ORDERS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000300560002-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 27, 2016
• Document Release Date: January 9, 2013
• Sequence Number: 2
• Publication Date: June 22, 1979
• Content Type: MISC

704
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560002-1
ORDERS
ORDERS
(220-=Ct,Cl.
but would have us undo the determinations of the trial
judge concerning, among other things, the deduction from
\ the award of unemployment compensation received by
plaintiff. She also challenges his denial of the addition of
certain further annual leave, compensatory and holiday
leave, travel expense reimbursements, life and health
insurance benefits, and severance pay. She also seeks
special consideration for income taxes. A? to the issue of
taxes, we decline to rule, as the issue is presented
prematurely and would require a declaratory judgment
which we have no jurisdiction to grant in this case.
The trial judge allowed plaintiff 3,326 hours of back
annual and holiday leave at an hourly rate of $9.65 for a
total of $32,095.90. Defendant challenges this part of the
back pay award and concedes only 240 hours in accordance
with the provisions of FPM Chapter 550, Subchapter 2-3a
(1975). Since we believe defendant is correct, this would
reduce the leave item to $2,316.00 and reduce the total
recovery to $167,372.25. Defendant's position is based on
the December 23, 1975, amendment of the Back Pay Act by
Public Law 94-172, 89 Stat. 1025 (1975), 5 U.S.C. ?
5596(b)(2) (1976), and implementing regulations, 5 C.F.R. ?
550.804(g) (1977). See also FPM Supp. 990-2, Chapter 550,
Subchapter 8, Subparts S8-2a, S8-6, and S8-6c (1977).
Thereunder, an employee not on the rolls on the date of the
amendment is limited in his claim for leave which must be
made to the agency within 3 years from the 1975
amendment, and contemplates reinstatement to active
duty employment. Plaintiff does not meet these criteria
and although she responds to defendant she has failed to
persuade us of the correctness of her position. At oral
argument she admitted that she has not complied with the
procedural requirements to claim leave but charges that
this is because she is prohibited from talking to Govern-
ment agencies and they are prohibited from talking to her.
There is no proof of this and we reject it. Plaintiff concedes
that her entitlement to the leave "would appear to depend
upon the interpretation of her current status with respect
to the phrase 'reinstated to the rolls,' " or as a "former
employee." We have ruled on that, adversely to plaintiff,
and reiterate it here. We further conclude and hold that
plaintiff is not entitled to full credit for annual leave for
705
the period that she was not actually, as opposed to
constructively, employed.
We have patiently read all of the papers before us and
listened to the oral argument. We are satisfied that the
trial judge, with the one exception pertaining to leave
discussed above, is correct on the facts and the law. His
opinion was furnished to the parties and is not printed
herewith. We further conclude that we cannot and should
not reverse the prior decisions of the court in this case.
IT IS THEREFORE ORDERED that the memorandum opinion
of the trial judge, filed October 4, 1978, is adopted by the
court, with the modification stated, as the basis for its
judgment, and final judgment for plaintiff is entered in the
sum of ? one hundred eighty-two thousand three hundred
sixty-six dollars and six cents ($182,366.06), of which, prior
to payment, fourteen thousand nine hundred ninety-three
dollars and eighty-one cents ($14,993.81) will be credited to
plaintiffs Civil Service Retirement Fund account, repre-
senting plaintiffs contribution to the fund based on back
pay awarded plaintiff for the period June 13, 1959, to
January 26, 1977. The judgment payable to plaintiff after
said deduction, therefore, is $167,372.25, as stated in the
order of the court of June 22, 1979.
IT IS FURTHER ORDERED that plaintiffs motion of Novem-
ber 2, 1978, for an order directing defendant to cancel her
resignation from defendant's employment, effective June
12, 1959, is hereby denied."
No. 41-78. JUNE 22, 1979
fRo-bWrer.TRIttrrian rep.
Civilian pay; assignment to higher position; Central
Intelligence Agency; exemption from Classification Act;
authority to formulate own compensation regulations.?On
June 22, 1979 the court entered the following order:
Robert J. Pittman, pro se.
Arlene Fine, with whom was Assistant Attorney General
Barbara Allen Babcock, for defendant.
? The amount of the judgment set forth in the order of June 22, 1979 was corrected
by the order of June 29, 1979 as set forth above. The court stated that "In all other
respects the order of June 22, 1979, stands."
? ? Plaintiffs motion for rehearing of order and defendant's motion for new trial,
rehearing and suggestion for rehearing en bane were denied September 28, 1979.
Plaintiffs petition for a writ of certiorari was denied, 445 U.S. 969 (1980).
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706 Declassified in Part - Sanitized Copy Approved for Release 2013/01/09: CIA-RDP90-00530R000300560002-1 707
220 Ct. Cl. 605
Before KUNZIG, Judge, Presiding, COWEN, Senior Judge,
and SMITH, Judge.
This pro se civilian pay case comes before the court on
the parties' cross-motions for summary judgment. Plaintiff
contends that the Central Intelligence Agency (CIA or
Agency), although exempt from the provisions of the
Classification Act (the Act), 5 U.S.C. ? 5101, et seq. (Supp.
II, 1965-66), nonetheless has adopted a policy of wholesale
adherence to the Act, and is bound by its provisions.
Plaintiff alleges he was employed by the CIA and the
Agency failed properly to compensate him under the
Classification Act. The Government counters that although
the Agency does have some provisions in common with the
Act, the Agency has wide discretion to formulate its own
pay policies irrespective of the Act. We hold for the
Government.
Plaintiff was a career staff employee of the CIA from
1950 until his retirement in August 1978. In February
1971, plaintiff was promoted to a GS-15 level within the
Agency. Thereafter, on June 18, 1973, while still being paid
at a GS-15 rate, plaintiff was transferred to another
position within the Agency which was graded at a GS-16
level. GreneraLC-I-A-IpolicyLwith..--.re-! gard? mtozassignmens
stated in applicable regulations, ciraliat=t1Te7flpaTarn-oThit.
consicicrattobe-the-needs-of-th7-7Agency=a-Fid
il rid
iii=iividl-and-personatmrcumstaxmustzte
burdin-ated-to-kgencytementsr Plaintiffs-assign-
which provides for assignments to positions of higher grade
for training purposes or when the employee is the best
qualified available person at the time for the position.
Plaintiff continued to perform the duties of his new
position while at all times receiving compensation com-
mensurate with a GS-15 salary.
In April 1977, plaintiff submitted a claim to the CIA in
the amount of approximately $10,000, such sum represent-
ing the additional salary he would have received had he
been compensated at a GS-16 rate since June 18, 1973.
Plaintiffs claim was denied by the Director of the Agency
on August 8, 1977. Thereafter, on February 1, 1978,
plaintiff timely brought suit in this court.
Plaintiff contends that as the incumbent of a GS-16
position, he is entitled by the official policies, regulations
and directives of the CIA to be paid at a GS-16 salary rate
from June 18, 1973 until August 25, 1978. e-A-lthhr-tli
CIA7-4s-specificallemiit=fithe-provi-?ions_of_th--e'
elamifinTioriMtet7-3-ee-5--UTS:0..----?-5102(a)(-1-)(-vi)T-plaintiff7
argues-to-the-extent-the-Agency--has-adopted-provisions-of7
itird:Classificatin7Act,..th-67A-ge-ncy-is:15:0=1:to:comply.7-with
strefirprovistarT0
Principal reliance is placed by plaintiff on two directives
issued by the Director of the Agency. The first, issued in
1949, stated in part that the Agency would be "governed by
the basic philosophy and principles of the Classification
Act. . ." The second, issued in 1962, reaffirmed the earlier
directive stating in part that "the agency, insofar as
practicable, will adhere to the compensation schedules and
other provisions of the Classification Act of 1949. . . for all
staff personnel of the Agency except as may be otherwise
authorized by the Director of Central Intelligence." (em-
phasis added). These directives, plaintiff contends, indicate
that the Agency has, in effect, adopted the provisions of the
Classification Act in regard to compensation schedules and
is bound by such provisions. We-disagree.
kithough-the=-A-geircy=has=in=s-ameri rtances-adopt-e-d
personnel-palicies=simila-r=to-=those=contain-ed=in-=the
tel-assifrcati-mmtet7ther-e-_-aTe=a-lson ume taus i-Trices .1
We do not believe the impact of the two directives
discussed above was-as plaintiff suggests-to effect a
wholesale adoption of Classification Act practices. Rather it
merely indicated the desire of the Agency to emulate the
basic principles of the Act, while at the same time,
retaining the right to formulate its own personnel policies
consistent with the unique needs of the CIA.
Plaintiff's transfer to his new position on June 18, 1973
was made pursuant to CIA regulation HR 20-17d. As
discussed supra, the regulation provides that an employee
may occupy a position of a grade higher than his grade
when:
(1) for training purposes the assignment is intended
to afford the employee broader developmental opportu-
nities in his career field; or (2) the employee is the best
qualified person available at that time for the position.
s_e x m ples,_the overtirnesulerformance_eyaluation-system7managenie'ntra
supergrades7a-n-d?protedures?for-involuntary?separations?are?a.14?different.
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708
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ORDERS
220 Ct. Cl.
Although the Agency has a general policy of assigning
employees to a position at the employee's grade, HR 20-17d
is a specific exception to such policy. Thus, from the plain
language of the quoted regulation itself, it is clear that the
assignment of plaintiff to a position that was higher than
plaintiff's grade without a salary or promotion increase
was authorized under CIA regulations.2 Insofar_asAlie_CDV
fis;-by-virtue-of-the:Texigencies-of-its-special-Tfunttions;
gxempt-from_the_Class1ficafion-Act5-- t-hese-reguraioe
permissible-under-existing=law?
Plaintiffs case is similar, as the Government urges, to
our decision in Peters v. United States, 208 Ct.C1. 373, 534
OF. 2d 232 (1975). Since plaintiff has failed to show any
specific entitlement to the higher pay of a GS-16 from any
specific statute or regulation, his claim must fail. "For the
court to order a promotion where the agency has failed to
do so there must be a clear legal entitlement to such
promotion." Peters, supra at 377; Selman v. United States,
204 Ct.C1. 675, 686, 498 F. 2d 1354, 1359 (1974).
As a final observation, we note that over the course of
plaintiff's service with the CIA he has at times been
assigned to positions of a lower grade than that indicated
by the pay he was receiving. Plaintiff, although at all times
having access to all pertinent CIA personnel regulations,
never complained when he benefitted and should not now
be heard to complain when the situation is reversed. See,
e.g., Peters, supra; Steur v. United States, 207 Ct.C1. 282
(1975); Weir v. United States, 200 Ct.C1. 501, 474 F. 2d 617,
cert. denied, 414 U.S. 1066 (1973).
Q- ;n-conclusion7-we-h-aktEthat=plaintiff-hasi---failed---to
tconvince-the-court-that-the-GIA--has--alxlicated-its-discre-
)
-tion-ery-authority-to-es_tablishits-own--rules-and-regulatin
os
in-regarcl-te-compensation-of-its-employ_eesin-favorufithose
outlin-ettin-the-elessification-Ac-6 T-he-CIAT:be_cause:7of-its-,
gpiqueland=specia-lized-functions,-was-granted--breongress
2 Plaintiff contends that CIA regulations necessitate documentation where, as
here, an employee is "detailed" to a position outside of his career service or to
temporary work for 30 days or more in development complement status. However,
plaintiff's transfer constituted an "assignment" under Agency regulations, not a
"detail." Plaintiff was a career administrative officer and his assignment was made
to another administrative position. Therefore, since plaintiff was assigned to a
position within his career service, i.e., Administrative Career Service, no documenta-
tion under CIA regulations was necessary beyond the personnel action.
ORDERS
605
709
1 ,th-e-authori ty-to-form ulate-i ts-ow n-person n e 1-p ol ieiel
,consistent---with-those_uniqu-e-.-rreeds---of-the-Agency. We,
therefore, are compelled to hold and do so hold that the
CIA's personnel practices, about which plaintiff complains,
are valid exercises of the Agency's power.
Accordingly, IT IS THEREFORE ORDERED, upon careful
consideration of all original and supplemental submissions
of the parties, with oral argument, that plaintiff's motion
for summary judgment is denied. Defendant's motion for
summary judgment is granted, and the petition is dis-
missed.
No. 246-78. JUNE 22, 1979
Joyce Y. Neenos
Civilian pay; dismissal; excepted employee.-On June 22,
1979 the court entered the following order:
Joyce Y. Neenos, pro se.
Gerald L. Schrader, with whom was Assistant Attorney
General Barbara Allen Babcock, for defendant.
Before DAVIS, Judge, Presiding, KASHIWA, and KUNZIG,
Judges.
In this civilian pay case pro se plaintiff alleges that she
was wrongfully discharged from her position as a clerk-
typist with the Department of the Army. The case is before
the court on cross-motions for summary judgment. We
conclude that there are no disputed issues of material fact
and award judgment to the defendant.
Since 1972 plaintiff has worked in several positions in
the federal civil service. During 1973 plaintiff held the
position of clerk-typist with the Department of the Army in
Fort Ord, California. Her appointment was in the career-
conditional category. She completed her one-year proba-
tionary period in April of 1974.
Sometime in late 1975 or early 1976, plaintiff traveled
with her soldier-husband on his overseas tour of duty in
Germany. Plaintiff alleges that she was on a leave of
absence from her clerk-typist position. On February 12,
1976, plaintiff was employed by the Army as a clerk
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