The opinion
DAVIS, Judge
(dissenting):
The Post Office Department characterized plaintiff’s transfer from Phila *374 delphia to Washington as a “promotion”, both in the Postal Manual and in the formal Notification of Personnel Action. The Civil Service Commission also treated it as a “promotion”. 1 I think we should take the agencies at their word, especially since this description put the Department in a position to tell inquirers that Mr. Burton, whose case had become a minor cause célebre because of its racial overtones, was not being adversely affected or penalized, 2 but was actually being given a better job. We should not take it upon ourselves to decide that, despite what the Post Office and the Commission have formally said, plaintiff was not in fact promoted.
A promotion, in my view, does not fall under the provisions of the Federal Personnel Manual authorizing separation for failure to accept a “new assignment”. Federal Personnel Manual, ch. 715, subch. 3, § 3-l.a. That regulation does not refer in terms or by necessary implication to promotions, but solely to a “new assignment”. As the court indicates in its opinion, there can be a world of difference between a compulsory transfer at the same grade and an involuntary promotion. Forcing an employee to take a promotion against his will— with the sanction of removal if he refuses — is a concept heretofore unknown to the federal civil service. It should take explicit language in the regulation to show that promotions-without-consent are to be included in the general coverall of a “new assignment”. Accordingly, I would hold that under the applicable regulations the Government had no right to order plaintiff to go to Washington against his wish to take the job given him there.
This position requires me to face the problem of whether plaintiff should have acquiesced (under pressure) in the promotion and fought the transfer after he had gone to Washington. See Madison v. United States, 174 Ct.Cl. 985 , 992 n. 4 (1966), cert. denied, 386 U.S. 1037 , 87 S.Ct. 1481 , 18 L.Ed.2d 601 (1967). In the circumstances of this case, I think not. Congress has laid down, in 39 U.S.C. § 3105 (1964), a special policy for transfers between the field and departmental services of the Post Office Department:
With the consent of the employee, the Postmaster General may detail any employee, including an employee of the departmental service, between the postal field service and the departmental service to such extent as may be necessary to develop a more efficient working force and more effectively to perform the work of the Department. Each detail shall be made for a period of not more than one year and may be made without change in compensation of the employees so detailed (emphasis added).
This strong statutory policy of requiring the employee’s consent to a detail to Washington (which could last as long as a year) leads me to conclude that plaintiff was not required to take himself and his family to the District of Columbia, against his will, in order to contest his promotion. Congress seems to me to have recognized the hardship of such an involuntary dislocation' which could well be temporary, for if plaintiff prevailed he would have to move back to Philadelphia just as if he had been on detail. 3
The upshot, for me, is that plaintiff’s separation was invalid. He has not moved for summary judgment, but to expedite the disposition of litigation we have granted judgment in favor of a non-moving party where the relevant *375 facts are clear and his right to recover appears on the record. See Aircraft Associates & Mfg. Co., Inc. v. United States, 357 F.2d 373, 380 , 174 Ct.Cl. 886 ,. 898-899 (1966).
LARAMORE and DURFEE, JJ., concur in the foregoing dissenting opinion.
. Both the Department and the Commission added that the personnel action was likewise a “change in appointing office”, abbreviated as “CAO”.
. The Commission’s Board of Appeals and Review said in its decision that “[a] promotion and CAO is not an adverse action within the meaning” of the Commission’s regulations providing for review of agency action detrimental to an employee, though the Board did undertake to review the procedures.
. I need not consider whether 39 U.S.C. § 3105 bars, by implication, a permanent involuntary assignment from the field to the departmental service.