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ROSS v. UNITED STATES

June 2, 1982

Richard J. ROSS, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: ROBINSON, JR.

 AUBREY E. ROBINSON, Jr., Chief Judge.

 Before the Court are Cross-Motions for Summary Judgment in the above-captioned case. Plaintiff Richard Ross, a career civil servant in the Department of Labor ("DOL" or "Department"), brings this action challenging the Department's refusal to appoint him Deputy Inspector General. For the reasons set forth below, Defendant's Motion shall be granted and Plaintiff's Motion denied.

 In October 1978 the Office of Special Investigation (OSI) at the Department of Labor was transferred to the newly created Office of Inspector General (OIG), also at DOL. The transfer was effected by § 9(a)(1)(E) of the Inspector General Act of 1978, Pub.L. No. 95-452. Prior to the transfer, Plaintiff was the Deputy Director of OSI, a GS-15 position. Following the transfer, there was apparently no reduction in force and no immediate change of staffing. The former Director of OSI functioned as Acting Inspector General and Plaintiff was named Acting Deputy Inspector General. According to Plaintiff, his new position was essentially identical to the one he had held in the now-abolished OSI.

 Plaintiff served as Acting Deputy Inspector General from October 1978 to June 4, 1979. During that time, he performed satisfactorily; indeed, a May 1979 performance evaluation reported that Plaintiff's performance "greatly exceeds requirements" in all pertinent areas. On May 18, 1979 Marjorie Fine Knowles was sworn in as Inspector General. Despite Plaintiff's outstanding performance rating, the new Inspector General notified him on June 4, 1979 that he would not be appointed Deputy Inspector General and instructed him to cease using the title Acting Deputy Inspector General. The next day, the position of Deputy Inspector General was designated a Senior Executive Service (SES) position. *fn1"

 On June 8, 1979, Plaintiff's counsel wrote to Ms. Knowles requesting that she appoint Plaintiff Deputy Inspector General and allow him to elect SES status. Ms. Knowles declined, indicating that Plaintiff already had been placed in an appropriate GS-15 position; she refused to allow Plaintiff to opt into the SES on the ground that he did not hold a position that had been converted to the SES.

 In fact, Plaintiff had not been "placed" in a GS-15 position at OIG. Until approximately August 1981, nearly three years after the transfer of OSI to OIG, Department records indicated that Plaintiff held the position of Deputy Director of OSI, a non-existent position in an extinct office. *fn2" Plaintiff held no job title corresponding to the new OIG. Moreover, although Plaintiff retained his GS-15 rating and pay, he claims he was not assigned work commensurate with his grade and experience. *fn3" Plaintiff also applied for, but did not receive, the position of Assistant Inspector General for Investigations. On July 16, 1979, Ronald Goldstock assumed the position of Deputy Inspector General; Goldstock has not been previously employed by the OSI.

 In the meantime, despite his continued GS-15 status and salary *fn4" Plaintiff filed this action in July 1979 seeking appointment as Deputy Inspector General and an injunction precluding Mr. Goldstock from assuming that position. At the same time, he filed grievances with DOL and the Merit Systems Protection Board (MSPB). On July 11, 1979, this Court dismissed Plaintiff's case for failure to exhaust administrative remedies -- referring to the pending MSPB appeal and DOL grievance procedure. Plaintiff appealed that decision and continued his claim before the MSPB. When the MSPB determined that it lacked jurisdiction over his claim, Plaintiff sought review of that determination as well. While both appeals were pending, the DOL Grievance Examiner held hearings on October 27 and 28, 1980. The examiner issued his report on March 3, 1981, recommending that Plaintiff be appointed to the position of Deputy Inspector General and be allowed to convert to SES status. The Secretary of Labor nevertheless issued a Final Decision denying Plaintiff's grievance on October 1, 1981.

 On November 20, 1981, the Court of Appeals affirmed the MSPB decision that it lacked jurisdiction over Plaintiff's complaint, and since Plaintiff had by then exhausted his administrative remedies, remanded the case to this Court for further proceedings.

 I. Plaintiff's Claim

 The gist of Plaintiff's complaint is that the Veteran's Preference Act, 5 U.S.C. § 3503, entitled him to be named Deputy Inspector General immediately upon the transfer of functions; and that, since the position was thereafter designated for inclusion in the SES, he is entitled both to the position and to an opportunity to opt into SES. The relevant statutes are as follows:

 Section 9(c) of the Inspector General Act provides that:

 
Personnel transferred pursuant to subsection (b) shall be transferred in accordance with applicable laws and regulations relating to the transfer of functions except that the classification and compensation of such ...

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