Testan v. United States

• Decision Date: 01 November 1974
• Docket Number: No. 128-72.,128-72.
• Citation: 499 F.2d 690,205 Ct. Cl. 330
• Parties: Herman R. TESTAN and Francis L. Zarrilli v. The UNITED STATES.
• Court: U.S. Claims Court

205 Ct. Cl. 330, 499 F.2d 690 (1974)

Herman R. TESTAN and Francis L. Zarrilli v. The UNITED STATES.

No. 128-72.

United States Court of Claims.

July 19, 1974.

As Amended November 1, 1974.

Edwin J. McDermott, Philadelphia, Pa., attorney of record, for plaintiffs.

Leslie H. Wiesenfelder, Washington, D. C., with whom was Asst. Atty. Gen., Carla A. Hills, for defendant.

Before COWEN, Chief Judge, LARAMORE, Senior Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA and BENNETT, Judges.

OPINION

PER CURIAM:

This case is before the court on exceptions by both parties to a recommended decision and findings by Trial Judge Spector. Plaintiffs, civilian lawyers, were employed by the Defense Personnel Support Center, Defense Supply Agency (DPSC) at Philadelphia, Pennsylvania. The suit is for back pay from 1970 and an order for reclassification to operate in futuro under Pub.L. 92-415, 86 Stat. 652. We heard it en banc on plaintiffs' motion. The plaintiffs were classified at GS-13 and claim GS-14. They exhausted their remedies with the Civil Service Commission (CSC). The trial judge would hold that the refusal to reclassify at GS-14 was arbitrary and capricious but that the court cannot award the pay of a higher position to a person actually employed in a lower one. However, he would direct the CSC to reclassify for the future under Pub.L. 92-415.

We agree that the position of the CSC was arbitrary and capricious. Plaintiffs' case is built mainly on the classification of attorneys doing similar work for another agency. Plaintiffs try cases before the Armed Services Board of Contract Appeals (ASBCA). The comparison attorneys do so also, on behalf of the Air Force Logistics Command (AFLC) at Dayton, Ohio. The Commission flatly refused to consider them or their jobs. Ordinarily, we agree, it is not arbitrary and capricious to refuse to consider the grade of employees other than the ones complaining. This case is peculiar in its facts. Where, as here, 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, we deem the case to be different. There may be a perfectly good explanation for the apparent discrepancy. We think as a reviewing court we are entitled to be informed by the CSC what it is, and not to have to take it on faith or speculate about it. Otherwise, we are in no position to assure ourselves that the mandate of the statute, 5 U.S.C. § 5101, (calling for equal pay for equal work), is being complied with. As the trial judge observes, the classification of lawyers is always difficult because of the spate of vague, subjective terminology in lawyer's job descriptions. We think, in the circumstances here involved, the grades of other lawyers representing other procuring agencies before the ASBCA provide an essential benchmark. Without consideration of them, or at least some of them no confidence can be felt that the statute has been obeyed.

There is no iron rule that we cannot ever award the pay of a higher position to the incumbent of a lower one. We do that in Selman v. United States, 498 F.2d 1354, 204 Ct.Cl. ___ (decided June 19, 1974). Compare also, Jarett v. United States, 451 F.2d 623, 195 Ct.Cl. 320 (1971). The question always is as to legal entitlement to the higher position. If entitlement depends on the exercise of discretion by someone else we cannot substitute our own discretion. Allison v. United States, 451 F.2d 1035, 196 Ct.Cl. 263 (1971); Pettit v. United States, 488 F.2d 1026, 203 Ct.Cl. 207 (1973). Here, as in Pettit, a remand under Pub.L. 92-415 affords the opportunity to employ the authority having the statutory discretion, to exercise it under proper directions. In Bookman v. United States, 453 F.2d 1263, 197 Ct.Cl. 108 (1972), we scrutinized the function of the CSC in classifying Government positions. We decided it was discretionary and not subject to our review except for arbitrary and capricious action or lack of support for a decision by substantial evidence. We adhere to that standard here. The theory of Allison and Pettit, however, was that the findings of the agency endowed with the discretion, if newly and correctly made, could create a legal right which we could then enforce by a money judgment. We did not consider our decisions therein to be merely declaratory, and neither is this one today.

It is unnecessary to construe the Back Pay Act, 5 U.S.C. § 5596, since, if it does not cover the situation here involved, neither does it limit the Tucker Act jurisdiction 28 U.S.C. § 1491, as it previously existed. It was so held in Allison and Pettit, supra. Defendant would in effect refuse any judicial review to a person perhaps denied equal pay for equal work in a job classification, in possible violation of 5 U.S.C. § 5101. When Congress desires to achieve this result, it knows how to do it. See, Chambers v. United States, 451 F.2d 1045, 196 Ct.Cl. 186 (1971).

In accordance with the foregoing, we are constrained to differ with the trial judge both as to our supposed lack of power to award back pay and our supposed possession of power to direct the reclassification of the plaintiffs to Grade GS-14.

Accordingly, on considering the recommended decision and findings of Trial Judge Spector, and the exceptions of the parties thereto, and their briefs and oral arguments, it is

This case is remanded to the Civil Service Commission pursuant to Pub.L. 92-415, 86 Stat. 652 and Rule 149(b) for a period of not to exceed six (6) months from the date of this order to conduct further administrative proceedings consistent with the court's per curiam opinion and decision of July 19, 1974. Further proceedings in the court shall be stayed during the period fixed by this order of remand. Plaintiffs' counsel is designated to advise the court by letter to the clerk of the status of the remand proceedings, and such advice shall be given at intervals of 90 days or less, commencing from the date of this order.

SKELTON, Judge (dissenting):

This court does not have jurisdiction nor authority to remand this case to the Civil Service Commission.

The Supreme Court held in clear and unequivocal language in United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), that this court can only render judgments for money presently due, and cannot render declaratory judgments. We have not rendered a judgment for money in the present case. Consequently, we have neither the authority nor jurisdiction to issue any other kind of judgment or order in the case, except one of dismissal. Public Law No. 92-415, 86 Stat. 652, now a part of 28 U.S.C. § 1491 (1972), known as the Remand Statute, did not change the law in this regard nor enlarge our jurisdiction, except "to complete the relief afforded by the judgment for money presently due, the court may, as an incident of and collateral to any such judgment, * * * in any case within its jurisdiction * * * remand appropriate matters to any administrative or executive body * * *." (Emphasis supplied.) Since there is no money judgment here, which is the only kind this court can enter, there is no relief in the judgment to be completed, and there is nothing that the remand order can be "an incident of and collateral to." Also, the court is acting in a case not "within its jurisdiction." Consequently, the Remand Statute is inapplicable to this case. See Kirby v. United States, 201 Ct.Cl. 527, 537 (1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 224 (1974). Therefore, the remand order is an exercise by the court of general equity powers which it does not possess, and is in the nature of a declaratory judgment as to the rights of the plaintiffs, which this court has no power to issue. See United States v. King, supra.

In addition to being without jurisdiction or authority to issue the remand order, as pointed out above, the court is also without jurisdiction to consider any part of plaintiffs' suit, because they have not alleged a claim upon which relief can be granted by this court. This is true because the plaintiffs are asking this court to promote them to higher positions and award them the salaries incident thereto, even though they have never been appointed to those positions by the agency for whom they work. Such relief is wholly beyond the jurisdiction of this court. This problem and the law relating to it was thoroughly discussed in my dissenting opinions in Chambers v. United States, 451 F.2d 1045, 196 Ct. Cl. 186 (1971); Allison v. United States, 451 F.2d 1035, 196 Ct.Cl. 263 (1971); and Pettit v. United States, 488 F.2d 1026, 203 Ct.Cl. 207 (1973), and I incorporate those dissenting opinions herein and, where applicable, make them a part of this dissenting opinion by reference. My dissent in the Allison case is especially applicable to the instant case, and, for emphasis, I repeat certain pertinent portions of that dissent in the following paragraphs, which I apply to the case before us.

This court does not have jurisdiction of this case for many reasons. The plaintiffs have not alleged a cause of action on which relief can be granted. They are asserting claims for salaries of jobs, but their petition does not allege that they were ever appointed to those jobs, nor that they performed services therein. Without these essential allegations, the petition does not state a cause of action. We have so held in the cases of Price v. United States, 65 Ct.Cl. 91 (1928), cert. denied, 277 U.S. 587, 48 S.Ct. 434, 72 L.Ed. 1001; Barea v. United States, 115 Ct.Cl. 44 (1949), and Hyman v. United States, 157 F.Supp. 164, 138 Ct.Cl. 836 (1957).

The failure of the department to promote the plaintiffs, whatever the cause, did not give them a cause of action against the United States, because they had no constitutional, vested, or inherent right to the jobs they are claiming. This is unquestionably the law. See McAuliffe v. New...