# Robert Thomas Quick v. The United States > United States Court of Claims · July 15, 1970 · 428 F.2d 1294 URL: https://www.frixlaw.com/law-library/cases/9455812 ## Case - **Full name:** Robert Thomas QUICK v. the UNITED STATES - **Court:** United States Court of Claims - **Decided:** July 15, 1970 - **Citations:** 428 F.2d 1294; 192 Ct. Cl. 630; 1970 U.S. Ct. Cl. LEXIS 146 - **Precedential status:** Published - **Opinion:** Dissent by Collins - **Judges:** Cowen, Laramore, Durfee, Davis, Collins, Skelton, Nichols - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9455812 ## Opinion text COLLINS, Judge, dissenting: The key issue in this case is whether plaintiff’s demotion was voluntary or involuntary, and it is mainly on this particular point that I cannot agree with the majority opinion. The regulation governing this question is Army CPR P3, § 2-76(1) (1963), which reads as follows: (a) When the action which results in demotion or reassignment is initiated by the employee for his personal advantage or desires, and the appointing officer’s action is responsive thereto, salary retention benefits do not apply. The most common example of an employee-initiated action is when an employee requests to be moved to another position even though a possible loss of pay may be involved. (b) When the action which results in demotion or reassignment is initiated by the Department of the Army, it is not taken at the employee’s request, even though he may have asked the Department to consider his personal situation (which may require his acceptance of a lower grade) before final action is consummated. Some examples of the kinds of actions which are not considered to be initiated by the employee even *1302 though he may have submitted a written request are as follows: 2. A demotion or reassignment as a result of solicitation by the Department to fill a position requiring special skills, or to otherwise further a placement program. [Emphasis added.] The key phrase in the above provision is “When the action * * * is initiated * * Thus, the question of whether a demotion is voluntary or involuntary should depend upon who iniates the action leading to the demotion. There is no doubt in my mind but that defendant initiated the action leading to the demotion in this case by soliciting plaintiff personally to apply for the position in Jacksonville. The fact that plaintiff was sent a copy of the vacancy announcement, in itself, amounts to a “solicitation by the Department to fill a position requiring special skills.” But it should not be overlooked that plaintiff also was requested in person by Mr. F. O. Biehn, Chief of the Construction Division in Jacksonville, to apply for the job. This coupled with the sending of the vacancy announcement definitely shows that the Department solicited plaintiff for the position. I do not understand how this fact can be questioned. Even the court conceded that plaintiff was “solicited,” but it did not believe that he was solicited “by the Department.” I assume that this is because there was no indication of which agency official actually sent plaintiff the va7 caney notice. The court's reasoning on this point is very hard to follow since it would appear safe to assume, especially considering Mr. Biehn’s oral solicitation, that the vacancy notice was sent by a Department official authorized to do so and not by some desk clerk acting ultra vires. The fact that the notice was authorized should, thus, amount to a solicitation “by the Department.” The court’s reliance on the word “fill” in the regulation set forth above certainly seems unwarranted when one considers that the action was “initiated by the Department” and that plaintiff was personally “solicited” for the job. As the majority so succinctly stated: “To ascribe validity to such an interpretation would be to condone wrenching the regulation to the breaking point.” 1 The court obviously would interpret the provision in question to mean that if the Department had either of two persons in mind to fill a job, in order for there to be a solicitation, it would have to choose one and ask him to take the position. If he refused, then it could ask the other, and this would also be a solicitation. However, if the Department asked both persons to apply for the job at the same time, this would not be a solicitation. The distinction exemplified by the above example is one for which I can find no valid basis, and I simply cannot agree that the word “solicitation” was meant to be limited to such a narrow situation. Where an individual is personally requested (in this case both orally and in writing) by a Department to apply for a job, this should amount to a “solicitation by the Department to fill a position.” Consequently, I feel that plaintiff was solicited within the meaning of Army CPR P3, § 2-76(1) (6) (2) (1963), and that this solicitation was the initial step leading to plaintiff’s demotion. Thus, plaintiff’s demotion was not voluntary. Since plaintiff’s demotion was involuntary, defendant was obliged to follow the mandate of Army CPR P3, § 1 -2a (1963), which reads as follows: The policy is to preserve, to the maximum extent possible, an employee’s last earned rate of pay in the situations listed below. (1) When a current employee of the Department of the Army is changed to another position without advancement in grade and the action is not the result of his request * * *. [Emphasis added.] *1303 Army CPR P3, § 2-6 (1963), also provides: Except as provided below, when an employee who is ineligible for salary retention benefits as provided in paragraph 2-7 is changed to a lower Classification Act grade his pay will be fixed in the new grade at a step rate which preserves to him, so far as possible, his last earned rate. * * * In this case plaintiff’s last earned rate of pay was GS-14, step 4, $15,640. This meant that when he was reduced to a GS-13, he should have been placed in either step 9 ($15,435) or step 10 ($15,-855), since the appointing officer has the discretion to choose either the higher or the lower as the last earned rate. 2 It should be noted that there was nothing which would have prevented plaintiff from receiving either of the above-mentioned salaries. 3 There are several other points relied upon by the majority to support its finding of voluntariness which ought to be mentioned. The fact that plaintiff had a personal desire to get back to Jacksonville should not have any bearing on the voluntariness issue. Plaintiff’s motive in applying for the job should be irrelevant; what is important is whether the action was initiated by plaintiff or the Department of the Army and whether plaintiff was solicited by the Department. Also the fact that plaintiff admitted voluntarily applying for the position should have little bearing since he was not aware of the technical difference between voluntary and involuntary as spelled out by the regulations. In addition, plaintiff’s statement that he might have to accept a reduction in salary can easily be interpreted to mean that he anticipated a salary at GS-13, step 9, rather than GS-13, step 10. Assuming for the moment that plaintiff’s demotion was voluntary, I cannot agree with the court’s treatment of the regulation requiring the Army to obtain plaintiff’s written consent. Army CPR P3, § 2-76(2) (1963), states: In advance of a demotion or reassignment to be made at an employee’s request, there shall be secured from him a signed acknowledgement that the demotion or reassignment is for his benefit or convenience and that he is aware that salary retention will not apply if the action is taken. * * * [Emphasis added.] The court tries to get around this provision by finding that it was enacted for the benefit of the Government to protect it from later allegations of coercion by the employee. While this may be true, this does not necessarily preclude the regulation from also being for the benefit of the employee to protect him from a demotion to which he never actually consented or even requested. Thus, it seems very logical to conclude that the provision could just as easily be for the benefit of plaintiff as for the Government. The majority also relies somewhat on plaintiff’s statement in the SF-57 form that he would accept a minimum grade of GS-13 and $14,000 in salary. I certainly do not agree that this inadvertent statement can be substituted for the requirement of written consent, nor do I feel that it should be allowed to overcome the regulation requiring defendant to advise plaintiff of his eligibility for salary retention benefits. 4 This type of statement in a job application form is *1304 not the type of statement which should be legally binding on the maker. It is designed primarily for informational purposes and should not have the same effect as a sworn statement. It certainly should not be allowed to overcome defendant’s obligation to plaintiff under the pertinent regulations, which is exactly what the court is allowing in this case. In conclusion, I cannot help but feel that the majority have allowed themselves to be influenced too greatly by certain factors in this ease, such as the fact that plaintiff wanted to return to Jacksonville, and his statement that he would accept a minimum of GS-13 and $14,000. These are points which should be considered along with such other factors as plaintiff's continuous Government service since 1933 and his loss of $600 per year in retirement pay, should defendant prevail in this case, only after it has been determined that the Government has abided by its own regulations. This court has consistently held in numerous cases that, in personnel matters, Government agencies are bound strictly by their own regulations. Fletcher v. United States, 392 F.2d 266, 270 , 183 Ct.Cl. 1, 8 (1968); McCallin v. United States, 180 Ct.Cl. 220, 233-234 (1967); Sofranoff v. United States, 165 Ct.Cl. 470, 478 (1964); Daub v. United States, 292 F.2d 895, 897-898 , 154 Ct.Cl. 434, 437-438 (1961); Murray v. United States, 154 Ct.Cl. 185, 191 (1961); Newman v. United States, 143 Ct.Cl. 784, 794 (1958); Watson v. United States, 162 F.Supp. 755, 757 , 142 Ct.Cl. 749, 754 (1958); see Service v. Dulles, 354 U.S. 363 , 77 S.Ct. 1152 , 1 L.Ed.2d 1403 (1957). I feel that, in this case, the Government, in refusing to give plaintiff a salary comparable to his last earned rate, failed to abide by its regulations. To allow an agency to ignore its regulations, in the handling of its employees (no matter what the circumstances), is not only contrary to past decisions of this and other courts, but is a denial of individual rights accorded to employees and flies in the face of all that seems just and fair. . The court’s opinion at p. 1299. . Army CPR P3, § 1-4c(2) (1963). . In a letter from R. P. Tabb, Colonel, Corps of Engineers, to plaintiff dated October 27, 1965, it was stated : “In reviewing your request I find that your salary could have been established at the level you requested. * * * On the other hand I also feel that your salary level should have been discussed at the time of job offer and not treated separate and apart from all consideration involved in your determination of acceptance.” . Army CPR P3, § 2-7n (1963). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9455812. Public record. Not legal advice.