424 U.S. 392 (1976), 74-753, United States v. Testan

Docket Nº:No. 74-753
Citation:424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114
Party Name:United States v. Testan
Case Date:March 02, 1976
Court:United States Supreme Court
 
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Page 392

424 U.S. 392 (1976)

96 S.Ct. 948, 47 L.Ed.2d 114

United States

v.

Testan

No. 74-753

United States Supreme Court

March 2, 1976

Argued November 12, 1975

CERTIORARI TO THE UNITED STATES COURT OF CLAIMS

Syllabus

Respondent Government trial attorneys with civil service grade GS-13 classifications requested their employing agency to reclassify their positions to grade GS-14, contending that their duties and responsibilities met the requirements for the higher grade and were identical to those of other trial attorneys classified as GS-14 in another agency, and that, under the principle of "equal pay for substantially equal work" prescribed in the Classification Act, they were entitled to the higher classification. But their agency, and the Civil Service Commission (CSC) on appeal, denied reclassification. Respondents then sued the Government in the Court of Claims, seeking reclassification as of the date of the first administrative denial of their request, and each seeking backpay, computed at the difference between his GS-13 salary and his claimed GS-14 salary, from that date. The trial judge denied backpay, but held that the CSC's refusal to reclassify respondents to GS-14 was arbitrary, and that respondents were entitled to an order remanding the case to the CSC with directions so to reclassify respondents. The court en banc, while disapproving the trial judge's recommendation that the court was empowered to direct reclassification, held that, if the CSC were to determine that it had made an erroneous classification, the court was authorized to award money damages for backpay lost, that the CSC's refusal to compare respondents' positions with those of the other trial attorneys was arbitrary and capricious, and that the court had power to order the CSC to reconsider its classification decision. Accordingly, the court remanded the case to the CSC to make the comparison and to report the result to the court.

Held:

1. The Tucker Act, which merely confers jurisdiction upon the Court of Claims whenever a substantive right enforceable against the United States for money damages exists, does not in itself support the action taken by the Court of Claims in this case. Pp. 397-398.

2. Neither the Classification Act nor the Back Pay Act creates a substantive right in respondents to backpay for the period of the claimed wrongful classification. Pp. 398-407.

[96 S.Ct. 951] 205 Ct.Cl. 330, 499 F.2d 690, reversed and remanded.

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BLACKMUN, J., delivered the opinion of the Court, in which all Members joined except STEVENS, J., who took no part in the consideration or decision of the case.

BLACKMUN, J., lead opinion

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

This is a suit for reclassification of federal civil service positions and for backpay. It presents a substantial issue concerning the jurisdiction of the Court of Claims and the relief available in that tribunal.

I

The plaintiff respondents, Herman R. Testan and Francis L. Zarrilli, are trial attorneys employed in the Office of Counsel, Defense Personnel Support Center, Defense Supply Agency, in Philadelphia. They represent the Government in certain matters that come before the Armed Services Board of Contract Appeals of the Department of Defense. Their positions are subject to the Classification Act, 5 U.S.C. § 5101 et seq., and they are presently classified at civil service grade GS-13.

In December, 1969, respondents, through their Chief Attorney, requested their employing agency to reclassify their positions to grade GS-14. The asserted ground was that their duties and responsibilities met the requirements for the higher grade under standards promulgated

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by the Civil Service Commission in General Attorney Series GS-905-0. In addition, they contended that their duties were identical to those of other trial attorneys in positions classified as GS-14 in the Contract Appeals Division, Office of the Staff Judge Advocate, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Dayton, Ohio, and that, under the principle of "equal pay for substantially equal work," prescribed in § 5101(1)(A),1 they were entitled to the higher classification.

The agency, after an audit by a position classification specialist, concluded that the respondents' assigned duties were properly classified at the GS-13 level under the Commission's classification standards. On appeal, the Commission reached the same conclusion, and denied reclassification. The Commission also ruled that comparison of the positions held by the respondents with those of attorneys employed by the referenced Logistics Command was not a proper method of classification.

The two respondents then instituted this suit in the Court of Claims.2 Each sought an order directing reclassification of his position as of the date (May 8, 1970) of the first administrative denial of his request, and backpay, computed at the difference between his salary and grade GS-14 (and the claimed appropriate within-grade step), from that date. The trial judge, in a long opinion, App. 43-117, concluded that the respondents were not

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entitled to backpay due to their allegedly wrongful classification. Id. at 57. But he also concluded that the Commission's refusal to reclassify respondents to GS-14 was arbitrary, discriminatory, and not supported by substantial evidence, ibid., and that, as a matter of law, the respondents were entitled to an order remanding the case to the Commission with directions so to reclassify the respondents. Id. at 58, 117.

The Court of Claims considered the case en banc and divided 4-3. The majority disapproved the trial judge's recommendation that the court was empowered to direct the reclassification of respondents to GS-14, for the Court of Claims is not authorized to create an entitlement to a governmental [96 S.Ct. 952] position. "If entitlement depends on the exercise of discretion by someone else, we cannot substitute our own discretion." 205 Ct.Cl. 330, 332, 499 F.2d 690, 691 (1974). The majority felt, however, that, if the Commission were to determine that it had made an erroneous classification, that determination "could create a legal right which we could then enforce by a money judgment." Id. at 333, 499 F.2d at 691.

The majority agreed with the trial judge that the Commission's failure to compare respondents' positions with those of the Logistics Command attorneys was arbitrary and capricious. Id. at 331, 499 F.2d at 691. The court observed: "Ordinarily . . . it is not arbitrary and capricious to refuse to consider the grade of employees other than the ones complaining." But it went on to say: "This case is peculiar in its facts," for the employees

all belong to a small readily manageable cadre, their jobs have a large nexus of duties shared in common, and the other employees are specifically pointed out by the complaining employees.

Id. at 332, 499 F.2d at 691. The court ruled that it had the power under the remand statute, 86 Stat. 652, now codified as part of 28 U.S.C.

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§ 1491 (1970 ed., Supp. IV), to order the Commission to reconsider its classification decision "under proper directions." Accordingly, and pursuant to its Rule 149(b), the court remanded the case to the Commission to make the comparison and to report the result to the court.3

The dissent argued that the jurisdiction of the Court of Claims is limited to money judgments, and, since none had been or could be ordered in this case, the court was without jurisdiction even to remand the case to the Civil Service Commission. In addition, the respondents had not stated a claim upon which relief could be granted, for they were asking for positions, and pay, to which they had never been appointed. The dissent further argued that there is no constitutional right to a governmental position to which one has not been appointed; that the salary of a Government job is payable only to the person appointed to that position; and that the court has no...

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