ROBERT THOMAS QUICK v. THE UNITED STATES, 192 Ct. Cl. 630

Nichols, Judge, delivered the opinion of the court: This case is before us on cross motions for

summary judgment. Plaintiff, a veteran preference eligible, is suing to recover compensation denied him by defendant’s alleged failure to respect established salary preservation rights of involuntary demotees. The Civil Service Commission’s Board of Appeals and Review (BAE) found the demotion to be a voluntary one and accordingly rejected plaintiff’s claim. We affirm their decision. Except for an interruption for military duty, the plaintiff, Mr. Quick, has been in continuous Government service, in various capacities, since 1933.

In November 1961, he was employed by the Army Corps of Engineers (Army) as a Supervisory Construction Management Engineer for the United States Army Engineer District in Jacksonville, Florida (hereinafter J acksonville District). In March 1963, plaintiff was notified by the Army that his services would be required at the newly established Canaveral District on Merrit Island, Florida. (We notice judicially that Merrit Island is about 150 miles southeast of Jacksonville).

Given the choice between transfer — which included a promotion to GS-14 and an annual salary increase of almost $800— and immediate separation, plaintiff elected the transfer even though he recognized it would require commuting between Merrit Island and Jacksonville — plaintiff’s residence — on weekends. While employed at Canaveral, plaintiff had occasion to visit the J acksonville District on business. There he was informed by his former supervisor, Chief of Construction Division, F. O. Biehn, of an expected GS-13 vacancy soon to arise in the Jacksonville District.

Because of plaintiff’s proven qualifications, Chief Biehn urged him to apply for the position when it became open. Almost one year after plaintiff’s discussion with Mr. Biehn, Vacancy Announcement #64-40 was issued advertising a Supervisory Construction Management Engineer GS-13 position at the Jacksonville District.

In addition to listing the duties and desired qualifications for the position, the announcement noted that “Applications will be accepted from individuals having Career-Conditional or Career status.” Plaintiff’s declared understanding of this language was that it “solicited all interested and qualified persons possessing the stated special skills to apply for the vacancy.” Aside from the general GS-13 rating, the announcement failed to mention exact salary. Plaintiff alleges in his petition and in his brief that he received a copy of Vacancy Announcement #64-40 by mail from the Jacksonville District.

He did not identify the sender, however, nor did he explain the circumstances which caused the announcement to be sent. In the argument portion of his brief, plaintiff merely said that “officials of the Jacksonville District Office” sent it. (Emphasis supplied). The relevance of this factual deficiency will become evident in the analytical part of our opinion. Admittedly desiring reassignment to Jacksonville for reasons of personal convenience, plaintiff, in writing, requested consideration for the position.

He attached to this request a detailed Standard Form (SF) 57 in which he indicated that the lowest pay and grade he would accept was $14,000 per year and GS-13. (This information was somewhat gratuitous since the vacancy announcement made the enclosure of an SF-57 optional.) In oral argument plaintiff’s counsel described this minimum pay statement as just an “opening offer” not to be judged inconsistent with Mr. Quick’s allegedly reasonable expectation that if selected he would receive a salary slightly above or below his last earned rate at Canaveral.

In January 1965, plaintiff was notified of his selection; precise rank and salary, however, were not disclosed. Plaintiff nevertheless accepted the position without this information. Upon reporting for duty at Jacksonville, Mr. Quick was given an SF-50, Notice of Personnel Action, advising that his appointment to fill the vacancy was being effected at GS-13, Step 7. In monetary terms this meant an entrance salary of $14,595 per year. Since plaintiff had been earning $15,640 at Canaveral, this new rating constititued a decrease in gross annual pay of $1,045.

The record reveals that plaintiff’s salary was set by Mr. Biehn who believed that for purposes of maintaining good personnel relations among Ms staff, plaintiff, as a new Branch Chief, should not be rated higher and paid more than the Assistant Chief of the Construction Division. Mr. Biehn did, however, fix plaintiff’s salary and rank equal to that of the Assistant Chief’s and in so doing offered Mr. Quick $1,200 more per year than that paid to his immediate predecessor.

Upon receiving the SF-50, plaintiff was troubled by the pay reduction, and orally he asked Louise Brown, the Personnel Staffing Specialist, for an explanation. Mrs. Brown says that she responded with an essential restatement of Mr. Biehn’s position and that plaintiff replied, after further elaboration, that he “expected the explanation”. She also observed that plaintiff seemed “satisfied with it [the explanation]”. Plaintiff, on the other hand, recalls that Mrs.

Brown simply told him that “by regulation, his salary could not exceed that of his * * * supervisor’, the Assistant Chief.” Although plaintiff later criticized this explanation as erroneous since the Assistant CMef was not his supervisor, Mr. Biehn, in a clarification to the District Engineer responded as follows: “While it is true that the Chief of S & I Branch [plaintiff] reports directly to the Division Chief, the Assistant CMef is responsible during absences of the Chief * * (Emphasis supplied).

Hence, the inference is that occasionally, at least, plaintiff would have found himself subordinate to and under the supervision of the Assistant Chief. After an unsuccessful protest to the Jacksonville District Engineer, plaintiff, with senatorial assistance, appealed his pay reduction to the Civil Service Commission. Although the Kegiona! Office in Atlanta, Georgia, dismissed Ms petition as untimely, the BAR chose to reach the merits irrespective of the timeliness issue.

Satisfied that plaintiff’s demotion was a voluntary one, the BAR concluded “that the change in pay which accompanied [it] * * * was not an action requiring the application of the provisions of

Part 752 of the Civil Service Regulations * * * [and hence plaintiff’s appeal was not reviewable] within the purview of

Part 772 of the Commission’s Regulations.” Plaintiff next sought review of the District Engineer’s decision from the Army’s Office of Civilian Personnel (OCP). Director of the OOP, C. F. Mullaly, however, sustained the decision below. Alleging, that his entrance salary was determined contrary to Civil Service Commission and Army civilian personnel regulations, plaintiff now petitions this court to award him the difference between the compensation of GS-13, Step 10 — the rate he says he should have received — and GS-13, Step 7 — the rate he actually did receive upon transfer to the Jacksonville District.

He further asks that we compute his award from January 17, 1965, his starting date, to the date of judgment, and that we enhance it with “any * * * statutory increases and/or step increases” to which he may be entitled by law. I. The. first issue controverted by the parties is whether plaintiff timely invoked his administrative remedies. In taking the negative side here the Government assumes arguendo that plaintiff’s .salary reduction sprang from an involuntary demotion and hence was an appealable adverse action.

The facts are undisputed: Plaintiff waited eight months before filing a written protest with the Jacksonville District Engineer; he delayed four additional months before appealing the District’s decision to the Civil Service Commission. Various excuses were presented to the Commission to explain plaintiff’s tardiness, but the Regional Office rejected them as insufficient.

Had the BAR, in denying plaintiff’s appeal, reacted similarly, the timeliness issue would still remain in the case for our consideration.- The BAR, however, unfavorably ruled on Quick’s appeal “irrespective of the time element”, thereby effectively removing -this issue from our present scope of review. II. Turning to the merits, we find plaintiff’s most salient argument to be that his so-called demotion was involuntary and that the Army, in fixing his entrance salary, arbitrarily ignored its own regulations governing such cases.

To determine voluntariness we are urged by plaintiff to apply the relevant standards prescribed in the Army Civilian Personnel Regulations (CPR). These standards are reserved for “salary retention eligibles”, (5 U.S.C. §1107 (1964)), a statutory group for which Mr. Quick does not claim to qualify regardless of the characterization of his demotion. Plaintiff nevertheless argues that because Army and Civil ■Service regulations are otherwise silent, these standards should be given general applicability.

Army CPR P3 § 2-7 in pertinent part reads as follows: ‡ * * ' ' * * Demotion or Reassignment at Employee's Réguest b.

(1) Denial of salary retention on the grounds that an employee’s demotion or reassignment is. at his own request must be based on a determination that the employee’s request is the direct cause for removing him from his current assignment. In making such determination the following principles should be applied: (

a) When the action which results in demotion or reassignment is initiated by the employee for his personal advantage or desires, and the appointing officer’s action is responsive thereto, salary retention benefits do not apply. The most common example of an employee-initiated action is when an employee requests to be inoved to another position even though a possible loss of pay may be involved. (Emphasis above in original.) (

b) When the action which results in demotion ,or reassignment is initiated by the Department of the Army, it is not taken at the employee’s request, even though he may have asked the Department to consider his personal situation (which may require his acceptance of a lower grade) before final action is consummated. Some examples of the kinds of actions which are not considered to. loe initiated by the employee even though he may have submitted a written request are as follows: (Emphasis supplied.) * * * 3s 3s %.

A demotion or reassignment as a result oí solicitation by the Department to fill a position requiring special skills, or to otherwise further a placement program. (Emphasis supplied.) Federal Personnel Manual Supp. 990-2, Book 531, subchapter S5, § 5d2(b) (1965), contains provisions almost identical to the above-quoted Army regulations. Plaintiff’s major premise is that the “direct cause” of his demotion was a “solicitation by the Department to fill 'a ' position requiring special skills”.

I'f this were true then according to the regulations it would follow that the demotion was not at plaintiff’s request and therefore involuntary. Moving from this premise as if it were established, plaintiff argues that the Army arbitrarily ignored its own regulations preserving salary rights of involuntary demotees. Army CPR P3 § 2-6 reads as follows: CHANGE TO LOWER GRADE OF EMPLOYEES ¡INELIGIBLE FOR SALARY RETENTION BENEFITS 2-6.

Except as provided below, when an employee who is ineligible for salary retention ¡benefits as provided in paragraph 2-7 is changed to a lower Classification Act grade his pay will be -fixed in the new grade at a step rate which preserves to him, so far as possible, his last earned rate. * * * (Emphasis supplied.) ij; ‡ !j( ¡j; ‡ Affirming this policy with similar exceptions to be discussed later is Army CPR P3 § 1-2 (a). We do not accept the major premise of plaintiff’s syllogism. The burden of plaintiff’s argument balances on his

interpretation of “solicitation by the Department to fill a position requiring special skills.” Plaintiff would have us believe that the friendly urging of Mr. Biehn, his former supervisor, to apply for the position and the mailing by nameless Jacksonville District “officials” of the vacancy announcement to him combined to constitute a “solicitation by the Department” within the contemplation of the regulation. To ascribe validity to. such an

interpretation would be to condone wrenching the regulation to the breaking point. We accept that plaintiff was “solicited”, but we do not accept that he was solicited “by the Department” — a phrase connoting the explicit formality of 'an official personnel action. Moreover, we do not believe that plaintiff was solicited “to fill a position requiring special skills.” (Emphasis supplied.) Mr. Quick was merely advised by Mr. Biehn and the announcement of the opportunity to apply for the position.

In plaintiff’s own words, the vacancy announcement “solicited all interested and qualified persons possessing the stated special skills to apply for the vacancy.” (Emphasis supplied.) It is our belief that the procedure of soliciting someone to fill a position at minimum requires singling out the employee and tendering him the opportunity of accepting a particular slot. Merely extending him opportunity to compete for it obviously falls short of this criterion.

Plaintiff could have ignored the announcement and kept his GS-14 position at Merrit Island without even hurting anyone’s feelings, so far as the record shows. Hence we find that plaintiff’s demotion was not consequent to a “solicitation” as qualified by the regulation, and we now must discern the actual “direct cause” for it. The answer, we believe, is clear: the so-called demotion was sought voluntarily by Mr. Quick. Continuing to maintain his Jacksonville residence while working at Canaveral, plaintiff found it necessary to commute between these two places on weekends— a round trip of almost 300 miles.

And, although it was not mentioned in his brief, it is nevertheless reasonable to assume that he experienced all those other minor but still annoying inconveniences which attend away-from-home living. A transfer back to Jacksonville would have removed these complexities. Undoubtedly, Mr. Quick considered . these advantages before applying, and thought them important enough to offset a cut in pay. His conduct throughout supports these inferences.

For example, to compete better with other applicants, apparently, plaintiff indicated on his SF-oT that he would accept a minimum annual salary of $14,000— $1,640 less than his then present Canaveral salary.

Moreover, in a protest to the District Engineer, filed some nine months after his application, plaintiff described his mood thusly: “In January 1965, [actually it was December 1964], I volmi-t'arifo/ applied for the position of Chief, S & I Branch, Construction Division, and. accepted a demotion to return here [Jacksonville] from the Canaveral District, where I had been Assistant Chief, Construction Division, GS-14.” (Emphasis supplied.) Plaintiff also revealed in this protest not only his dissatisfaction with Army salary fixing methods, but more important, his retirement 'anticipation which lurks as the primary motivation .for this law suit.

The following paragraph from the protest is enlightening: 4. It was not necessary by regulation to make the salary reduction although the District has the authority to establish the salary wider such a transfer and demotion, at any step it elects. In my opinion, such reduction should be made known at the time the offer is made for transfer. I had anticipated that I mazy home had to ac- ' cept some reduction in salary, to obtain consideration, however, I would have appreciated the opportunity to discuss the matter prior to having the 'action taken.

The salary is of more than usual importance to me as I am probably on my last five years of Government, service and a $1,000 scdary reduction means over a $600 per amrnrn reduction in retirement pay.' (Emphasis supplied.) It is reasonably inferable from the above quotation that plaintiff, when he applied for and accepted the position, was unaware of the consequences a pay reduction would have on his retirement income. Had he known, he would possibly not have jeopardized his retirement status without first requesting advice as to the exact salary involved.

On the facts therefore we find plaintiff’s 'action to have been voluntary. Our next task is to determine whether the Army complied with its civilian personnel regulations in fix-" ing Mr. Quick’s salary. Pertinent to this inquiry is Army CPR P3 § 2-6b: Actions Initiated by Employees b.

When the change to lower grade is the result of an employee’s application or request * * *, his pay may be fixed at 'any step rate of the new grade which is not in excess of his last earned rate. * * * (Emphasis supplied.) Hence, in contrast to involuntary demotion cases, the Army is accorded discretion in fixing a voluntary demotee’s salary anywhere below a specific ceiling — the last earned rate. Their discretion, however, is not unfettered. Army CPR P3 § 1-2 reads'as follows: # * if! * * , Optional Fixing of Pay Not To Exceed Last Earned Rate b.

In the cases covered below [paragraph (2) of which deals with employment changes at employee’s request] the proposed rate must be appropriate for the employee’s known or presumed productive ability 'and equitable, in terms of Ms experience as compared with that of other employees currently serving in similar positions. (Emphasis supplied.) * * * * ' * All the evidence indicates that Mr. Biehn, in fixing plaintiff’s salary, acted in good faith in harmony with this qualification. Plaintiff not only received almost $600 moré than he initially said he would accept, but also $1,200 more than his immediate predecessor.

The record further discloses that of the four Branch Chiefs in the Jacksonville District, plaintiff was graded highest. More importantly, assuming that plaintiff could be considered— in the sense of the above regulation — as serving in a position “similar” to that of the Assistant Chief, nothing was offéred by him to establish that he possessed experience so superior as to merit a higher rank.

Under such circumstances it could have been thought “equitable” for plaintiff to receive pay equal to but not more than the Assistant Chief, especially where the latter rose 'above their assumed parallel status by occasionally substituting for the Chief of the entire Construction Division. We hold therefore that plaintiff’s new salary could have been deeméd fair, in compliance with regulation CPR PS" § 1-2 b., supra. . Plaintiff’s alternative argument is that the demotion was involuntary because it was accomplished through Government deception.

He reasons that “to withhold all knowledge of a major reduction in compensation of $1,645 per annum until [he] had been officially transferred to the new position, and had reported for duty, clearly constituted deception * * * which served to deprive [him] of his freedom of choice in determining whether he wanted to accept the tendered position.” This naked allegation is insufficient. Since plaintiff produced no evidence to indicate that the salary reduction information was intentionally withheld by the Army under the conditions alleged, we cannot find that its conduct was deceptive.

At worst it was insensitive and impersonal. Colonel R. P. Tabb, the Jacksonville District Engineer, and Army OCP Director C. F. Mullaly both admitted that it would have, been better if the Army had achieved with plaintiff a “clear understanding” as to salary before the transfer. No doubt perfection in personnel administration would have called for this, but plaintiff as a Federal employee since 1933 should have been well aware of his employer’s weaknesses in that area. Multi-divisional bureaucracies like the United States Army frequently act with less than desirable clarity.

Where a plaintiff asserts an unclear action was purposefully motivated to deceive, it is not unreasonable for us to inquire why plaintiff himself took no positive efforts to clarify matters.

Indirectly explaining his failing, plaintiff tells us that because he “was not informed at this time [notice of selection] that there would be any reduction in his present compensation * * *, he concluded that there would be little or no reduction in compensation attached to the reduction in rank, and accordingly, [he] accepted the offer of the vacancy.” Since, however, no tangible Government guile is cited by plaintiff as leading him to this belief, we conclude that his erroneous assumption was the result of self-deception only. . .

Plaintiff also raises two other procedural deficiencies allegedly affecting his demotion: the Army’s failure to obtain his written consent to a voluntary demotion, and its failure to inform him of his eligibility for salary retention benefits. Both procedures, he argues, were directed by the regulations.

Specifically, plaintiff proposes that assuming he was found to have voluntarily consented to his demotion, his consent would be ineffective “because of the failure of the Jacksonville District office to reduce the consent to writing.” Thus he maintains that defendant is estopped from “relying upon his alleged consent to deprive [him] * * * of the additional salary claimed.” Civil Service Regulation 5 C.F.R. § 531.507, as of 1965, and Army CPR P3 § 2-7b (2), both provide that an employee should be made to execute a written consent document affirming the voluntariness of his decision to accept demotion.

Defendant contends that plaintiff’s execution of the SF-57. wherein he indicated that he would accept, at minimum, a GS-13 and $14,000 per year, satisfied these regulations. Plaintiff insists that it did not and additionally cites a sec-. tion of the Federal Personnel Manual Supp. 296-31, Book II, Subchap. S2, § S2-11 (1965), which further requires that: When a demotion is effected at the employee’s request, the notation “Action effected at the employee’s request,” is entered under “Remarks” on Standard Form 50. * * * Such a statement, plaintiff correctly points out, was not recorded on his SF-50.

Assuming that plaintiff’s SF-57 falls short of the type pf written consent document envisioned by the regulations, wé nevertheless do not agree with plaintiff that his consent'was “ineffective” and that therefore defendant is estopped from urging it. The primary thrust of these regulations is to protect the agencies from future attack. Federal Personnel ' Manual § S2-11, supra, supports our position: * * *.

As a matter of precaution all the facts and circumstances of the voluntary request for reduction should be documented so that they will be available if the employee later appeals and contends that he was coerced, or did not understand the transaction, or did not initiate the action * * * Thus the requirement is prescribed for the- Government’s benefit, not the empoyee’s, and therefore a failure in literal compliance does not infect the legality of the personnel action itself, if substantial compliance is had.

Since we have found other written evidence, the SF-57, that plaintiff did voluntarily consent to his so-called demotion, we hold the Army’s failure to reduce his consent to writing and additionally note it on its SF-50 to be irrelevant. Regarding the Army’s failure to advise plaintiff of his eligibility for salary retention benefits as required by § S2-9 of Subchapter S2 of Book II of the Federal Personnel Manual Supplement 296-31 and § 2-7n of Army CPR P3, we hold such a procedural defect to be nominal and hon-pfejudicial where plaintiff indicated an acknowledgment of his ineligibility prior to his demotion.

Plaintiff indicated on his SF-57 that he would accept a minimum salary of $14,000 per year. Had he then considered himself eligible for salary retention benefits under 5 U.S.C. § 1107 (1964)’ he certainly would have realized the inaccuracy of this statement. In his protest to the Army OOP, plaintiff did allege that this'statement was made “through inadvertence”, but since, in oral argument, his counsel described it as an intended opening offer, we infer that plaintiff does not press his inadvertence allegation and chooses to stand on the assertion that the statement was made with an intended purpose.

Hence we conclude that even if the Army had advised him of his ineligibility for salary retention benefits, either because of his failure to remain in the G-S-14 grade at Canaveral for the minimum 2 year period (5 U.S.C. § 1107(a) (4)) or because of the vol-untariness of his demotion (5 U.S.C. § 1107(a) (3)), plaintiff-still would have pursued the Jacksonville offer without changing the conditions of his application. Plaintiff’s motion for

summary judgment is denied. Defendant’s motion for

summary judgment is allowed, and therefore the petition is dismissed.