concurring:
I accept the cogent reasons advanced by the court to support plaintiffs recovery. However, I feel that it has overlooked an additional viable reason therefor and perhaps miscontrued, but with no ultimate detriment here to plaintiff, the effect of his agency’s backing down in April 1972 from its January 1972 adverse action in reducing plaintiffs grade. The court says that this retreat mooted the appeal from the action. Not so. Defendant’s April transfer of plaintiff at a reduced rank was only a reaffirmation of what defendant proposed in January and which it did not at any time back away from. The reduction in rank is just as much of an adverse action as a reduction in grade and pay. It therefore entitles an employee to all procedural rights flowing therefrom regardless of the fact that his grade and salary are not reduced. These rights were not accorded to plaintiff.
The pertinent statute is 5 U.S.C. §7511 (1970), which states:
(2) "adverse action” means a removal, suspension for more than 30 days, furlough without pay, or reduction in rank or pay.
Here is what the Federal Personnel Manual has to say on the subject of rank and grade at FPM Supp. 752-1, Subch. S2(2) (1966) (now Subch. S1-4 (1976)):
The term rank * * * has been held by the Commission and by the courts to mean something more than grade * * *. Basically, it means an employee’s relative standing in the agency’s organizational structure, as determined by his official position assignment * * *, When an employee is made the subject of a personnel action which results in a lowering of his relative standing in the agency’s organizational structure, then, a reduction in rank has occurred, even though the employee has not been reduced in grade. * * *.
The uncontested fact here is that on April 17, 1972, plaintiff was reassigned from his GS-14 position as a *43supervisory criminal investigator (group supervisor of the Intelligence Division of the IRS, Scranton) to a GS-14 position as a criminal investigator (staff assistant) in Philadelphia. In his Scranton position plaintiff was responsible for the work of from 12 to 16 men who investigated tax fraud cases. These were all high-level employees, classified as high as GS-13. The supervisor’s position was one of importance, respect and heavy responsibility. The Philadelphia position, by contrast, was nonsupervisory and its duties were of a clerical nature with little serious responsibility. In fact the position had long been left vacant. The Philadelphia position entailed such tasks as checking on the work of typists, summarizing the reports of group supervisors, and developing orders for equipment and keeping it safe. These are duties of a low-grade clerk, and the fact that the position carried a high grade and salary in plaintiffs case (GS-14) does not make it otherwise. It is plain that plaintiffs "relative standing in the agency’s organizational structure” went down drastically when he assumed the position to which he was transferred in Philadelphia. This, then, was a reduction in rank and an adverse action against plaintiff according to law.
It is uncontested here that a preference eligible against whom an adverse action is proposed is entitled to at least 30 days advance written notice thereof, a reasonable time to answer personally and in writing and to furnish affidavits, a notice of an adverse decision, and must be kept in his regular position during the notice period, if at all practicable. 5 U.S.C. §7512(b) (1970), FPM Supp. 752-1, Subch. S5-4a (1966), 5 C.F.R. §752.202(d) (1971). Plaintiff was denied these safeguards to his rank. It is hard to imagine a more flagrant disregard of procedural due process explicitly provided for by statute and regulation. We do what we can to correct the error by reinstating plaintiff and giving him back pay.
By order of July 12, 1977, the court entered judgment for plaintiff for $133,781.35 out of which the General Accounting Office is authorized to credit $99,680 to the appropriate Civil Service annuity retirement fund with the balance of *44$34,101.35 to be paid to plaintiff. Plaintiff is further to be credited with 1,565 hours of accrued annual leave and 484 hours of accrued sick leave in addition to the 1,598 hours accrued by him as of July 1, 1972, for use or accrual to termination of his employment.