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KRAMER v. SECRETARY OF DEFENSE

March 25, 1999

MARK LEE KRAMER, ET AL., PLAINTIFFS,
v.
SECRETARY OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: Kennedy, District Judge.

ORDER AND JUDGMENT

Pursuant to Fed.R.Civ.P. 58 and for the reasons stated by the court in its memorandum docketed this same day, it is this 25th day of March 1999 hereby

ORDERED and ADJUDGED that judgment is entered in favor of the plaintiff; and further ORDERED as follows:

1. Defendant shall change the effective date of plaintiff Kramer's competitive service appointment to September 5, 1994.

2. Defendant shall change the effective date of plaintiff Jones's competitive service appointment to September 26, 1994.

3. Defendant shall change the effective date of plaintiff Findlay's competitive service appointment to May 5, 1995.

4. Defendant shall change the effective date of plaintiff Fangerow's competitive service appointment to December 21, 1993.

5. Defendant shall offer plaintiff Fangerow appointment, effective December 21, 1993, to a competitive service position for which he is qualified and for which the basic rate of pay is no less than the rate he last received for technician service before separation from technician service.

6. Defendant shall change the effective date of plaintiff Ainslie's competitive service appointment to July 31, 1995.

MEMORANDUM OPINION

The plaintiffs, former National Guard Technicians who were involuntarily separated from their employment, have brought this action under 5 U.S.C. § 3329 (1992) to revise the effective dates of their subsequent appointments in the competitive service. One plaintiff also seeks retroactive appointment to a higher-paying position. Before the court are the defendant's motion to dismiss or for summary judgment and the plaintiffs' motion for judgment on the pleadings or for summary judgment. Upon consideration of the motions, the responses thereto, and the entire record of this case, the court concludes that plaintiffs are entitled to judgment on the pleadings.

I. FACTUAL BACKGROUND

The following facts are undisputed. The five plaintiffs are former National Guard technicians, each with more than 15 years of individual service, who were involuntarily separated from their employment as technicians through no fault of their own. Following their respective separations, the plaintiffs submitted applications for Department of Defense ("Department") competitive service appointments pursuant to 5 U.S.C. § 3329. At the time of those applications, that statute provided in pertinent part:

5 U.S.C. § 3329 (1992).*fn1 Each of the five plaintiffs eventually was offered and received a competitive service appointment, but only after six months had passed in each case.*fn2 In addition, Plaintiff Fangerow was appointed to a position that had a basic rate of pay lower than that assigned to the last technician position that he had held.*fn3 In their amended complaint, the plaintiffs request the court to order the Secretary of Defense ("Secretary") to revise the effective date of their appointments and to change Fangerow's appointment retroactively to a position for which the basic rate of pay is no less than the ...


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