The opinion of the court was delivered by: TROUTMAN
This matter is before the Court for disposition of a motion and a cross-motion for summary judgment filed by the plaintiff and defendants respectively pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The plaintiff has been employed by the United States Government for the past thirty years. He is an honorably discharged combat veteran from the United States Army and qualifies as a "preference eligible" within the meaning of the Veterans Preference Act.
At all relevant times, his character and the performance of his work have been exemplary, and he was awarded a certificate for continuous and consistent high level competence in the performance of assigned duties.
In May 1961, plaintiff was assigned to the position of Chief of the Readjustment Branch of the Contracts Division of the Philadelphia Air Procurement District. After serving in that capacity for approximately three years, he was assigned to the position of Chief of the Termination Settlement Division, Directorate of Contract Administration in Philadelphia. In both instances, his Civil Service classification was GS-13. On April 6, 1965, the position of Chief of the Termination Settlement Division was classified as a GS-14. Rather than promote plaintiff to Grade GS-14, the defendants removed him from his position as Chief and reduced him in rank to Deputy to the Chief of the Termination Settlement Division. Plaintiff contends that the refusal by defendants to promote him from GS-13 to GS-14 was a violation of his rights under the Civil Service Act and the Rules and Regulations promulgated thereunder in that there was no "significant change in [the] duties or responsibilities" of the position of Chief of the Division.
Plaintiff further contends that his reduction in rank from Chief to Deputy to the Chief was a violation of his rights under the Veterans Preference Act in that he did not receive proper statutory notice "stating any and all reasons, specifically and in detail, for the proposed action" and in that the reduction in rank was not "for such cause as will promote the efficiency of the service."
It appears from the record
that on April 20, 1964, the Secretary of Defense decided to consolidate the Contract Administration Services of the Army, the Navy, the Air Force, and the Defense Supply Agency under common management for efficiency and economy reasons. Implementation of the consolidation was decreed on a phased basis over two years. The plaintiff was Chief of the Readjustment Branch of the Contracts Division of the Air Force's Philadelphia Air Procurement District and pursuant to the plan of consolidation, on November 1, 1964, was transferred to the position of Chief of the Termination Settlement Division. As of November 1, 1964, there had not been final approval at the headquarters' level of a permanent manning table or joint table of distribution. When the permanent manning table was finally approved, the position of Chief of the Termination Settlement Division was designated as a GS-14, and on April 8, 1965, a GS-14 Contract Specialist from a disbanded Army installation was offered and accepted the position under the pertinent transfer of function regulations. The plaintiff was then reassigned from the position of Chief to Deputy Chief of the Termination Settlement Division. Since it was felt that the latter position was subordinate to the former, the reassignment was completed under a reduction in rank procedure allegedly in accordance with the pertinent Civil Service regulations. 5 C.F.R. § 752.201 et seq. The defendants contend that their refusal to promote plaintiff and their having reduced him in rank pursuant to the plan of consolidation did not deprive the plaintiff of any of the rights he now seeks to assert.
The sum and substance of plaintiff's argument is that as between the position of Chief at the GS-14 level and the position of Chief which he held at GS-13 level, there was no significant difference in that the duties and responsibilities remained essentially the same and that under such circumstances the "outgrowth" principle would necessitate his being retained in the position of Chief and mandate his promotion to GS-14. See Footnote 3. On the other hand, the government contends that the GS-14 position was a significantly different position in an altogether new organizational structure.
Although the Civil Service Commission did not refer to or discuss the alternate ground of decision relied upon at the lower decisional levels, we think it has considerable merit. Pursuant to the plan of consolidation transfers of functions were made into the consolidated unit beginning November 1, 1964. Admittedly preference eligibles are entitled to a certain degree of priority where transfers of functions are concerned. 5 U.S.C. § 3503 (formerly 5 U.S.C. § 861(a)). However, transfer of functions regulations limit the degree of priority of a preference eligible to a continuing position of like grade and pay. See Administrative Record p. 126. Since the transfers of functions involved in the case at bar were two phased - the first involving all those people initially identified with the transfer and the second involving all those people subsequently identified with the transfer - plaintiff's assignment to the position of Chief as of November 1, 1964, was temporary in nature in that it was subject to change depending upon the rank and grade of those people subsequently identified with the second phase of the transfer of functions. Plaintiff's assignment to the position of Chief being temporary in nature, he was not deprived of any rights when he was thereafter reduced in rank in the course of the second phase of the transfer of functions since transfer of function regulations were complied with in that plaintiff retained the same grade rating and same pay level.
Plaintiff contends that his assignment to the position of Chief was permanent in nature since he was not otherwise informed. The permanent or temporary nature of a Civil Service position cannot depend upon whether the person appointed was specifically informed of its true nature. If it were to so depend, Civil Service positions would be considered permanent not because they were intended to be permanent, but because, through oversight or error, the person appointed was not specifically notified of its temporary nature. This is not to say that the Defense Department may arbitrarily or indiscriminately designate a position as temporary after it fully intended it to be permanent. But where, as here, from the very outset the Defense Department contemplated a two-phased transfer of functions, the first phase being subject to change or modification, and through oversight or error failed to notify plaintiff of the consequent temporary nature of his position, it can hardly be argued that the Defense Department arbitrarily or indiscriminately modified what was initially intended to be a permanent position. Indeed, recognizing that there were misconceptions concerning the nature of the positions assigned as of November 1, 1964, a meeting attended by plaintiff was held on November 20, 1964, at which those present were advised of the temporary nature of the positions they received as of November 1, 1964.
Proceeding on the assumption that plaintiff's assignment to the position of Chief was permanent in nature, the Civil Service Commission at both the regional and national levels concluded that plaintiff was not entitled to a non-competitive promotion. They are much more competent to decide such questions than are we and it would be disruptive of good order for us to undertake the task which the law commits to them. We do not mean to suggest that conclusions of administrative agencies are not subject to judicial review. But our scope of review of questions of this kind is necessarily limited. 5 U.S.C. § 706 (formerly 5 U.S.C. § 1009(e)); Powell v. Brannan, 91 U.S.App.D.C. 16, 196 F.2d 871, 873 (1952); Cominsky v. Rice et al., 233 F. Supp. 190 (E.D.Pa.1964).
It is readily apparent that this Court is not vested with any authority in such review to question the agency's decision as to the need for certain types of employees, Alexander v. United States, 149 Ct.Cl. 445 (1960); nor to question the qualifications of such employees, Powell v. Brannan, supra; and, of course, it will not inquire into the merits of a decision to reorganize an agency, Umbeck v. United States, 149 Ct.Cl. 418 (1960). To the extent that such issues are implicit in plaintiff's claim, he is foreclosed from asserting them.
It is equally apparent that this Court has no authority to question the determination of the agency that plaintiff had no right to a non-competitive promotion where there exists a rational basis for its conclusion; or, stated another way, this Court has no authority to question the determination of the agency that plaintiff had no right to a non-competitive promotion where the action by the agency is neither arbitrary nor capricious. 5 U.S.C. § 706; Cutting et al. v. Higley, Administrator of Veterans' Affairs, et al., 98 U.S. App. D.C. 288, 235 F.2d 515 (1956); Wagner v. Higley, Administrator of Veterans' Affairs et al., 98 U.S.App.D.C. 291, 235 F.2d 518 (1956); Comisky v. Rice et al., supra. An examination of the official descriptions of record of the positions in question indicates that the Chief position at the GS-14 level supervises a group of GS-11 and GS-12 Contract Termination Specialists, through an intermediate supervisor at the GS-13 level; whereas the Chief position at the GS-13 level did not provide for any such intermediate level of supervision. In addition, while the GS-14 Chief position includes the exercise of field surveillance over regional field components and the evaluation of field programs, there is no such counterpart in the description of the GS-13 Chief position. There being a significant difference between the duties and responsibilities of the position of Chief at the GS-14 and GS-13 levels, plaintiff was not entitled to a non-competitive promotion to GS-14.
Plaintiff contends that the distinctions relied upon are distinctions without a difference in that as Chief he performed the duties of what is now Chief and Deputy Chief and in that there actually are no field components or programs which need to be evaluated or over which surveillance needs to be exercised. But this argument loses sight of the fact that at the present time there is in fact an intermediate supervisory level and there may eventually be field programs and components which are officially a part of the GS-14 job description. It may well be argued that there are grounds for a reasonable difference of opinion on this question. But where, as here, there exists a rational basis for the conclusions of the administrative agency, this Court should and does affirm even though different conclusions could be drawn from the record. Studemeyer v. Macy, 116 U.S.App.D.C., 120, 321 F.2d 386 (1963); certiorari denied 375 U.S. 934, 84 S. Ct. 337, 11 L. Ed. 2d 265 (1963).