Davis v. Devine, 83-1110

• Citation: 736 F.2d 1108
• Decision Date: 15 June 1984
• Docket Number: No. 83-1110,83-1110
• Parties: 34 Fair Empl.Prac.Cas. 1807, 34 Empl. Prac. Dec. P 34,451 Paul S. DAVIS, Plaintiff-Appellant, v. Donald J. DEVINE, Director, Office of Personnel Management, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1108

736 F.2d 1108

34 Fair Empl.Prac.Cas. 1807,

34 Empl. Prac. Dec. P 34,451

Paul S. DAVIS, Plaintiff-Appellant, v. Donald J. DEVINE, Director, Office of Personnel Management,

Defendant-Appellee.

No. 83-1110.

United States Court of Appeals,

Sixth Circuit.

Argued April 10, 1984.

Decided June 15, 1984.

Paul S. Davis, pro se.

John A. Smietanka, U.S. Atty., Grand Rapids, Mich., Paul Blankenstein, Robert G. Dumas, Civ. Div., Dept. of Justice, Washington, D.C., William Kanter, Peter R. Maier, Carlene McIntyre, argued, Barbara L. Herwig, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendant-appellee.

Before KEITH and KRUPANSKY, Circuit Judges, and REED, District Judge. ^*

KRUPANSKY, Circuit Judge.

Plaintiff-appellant Paul S. Davis (Davis) has appealed the entry of judgment in favor of defendant-appellee in this mandamus/age discrimination action.

This action commenced January 19, 1981 when Davis, a former federal employee who receives a civil service annuity, filed his complaint alleging that the defendant, Donald J. Devine, the Director of the Office of Personnel Management, had improperly refused to certify Davis as a candidate for a permanent position as an administrative law judge. The complaint, and Devine's decision not to certify Davis, invoked two federal laws: (1) 5 U.S.C. Sec. 3323(b), which permits government reemployment of a civil service annuitant in any position "for which he is qualified", but which also mandates that the reemployed annuitant "serves at the will of the appointing authority"; and, (2) a provision of the Administrative Procedure Act (A.P.A.), 5 U.S.C. Sec. 7521, which ensures that administrative law judges (a.l.j.) are removable only for cause. Davis sought a declaratory judgment, a mandamus order, and other relief. Specifically, he petitioned the court for an order and decree instructing the Office of Personnel Management (O.P.M.) to certify him to the register of administrative judges, and a declaratory judgment adjudging invalid O.P.M.'s policy against the employment of civil service annuitants as a.l.j.s. Cross-motions for summary judgment were filed and, on January 14, 1983, the district court granted O.P.M.'s motion, 554 F.Supp. 1165. Davis then prosecuted this timely appeal.

Briefly, the factual events precipitating this lawsuit are as follows. Davis had voluntarily severed from federal service in May 1956, with annuity eligibility in 1971. Pursuant to the Civil Service Retirement Act, 5 U.S.C. Sec. 8301 et seq., he received and continues to receive an annuity reflecting his civilian and military employment by the federal government.

In June 1974, he was appointed to serve as a temporary administrative law judge with the Social Security Administration. His jurisdiction was limited to applications for benefits under Title IV of the Federal Coal Mine Health and Safety Act of 1969. His initial one year appointment was subsequently extended. In 1977 Davis was informed that his term was not authorized for a further extension beyond June 30, 1977.

On March 10, 1977, he applied to the Civil Service Commission (the predecessor of O.P.M.) for appointment as an administrative law judge. The cover letter accompanying the application requested reconsideration of the Commission's policy decision foreclosing appointment of annuitants as permanent administrative law judges. Davis asserted that the policy conflicted with the statute ensuring tenure to an a.l.j. and, that it also conflicted with the Age Discrimination in Employment Act.

On December 8, 1977, the Office of the Administrative Law Judges (O.A.L.J.), an O.P.M. agency responsible for management of the a.l.j. system, notified Davis that he had not qualified for the GS-15 level a.l.j. position. In January, 1978, Davis filed an F.O.I.A. request for documents relative to this decision. The documents were disclosed to Davis and, subsequently, the O.A.L.J. elected to reconsider Davis's application.

Upon reconsideration, the O.A.L.J. reaffirmed its original determination and Davis petitioned for review by O.P.M.'s appeal review board. The appellate review board reversed the O.A.L.J. and Davis was certified as having the minimum qualifications for the a.l.j. position. The review board, however, declined to speculate on the propriety of appointing an annuitant to a position from which an appointee was removable only for cause. The matter was therefore returned to the O.A.L.J. for "determination by that office regarding ... possible ineligibility based on annuitant status".

The O.A.L.J. referred the issue to the agency's General Counsel for an opinion. On August 14, 1979, the O.A.L.J. informed Davis that he had obtained an eligible rating for the a.l.j. position, that his name was being placed on the register of eligible a.l.j.s but that he would not be certified to any agency desirous of employing an a.l.j. until the General Counsel resolved the annuity issue. No formal ruling was ever issued, but O.P.M. has conceded that Davis "was informally advised that the General Counsel had declined to recommend any change in the agency position that annuitants were ineligible for appointment". Brief for O.P.M., at 6. The within action ensued.

The district judge granted the government's motion for judgment on the pleadings, having concluded that the O.P.M. "interpretation of 5 U.S.C. Secs. 3323(b) and 7521 ... should be upheld".

The court also rejected Davis's reliance on 5 U.S.C. Sec. 559 of the A.P.A., which mandated that no subsequent statute should be held to modify the A.P.A. unless "it does so expressly". The judge below noted that, while Sec. 3323(b) providing for the removal of annuitants at the will of the agency was enacted subsequent to the A.P.A. provision in Sec. 7521 granting good cause tenure to a.l.j.s, the two provisions were not necessarily in discord. The district court noted that Sec. 3323(b) was intended "to increase the opportunities for [annuitant] reemployment subject to the condition that it be on an at-will basis", ¹ while "[t]he purpose of Sec. 7521 is to give A.L.J.s ... independence and tenure rights that insulate them from possible agency influence or control". The lower court concluded that, "[i]f plaintiff were to be given a normal A.L.J. appointment, removable only for cause, the provision of Sec. 3323(b) that the annuitant serve only at 'the will of the appointing authority' would be violated. If plaintiff were to be appointed to serve at will, then the protections of Sec. 7521 and the independence it strives to assure would be lost".

The lower court held that O.P.M.'s interpretation that annuitants are not eligible for appointment to permanent administrative law judge positions effectuated the intent of both congressional enactments implicated by the complaint. According judicial deference to the agency's reasonable construction of statutes it is charged with enforcing, the district judge upheld the O.P.M. policy as not in derogation of the law.

Addressing Davis's age discrimination claim, the court concluded that his admitted failure to comply with the statutory prerequisite of an A.D.E.A. suit by filing a complaint or notice of intent to sue prior to instituting the lawsuit barred the action. The district judge thereby rejected Davis's assertion that letters he sent to the Commission with respect to his application met the statutory demands. The judge below held that "the letters are far from being explicit enough to charge the Commission with knowledge of an intent to bring an action under the A.D.E.A." and, that it "is not at all inequitable to require plaintiff, an attorney, to comply with the clear statutory mandate".

Finally, the district judge dismissed Davis's argument that past policies respecting limited reemployment of annuitant a.l.j.s established the impropriety of the current policy. Those past policies were discerned to have provided extraordinary measures for emergency situations whereunder an a.l.j. retires with a case backlog; the policy in such circumstances was to authorize temporary reappointment of the retired a.l.j. to permit completion of the cases on the docket.

On appeal, Davis has challenged the district court's legal conclusions in each of the above holdings.

Primarily, Davis has challenged the propriety of the O.P.M. interpretation of statutory provisions relative to civil service employment and reemployment. Therefore, the appellate issue is whether the O.P.M.'s interpretation of the statutes is reasonable. See generally Weinberger v. Salfi, 422 U.S. 749, 777, 95 S.Ct. 2457, 2472-73, 45 L.Ed.2d 522 (1975); Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Young v. T.V.A., 606 F.2d 143, 145 (6th Cir.1979) cert. denied, 445 U.S. 942, 100 S.Ct. 1337, 63 L.Ed.2d 776 (1980). As stated by Judge Weick writing for the Sixth Circuit in Young v. T.V.A.:

In considering the legality of agency action under an enabling statute, we do not write on a clean slate. Ordinarily, a court should give great weight to the frequent, consistent, and long standing construction of a statute by an agency charged with its administration. Particularly this is true with respect to a statute which is reasonably susceptible of two different interpretations. The construction of a statute by those agencies charged with its execution should be followed unless there are compelling indications that it is wrong....

606 F.2d at 145 (citations deleted). To sustain the agency's interpretation, the court "need not find that its construction is the only reasonable one", Udall v. Tallman, supra, 380 U.S. at 16, 85 S.Ct. at 801 (emphasis supplied), but only that it is a reasonable and not a compelling incorrect interpretation. See, e.g., id.; Young v. T.V.A., supra. Moreover, insofar as this action has involved two separate congressional enactments which appear to intersect and, potentially, conflict, it is important to note that the prescribed rule of statutory...