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October 16, 1973

Emile RUTNER, Plaintiff,
Robert C. SEAMANS, Jr., et al., Defendants

Gasch, District Judge.

The opinion of the court was delivered by: GASCH


GASCH, District Judge.

 This controversy arises under Air Force Regulation 40-922, "Filling High Grade Civilian Positions," paragraph 11, "Selection From Outside the Air Force." *fn1" The facts of the case as agreed upon by the parties are set out in the Court's Memorandum-Order of June 21, 1973, in which the Court ordered the Air Force to submit further documentation pursuant to AFR 40-922, par. 11, justifying its selection of Dr. Donald Ball over Dr. Emile Rutner for the position in question.

 The material submitted by the Air Force is a composite of letters, memoranda and other documents composed contemporaneously with the selection of Dr. Ball, and some other memoranda prepared pursuant to the administrative and judicial reviews sought by Dr. Rutner. The document was submitted to the Court for in camera review, because a number of the letters and evaluations of the two candidates were taken from confidential personnel files. Attached hereto as appendices are certain portions of the Air Force's most recent review, with confidential material excised. *fn2"

  The job description of this position indicates that the candidate must be competent in two separate areas: the technical and the administrative. There evidently were no questions as to Dr. Rutner's technical abilities, and if this were all that were involved in the job, he may well have been the successful candidate. The job also calls, however, for the ability to be able to communicate expertly on all levels, represent the Air Force in high-level conferences both within and without the government, and administer and oversee technical programs, all of which require more than mere technical competence. *fn3" Those Air Force officials who had the responsibility for filling this position felt at the time that Dr. Rutner fell short of the necessary qualifications in this latter category, and the material contained in the confidential personnel files bears out this conclusion. In every respect, evaluation of Dr. Rutner as to those traits that involve dealing with people in an administrative capacity were less favorable than the evaluations of Dr. Ball, *fn4" on the same questions.

 Unfortunately, when Dr. Rutner was notified of the selection of Dr. Ball, the letter was worded so as to indicate that "an equally qualified applicant" had been hired. As this was clearly not in accordance with AFR 40-922, par. 11, Dr. Rutner was justified in demanding a further explanation for this decision. The Air Force did not present adequate documentation of its decision, as required by par. 11, and Dr. Rutner was justified in pursuing his appeal to this Court. Since it appears that there is a factual basis for concluding the Air Force did select a candidate with superior qualifications, this Court will not overturn its decision; however, in future par. 11 hirings, the Air Force should in making selections of outside personnel adhere to the requirements of its regulations.



 24 August 1973

 Memo for the Record

 Subject: Qualification Comparison for Chemist, GS-1320-15 AFOSR

 Applicants: Dr. Donald Lee Ball

 Dr. Emile Rutner

 Both applicants meet basic eligibility requirements outlined in the X-118 (Civil Service Qualification Standards for General Schedule Positions.)

 In addition to basic requirements, qualifications of each applicant must be matched very carefully to the requirements of the position to be filled.

 The position description for the subject position requires an authority on chemical metallurgy, condensed phase equilibria, and ultra-high pressures. The primary purpose of the position is to provide a chemist with demonstrated scientific and administrative competence to execute a major phase of this research program. A review of the applications for the referenced applicants reveals:

 Dr. Ball has shown recent directly related experience particularly in chemical metallurgy while Dr. Rutner's experience indicates less recency in chemical metallurgy. Further, Dr. Ball's technical and administrative competence has been highly substantiated through technical references. Dr. Rutner's references rate his technical ability considerably lower than Dr. Ball's plus the only reference to his administrative ability is extremely critical (Dr.* letter dated 5 June 1967). /s/ Ruby H. Giddings RUBY H. GIDDINGS 4 Atch Personnel Staffing Specialist 1. Dr. Rutner's Ltr/w SF-57 2. Dr. Ball's SF-57 3. Position Description No. M-354 4. Message May 67


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