Craig v. Colburn, 74-135-C5.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Citation414 F. Supp. 185
Docket NumberNo. 74-135-C5.,74-135-C5.
PartiesJohn Martin CRAIG, Plaintiff, v. Wayne B. COLBURN, Director, United States Marshals Service, Defendant.
Decision Date09 March 1976

COPYRIGHT MATERIAL OMITTED

Charles D. McAtee, Topeka, Kan., for plaintiff.

Richard L. Meyer, Asst. U. S. Atty., Topeka, Kan., Frank E. Schimaneck, Gen. Counsel, Gerald M. Auerbach, Associate Legal Counsel, U. S. Marshals Service, Washington, D. C., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ROGERS, District Judge.

FINDINGS OF FACT

1. When this action was filed, John Martin Craig was the Chief Deputy United States Marshal for the District of Kansas having held that position since July 1, 1954. Subsequent to Craig's appointment as Chief Deputy United States Marshal for the Federal District of Kansas in 1954, his position was converted to the Classified Civil Service in 1966 or 1967.

2. Since his appointment as Chief Deputy United States Marshal for the Federal District of Kansas, John Martin Craig has never signed a Mobility Statement, Consent to Transfer, Consent to Reassignment, or any other form which indicated he would be willing to accept reassignment outside the Federal District of Kansas without his consent.

3. Prior to 1969, the United States Marshals Service had maintained an informal, self-limiting, internal policy that Deputy and Chief Deputy United States Marshals would not be reassigned except upon their own request or with the consent of the person being reassigned.

4. Subsequent to 1969, the policy was in a state of change due to the increasing independence of the United States Marshals Service with the related need for more centralized control over its agents, due to added duties and responsibilities.

5. On May 12, 1969, the old Executive Office for United States Marshals was abolished and succeeded by the Office of the Director, United States Marshals Service, and placed under the administrative supervision of the Deputy Attorney General. Thereafter, the Office of the Director, United States Marshals Service, undertook to actively compete for a greater role in the Federal law enforcement field and to develop programs whereby the central headquarters in Washington, D. C., could exercise and exert a more centrist role over the largely theretofore autonomous field offices of the United States Marshals in the areas of administration and operation, as well as fiscal and personnel policies. (See remarks of Deputy Attorney General, Ralph E. Erickson, and remarks of Director Wayne B. Colburn, USMS, United States Marshals Service Newsletter, Vol. 25, September, 1972, pgs. 4-12.)

6. On May 17, 1973, the Director of the United States Marshals Service had the authority to take final action, subject to review, in matters pertaining to the employment, direction, and general administration including, inter alia, assignments. See 28 C.F.R. § 0.138 (July 10, 1973). The statement of such powers is now separately stated in 28 C.F.R. § 0.138a (May 6, 1974)

7. On June 29, 1973, all United States Marshals Offices were informed by Acting Director W. E. Hall that "all policies, practices, and procedures in effect at the time the Marshals Service attained bureau status will remain in effect until specifically suspended by appropriate directives issued through the Marshals Manual System. (See teletype dated June 29, 1973, from Acting Director W. E. Hall to all United States Marshals.)

8. Pursuant to Civil Service Regulations, agency heads are granted the general authority to "promote, demote, or reassign a career or career-conditional employee or an employee serving under career executive assignment." (5 C.F.R., § 335.102a (1975) effective Aug. 18, 1970)

9. "Reassignment" means the change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion. (5 C.F.R., § 210.10212 (1975) effective Aug. 22, 1973)

10. "Transfer" means the change of an employee, without a break in service of 1 full workday, from a position in one agency to a position in another agency. (5 C.F.R., § 210.10218 (1975) effective date Aug. 22, 1973)

11. In April, 1972, the Defendant Director indicated his dissatisfaction with the traditional method of filling vacancies in the position of Chief Deputy United States Marshal noting the less than desirable response to a Merit Promotion Announcement for three such positions. The defendant Director, in a communication addressed to the field, indicated that he hoped that the situation would soon change inasmuch as the U. S. Marshals Service was implementing a "Career Assignment Program" which radically altered the method for selecting Chief Deputies. This program was indicated to be "basically" a program designed to identify future key managers of the Marshals Service and one which would "involve selection of Deputies who have high potential for career advancement." Once selected, the Deputies would be placed in a development program consisting of assignments in several different field positions and headquarter staff positions. . . ." It was indicated that this program ultimately depended upon personal mobility and that the greater the willingness of a deputy to relocate, the more successful the program would be. It was indicated that through increased mobility, the Career Assignment Program would provide participants with broad background and experience, stimulate new ideas and techniques throughout the Service, and enhance the opportunity for rapid promotion. It was further noted that apparently many deputies were content to remain in their present Districts and wait their "turn" to advance up the ladder. It was indicated that this attitude must change simply because, in the future, it would be "rare for a chief deputy to be selected from within his own district." (United States Marshals Service Newsletter, Vol. 20, dated April, 1972)

12. On November 15, 1972, Section 222, Chapter 200, U. S. Marshals Manual, entitled "Career Mobility Program," was adopted as effective and subsequently disseminated to the field for inclusion in the United States Marshals Manual. (See Defendant's Answers to Interrogatories numbered 28 through 35.)

13. Although a frequently utilized procedure, the submission of major personnel policies to the field for comment and review is a matter of courtesy to the field and is not binding on the United States Marshals Service and on many occasions involving policy changes, no such practice was followed.

14. Section 222, "Career Mobility Program," Chapter 200, U. S. Marshals Manual, was not disseminated to the field for "review and comment." (See Defendant's Answer to Interrogatory No. 28c1 and see U. S. Marshals Service Newsletter, Vol. 25, dated September, 1972.)

15. Section 222, Chapter 200, USMM, entitled "Career Mobility Program," along with other provisions, offers to employees the maximum opportunity to transfer laterally within the Service at their own expense. Only Paragraph 2 of Section 222, USMM, states that "vacant positions not covered under Section 213 will be announced service-wide prior to being filled under Section 210 and 212." (Section 222, USMM, paragraph 2.)

16. Section 213, USMM, effective November 15, 1972, is the Merit Promotion Plan and incorporates by reference Department of Justice Order 1335.2A, effective July 26, 1972. (Section 213, USMM.)

17. Section 222, Career Mobility Program, U. S. Marshals Manual, paragraph 4, states:

"When the Service requests the transfer of an employee for career mobility or as work load fluctuations require, expenses incurred in the transfer will be reimbursed in accordance with applicable Department of Justice Orders."

18. There is ample authority under Section 222, Career Mobility Program, U. S. Marshals Manual, read in conjunction with the legal authority granted the Director by 28 C.F.R. § 0.138 (July 10, 1973) to provide for the involuntary reassignment of Chief Deputy United States Marshals of longstanding employment who were either at or near the top of their career ladder.

19. "Career mobility" as outlined by the Defendant Director in the United States Marshals Service Newsletter, Vol. 20, April, 1972, and as implemented under the new nationwide class recruiting concept in Section 210, USMM, provides the Director, United States Marshals Service, with a greater degree of flexibility in personnel matters than has heretofore existed in the Headquarters, United States Marshals Service, and is a reasonable and justifiable management tool for developing future top level supervisory personnel.

20. On April 2, 1974, the defendant, Director of the United States Marshals Service, caused a teletype to issue announcing and ordering the career reassignments of several Chief Deputy United States Marshals, including inter alia, the plaintiff, John M. Craig, pursuant to the Marshals Service's program policy of career mobility.

21. Plaintiff Craig was ordered reassigned from his position as Chief Deputy United States Marshal for the District of Kansas, GS-12, to the position of Chief Deputy United States Marshal for the Eastern District of Michigan, GS-12.

22. The reassignment of CDUSM Craig from the Federal District of Kansas to the Eastern District of Michigan was neither a promotion nor a demotion. The rank, grade level, job description, employment security, and fringe benefits of this position of Chief Deputy United States Marshal, Eastern District of Michigan, are identical to those of the position of Chief Deputy United States Marshal, District of Kansas. (Paragraph 11, Defendant's Affidavit, dated August 14, 1974)

23. The Office of United States Marshal for the Eastern District of Michigan is a larger office, personnel-wise, and a busier office, caseload-wise, than its counterpart in the District of Kansas. The Chief Deputy United States Marshal for the Eastern District of Michigan has to supervise more United States Marshals Service...

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