The opinion of the court was delivered by: DIMOCK
This is an action in equity by plaintiff, a civil service employee of the Army, having veteran status, for relief against separation from the service.
Defendants, Brigadier General Robert P. Hollis, Commanding General of New York Quartermaster Purchasing Agency, hereinafter referred to as NYQMPA, James J. Reilly, Chief of the Civilian Personnel Office, NYQMPA, George M. Clarke, Jr., incumbent of the position of Chief of the Legal Office of NYQMPA, and Frederick N. Jones, named to the position of Chief of the Legal Office of the Quartermaster Inspection Service Command, hereinafter referred to as QMISC, move to dismiss the suit on the ground that the complaint fails to state a claim upon which relief can be granted and the further ground that there is a lack of an indispensable party, the United States Civil Service Commission. Plaintiff moves for an injunction pendente lite restraining defendants from separating plaintiff from the service or transferring defendant Jones to the position to which Jones has been named in QMISC.
The motion to dismiss, which I shall take up first, is based principally on the charge that plaintiff has failed to exhaust his administrative remedies. If there is no administrative remedy for the injury of which plaintiff complains he cannot be kept out of court for failing to exhaust one. My first question is, therefore, whether such an administrative remedy exists.
The fundamental injury alleged by plaintiff is that, when he was deprived of employment by reduction in force, defendants, pursuant to a deliberate plan to injure him, kept him from transferring to a position, to which he would have been entitled, by abolishing the position occupied by defendant Jones so that Jones, thus released, filled the position to which plaintiff would otherwise have been entitled.
Plaintiff alleges that this devious plan to injure him was the result of enmity that he had aroused in his superiors when he took grievance proceedings attacking the filling of positions in the newly created NYQMPA by lawyers formerly serving an organization know as Armed Services Textile and Apparel Procurement Agency, hereinafter referred to as ASTAPA. How that came about will appear from the necessarily detailed statement that follows.
On and before October 30, 1953, QMISC and ASTAPA were two separate organizations existing side by side, each with its separate legal office. The Chief of the Legal Office of QMISC was one Allen and the Assistant Chief was plaintiff. The Chief of the Legal Office of ASTAPA was defendant Clarke and the Assistant Chief was defendant Jones.
Effective October 31, 1953, ASTAPA was dissolved.
Effective November 1, 1953, NYQMPA was activated, the former QMISC Legal Office positions of Chief and Assistant Chief were transferred to NYQMPA and a new Chief position was created for QMISC. Instead of transferring Allen and plaintiff to NYQMPA with their positions, the step which first aroused plaintiff was taken: the Legal Office of ASTAPA was transferred to NYQMPA with its personnel and defendants Clarke and Jones respectively took the positions formerly held by Allen and plaintiff. Allen took the newly created position of Chief of the Legal Office of QMISC and plaintiff transferred to NYQMPA where he says that he was subjected to what he calls a reduction in rank and what defendants say was a detail to work of a lower rank.
Plaintiff then brought the grievance proceedings above referred to, claiming that the assignments of the men from ASTAPA to the Chief and Assistant Chief positions were unlawful and that he, as the ranking man in the lawful staff of NYQMPA, was entitled to the position of Assistant Chief. He alleges that he brought these proceedings in the face of a threat by defendant Hollis that his career would be adversely affected if he did so.
On January 28, 1954, plaintiff was given a Reduction in Force Notice effective March 3, 1954, the position of Assistant Chief of the Legal Office of NYQMPA was abolished and Jones, the released incumbent, was named in Allen's place to the position of Chief of the Legal Office of QMISC which had been newly created in November. Jones continued to do the same work as formerly, and, before Jones had actually taken the position of Chief of the Legal Office of QMISC, plaintiff brought this action and obtained a temporary restraining order which has prevented Jones from doing so.
Unless Jones takes the position of Chief of the Legal Office of QMISC, plaintiff is entitled to it. Plaintiff claims that it was to prevent his getting it that Jones' position was abolished and Jones was caused to supplant Allen.
The basis for all of this is the grade and veteran's preference system by which the rights of certain personnel to certain positions are determined. Plaintiff is a grade 13. Jones is a grade 13 but for other reasons has priority over plaintiff. Allen was a grade 14. The old position of Chief of the Legal Office of QMISC which Allen held was a 14. The position of Assistant Chief was a 13. When these two positions were transferred to NYQMPA they retained their old grades. The new position of Chief of the Legal Office of QMISC is a 13. Allen chose to take it, in spite of his 14 grade, when he was told that defendant Clarke would have Allen's old 14 position in NYQMPA. So far as retention rights are concerned, however, a 14 employee who accepts a reduction in grade to take a 13 position is in no better case than a 13 employee. Because of veteran status, Jones, a 13, has priority over plaintiff, a 13, and both have priority over Allen if he is treated as a 13 as he must be with respect to the new position of Chief of the Legal Office of QMISC. Thus plaintiff, when faced with ouster by reduction in force, could have supplanted Allen had it not been that Jones was released by abolition of the position of Assistant Chief of the Legal Office of NYQMPA and supplanted Allen first.
It is thus that the principal injury complained of by plaintiff is the abolition of the position of Assistant Chief of the Legal Office of NYQMPA.
Plaintiff alleges that he was told that the bona fides of the abolition of a position was not subject to administrative review. At a second hearing of this motion, called for that purpose, I requested counsel to brief that question. Defendants have been unable to cite any authority for such review in statute or regulation, but submit an affidavit that the Acting Chief, Civilian Personnel Division, Office of The Quartermaster General, has assured the deponent that such a review would be allowed. It ...