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REEBER v. ROSSELL

July 3, 1952

REEBER
v.
ROSSELL et al.



The opinion of the court was delivered by: MCGOHEY

Both sides move for summary judgment. The plaintiff's motion is denied. Defendant's motion is granted. *fn1"

Plaintiff is an honorably discharged veteran of World War II who began to work at the Brooklyn Regional Office of the Veterans Administration on or about May 28, 1946. Defendant Rossell is Regional Director of the Second United States Civil Service Region of the United States Civil Service Commission. The other two defendants are officers of the Brooklyn Regional Office of the Veterans Administration.

 Plaintiff seeks a judgment declaring defendants' action in separating him from his employment to be null, void and illegal in violation of the Act of 1912, 5 U.S.C.A. § 648, and the Veterans' Preference Act of 1944, 5 U.S.C.A. § 861. He also asks for an injunction against his removal, separation or reduction in rank or salary.

 By notice dated April 19, 1950, which superseded an earlier like notice, plaintiff was informed that because of a reduction in force his active duty would be terminated on May 19, 1950. Plaintiff's appeal from this notice was denied by the Second Civil Service Region. The letter from defendant Rossell so notifying the plaintiff was dated May 10, 1950, and it stated that under the existing Civil Service Commission Regulations *fn2" governing reductions in force plaintiff, as a veteran with competitive civil service status and an efficiency rating of not less than 'Good,' was 'entitled * * * to reassignment to a continuing position within the commuting area for which you are fully qualified provided there is such a position which is either vacant or held by an employee in a lower retention subgroup.' The letter went on to say that the Veterans Administration had not violated any of plaintiff's rights under the regulations in not assigning him to another position even though there were positions in the commuting area for which he met the basic qualifications but for which he was not fully qualified- that is, which he could not fill without additional training.

 Plaintiff appealed this determination to the Civil Service Commission and on May 16, 1950, commenced the instant action. A temporary injunction granted on June 8, 1950, *fn3" is still in effect. Thus the plaintiff continues to be employed by the Veterans Administration although, according to the affidavit of its present Personnel Officer, 'there has been no salary appropriation from which to pay him and his salary is being met by refraining from filling necessary positions in the officer where he is employed and by refraining from promoting deserving employees.' The Civil Service Commission denied plaintiff's appeal on September 8, 1950.

 There is no issue here as to any material fact.

 Plaintiff claims that he has an absolute right to be retained; that under the Acts of 1912 and 1944 he may not because of a reduction in force be separated since he has competitive civil service status and an efficiency rating of good or better. This contention squarely contravenes the regulations under which the defendants acted. The question then is whether these regulations are valid, because it is not claimed that they were violated or improperly applied to the plaintiff.

 Plaintiff contends initially that the decision granting the preliminary injunction upheld his position; that it is the law of this case and thus requires summary judgment in his favor. I disagree. The judge who granted the preliminary injunction said in his opinion, 91 F.Supp. at page 112, 'Without going too deeply into the merits of this action, it is apparent that the causes of action herein sufficiently allege a breach of the above unambiguous law * * *.' The pertinent question there before the court was whether the injunction power should be used to protect the plaintiff's rights and position pending final determination of the issues on the merits. The judge therefore was undoubtedly correct in saying that determination of that limited question did not require 'going too deeply into the merits'. The motions before me, however, require full consideration. And so I think I am not absolved by the 'law of the case' doctrine from fulfilling that requirement. It seems to follow that the earlier decision is not controlling.

 Proceeding to the merits, our starting point is the following relevant provision of the Act of 1912:

 'The Bureau of Efficiency shall * * * establish a system of efficiency ratings for the classified service in the several executive departments in the District of Columbia * * *. In the event of reductions being made in the force in any of the executive departments no honorably discharged soldier or sailor whose record in said department is rated good shall be discharged or dropped or reduced in rank or salary.' *fn4"

 Since the 1912 Act was limited by Congress in terms to employees of the executive departments in the District of Columbia, the plaintiff, a New York employee of an independent agency, can not derive any rights from it. What the plaintiff claims, I think inaccurately, to be 'unequivocal rights afforded * * * by the Act of 1912' come to him only by action of the executive, not the legislative, branch of the government. Therefore, the scope and limitations of those 'rights' must be determined by reference to the relevant Executive Orders and Civil Service Commission rules and regulations.

 The benefits of civil service reduction in force retention preference were first extended to veterans circumstanced as the plaintiff by Executive Order 3801, March 3, 1923, which added the following paragraph to Civil Service Rule XII:

 '5. In harmony with statutory provisions, when reductions are being made in the force, in any part of the classified service, no employee entitled to military preference in appointment shall be discharged or dropped or reduced in rank or salary if his record is good.'

 In August, 1924, the Civil Service Commission issued its Form 1481, Veteran Preference, which, after quoting the foregoing paragraph 5 of Rule XII and the above provision of the 1912 Act, said: 'Reduction may be made to conform to the grade or character of work and the employee ...


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