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August 23, 1989


The opinion of the court was delivered by: SMITH

 This matter is before us for disposition following a non-jury trial which commenced on August 7, 1989. In accordance with Federal Rule of Civil Procedure 52, we enter the following:


 2. Haimovitz was employed by the INS from September, 1956 to March 16, 1984, when he retired. At all times during his service with the INS, Haimovitz worked out of the Pittsburgh Office. (Testimony of Haimovitz).

 3. During Haimovitz' service with the INS, he received three outstanding awards and several letters of commendation. No other INS attorney has received more than three such awards. (Testimony of Haimovitz).

 4. Haimovitz' position as a General Attorney-Naturalization entailed reviewing applications for naturalization. This required a written recommendation to the Court for or against that individual applicant's naturalization. This position also required a certain amount of work obtaining citizenship for an individual through the citizenship of his parents or spouse. (Testimony of Haimovitz).

 5. The INS is a branch of the Department of Justice. Attorneys working in the INS in 1981 were designated either General Attorney - Naturalization or Trial Attorney. (Testimony of Haimovitz, Exhibit AA).

 6. In 1981, General Attorneys - Naturalization were under the direction and supervision of the Assistant Commissioner for Naturalization. Trial Attorneys were under the direction and supervision of the INS' General Counsel. (Testimony of Schmidt, Exhibit AA).

 7. In 1981, the Justice Department initiated a consolidation of all INS attorneys. The goals of the consolidation were (1) to place all attorneys under the professional supervision of the General Counsel of INS; and (2) to increase the resources of INS. To achieve these goals, the consolidation was to decrease the amount of time attorneys spent in the naturalization activities. This, in turn, was to create a legal staff that could meet the agency's changing needs. (Testimony of Schmidt, Exhibit A and AA).

 8. The consolidation of the INS attorneys created a problem: the General Attorneys who were still working in Naturalization were subject to only minimal supervision by the General Counsel of INS. In addition, the General Attorneys were being paid out of the Commissioner's budget, despite the fact that the Commissioner technically had no supervisory power over them. (Testimony of Schmidt).

 9. In an effort to align its supervisory control with budgetary obligations, the Department of Justice initiated a reorganization of the INS attorney positions in mid-1982. (Testimony of Schmidt).

 10. The reorganization was intended to eliminate all General Attorney positions. The General Attorneys would not be terminated immediately, however. Instead, the General Attorneys would be placed in a pool and reassigned to available Trial Attorney positions over a two to three year period. The end result of the reorganization was that all INS attorneys would be Trial Attorneys. (Testimony of Schmidt).

 11. The reorganization and concomitant elimination of the position of General Attorney was initiated by placing all General Attorneys into a pool. The pool attorneys were then questioned about their wishes to relocate. If a pool attorney was willing to relocate, he was afforded that opportunity. (Testimony of Schmidt).

 12. Pool attorneys who did not volunteer for relocation were permitted to continue working in their current position until notified by the General Counsel of a management need transfer. Until notified of a management need transfer, a pool attorney was able to select any of the Trial Attorney vacancies which were continually made available. These vacancies were announced by the General Counsel by way of memoranda sent to each INS office staffed by at least one attorney. (Testimony of Schmidt).

 14. Pursuant to the reorganization, if a Trial Attorney position became available and no one volunteered for it after it had been advertised by way of the job vacancy announcements, the General Counsel's office would select an office where there were pool attorneys to be reassigned. The General Counsel's office would then ask for volunteers from that office with the understanding that one of the attorneys would be reassigned. (Testimony of Schmidt, Exhibit F).

 15. If the General Counsel's office had no volunteers for the available trial attorney position from the selected office with pool attorneys, the pool attorneys were permitted to write a memorandum to the General Counsel stating their reasons for not wanting to be reassigned. The General Counsel would then select a pool attorney for reassignment. (Testimony of Schmidt).

 16. The General Counsel did not consider a person's eligibility for retirement as a sufficient reason to preclude their reassignment. To do so would have exempted all attorneys who were previously General Attorneys - Naturalization and who were eligible to retire. To exempt retirement age attorneys from the reorganization and relocation program would have frustrated the INS' needs. (Testimony of Schmidt, Exhibit N).

 17. These procedures for implementing the attorney reorganization were made known to all the attorneys. One method used by the General Counsel of INS to inform INS attorneys about these procedures was through the presentation of several seminars. In particular, a seminar was held in Boston, Massachusetts, in June 1982 regarding the reorganization. All INS attorneys were encouraged to attend by way of three telex memoranda. (Testimony of Schmidt, Haimovitz and Landolina; Exhibit B, D, E, F).

 18. At all times during the consolidation/reorganization up to the time of Haimovitz' retirement, there were only two General Attorneys in the Pittsburgh sub-office, the plaintiff and Landolina. These attorney positions in the Pittsburgh office were eliminated. There have been no full or part-time attorney positions in Pittsburgh since completion of the INS reorganization. (Testimony of Haimovitz, Schmidt).

 19. Landolina attended the June 1982 conference regarding the reorganization; Haimovitz did not. Haimovitz was not discouraged from attending the meeting. Instead, Haimovitz chose to obtain the information regarding the reorganization from his co-worker Landolina. (Testimony of Haimovitz, Landolina).

 20. Haimovitz understood from Landolina that the reorganization would begin with the larger INS offices and proceed to the smaller offices. As a result Haimovitz concluded that Pittsburgh would not be affected for years. He did know that both positions in Pittsburgh were to be eliminated and that both he and Landolina were designated as pool attorneys. (Testimony of Haimovitz).

 21. In January 1984, the INS had a need for a Trial Attorney in Harlingen, Texas. The General Attorneys in the Pittsburgh INS Office were notified of this position on January 24, 1984, by a memorandum from their superior, Richard Sharkey. Neither Haimovitz nor Landolina volunteered for the position. Both understood that regardless of the fact that neither volunteered, one of them would be reassigned. (Testimony of Haimovitz, Landolina).

 23. Haimovitz' letter explained that he did not want to be reassigned. He cited certain health problems which had occurred in 1977-1978, and stated that if he could remain in Pittsburgh, he would retire at the end of the year. (Testimony of Haimovitz).

 24. On February 1, 1984, Dale Page, the Eastern Regional Counsel, notified Moulthrop, the Pittsburgh Acting Officer in Charge, that Haimovitz had been selected for Harlingen, Texas. (Testimony of Mouthrop).

 25. Haimovitz then sent a second letter to Paul Schmidt, the Deputy General Counsel, stating that he did not want to go to Harlingen. Haimovitz' letter also urged the General Counsel to reconsider because he claimed a former INS attorney was willing to take the position. (Testimony of Haimovitz, Exhibit N).

 26. On February 10, 1984, plaintiff informed his physician of his intent to retire soon. (Exhibit 15).

 27. Haimovitz also informed his co-worker, Landolina, of his intent to retire at the end of 1984. (Testimony of Landolina).

 28. Despite Haimovitz' protests, the General Counsel informed him by letter of February 21, 1984, of his management need transfer to Harlingen. The General Counsel explained why his hardship reasons for non-transfer were not sufficient to preclude his selection. The letter further explained why the Harlingen position could not be filled by the former INS attorney who wanted the position. Specifically, the General Counsel stated that this individual was not within the scope of the reorganization plan, nor was it in the best interests of the service to fill the Harlingen position with this former attorney. (Exhibit N).

 29. The General Counsel's letter of February 21, 1984, to Haimovitz also explained that Haimovitz was as qualified for the position as Landolina. Both Haimovitz and Landolina were judged capable of performing the work of the Harlingen position. On that basis, the decision was made that Haimovitz would be the first to be reassigned. (Exhibit N).

 30. In fact, both Haimovitz and Landolina had been evaluated by their superior, Sharkey, as above average in performance and approximately equal with regard to qualifications. Both attorneys were adjudged to be capable of adapting to the new position which entailed an administrative practice. Plaintiff, therefore, was competent to perform the job of Trial Attorney in Harlingen, Texas. (Testimony of Schmidt).

 31. The decision to reassign Haimovitz to Harlingen, Texas, was made substantially by General Counsel, Maurice Inman, Jr. Inman received a limited amount of input from Schmidt, Page, and Sharkey. Schmidt did not consider the age of attorney personnel in selecting or recommending candidates for management need transfers. (Testimony of Schmidt). Sharkey's input consisted of only an affirmative response to Page's inquiry ...

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