Andrade v. Lauer

Decision Date16 April 1984
Docket NumberNo. 82-1880,82-1880
Citation729 F.2d 1475,234 U.S. App. D.C. 384
PartiesSharon ANDRADE et al., Appellants, v. Charles A. LAUER, Acting Administrator, Office of Juvenile Justice, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 82-00848).

Mona Lyons, Washington, D.C., with whom John W. Karr, Washington, D.C., was on the brief, for appellants.

Carolyn B. Kuhl, Deputy Asst. Atty. Gen., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, and William G. Kanter, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before WRIGHT, MIKVA and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

This case presents a challenge to the procedures used and the authority exercised by officials of the Department of Justice in planning and implementing a reduction in force (a "RIF") in early 1982. Appellants are or were government employees who brought suit in the United States District Court for the District of Columbia, alleging that the procedures used in the RIF violated federal personnel regulations and congressional enactments, and that the individuals who were responsible for the RIF held office in violation of the Appointments Clause, Art. II, Sec. 2, cl. 2 of the Constitution. The attempt of appellants to maintain this action raises a potpourri of justiciability issues, one of which involves an ancient doctrine concerning the appropriate way to challenge a public official's title to office. The District Court dismissed their action on a variety of grounds, including lack of ripeness, failure to exhaust administrative remedies, and lack of standing. We affirm in part and reverse in part, and remand to the District Court for further proceedings.


Appellants in this case are or were employees of the Office of Juvenile Justice and Delinquency Prevention (OJJDP), an agency with approximately 65 employees. Under the agency's organic statute, the Juvenile Justice and Delinquency Prevention Act of 1974 as amended, codified at 42 U.S.C. Secs. 5601-5751 (1976 & Supp. V 1981), the purpose of the OJJDP is to administer federal programs dealing with juvenile delinquency. OJJDP is one of a group of five agencies housed within the Department of Justice under the general authority of the Attorney General. Among the five agencies is also the Office of Justice Assistance, Research, and Statistics (OJARS), which is assigned the responsibility of "provid[ing] staff support to, and coordinat[ing] the activities of" the other four agencies. 42 U.S.C. Sec. 3781(b) (Supp. V 1981). 1

Another of the five agencies within this division of the Department of Justice is the Law Enforcement Assistance Administration (LEAA). Congress has not appropriated any new grant funding for LEAA since 1979. Therefore, when the events at issue in this suit occurred the size of LEAA's staff was being reduced as the agency was being phased out of existence. 2

Federal personnel regulations mandate a specific procedure to be used to determine who will be laid off in a RIF like that which became necessary as the result of the liquidation of LEAA. Insofar as is relevant here, regulations require that employees compete with each other on the basis of seniority for remaining jobs within a system of "competitive areas" and "competitive levels." A "competitive area" is the grouping in which "employees compete for retention" in the event of a reduction in force. 5 C.F.R. Sec. 351.402(a). 3 The "standard for a competitive area is that it include all or that part of an agency in which employees are assigned under a single administrative authority." 5 C.F.R. Sec. 351.402(b). A "competitive level" consists of "all positions in a competitive area and in the same grade or occupational level which are sufficiently alike in qualification requirements, duties, responsibilities, pay schedules, and working conditions, so that an agency readily may assign the incumbent of any one position to any of the other positions without changing the terms of his appointment or unduly interrupting the work program." 5 C.F.R. Sec. 351.403(a).

Because a given competitive area or competitive level seems usually to include only employees within a given agency, a RIF of the kind involved in this case would ordinarily have affected only LEAA's own employees. However, when the need for terminating LEAA became apparent, the Administration decided to place OJJDP positions in the same competitive area and competitive level as LEAA positions. Appellants allege that the effect of joining the agencies together in this way was that, as LEAA lost positions, the employees with the least seniority--regardless whether they originally worked for LEAA or OJJDP--would be laid off. If the low-seniority employees were originally from OJJDP, the displaced LEAA employees with more seniority would take the now-open positions. Appellants allege that, because LEAA is considerably older as an agency than OJJDP, LEAA employees in fact tend to have more seniority than OJJDP employees, and the result of the merging of competitive areas and levels and the RIF at LEAA would be that many employees at OJJDP could lose their jobs.

On December 3, 1981 all of the appellants received a document entitled "Notification of Reduction in Force" from appellee Robert Diegelman, acting director of OJARS. In accord with 5 C.F.R. Sec. 351.803, Diegelman stated in the notice that there would be a RIF some time early in 1982, and that "we do not know whether you will be able to remain in your present position, or if some other action will affect your employment." Affidavit of Emily C. Martin, Director, Special Emphasis Division of OJJDP, at 3, Appendix (App.) 24 (quoting Notification of Reduction in Force from Robert Diegelman). On February 26, 1982 the agency formally notified 14 OJJDP employees that they would be laid off or demoted in a RIF to be implemented on March 26, 1982. Among the employees to be laid off or demoted were seven of the appellants.

On March 25, 1982 the seven appellants scheduled to be laid off or demoted on the following day, along with 21 other OJJDP employees who feared they would lose their jobs in future RIFs made necessary as a result of the termination of LEAA, filed this action in the District Court. Defendants were Diegelman, Lauer (the Acting Administrator of OJJDP), OJJDP itself, OJARS, the Attorney General, and the Department of Justice. Appellants sought declaratory and injunctive relief against implementation of the RIF on three grounds. First, they claimed that the way in which the RIF was to be implemented violated federal personnel regulations. They alleged that, because the professional positions at LEAA are not interchangeable with those at OJJDP, Diegelman and Lauer ignored regulations of the Office of Personnel Management 4 that state that only positions with the same duties and responsibilities can be placed in the same competitive level. Similarly, they urged that, because OJJDP is administratively distinct from LEAA, appellees violated regulations whose import was that separate agencies should be in separate competitive areas. 5 For the sake of simplicity, we will refer to these claims as appellants' "personnel claims." Second, they alleged that combining LEAA and OJJDP personnel in the same competitive area would violate the congressional determination to give OJJDP autonomy; this determination was allegedly evidenced by the grant to OJJDP of the power to select and appoint its own employees. 6 This will be referred to as appellants' "statutory claim." Third, appellants alleged that the two officials who planned and executed the reduction in force, Diegelman and Lauer, are occupying their offices in violation of the Appointments Clause of the Constitution, Art. II, Sec. 2, cl. 2, in that neither official has been appointed by the President or confirmed by the Senate. Therefore, appellants challenge the authority of Diegelman and Lauer to implement the RIF. We will refer to this challenge as appellants' "constitutional claim."

Plaintiffs sought a preliminary injunction against the RIF, which was implemented as scheduled on March 26. Defendants filed a motion to dismiss the complaint on a variety of grounds, including lack of standing and ripeness and the failure of plaintiffs to exhaust their administrative remedies. On June 30, 1982 the District Court issued an unpublished opinion and order denying appellants' motion for a preliminary injunction and dismissing the complaint. The District Court seems to have held that the 21 plaintiffs who had not been affected by the RIF of March 26 failed to present a ripe claim. The court also held that the remaining seven plaintiffs had failed to exhaust administrative remedies available to them under the grievance procedures of their union's contract with the Department of Justice and had no standing to challenge the propriety of tenure of Diegelman or Lauer. Appellants are here appealing from this order.

We affirm the District Court's order with respect to the 21 appellants who were neither fired nor demoted (hereinafter referred to as the "nonfired appellants"). In addition, we hold that, with respect to the personnel and statutory claims of the remaining seven appellants, the District Court correctly refused to hear their claims prior to exhaustion of their administrative remedies. However, we hold that the District Court incorrectly held that appellants lack standing to bring their constitutional claim. Although their constitutional claim implicates a number of other justiciability doctrines, we hold that ap...

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