain supervisory employees occurred as a re-
We are of the opinion that plaintiff’s demotion was incident to a reduction in force. As stressed by the Civil Service Commission, by GSA, and by the defendant, the change in the classification and grade of plaintiff’s position in GSA from GS-15 to GS-12 was not based on any finding that plaintiff’s qualifications and abilities were such that he could only perform the duties and responsibilities of the GS-12 position on the Appraisal Staff of GSA, but rather resulted from the fact that the particular position in which plaintiff found himself after the merger of WAA with GSA, required only the performance of duties and responsibilities of a GS-12 level. A certain amount of confusion has been injected into the situation by reason of the fact that the classification or reclassification of plaintiff’s position in GSA was not undertaken until more than three years after he was transferred to that position at the same grade he had held at GSA, and during that interim period, plaintiff continued to have the grade and pay of GS-15. If we disregard the time element, what actually happened to plaintiff was that upon the liquidation of War Assets Administration in 1949, a reduction in force took place in the division in which plaintiff served as a branch chief, GS-15, supervising a number of appraisers. Because of his higher retention points reflecting length of service, civil service status, and veterans’ preference, plaintiff was not reached for dismissal, but was transferred to GSA and placed in a position which was in fact a lower grade position than the one he had held in the liquidated
We are of the opinion that on the authority of the decisions of this court in Adler, supra, and Paries, supra, plaintiff was entitled to “bump” the nonveteran hired from outside the agency if plaintiff possessed the necessary qualifications to perform the duties and responsibilities of the GS-14 position.
Defendant contends that the nonveteran hired from outside the agency and given the GS-14 position vacated by Dibble, was better qualified to perform the duties of the position by virtue of his experience as a “valuation engineer.” No such justification for denying plaintiff’s appeal was advanced at the time he sought to enforce his rights to that position or at the times of his appeals to the Civil Service Commission. We are of the opinion from the record that GSA never considered the matter of whether plaintiff was qualified to fill the GS-14 position left vacant upon the retirement of Dibble. On the contrary, instead of considering plaintiff’s possible reassignment to the position of deputy chief, which position GSA must have known would receive a higher grade as a result of the pending classification action than the position of staff appraiser occupied by plaintiff, GSA made arrangements to employ in a permanent capacity a nonveteran from another agency. When plaintiff
Inasmuch as plaintiff’s right to be reassigned to the grade GS-14 position before a nonveteran from outside the agency could be employed to fill it, was never actually considered on its merits by GSA or by the Civil Service Commission, we are of the opinion that plaintiff’s demotion to grade GS-12 was, under the facts and circumstances of this case, procedurally defective. It was not until plaintiff brought his suit in this court that defendant gave any consideration to plaintiff’s actual qualifications for the GS-14 job which he was denied, and, although we do not believe that defendant can remedy the procedural defect noted above by testimony before this court relating to plaintiff’s qualifications, we are of the opinion that the testimony offered with reference thereto is not convincing and that defendant has not established that plaintiff lacked sufficient qualifications to perform the duties and responsibilities of the GS-14 position.
The GS-14 position in question required the incumbent to act as deputy to the chief of the Appraisal Staff. Approximately 30 percent of the deputy’s time was spent in supervising the work of nine appraisers. The appraisers, whose work the deputy was required to supervise, performed appraisals of industrial projects and non-industrial projects. The deputy was also required to perform such appraisals himself when not occupied with supervisory and administrative work. Up to the time the downgrading took place, plaintiff’s work as an appraiser had been largely
We are of the opinion that plaintiff’s rights under section 12 of the Veterans’ Preference Act of 1944, supra, have been violated and that he is entitled to recover. Inasmuch as his enforceable rights in this case relate not to the GS-15 position but rather to the GS-14 position, his recovery will be limited to the difference between the pay of the GS-14 position and the GS-12 position from the date he first began receiving the reduced pay to the date of settlement, at the rate of pay applicable to the two positions during that time. Plaintiff is entitled to recover and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Eule 38 (c) of the Buies of this court.
It is so ordered.
FINDINGS OF FACT
The court, having considered the evidence, the report of Commissioner Paul H. McMurray, and the briefs and arguments of counsel, makes findings of fact as follows:
1. Plaintiff, a citizen of the United States, is a veterans’ preference eligible having classified civil service status. At the time of the filing of his petition in 1954, plaintiff had been in the classified service for over 30 years, and, counting his military service, had total creditable service of approximately 35 years.
2. Plaintiff was employed by the War Assets Administration from March 1946 until July 1, 1949. For the greater part of this period he was Chief of the Non-industrial Branch
In 1949 the volume of work of the War Assets Administration diminished greatly. This resulted in a series of reductions in force in that agency and eventually a merger of it and several other agencies into the newly-created General Services Administration (Federal Property and Administrative Services Act of 1949, Public Law 152, 81st Cong. 1st Sess. 63 Stat. 377). Thereafter, plaintiff and three other branch chiefs of the old WAA Appraisal Division were transferred to the Appraisal Staff, Public Buildings Service, General Services Administration, pursuant to section 105 of Public Law 152, supra.
4. On April 9,1953, the Director of Personnel for General Services Administration requested the Civil Service Commission, Position Classification Division, to take classification action for the four positions occupied by plaintiff and the other three former branch chiefs, as follows:
In accordance with Section 501 (b) of the Classification Act of 1949 [63 Stat. 954, 958], as amended, it is requested that the Civil Service Commission take classification action for the following positions in this Administration:
Position Number Occupied, by
PC-4056_Arthur A. May
PC-4057_Walter P. Kirby
PC-4058_Ayden A. Dibble
PC-4135_Benjamin J. Coplan
Such action is considered necessary because of the unusual nature of the activities of our Appraisal Staff. These activities embrace the appraisal of an extremely wide variety of properties. The Civil Service Commission Standards for the Assessing and Appraising Series, GS-1171-0, and the Valuation Engineering Series, GS-897-0, do not appear to cover positions encompassing such a wide variety of properties.
_ There are enclosed descriptions of the four positions listed above. To supplement these descriptions, it is recommended that a repressentative of the Commission visit GSA to inspect the appraisal reports in our files. These report graphically reflect the complexities in:*109 volved in the types of appraisals members of the Appraisal Staff are called upon to perform.
* # * # *
5. Pursuant to the above request, the Civil Service Commission performed an audit of the four positions on the Appraisal Staff of GSA and determined that the position occupied by Mr. May as chief of the staff, should be classified as GS-15. The position held by Mr. Dibble, as deputy to Mr. May, was classified as GS-14. The record does not disclose what classification was given to the position occupied by Mr. Coplan. It wras proposed to classify the position occupied by Mr. Kirby, plaintiff herein, as GS-12, but inasmuch as such classification involved a three grade demotion, and Mr. Kirby was a veterans’ preference eligible, the following letter dated June 29, 1953, was sent to GSA by Civil Service Commission:
The certification of an allocation action identified below is being withheld in order that you may give the incumbent, reported to us to be a preference eligible employee, 30 days’ advance written notice of this action as provided in Departmental Circular No. 535. The Commission will certify action on the date specified below, and it is therefore necessary that you take prompt action to give the necessary notice to the incumbent.
Bureau-Public Buildings Service
Title of position_Appraiser
Name of Incumbent-Walter P. Kirby
Present Grade_GS-1171-15-4875
Grade Proposed_
Grade to be Certified_GS-1171-12
Title to be Certified_Appraiser
Date to be Certified_August 13, 1953.
6. Upon receipt of notice of the classification allocation from the Civil Service Commission, the General Services Administration sent a letter, dated July 2, 1953, to plaintiff, as follows:
In response to the request of this Administration, the Civil Service Commission under Section 501 of the Classification Act of 1949, as amended, has analyzed and evaluated the duties and responsibilities that you are performing. This office has been notified that the appropriate classification of your position, on the basis of these tasks, is Appraiser, GS-1171-12.
*110 Accordingly, the action of the General Services Administration in placing into effect the Commission’s findings, although an action adverse to your personal interests, is considered an action that will promote the efficiency of the service.
You are hereby given 30 days’ notice of a change from Appraiser, GS-1171-15-4875, at $11,800 per annum, to Appraiser, GS-1171-12, at $8,040 per annum. The change to lower grade will be made effective at the beginning of the first pay period following August 13, 1953, the date of the certification of the allocation action by the Civil Service Commission. During, this thirty day advance notice period you will remain in an active duty status at your present grade and salary.
You have the right under the Classification Act to appeal the classification of your position to the U. S. Civil Service Commission, Washington, D. C. This type of appeal should be filed within thirty days after receipt of this notice in order to assure restoration of back salary if action on the appeal is favorable.
You also have the right of appeal to the Commission, under Section 14 of the Veterans’ Preference Act of 1944 if you believe that factors others than the proper classification of your position have a bearing on the proposed action. The time limit on filing a Section 14 appeal is ten days after the effective date of the change to lower grade.
If you appeal to the Civil Service Commission, it is urged that you submit the appeal to the Commission through the Personnel Division of General Services Administration. Information concerning the appeal procedures may be obtained from the Personnel Division, Employee Eelations Section, Koom 7212, General Services Administration Building.
Upon receipt of this notification of proposed action, please sign and date the enclosed copy and return it to the Employee Eelations Section.
7. Prior to the date on which GSA asked the Civil Service Commission to take classification action for the four positions occupied by the four former WAA branch chiefs, GSA knew that the position occupied by one of those men, Mr. Dibble, would become vacant in May or June 1953. Accordingly, on March 24, 1953, Mr. May, Chief of the Appraisal Staff,-initiated a “Bequest for Personnel Action” requesting that a Mr. Joseph I. Shankey who was employed in a GS-14 position with the Benegotiation Board, Division
On May 21, 1953, Mr. May requested an extention of the above 30-day detail beginning May 1, 1953, and on May 19, 1953, Mr. May requested a second extension of the 30-day detail beginning June 1, 1953. In each request it was noted that Shankey was to be transferred from a GS-14 position in the Renegotiation Board to a GS-14 position on the Appraisal Staff of GSA.
On May 29,1953, Mr. May requested the permanent transfer of Shankey to a position on the Appraisal Staff of GSA left vacant by the retirement on May 31, 1953, of Dibble. The proposed effective date of the transfer was to be June 15, 1953. The grade of the position to which Shankey was to be transferred was changed to GS-15, presumably because Dibble’s position had not yet been reclassified to GS-14 by the Civil Service Commission. As soon as the position vacated by Dibble and filled by Shankey was certified by Civil Service Commission as a GS-14 job, Shankey was paid the salary of that grade. The record does not reflect the precise date on which this certification took place, but it appears to have been on July 1 or July 2,1953.
8. The position on the Appraisal Staff which was classified as being a grade GS-14 position, differed in duties and responsibilities from the position held by plaintiff and classified by Civil Service Commission as a GS-12, in that the GS-14 position was deputy to the position of the chief of the staff, required the holder of the position to exercise the supervisory and administrative duties of the chief in his absence (about 30 percent of his time was so spent), and required a knowledge of how to appraise industrial projects as well as non-industrial projects. The position held by plaintiff did not require the incumbent to appraise industrial
9. As far as plaintiff’s capabilities to perform the functions of the deputy chief GS-14 position are concerned, plaintiff was an experienced supervisory and administrative employee and was fully qualified in that respect. As an appraiser, he had had a great deal of experience appraising non-industrial proj ects. Although his position in GS A did not require him to perform appraisals of industrial projects, it appears reasonable to conclude that as a result of his more than three years on the Appraisal Staff where industrial appraisals were being made, and his periods of acting as deputy chief or chief of the section, and thus supervising the work of the industrial projects appraisers, he must have had considerable knowledge of the problems involved in making an industrial appraisal.
Up to the time of Shankey’s appointment to the deputy chief, GS-14 position in July 1958, it does not appear to have occurred to anyone in GSA to consider whether or not plaintiff was qualified to take over the duties of the retiring deputy chief, or whether, with a reasonable amount of breaking-in, plaintiff could have secured the necessary skills to appraise and supervise the appraisal of industrial projects.
At some time subsequent to Shankey’s permanent appointment to the position of deputy chief, the chief of the section, Mr. May, suggested to plaintiff that a grade increase might be secured for him if he could demonstrate his ability to appraise industrial projects. In connection with what May characterized in his testimony as “this connivance”, plaintiff, with some assistance from other staff members, actually performed an industrial project appraisal satisfactorily.
At the time of plaintiff’s downgrading plaintiff was fully qualified to perform all the duties and responsibilities of the position of deputy chief, GS-14, except for the making of industrial appraisals, and, with a minimum of additional experience in that field, plaintiff was qualified to perform all the duties and responsibilities of the GS-14 position.
At no time did the Personnel Division of General Services Administration consider the possibility of certifying plain
10. On August 4, 1953, plaintiff answered the notice of proposed downgrading. In his letter he stated that he was “taking the required initial action to appeal from the adverse action by this administration and the Civil Service Commission as set forth in your letter of July 2.” He indicated that the classification decision was incorrect, setting forth several reasons for disagreeing with the proposed downgrading of his position. A lengthy, detailed position description prepared by plaintiff and considered by him as a fuller and more accurate description of the duties and responsibilities of his position was enclosed with his letter. Plaintiff also included with his appeal a letter dated August 4, 1953, from his superior, the Chief of the Appraisal Staff, to the Director of Personnel, General Services Administration, stating in part as follows:
Referring to the attached letter from Mr. Walter Kirby of my staff I am in full support of this appeal. It may well be that his present duties do not, in fact, merit a grade 15 job. At the same time I feel the duties have been grossly underscoped in rating this job at Grade 12. I feel confident that it would be impossible to recruit a new employee having the qualifications necessary for the efficient performance of these duties at Grade 12.
The appeal of the plaintiff dealt with the merits of the proposed classification and no allegations of discrimination, bias, personal prejudice or similar action against plaintiff were asserted in this first letter of appeal. Such allegations were subsequently made, however, in an affidavit executed August 25,1953, as an appeal under Section 14, of the Veterans Preference Act of 1944.
11. By letter of August 1Y, 1953, the Director of Personnel, General Services Administration, acknowledged receipt of plaintiff’s appeal with enclosures and indicated that the appeal had been previously sent to the Commission and its receipt acknowledged by that Agency.
12. A notice of change in grade from GS-15 to GS-12, dated August 14,1953, was sent to plaintiff. The notice was
13. On August 18,1953, the Director of Personnel, General Services Administration, answered a letter request from the Civil Service Commission for an administrative report and recommendation relative to plaintiff’s appeal then pending before the Commission. The Director of Personnel called attention to the fact that the classification action being appealed was the Commission’s own action, taken in response to the General Services Administration’s request of April 9, 1953, for a Commission audit of the position involved. The essential facts concerning the case had been transmitted in the letter request of April 9, 1953, or obtained by the Commission’s own classifier during the latter’s audit of the position. No further information was transmitted to the Commission.
14. On August 25, 1953, plaintiff sent an affidavit to the Commission stating that he wished to “appeal under Section 14, Veterans Preference Act, the action of the General Services Administration and Civil Service Commission in reducing me in grade and compensation from Appraiser, GS-15, $11,800 per annum to Appraiser, GS-12, $8,040 per annum.”
Plaintiff’s appeal is quoted in part as follows:
That deponent is entitled to enter an appeal with said Commission in protest to the aforementioned adverse action under the Preference Act of 1944 by reason of having completed a probationary period in a position under the Classification Act and thus establishing Civil Service status. Deponent believes that notice served on deponent July 2,1953 (received July T, 1953) advising deponent of his proposed grade reduction does not comply with the mandatory requirements of the Veterans Preference Act of 1944 (Sec. 14, 58 Stat. 390) as amended, for the following reasons, such reasons being partially stated in deponent’s letter dated August 4, 1953, to Director of Personnel, General Services Administration, in reply to said notice of July 2,1953.
*115 1. The mere statement tbat such action would promote the efficiency of the service is not sufficiently definite without stating in what respect or for what reason the efficiency of the service would be promoted by such demotion.
2. Said notice of July 2,1953 does not contain a statement setting forth a particularization of the reasons for the proposed action notwithstanding the fact that the Statute emphasizes and delineates that the notice should be such that it would state any and all reasons particularly and in detail. The deponent believes and therefore alleges that these requirements of the Statute are mandatory and that, while the Civil Service Commission has the authority and right to promulgate regulations implementing the Veterans Preference Act, and that such regulations, if proper, would have the effect of law, no regulations would be proper or legally issued if it had the effect of nullifying the mandatory provisions of an Act of Congress.
The Veterans Preference Act of 1944 (Sec. 14, 58 Stat. 390, as amended; Title 5, U. S. Code, Section 863) provides that any person whose reduction in rank or compensation is sought shall have at least thirty (30) days written advance notice setting forth that the proposed action is being accomplished:
(1) “For such cause as will promote the efficiency of the service”; and
(2) “For any and all reasons given in writing.”
Thus, under the Statute, there are two distinct requirements to be satisfied. The first requirement calls for a general statement that the proposed action is being taken in the interests of the service. The second requirement calls for a statement setting forth a particularization of the reasons of the proposed action. In outlining the notice procedure, the statute further emphasizes and delineates the notice as one “stating any and all reasons specifically and in detail.”
In this regard, see Norden v. Royall, 90 F. Supp. 834 (D. C. 1949) wherein the Court said (p. 835) :
“Inasmuch as the plaintiff was appointed for an indefinite period, the grounds for this discharge were insufficient and any discharge upon the general ground that it would promote the efficiency of the service is not sufficiently definite without stating in what respect or for what reason the efficiency of the service would be promoted by his discharge.”
Thus, the provisions in the statutory section prescribing the information which must be given in connection*116 with a reduction in rank or compensation contemplates two separate and distinct statements; the first of a general nature, and the second of a specific type.
The Court of Claims considered the statutory requirements in Stringer v. United States, 90 F. Supp. 375 (Court Claims, 1950) where the plaintiff was given 29 rather than 30 days notice as required by the section quoted above. The proposed action was held invalid by the Court of Claims in a ruling which categorically established that the requirements of the statute must be observed.
“The requirements of Section 14 are specific and mandatory. Neither this Court, nor the Civil Service Commission, nor the Chief of Engineers can disregard them. Strict compliance is required.”
3. That deponent believes and therefore alleges that the Commission’s classification was based on administrative action personal to the deponent and not on the duties and responsibilities of the position. In this connection deponent further believes and alleges that the Commission’s classification was made according to a pre-determined organizational pattern established by officials of the General Services Administration prior to the position audit and that has entered into the reduction in question.
4. That deponent believes and therefore alleges that the position description as originally prepared and approved by his supervisor was arbitrarily changed by a representative of the Personnel Classification Branch, General Services Administration, to fit the' aforementioned predetermined organizational pattern established for the Appraisal Staff, PBS, General Services Administration, and thus failed to give the Commission a true picture of deponent’s duties and responsibilities.
5. That deponent believes and therefore alleges that prior to July 2,1953 the Commission informally advised the General Services Administration that deponent’s duties and responsibilities would be classified as GS-12. Yet on July 2,1953, the date of deponent’s notice of proposed action, a non-veteran was appointed to a GS-14 position on the Appraisal Staff. In this connection, attention is invited to Chapter 31-34, Federal Personnel Manual which reads, in part, as follows: “Such a.classification relates only to the position, such a decision is not a direct instruction to the agency to reduce the rank of the incumbent comparable to a direct instruction to an agency to separate an employee. For example, if an employee’s position is classified in a lower grade the*117 employing agency may decide to reassign Mm to some other position so that it will not be necessary to reduce him in rank (grade) or compensation.” Thus, it is clear that the deponent should have been assigned the duties and responsibilities classified as GS-14 simultaneously with deponent’s reclassification, and, which were arbitrarily given to the non-veteran appointee. Thus, it is clear that an action adverse to the deponent (veteran) could have been readily avoided.
6. That deponent believes and therefore alleges that duties were arbitrarily withheld and taken away from him so that his position would have to be classified downward. As stated by the deponent in his reply of August 4, 1953 to the notice of proposed action of July 2,1953, the only change in deponent’s duties and responsibilities from the date of original allocation at the GS-15 level was a lessening of supervisory responsibility. In connection with the deponent’s belief that duties were arbitrarily taken away from him, it is pointed out that the aforementioned non-veteran was designated to serve as Acting Chief of the Appraisal Staff in the absence of the Chief although such non-veteran was only serving with the Appraisal Staff by detail from another agency preparatory to his official entrance on duty July 2, 1953. Prior to the non-veteran’s assignment to the Staff, the deponent served from time to time in the aforementioned capacity of Acting Chief and believes that the discontinuance of the related Supervisory functions ultimately had an adverse effect on his classification. The latter point seems clear in view of the fact that the position to which the non-veteran was appointed July 2, 1953 held up at GS-14 because of the supervisory factor while the deponent’s position was determined to be no better than GS-12.
7. That deponent believes and therefore states that there is a serious question of whether there has been a proper application of the Commission’s position classification standards to the duties and responsibilities of the position notwithstanding the fact the Commission was not furnished a full and complete description of the position occupied by the deponent. Deponent’s belief in this respect is based on his lack of understanding as to how a subsequent audit of his position which six years prior was allocated at the GS-15 level can now justify a reallocation of the position to one three grades lower.
8. Deponent believes and therefore alleges that his retention rights under reduction in force regulations have*118 been adversely affected through his demotion, and the simultaneous appointment of the aforementioned non-veteran by reason of placing the deponent in a vulnerable competitive level.
9. That deponent believes and therefore alleges that regardless of any rights which deponent may have stemming from the Veterans Preference Act that because of the nature of his duties and responsibilities, and the conditions of original allocation made by the Civil Service Commission the action which is being taken is unjustified and entirely too drastic.
Finally, the foregoing statements are made without prejudice to his rights to make further allegations in a hearing before the Commission on the subject matter regarding the demotion action being arbitrary and capricious, prejudicial, discriminatory or otherwise.
15. On August 81, 1953, plaintiff received a letter from the Chief Law Officer of the Civil Service Commission acknowledging receipt of his appeal. It was stated therein that the reduction in plaintiff’s grade involved a classification of his position by the Civil Service Commission, that there was no adverse decision of the General Service Administration in this respect, and that Section 14 was not applicable to the correctness of the classification. Plaintiff was advised that the classification action resulting in his downgrading was being referred to the Position Classification Division of the Commission for review. It was further stated that:
* * * It is recognized by the Commission that elements may be alleged in such cases that have no bearing on the classification decision, but fall within the scope of Section 14. Accordingly, independently of the appeal to the Position Classification Division, the case is being considered under the provisions of Section 14 and it has been docketed for investigation and adjudication in this connection.
16. On October 13,1953, plaintiff was notified by the Position Classification Division of the Civil Service Commission that, after careful consideration of the facts in his case, it had been determined that the duties and responsibilities of the position held by him did not warrant its reallocation to a grade higher than GS-12 and that, accordingly, his appeal on the merits of the classification action was denied. Plain
17. On October 14, 1953, a hearing was held before an Appeals Examiner of the Civil Service Commission in connection with plaintiff’s claim that the downgrading had been violative of his rights under the Veterans’ Preference Act of 1944.
18. On November 9, 1953, plaintiff appealed the adverse decision of the Position Classification Division to the Civil Service Board of Appeals and Review. He submitted with his appeal an extensive position description prepared by his supervisor and also a description of a position he had formerly held in another agency, in an effort to show that his position had received too low a classification.
19. On November 20, 1953, the Chief Law Officer of the Civil Service Commission sent to plaintiff the findings and recommendations issued in connection with plaintiff’s appeal under the Veterans’ Preference Act of 1944.
20. With respect to plaintiff’s claim that the notice of proposed downgrading did not comply with the requirements of section 14 of the Veterans’ Preference Act in that it did not state in full the reasons for the downgrading, the decision of the Chief Law Officer stated as follows:
* $ * $ $
The position of the Commission with respect to the specificity and detail necessary in a notice of proposed downgrading due to a classification action is stated in the Federal Personnel Manual, p. Sl-29 as follows:
“A notice to a preference eligible involving a reduction in rank (grade) as a result of a position classification obviously cannot contain complete information regarding all factors which were considered in determining the proper classification. The employee is adequately informed of the reasons when the notice informs him:
“a. That the downward classification 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 * * * and,
“b. That the classification of his position was determined on the basis of the applicable classification standards.”
*120 The purpose of the requirement that a preference eligible employee be given any and all reasons, specifically and in detail, is so that he will be in a position to properly prepare and submit his defense to the adverse action proposed. The notice of July 2,1953, which was given to Mr. Kirby was the type of notice provided for in the Federal Personnel Manual, was adequate to enable him to prepare and submit his defense, and fully met the requirements of the law and Regulations.
Plaintiff did not receive a notice of adverse decision from the General Services Administration other than that represented by Standard Form 50, “Notification of Personnel Action,” dated August 14, 1953, to become effective August 16, 1953. The Chief Law Officer decided that this constituted the final adverse decision required under the law and applicable Regulations. He also considered the various charges of arbitrary action and administrative action personnel to plaintiff raised initially on the appeal to the Commission and found that the downgrading was in no way based on action personal to plaintiff, but was rather the result of a normal classification action.
21. With respect to that portion of plaintiff’s appeal which claimed that plaintiff was entitled under the provisions of the Veterans’ Preference Act of 1944 to be assigned to the GS-14 position in preference to the non-veteran brought into the agency and assigned to that position on the very date plaintiff was given the notice of proposed downgrading, the decision of the Chief Law Officer of the Civil Service Commission merely stated that the contention was “without merit.” and that
There is no law or regulation of the Commission which requires such a reassignment in a classification case such as that presently being considered. The appellant’s contention that his retention rights under reduction in force regulations have been adversely affected through his demotion and the simultaneous appointment of a non-veteran by reason of placing him in a vulnerable competitive level, is not a matter for consideration in the instant appeal nor is it germane to the issue at hand.
The Chief Law Officer concluded that the rights of plaintiff as a veteran had not been violated.
23. On April 27, 1954, the Board of Appeals and Review affirmed the classification action of the Civil Service Commission allocating his position to grade GS-12.
24. On May 4, 1954, the Board of Appeals and Review affirmed the adverse decision of the Chief Law Officer of the Civil Service Commission. With respect to plaintiff’s claim that the notice of downgrading did not meet the requirements of section 14 of the Veterans’ Preference Act of 1944, the Board of Appeals and Review stated that the notice given plaintiff was the type of notice provided for in the Federal Personnel Manual and was adequate to enable plaintiff to prepare and submit his defense. With respect to plaintiff’s claim that GSA had failed to render an adverse decision concerning the downgrading in accordance with Civil Service regulations, the Board stated that the Standard Form 50 — “Notification of Personnel Action” which reflected plaintiff’s “Change to Lower Grade” on August 16, 1953, constituted the final adverse decision required by the regulations of the Civil Service Commission.
With respect to plaintiff’s claim that he was entitled, under the Veterans’ Preference Act (section 12), to be reassigned to the GS-14 position in preference to the non-veteran, Shankey, the Board stated:
Your third contention appears to be that you should have been assigned to the duties and responsibilities of the GS-14 position on the Appraisal Staff, to which position a non-veteran was appointed on the same date you received your notice of proposed downgrading. There is no law or Commission regulation which requires such a reassignment in a classification case of this nature.
In conclusion, the Board stated that plaintiff’s downgrading from GS-15 to GS-12 was the result of a “normal, regular, classification action,” and that none of his rights as a veteran had been violated in such 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 plaintiff is entitled to recover, and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Rule 38 (c).
In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered May 7, 1958, that judgment for the plaintiff be entered for $11,025.43.
The name of the Non-lndustrlal Branch was changed to the General Real Estate Branch In 1948.
Sec. 105. “The functions, records, property, personnel, obligations, and commitments of the War Assets Administration are hereby transferred to the General Services Administration. The functions of the War Assets Administrator are hereby transferred to the Administrator of General Services. The War Assets Administration, the office of the War Assets Administrator, and the office of Associate War Assets Administrator are hereby abolished. Personnel now holding appointments granted under the second sentence of section 5 (b) of the Surplus Property Act of 1944, as amended, may be continued in such positions or may be appointed to similar positions for such time as the Administrator may determine.”