Ritter v. Strauss

• Decision Date: 04 December 1958
• Docket Number: No. 14225.,14225.
• Citation: 261 F.2d 767,104 US App. DC 301
• Parties: John C. RITTER, Appellant, v. Lewis L. STRAUSS, Secretary of Commerce, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

104 US App. DC 301, 261 F.2d 767 (1958)

John C. RITTER, Appellant, v. Lewis L. STRAUSS, Secretary of Commerce, et al., Appellees.

No. 14225.

United States Court of Appeals District of Columbia Circuit.

Decided December 4, 1958.

Mr. Byron N. Scott, Washington, D. C., for appellant.

Mr. Hershel Shanks, Attorney, Department of Justice, with whom Asst. Atty. Gen. George C. Doub, Messrs. Oliver Gasch, U. S. Atty., and Morton Hollander, Attorney, Department of Justice, were on the brief, for appellees. Mr. Lewis Carroll, Asst. U. S. Atty., also entered an appearance for appellees.

Before MADDEN, Judge, United States Court of Claims,^* and WILBUR K. MILLER and BAZELON, Circuit Judges.

MADDEN, Judge.

The appellant sued to compel the Secretary of Commerce, the Civil Service Commission and other officials of the Government to restore him to a GS-11 position in the Bureau of the Census in the Department of Commerce. In the District Court the parties made cross motions for summary judgment. The motion of the defendants was granted, without opinion, and the plaintiff has appealed.

In 1951 the appellant and one Henry A. Bloom each held GS-11 positions in the Bureau of the Census, Bloom having some ten days seniority over the appellant. In that year Bloom applied for and was appointed to a position in the Canadian Office of the National Production Authority, which Authority was another branch of the Department of Commerce, established by the Secretary of Commerce under authority delegated to him by the President pursuant to the Defense Production Act of 1950, 64 Stat. 798, 50 U.S.C.A. Appendix, § 2061 et seq. The appellant remained in the Bureau of the Census and was detailed to a GS-12 position on June 7, 1952.

In March 1953 Bloom received a reduction in force (R.I.F.) notice from the National Production Authority, and his last day of work in that branch was May 22. In view of the R.I.F., Bloom asked for his old job in the Bureau of the Census, and resumed it immediately after May 22.

On May 29, 1953 the appellant was given a R.I.F. notice by the Bureau of the Census, stating that his last day of work would be June 30. By subsequent letters, the appellant's separation was postponed to August 28. On August 30 Bloom was promoted from his GS-11 position to the GS-12 position which the appellant had been holding in an acting capacity for more than a year.

The appellant claims that there was no genuine reduction in force since Bloom was brought in to replace him, leaving the same number of employees after as before the purported reduction.

The fact of Bloom's former employment in the Bureau of the Census is immaterial, since the parties agree that Bloom had no reemployment rights. Executive Order No. 10180, U.S.Code Cong. Service 1950, p. 1671, issued November 13, 1950, 15 F.R. 7745, granted authority to the Civil Service Commission to prescribe regulations governing the rights to reemployment of employees transferring from one agency of the Government to another. The Civil Service Commission, by Transmittal Sheet 316, of November 13, 1950, by Departmental Circular No. 643 and a press release, both issued on November 30, 1950, by Departmental Circular No. 653 issued on February 23, 1951, prescribed the procedure by which an employee might obtain reemployment rights. The prescribed procedure was not followed in Bloom's case.¹

The defendants rely upon Civil Service Regulations, section 8.108, 17 F.R. 343, which in fact was cited by the Bureau of the Census in its personnel files as the legal basis for Bloom's reemployment. The section says:

"The Commission hereby delegates authority to agencies:

"(1) To promote, demote, or reassign any permanent employee having a competitive status and serving in a competitive position."

The defendants say that Bloom's reemployment was merely a "reassignment" within the same "agency", the Department of Commerce. The plaintiff disputes this, and cites 13 U.S.C. 1, which denominates the Bureau of the Census as an agency within, and under the jurisdiction of the Department of Commerce. He cites 5 U.S.C.A. § 1001, defining the term agency for the purposes of the Administrative Procedure Act, giving it a definition which would apply to the Bureau of the Census. He cites the United States Government Organization Manual, 1951-52, which lists in Appendix C at page 656ff the departments and agencies which have submitted separate statements of organizations pursuant to the Administrative Procedure Act, and listing the Bureau of the Census and the National Production Authority as two such agencies. His most persuasive citation is that of Commerce Department Order No. 130, which rescinded Order No. 123 and provided that the Civil Service regulations relating to the transfer of employees between agencies should thereafter apply to the transfer of employees of the Department to the National Production Authority.

We think that the Department of Commerce itself regarded the Bureau of the Census and the National Production Authority as separate agencies, for the purpose of the application of Civil Service regulations.

The defendants, however, argue that one's retention status for the purpose of a reduction in force is not, in any event, an agency status, but a Government-wide status. They point to section 20.2(h) of the Regulations of the Civil Service Commission, 17 F.R. p. 11733 which says:

"`Retention credits\' are credits given for length of government service and performance ratings."

It may well be that if a vacancy occurs in an agency, and an employee with long Government service in an entirely different branch of the Government is hired to fill it, and there later develops the necessity for a reduction in force, the long period of Government service will give that employee a higher retention status than those who have been in the particular agency longer than he has been. But if an agency, a week before reduction in force notices are to be sent out, can hire such an employee from a different agency, and retain him and discharge another employee who has been longer with the particular agency, there is no real protection for faithful employees of the agency. While it would be hard to spell out in regulations any time limits within which such hiring could not be done, and we are cited to no regulation which attempts to cover such a situation, the instant case presents no real difficulty. The excess of employees making the reduction in force necessary was created by the hiring of Bloom shortly after May 22. On May 29 the plaintiff, whom Bloom was to replace, was given his reduction in force notice. The creation of the surplus of employees and the reduction in force eliminating that surplus were steps in the same transaction, both steps being in contemplation when the first step was taken.

In general, Government agency actions adversely affecting Government employees, whether they be demotions or separations, are occasioned for one of two reasons and there are statutes and regulations governing the circumstances under which such adverse actions may be taken and the manner in which they must be carried out. Separations for cause, that is, separations which are necessitated because of the poor performance or undesirable behavior of the employees are covered by the Lloyd-La Follette Act, 5 U.S.C.A. § 652, and by section 14 of the Veterans Preference Act, 5 U.S.C.A. § 863. Separations or demotions which are required to meet some administrative exigency within an employing agency are known...