The opinion of the court was delivered by: Kennedy, District Judge.
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.
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.
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:
The Secretary of Defense shall take such steps as may
be necessary to ensure that, except [in the case of
an involuntary separation for cause on charges of
misconduct or delinquency, or a technician
who is eligible for immediate or early retirement],
any military reserve technician who is involuntarily
separated from technician service, after completing
at least 15 years of such service and 20 years of
service creditable under section 1332 of title 10, by
reason of ceasing to satisfy the condition described
in section 8401(30)(B) shall, if appropriate written
application is submitted within one year after the
date of separation, be offered a position [in the
competitive service, within the Department of
Defense, for which the individual is qualified, and
the rate of basic pay for which is not less than the
rate last received for technician service before
separation] not later than 6 months after the date of
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 ...