Barnhart v. Devine

• Decision Date: 27 August 1985
• Docket Number: No. 83-2324,83-2324
• Citation: 248 U.S.App.D.C. 375,771 F.2d 1515
• Parties: William S. BARNHART, et al., Appellants, v. Donald DEVINE, Director, OPM, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1515

771 F.2d 1515

248 U.S.App.D.C. 375

William S. BARNHART, et al., Appellants, v. Donald DEVINE, Director, OPM, et al.

No. 83-2324.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 30, 1985.

Decided Aug. 9, 1985.

As Amended Aug. 27, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-02342).

George M. Chuzi, Washington, D.C., with whom June D.W. Kalijarvi, Washington, D.C., was on the brief, for appellants.

John W. Polk, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees.

Before ROBINSON, Chief Judge, STARR, Circuit Judge, and BRYANT, District Judge ^*.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This appeal requires us again to determine the effect of the Civil Service Reform Act of 1978 on the proper procedure for obtaining review of an agency personnel action challenged by a federal employee. The case arose out of a petition filed by several employees of the Department of Commerce's National Weather Service, requesting that a position-to-position comparison be conducted to determine whether those employees were performing substantially the same work as other National Weather Service employees classified at a higher General Service ("GS") level. The Office of Personnel Management refused to comply with appellants' request on the ground, among others, that OPM was not obliged to make position-to-position comparisons. OPM maintained that it was required only to compare appellants' position to the pertinent classification standard promulgated pursuant to the Classification Act, 5 U.S.C. Secs. 5101 et seq. (1982), and that appellants' GS rating conformed to the applicable standard promulgated under that statute.

Thus stymied in their quest for reclassification, the National Weather Service employees brought a mandamus action in federal district court seeking to compel the Department of Commerce and OPM to make the position-to-position comparison with other National Weather Service employees. The District Court dismissed the petition on the ground that an alternative avenue of relief had not been pursued, thereby vitiating any warrant for the extraordinary judicial remedy of mandamus. In the District Court's view, the gravamen of appellants' complaint was that the Department of Commerce and OPM had engaged in a a "prohibited personnel practice," as defined by the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 111 (codified as amended in scattered sections of 5 U.S.C. (1982)) ("CSRA"), and that, in consequence, the employees were required to present their grievance to the Office of Special Counsel, an entity created by the CSRA to investigate federal civil service employees' complaints and to bring meritorious claims before the Merit Systems Protection Board. The District Court further concluded that appellants' mandamus petition would properly lie only against the Office of Special Counsel, if that entity unjustifiably failed or refused to carry out its responsibility to determine whether reasonable grounds supported their allegations. We agree with the District Court's analysis and therefore affirm.

I

Appellants are employed by the National Weather Service as GS-12 Area Electronics Supervisors ("AES's"). Of forty-five purported class members, sixteen of whom are named plaintiffs in this action, only two--appellants Wilson and Barnhart--filed classification appeals with either the Department of Commerce or OPM challenging the propriety of classifying some AES's at GS-12 while classifying others at GS-13.

First, as to Mr. Wilson: from his place of employ in Omaha, Nebraska, Mr. Wilson filed a classification appeal in August 1979 with the National Weather Service requesting that his grade of GS-12 be increased to GS-13. He specifically requested a position-to-position comparison between his position and that of a GS-13 AES in Kansas City, Missouri, which Mr. Wilson asserted involved the same functions. The Department of Commerce refused to make the requested comparison and denied the appeal. Mr. Wilson thereafter appealed to OPM, contending that the Department had failed properly to implement OPM's classification standards. OPM likewise denied Mr. Wilson's appeal on the ground that his position description met the general standards for a GS-12 rating, not GS-13. In reaching this conclusion, OPM stated, to Mr. Wilson's chagrin, that the classification of another position, such as that of the Omaha GS-13 post, was simply not relevant to determining whether Mr. Wilson was properly classified.

Like Mr. Wilson, William Barnhart is employed as a GS-12 AES, working in the Piedmont at the National Weather Service's Raleigh, North Carolina facility. In November 1979, Mr. Barnhart filed a classification appeal with the Department of Commerce, which was subsequently rejected. Consistent with the agency's treatment of Mr. Wilson's claim, Mr. Barnhart's internal administrative appeal was denied on the grounds that his position could not "be compared to other similar positions for classification purposes" and that his classification was proper based upon a comparison of his position "with the appropriate OPM published classification standard." Joint Appendix ("J.A.") at 118-19.

Mr. Barnhart appealed to OPM contending (1) that his present position description did not accurately describe his actual duties, and (2) that a comparison of his duties with those of a GS-13 AES would reveal that the two positions were substantially the same. After first dismissing his appeal as premature, OPM ultimately denied relief on the ground that a position-to-position comparison "is not a valid means of classifying positions" inasmuch as the comparison position itself may not be properly classified. J.A. at 126.

Subsequently, Mr. Barnhart engaged legal counsel who crafted a new analytical approach; specifically, counsel in January 1982 requested OPM to investigate whether the National Weather Service was violating the Classification Act (as well as the CSRA) in failing to adhere to the merit system principle of equal pay for substantially equal work. J.A. at 128. Thus, what had been a rather abstract dispute over Classification Act principles evolved into a specific claim that, by permitting the alleged condition of disparate classifications for similar jobs, the Department of Commerce had set its face against the equal- protection principles embodied in the civil service merit system. OPM nonetheless declined to investigate this reshaped allegation by virtue of Mr. Barnhart's having "bypassed the Region [OPM's Southeast Regional Office] and ... [having] failed to provide the documentation required by ... the Federal Personnel Manual." J.A. at 131. Mr. Barnhart did not thereafter attempt either to appeal to the Southeast Regional Office or to supply the required documentation. ¹

In August 1982, appellants joined forces and filed a petition for a writ of mandamus in District Court. Subsequently, appellants filed a motion for class certification which was denied in April 1983. ² Thereafter, the parties filed cross motions for summary judgment. In addition, appellees filed a motion to dismiss contending that, pursuant to this court's decision in Carducci v. Regan, 714 F.2d 171 (D.C.Cir.1983) (concluding, among other things, that "prohibited personnel practice" complaints must be processed through the Office of Special Counsel), the District Court lacked subject matter jurisdiction over the case. In December 1983, the District Court granted the motion to dismiss, concluding that under Carducci 's teaching, appellants were required to file their complaint with the Office of Special Counsel which, upon a finding that reasonable grounds existed to believe that a "prohibited personnel practice" had occurred, could "seek correction" from the Merit Systems Protection Board. J.A. at 13 (quoting Cutts v. Fowler, 692 F.2d 138, 140 (D.C.Cir.1982)). The District Court determined that the gravamen of appellants' claim was that the Department of Commerce and OPM had allegedly violated the Classification Act, a law which directly concerns the merit system principle of "[e]qual pay ... for work of equal value." 5 U.S.C. Sec. 2301(b)(3), quoted in J.A. at 14. Relying on the premise that any personnel action which violates a law embodying a merit system principle constitutes a prohibited personnel practice, ³ the District Court held that appellants were required under Carducci to bring their claim in the first instance to the Office of Special Counsel; limited judicial review of the adequacy of the Special Counsel's inquiry would subsequently be available to an aggrieved employee. J.A. at 15. The District Court held that, inasmuch as the court's function "is limited to insuring that the OSC fulfills its statutory responsibility" and that "the OSC has not even been asked to investigate plaintiffs' claims," the court was without subject matter jurisdiction. Id.

II

The broad contention on appeal is that the District Court erred in dismissing the mandamus petition; to reach this conclusion, appellants specifically contend (1) that OPM has exclusive jurisdiction over appeals from agency classification determinations, and (2) that nothing in the CSRA alters appellants' preexisting right to seek to mandamus the Department of Commerce and OPM to carry out a function which, appellants claim, the Classification Act requires those agencies to perform. ⁴ In addition, appellants argue that their claim "arises independently of the CSRA" because it is brought under a separate statute, the Classification Act, and therefore the CSRA (by means of the Special Counsel) is not the exclusive remedial avenue for employees adversely affected by a classification decision. Finally, appellants...