Brannan v. Elder Elder v. Brannan

• Citation: 95 L.Ed. 939,71 S.Ct. 685,341 U.S. 277
• Decision Date: 07 May 1951
• Docket Number: Nos. 473,474,s. 473
• Parties: BRANNAN, Secretary of Agriculture v. ELDER et al. ELDER et al. v. BRANNAN, Secretary of Agriculture
• Court: United States Supreme Court

341 U.S. 277

71 S.Ct. 685

95 L.Ed. 939

BRANNAN, Secretary of Agriculture

v ELDER et al.

ELDER et al.

v. BRANNAN, Secretary of Agriculture.

Nos. 473, 474.

Argued April 11, 1951.

Decided May 7, 1951.

Motion for Leave to File Petition for

Rehearing Denied June 4, 1951.

See 341 U.S. 956, 71 S.Ct. 1012.

[Syllabus from pages 277-279 intentionally omitted] Messrs. Greene Chandler Furman, Robert D. Elder, pro se.

Mr. Morton Liftin, Washington, D.C., for Brannan.

Mr. Justice CLARK delivered the opinion of the Court.

These actions involve questions concerning the precise scope of rights to employment in the federal service granted by the Veterans' Preference Act of 1944. 58 Stat. 387, 5 U.S.C. (1946 ed.) § 851 et seq., 5 U.S.C.A. § 851 et seq. The ultimate issues are two: (1) whether under § 12 of the Act veterans with temporary war-service appointments are entitled to retention preference over nonveterans with the equivalent of classified civil service status when reduction-in-force discharges are made; and (2) whether the reemployment rights of veterans lawfully discharged are governed by § 12 retention priorities or by other provisions of the Act.

We treat these cases together, as did the courts below, and shall refer to Elder and Furman as petitioners. Petitioners are honorably discharged veterans and as such are concededly entitled to whatever benefits the Act affords. They were appointed associate attorneys in the Office of the Solicitor of the Department of Agriculture in July and August 1943. At the time of their appointments, a civil service regulation was in effect under which all appointments as attorneys were to be limited to the duration of the war plus six months, and persons so appointed were not to acquire a classified (competitive) civil service status. On May 29, 1947, petitioners and eighteen other attorneys in the Department were notified that, because of a reduction in force compelled by lack of funds, they would be separated from service on June 30 following. Nonveteran attorneys with the equivalent of classified status were to be retained. The selection was made on the basis of civil service retention-preference regulations—under § 12—which plainly required that nonveterans with classified status or its equivalent be given a higher retention priority than veterans without.

Plaintiffs appealed to the Commission, which subsequently found that their separation was in accord with the statute and regulations. Meanwhile, however, they instituted these actions in the District Court for the District of Columbia, alleging first that they had acquired a classified status, and hence were entitled under the regulations to a retention priority over nonveterans; second, that in any event, the statute gave veterans an absolute retention priority regardless of status, and that Commission regulations to the contrary were invalid.

While these actions were pending, the Department came into additional funds, and several attorneys not reached for separation resigned voluntarily or transferred. The Department then rehired nine of the attorneys previously separated, the first of whom took office on October 27, 1947. Some of the attorneys rehired were nonveterans with a lower reduction-in-force retention priority than that possessed by petitioners at the time all were separated. On this ground, the latter amended their complaints before the District Court to allege in addition that they had been deprived of a preferential right to 'reemployment' or 'reinstatement.' The Secretary moved for a summary judgment, and the District Court granted the motion. On appeal, the Court of Appeals affirmed the judgment that petitioners' separation from the service was lawful. But it found that the allegations concerning violation of reemployment or reinstatement rights were well founded. The court therefore reversed and remanded with directions with the Secretary be given leave to deny the facts alleged. 87 U.S.App.D.C. 117, 184 F.2d 219. From this judgment, the parties cross-filed petitions for review. Petitioners sought review of the judgment that their separation was lawfully carried out. The Secretary sought review of the judgment that petitioners' allegations as to deprivation of reemployment or reinstatement rights stated a cause of action under the statute. We granted certiorari because of the obvious impact of these issues on federal employment policies. 1951, 340 U.S. 928, 71 S.Ct. 496.

For reasons outlined below, we agree that petitioners' separation from service was in full accord with the statute. We disagree with the holding that the allegations of the complaint are sufficient to state an unlawful deprivation of a preferential right to reemployment.

I.

As the Court of Appeals pointed out, there is no merit in petitioners' contention that they had acquired a classified civil service status and were thus entitled under the regulations to retention preference over all nonveterans.¹ The validity of petitioners' discharge, therefore, turns on the validity of the Commission's retention-preference regulations. 5 CFR (Supp.1947) § 20.3. These regulations were adopted pursuant to § 12 of the Veterans' Preference Act, 5 U.S.C. § 861, 5 U.S.C.A. § 861, which reads in part as follows:

'In any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings: Provided, * * * That preference employees whose efficiency ratings are 'good' or better shall be retained in preference to all other competing employees and that preference employees whose efficiency ratings are below 'good' shall be retained in preference to competing nonpreference employees who have equal or lower efficiency ratings * * *.' (Emphasis added.)

The regulations first define 'competing' employees on the basis of tenure of employment. The highest priority is given Group A, which includes (1) employees having classified civil service status, and (2) those holding positions excepted from examination requirements and whose appointments are without time limitation. Group B, second in retention priority, includes employees without classified status or whose appointments are limited to the duration of the war plus six months. Group C is composed of employees appointed for one year or less. The regulations then classify employees within each group on the basis of veterans' preference and efficiency ratings. Subgroups A—1, B—1 and C—1 include employees with both veterans' preference and efficiency ratings of 'good' or better. Subgroups A 2, B—2 and C—2 include those with 'good' or better efficiency ratings but without veterans' preference. Under these regulations, petitioners, as war-service employees, were classified B—1, and were separated while some nonveteran attorneys with an A—2 classification (permanent employees) were retained. The Secretary had no other choice, since the regulations group employees by tenure and limit the reach of veterans' preference to competing employees of the same group.

Petitioners contend that this feature violates the statute, that the proviso of § 12 plainly gives veterans with an efficiency rating of 'good' or better an absolute preference over all other employees, with or without classified status or its equivalent. But the proviso, like the body of § 12, contains the term 'competing' employees, which necessarily implies that a veteran's preference operates only within a defined group. And since the statute does not supply a definition, we must determine from the legislative history of the Act, and from prior legislation and regulations, whether the Commission's definition may reasonably be said to 'carry into full effect the provisions, intent, and purpose (of the statute)'. 5 U.S.C. § 868, 5 U.S.C.A. § 868.

This Court made a similar examination in Hilton v. Sullivan, 1948, 334 U.S. 323, 68 S.Ct. 1020, 92 L.Ed. 1416. The decision in that case upheld that retention-preference regulations insofar as they granted veterans with classified status an absolute priority over nonveterans of the same status regardless of length of service. The Court stated that in the light of all pertinent history 'no other interpretation of (§ 12) * * * can fairly be reached.' Id., 334 U.S. at page 336, 68 S.Ct. at page 1026, 92 L.Ed. 1416. Since 'length of service' and 'tenure of employment' appear as parallel terms in the body of § 12, it can be argued that if the proviso eliminates length of service as a barrier to veter- ans' preference, it also eliminates tenure. But this ignores a crucial difference in the historical treatment of these two factors. Executive orders and Civil Service regulations prior to 1944 had consistently disregarded length of service in giving veterans preference over nonveterans with the same tenure—a fact stressed in the Hilton case. Id., 334 U.S. at pages 336—337, 68 S.Ct. at pages 1026—1027, 92 L.Ed. 1416. On the other hand, the regulations had just as consistently distinguished 'competing' groups on the basis of tenure, and had confined the scope of veterans' preference to employees of the same group. As early as 1932, the Commission provided that reduction in force was to be carried out in inverse order of tenure, permanent employees to be separated last.² The rule was still in force at the time the Veterans' Preference Act of 1944 was passed. 5 CFR (Supp.1943) § 12.304.

Moreover, the legislative history of the Act is barren of any indication that this long-established separation of 'competing' employees on the basis of tenure was to be broken down and subordinated to veterans' preference. In general, the Act was designed to 'give legislative sanction to existing veterans' preference' and to 'give some additional strength' to that preference.³ Additional rights granted were specifically brought...