Bray ( 1980 )

Civilian pay; reduction-in-force; reemployment rights after recovery from on-the-job injury. — On June 20,1980 the court entered the following order:

Before Davis, Judge, Presiding, Kunzig and Bennett, Judges.

Plaintiff, a former electrician with the Southwestern Power Administration, complains that.he was improperly reduced in force in June 1977 and denied reemployment in January 1978. He appealed these agency actions to the Federal Employee Appeals Authority (FEAA) of the then Civil Service Commission, which upheld the agency. His suit for back pay and damages, first filed in the United States District Court for the Eastern District of Arkansas, was transferred here. Defendant has moved for summary judgment. Plaintiff, who has been represented by counsel, has failed to file a response to the Government’s motion.

The FEAA’s decisions sustaining the agency’s reduction-in-force and failure-to-rehire are both supported by substantial evidence, in accord with the statute and regulations, and neither arbitrary nor capricious. In the appeal on the reduction-in-force, the FEAA properly determined that plaintiff had not had sufficient active duty in the Marine Corps at the right times to entitle him to veteran’s preference; that his retention and competitive groups were correctly made up, and the regulations followed; that he received adequate notice and there were no procedural violations; and that plaintiffs work-injury prior to the reduction-in-force did not affect the agency’s power to reduce him or the Commission’s authority to consider that action.

On the failure-to-rehire appeal, the FEAA correctly determined, taking account of its earlier decision, that the governing regulation — which specifically exempted from the requirement calling for the rehiring of an employee who has recovered from an on-the-job injury those employees who had meanwhile been separated because of a reduction-in-force — permitted the Southwestern Power Administration to deny plaintiffs request for restoration to duty after his work-related injury.

it is therefore ordered, without argument, that defendant’s motion for summary judgment is granted, and the petition is dismissed.