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Spann v. McKenna

decided: February 8, 1980.

RONALD M. SPANN, APPELLANT
v.
FRANCIS X. MCKENNA, COMMAND COUNSEL, UNITED STATES ARMY MATERIEL DEVELOPMENT AND READINESS COMMAND; GEN. JOHN R. DEANE, JR., FORMER COMMANDER, UNITED STATES ARMY MATERIEL DEVELOPMENT AND READINESS COMMAND; COL. PETER B. KENYON, FORMER COMMANDING OFFICER, PACATINNY ARSENAL; CLIFFORD ALEXANDER, JR., SECRETARY OF THE ARMY; UNITED STATES OF AMERICA; LT. GEN. GEORGE SAMMET, JR., FORMER DARCOM COMMANDING OFFICER; GEN. JOHN R. GUTHRIE, DARCOM COMMANDING OFFICER; MAJOR GENERAL BENNET L. LEWIS, COMMANDING OFFICER, ARRADCOM; APPELLEES .



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. No. 78-0091)

Before Seitz, Chief Judge, and Adams and Weis, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

The appellant, Ronald M. Spann, is a civilian employee of the Department of the Army. In this lawsuit, he challenges a personnel action as unlawful under the Army's civilian personnel regulations.

Spann has been employed since 1969 at the Army's Picatinny Arsenal, which is located in Dover, New Jersey. The Arsenal is under the command of the U.S. Army Materiel Development and Readiness Command (DARCOM). Spann began at the Arsenal as a chemical engineer. In January 1974, after graduating from law school and gaining admission to the New Jersey bar, he was appointed as a patent advisor, a position in the legal office of the Arsenal which involves technical work on patent matters. Thereafter, he sought appointment as an attorney advisor in the same office. That position carries the same grade and salary level as patent advisor but would allow him to do legal work on patent matters. However, Spann has continually failed to obtain the consent of DARCOM's Command Counsel, Francis X. McKenna, whose approval usually is necessary for appointment to attorney positions within DARCOM.

Spann's opportunity seemed to have arrived in the spring of 1976. On April 12, McKenna sent a memorandum to each of the chief counsels under DARCOM's command revising some of his procedures. He advised them: "This action will permit you to transfer your attorneys and patent advisors from one job sheet (position) to another, at the same grade level, without my prior approval." (emphasis in original). The Chief Counsel at Picatinny, John J. Crawley, construed this statement as authority to transfer personnel between the positions of attorney advisor and patent advisor without McKenna's approval. With this authority, he appointed Spann as attorney advisor, effective June 13, 1976. Spann received documentation of the appointment on a Civil Service Standard Form 50. This form provides the basic documentation for most federal personnel actions. See Federal Personnel Manual 296-5-2 (1969).

McKenna was not pleased to hear of this appointment. In two letters to Crawley, he explained that his April 12 memorandum did not confer authority to transfer between the two positions and ordered him to cancel the appointment immediately. Crawley complied, cancelling Spann's appointment as attorney advisor and reappointing him as patent advisor, on August 25. The cancellation and reappointment were documented on Standard Forms 50. Spann received no opportunity to object to these actions in advance.

The following month, Spann filed a grievance petition contesting the cancellation. In accordance with the Army's grievance procedures, the civilian personnel officer at the Picatinny Arsenal referred the grievance to the U.S. Army Civilian Appellate Review Agency (USACARA). A grievance examiner from USACARA's regional office, USACARO Newark, was appointed.

The grievance examiner issued a report and a decision on December 30. She concluded that the cancellation and reassignment was defective because of Crawley's failure to comply with an Army personnel regulation governing the involuntary reassignment of civilian employees. Civilian Personnel Regulation (CPR) 335.1-5(c). She ordered that Spann be restored to the position of attorney advisor, with his appointment given effect retroactively to June 13, 1976. On the authority of another Army personnel regulation, CPR 771.3-11(a), she denominated her decision as final and binding upon DARCOM.

DARCOM officials did not accept this decision. McKenna listed several objections to the decision in a letter to the Army's Director of Civilian Personnel, BenB. Beeson. DARCOM's personnel officer, Brigadier General Lawrence S. Wright, wrote a similar letter. Beeson passed their objections on to the USACARA Administrator in Washington, D.C., and to the General Counsel of the Department of the Army. The USACARA Administrator concurred in the grievance examiner's decision and asserted that it was final and binding. The General Counsel disagreed, finding the decision erroneous. She instructed Beeson to have it revised.

On June 10, 1977, Beeson returned the grievance examiner's decision to USACARA for revision. At the request of USACARO Newark, Beeson then requested an opinion from the Office of the General Counsel, U.S. Civil Service Commission, on whether the cancellation of Spann's appointment was carried out in violation of certain procedural requirements applicable in cases of adverse action against certain classes of civil servants. 5 U.S.C. §§ 7511, 7512 (1976); 5 C.F.R. pt. 752 (1979). That office found no violations. On August 22, 1977, the Chief of USACARO Newark amended the grievance examiner's decision to make it a recommendation rather than a final and binding decision.

To no one's surprise, McKenna promptly rejected the recommendation and upheld the cancellation. Spann appealed to the General Counsel of the Department of the Army, who also upheld the cancellation. Spann now seeks to have the cancellation set aside with this suit against the United States, the Secretary of the Army, McKenna, and several Army officers. He charges them with violating federal statutes and regulations in both the cancellation itself and in the processing of his grievance. The district court had jurisdiction under 28 U.S.C. § 1331 (1976). The court granted summary judgment for defendants on all of Spann's claims of violations.

Spann's first claim is that DARCOM officials violated an Army personnel regulation in failing to treat the grievance examiner's decision as final and binding. The authority for the grievance examiner's denomination of her decision as such is the following regulation:

If at any stage of an inquiry the USA-CARA examiner establishes the existence of a regulatory or procedural defect which requires reversal of the action grieved, the examiner may discontinue the inquiry, prepare a report of findings and decision on that issue, and forward the case to the activity commander with instructions that the ...


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