American Federation of Government Emp. v. Hoffmann

• Court: United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
• Citation: 427 F. Supp. 1048
• Docket Number: Civ. A. No. 75-G-0652-NE.
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, etc., et al., Plaintiffs, v. Martin R. HOFFMANN et al., Defendants.
• Decision Date: 13 August 1976

427 F. Supp. 1048

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, etc., et al., Plaintiffs, v. Martin R. HOFFMANN et al., Defendants.

Civ. A. No. 75-G-0652-NE.

United States District Court, N. D. Alabama, Northeastern Division.

August 13, 1976.

COPYRIGHT MATERIAL OMITTED

David Blankenship, C. Lynwood Smith, Jr., Hornsby, Blankenship, Higgs & Smith, Huntsville, Ala., for plaintiffs.

Wayman G. Sherrer, U.S. Atty., B. Jack Rivers, Asst. U.S. Atty., Birmingham, Ala., Capt. R. Craig Lawrence, JAGC HQDA (DAJA-LTC), Capt. Paul C. Besozzi, JAGC BMDPO, Washington, D.C., for defendants.

E. Cutter Hughes, Jr., John M. Heacock, Jr., Lanier, Shaver & Herring, Huntsville, Ala., for Brown Engineering Co., amicus curiae.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

GUIN, District Judge.

Petitioners contended in substance that a reorganization and a resulting reduction-in-force (RIF) among the Civil Service personnel at the Ballistic Missile Defense Systems Command (BMDSCOM) in Huntsville, Alabama violated Bureau of the Budget, now and hereinafter known as Office of Management and Budget (OMB) Circular No. A-76, Department of Defense (DOD) Directives 4100.33 and 4100.15, Army Regulation (AR) 235-5, Section XXII of the Armed Services Procurement Regulations (ASPR), and other provisions of civil service regulations. The violations allegedly occurred when BMDSCOM entered three private contracts with M & S Computing, Incorporated (M & S), Contract Number DASG60-74-C-0026,¹ Science Applications, Incorporated (SAI), Contract Number DAHC60-72-C-0092 and Teledyne-Brown Engineering Company (Teledyne-Brown), Contract Number DAHC60-73-C-0012. The first two contracts are in support of the SAFEGUARD BMD System deployed in North Dakota. The Teledyne-Brown contract for systems engineering and technical analysis (hereinafter known as the SETAC) is in support of a BMD research and development program currently known as the Systems Technology Program (STP). Petitioners contend that these contracts provided jobs for contractor personnel which should have been potentially available to them in the face of the RIF through "bump" and "retreat" rights established by the United States Civil Service Commission regulations.

On June 18, 1975 this court issued a preliminary injunction halting the U.S. Army from implementing the RIF at BMDSCOM. This court's opinion in that matter was reported at 398 F.Supp. 176. After certifying this matter as a class action on December 30, 1975, the court on January 30, 1976, took under advisement the defendants' motion for summary judgment. On 2-6 and 9-12 February 1976 the court conducted a trial on petitioners' application for a permanent injunction and respondents' opposition thereto. In light of the extensive factual presentation made by all the parties at that time the court, while being inclined to grant the defendants' motion for summary judgment, bases its decision on the facts as presented. Therefore, the defendants' motion for summary judgment is rendered moot. In light of the comprehensive evidence offered by defendants at trial, much of which had not been fully presented at the prior hearings, the court has reexamined its position on the issues raised by all parties and concludes that it must find for the defendants. For the reasons which follow the preliminary injunction is hereby dissolved, judgment is entered for the defendants and the cause is dismissed.

FINDINGS OF FACT

I. INTRODUCTION

The individual named plaintiffs are Civil Service employees at BMDSCOM and will be affected by the proposed RIF. Plaintiff American Federation of Government Employees (AFGE) is the recognized bargaining agent for the Civil Service employees at BMDSCOM.

The defendants in this case are the Secretary of the Army and the Commanding Officer of BMDSCOM, a subordinate command of the Ballistic Missile Defense Organization (BMDO).

BMDSCOM scheduled a reorganization and consequent RIF to take effect there on May 23, 1975. Of the 296 permanent Federal civil servants to be affected approximately 67 employees were to be finally separated, approximately 7 were to retire under discontinued service retirement, approximately 20 others were to retire, approximately 93 were to be reassigned in their GS grade, approximately 56 were to be transferred, approximately 3 were to resign, and approximately 50 others were to be finally demoted.

The reorganization and RIF flow from the Strategic Arms Limitation (SAL) Agreements, subsequent Congressional actions, and the judgment of the BMDO management that this reorganization reflects the reduced personnel needs of this nation's BMD efforts. Through the good faith efforts of both parties the size of the class has been reduced from the initial total of 296 to a present total of 42, made up of 17 terminations, 23 downgrades, and 2 lateral reassignments.

II. THESE BMD PROGRAMS ARE INTEGRALLY INVOLVED WITH U.S. FOREIGN POLICY AND DEFENSE OBJECTIVES

BMD as a concept in and of itself involves highly complex and technical elements. The basic task of any BMD system is to detect, track, intercept and destroy incoming enemy ballistic missiles (TT 685-87)². To accomplish this job it uses tracking radars and interceptor missiles. The Army and private industry started developing BMD system concepts and hardware in the mid-1950's (TT 688, 694). These efforts ranged from initial and follow-on research and development work leading to the deployment of the SAFEGUARD System from 1970-75 as well as other research and development efforts such as those currently reflected in the STP. (Defendants' Exhibit 5). The SAFEGUARD BMD System consists of two highly sophisticated radars and two types of interceptor missiles joined together by advanced data processing equipment which permits the system to track and intercept incoming ballistic missiles. The STP, formerly known as the Site Defense Prototype Demonstration Program, is a BMD research and development effort looking at the next generation of BMD systems concepts which resulted from the growing Soviet threat to our offensive ballistic missiles. The direction and scope of US BMD efforts has been and will continue to be closely interrelated to US foreign and defense policy objectives and the nature of our relationship with the Soviet Union (TT 687-93). This includes US perception of Soviet military capabilities and the extent of the threat they present to the US defense establishment (TT 700-04).³ The clearest example of the intertwining of BMD efforts and US foreign and defense policy perspectives can be seen in the talks culminating in the 1972 SAL Agreements which limited the US and USSR to two ABM sites (TT 690). Major General Marshall, the current BMD Program Manager, who has been associated with the various BMD programs for over 6 years, described these earlier BMD efforts as a "chip at the bargaining table" during these key negotiations (TT 690). BMD has continued to play a substantial role in subsequent international arms limitation strategies (TT 691-92).

As indicated by Mr. Glen Sadler testifying on behalf of the plaintiffs concerning his membership on a committee to study the role of BMD after the SAL agreements:

The committee's job was, in light of SALT, in light of Detente, in light of the National interest in case SALT I was ever abbrogated sic and SALT II never came to pass or in light of the possibility that some other nation such as Communist China suddenly had the same kind of ballistic missile capability that existed at that time in Russia . . . We felt our basic objective was to try to maintain in a continuous posture of readiness to deploy within minimum times and at lowest possible cost the best possible ballistic missile defense system which could be deployed within whatever timeframe we had. (HT 159).

These types of policy considerations and implications are the mark of programs and efforts clearly intertwined with national defense and the elements of US foreign relations policies. Judicial interference with the implementation of these programs could hamper or limit the conduct of these policies and objectives. On July 3, 1974 the US and USSR entered into a Protocol to the 1972 Treaty further limiting the parties to one BMD site each. In the future it is intended that BMD continue to play a central role in national defense deterrent policy (TT 691-93).

In view of the foreign and defense policy implications and importance of these efforts both the programs supported by these contracts have held the highest procurement priority rating granted by the President to major weapons systems (TT 690).⁴ This is the same priority held by the Trident, Polaris, B-1 and other major weapons systems deemed by the President as integral to the national defense.

Plaintiffs have protested most strongly the Army's awarding of the SETAC contract to Teledyne-Brown Engineering, contending that this effort was more properly and effectively performed in-house by government civil servants. The decision to use the SETAC method of performance to support the then Site Defense Program and now STP was not one made in a cavalier manner by a small group of low level military officials. Consistent with BMD's established importance and the recognition of a critical need for a successor to the SAFEGUARD System (TT 903-04, 710-11, 713-14) the decision to employ a SETAC was made only after careful consideration of several alternatives (TT 715-16). These alternatives were considered by the highest echelons of the Department of Defense, including the Deputy Secretary of Defense, Director of Defense Research and Engineering, Secretary of the Army and other important defense officials. (Defendants' Exhibit 12).

In addition to the Executive the Congress has exercised close scrutiny over BMD activities. Congressional funding for BMD programs has fluctuated in line with defense and foreign policy decisions and internal priorities as viewed by the Congress (Defendants' Exhibits...