Wright ( 1981 )

Civilian pay; reduction-in-force; exhaustion of administrative remedies; burden of proof; administrative procedure.— Plaintiff, a former GS-12 Electronics Technician employed by the National Aeronautics and Space Administration at the Lyndon B. Johnson Spacecraft Center (Center), seeks reinstatement and back pay following his separation pursuant to an agency-wide reduction-in-force (RIF). Plaintiff contends that his retention rights as a career employee and a veteran were violated by NASA in separating him from the federal service pursuant to the' RIF. On September 24, 1980 Trial Judge Mastín G. White filed a recommended opinion holding that plaintiff is not entitled to recover. The trial judge found (1) that plaintiff failed to exhaust his administrative remedies when he did not appeal to the Board of Appeals and Review (BAR) of the Civil Service Commission (CSC) from the failure of the Regional Office to consider and find plaintiff entitled to displace the incumbents in four positions to which the plaintiff specifically claimed entitlement in his original apeal to the CSC; (2) that, moreover, at trial plaintiff failed to introduce evidence establishing that his qualifications were such that, without unduly interrupting the work of the Center, he could have displaced the incumbents; (3) that plaintiff failed to exhaust his administrative remedies by not objecting to the consideration by the BAR of material in NASA’s appeal which plaintiff considered to be "additional submissions” beyond the scope of the BAR to review; (4) that, moreover, the additional submissions were in the nature of legal argumentation and did not involve the submission by the agency of new factual evidence; and (5) that plaintiff failed to exhaust his administrative remedies by not appealing to the BAR with respect to the Regional Office’s denial of plaintiffs claim of entitlement to displace incumbents of lower subgroup standing in Aero-Space Technologist positions for which there was a prescribed requirement of a college degree (which plaintiff did not have.) On July 10, 1981 the court, by order, adopted the recommended decision of the trial judge as the basis for its judgment in this case and dismissed the petition.