Fiorentino v. United States, 390-77.

Decision Date17 October 1979
Docket NumberNo. 390-77.,390-77.
Citation607 F.2d 963
PartiesCarmine FIORENTINO v. The UNITED STATES.
CourtU.S. Claims Court

COPYRIGHT MATERIAL OMITTED

Carmine Fiorentino, pro se.

Sandra P. Spooner, Washington, D. C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D. C., for defendant. John Kosloske and Robert H. Moll, Washington, D.C., of counsel.

Before COWEN, Senior Judge, and NICHOLS and SMITH, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

NICHOLS, Judge:

This case presents novel and difficult issues despite superficial simplicity. We have held it after oral argument to await a decision in another court, plus supplemental briefing. It is now ripe for adjudication. It is a pay case before us on cross-motions for summary judgment. We hold for defendant and dismiss the petition.

Plaintiff, Carmine Fiorentino, was an attorney and a nonveteran. He was employed in the Department of Housing and Urban Development (HUD) in the "excepted" rather than the "competitive" service, being described as a "Schedule A" employee, as attorneys are generally. His normal duty station was Washington, D. C., but in 1972-73 he was serving a prolonged detail in an Elmira, New York Disaster Field Office. He was there charged with submitting false travel vouchers and improperly interfering with a police investigation of a theft of government property, falsely representing himself to be a U. S. Attorney. On October 3, 1973, a Federal Grand Jury indicted him on the false voucher charges. Trial occurred only on January 6, 1977, and resulted in acquittal under all counts. Meanwhile plaintiff was put under indefinite suspension, from December 1, 1973, followed by removal on August 2, 1974, the latter being based on the impersonation charge as well as the alleged false vouchers. Plaintiff was offered a hearing on the suspension, but declined it as it developed the only fact issue would be whether there had been an indictment, and whether continued service pending resolution of the indictment would be detrimental to the public interest. Plaintiff was denied any hearing on the removal on the ground that, being in an "excepted" position, he was not entitled to one.

The novelty of this case is that plaintiff does not base his claim on alleged procedural violations of applicable statutes and regulations, or lack of substantial evidence of his guilt. Rather, he says he has been deprived of both property and liberty without due process of law. In effect, though not in words, he admits that the statutes and regulations do not prohibit what was done in his regard, and only if the Constitution directly interposes in his behalf, can he prevail. Any other contention is too weakly urged to be noticed.

It has long been known around this "island" of Washington, and we may notice it under Federal Rules of Evidence § 201, that the Congress has been always opposed to Civil Service Commission (CSC) testing and examining of attorney positions in the Executive branch under the competitive system. The Commission has been equally unwilling to admit them to the "competitive" service without such testing. Defendant cites as the enacted expression of this the annual prohibition against appropriated funds of the CSC being used for the Commission's Legal Examining Unit. An unbroken series of such clauses runs from the Act of June 26, 1943, Pub.L.No. 90, 57 Stat. 169, 173, to the Act of October 10, 1978, Pub.L.No. 95-429, 92 Stat. 1001, 1007. The President had set up a Board of Legal Examiners (Legal Examining Unit), by E.O. 9358, July 1, 1943. By E.O. 9830, 12 Fed.Reg. 1259 (1947), the President in § 6.1 provided that positions in Schedule A and B should be excepted from the competitive service. Section 6.4 is Schedule A. Item IV therein is "attorneys." Whether the legislative intent is obvious to "outsiders," it certainly has been to the Executive branch, which has never, since May 1, 1947, put attorney positions anywhere but in the excepted service. The consequences of one's being in the "excepted" service (and not a veteran) are that one cannot put on the panoply of protection available to those in the "competitive" service when threatened by adverse action for cause. Batchelor v. United States, 169 Ct.Cl. 180, cert. denied, 382 U.S. 870, 86 S.Ct. 147, 15 L.Ed.2d 109 (1965); Chollar v. United States, 126 F.Supp. 448, 130 Ct.Cl. 338 (1954). Cf. Roth v. Brownell, 215 F.2d 500 (D.C.Cir.), cert. denied, 348 U.S. 863, 75 S.Ct. 89, 99 L.Ed. 680 (1954) holding that some attorneys, including Roth, placed in the competitive service before the date of E.O. 9830, did not lose their protection by that order, but this does not avail our plaintiff. HUD Handbook 752.2, Appendix 1 states the general rule, whose existence plaintiff does not deny. The authority to prescribe exceptions to the rules governing the competitive service is given now in 5 U.S.C. § 3302(1) and E.O. 11315, 5 C.F.R. 1966-1970 Comp., 597. The schedule of excepted positions is now in 5 C.F.R. § 6.2. 5 C.F.R. § 213.3102(d) places attorneys in Schedule A. 5 C.F.R. § 752.103(a)(6) states that excepted employees do not enjoy any of the protections against adverse action which competitive service employees enjoy. The statutory protection of individuals in the competitive service is 5 U.S.C. § 7501, and of veterans §§ 7512 and 7701. Thus it would follow that nobody in an operating Executive agency could transfer incumbents of Schedule A positions (attorneys) from the excepted to the competitive service other than by authorization that does not appear to exist.

Plaintiff claims he has or had a constitutionally protected interest in his job, both of a property and liberty nature, which entitled him to a due process hearing. We take them up in that order.

As expounded in Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), an incumbent's property interest in his job must be more than an "abstract need or desire" for it, or a "unilateral expectation." He must "have a legitimate claim of entitlement to it." Those cases do not deal with Federal employees, but in Arnett v. Kennedy, 416 U.S. 134, 151, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) they are cited as in point respecting procedural rights guaranteed by the Constitution to such employees. Since our plaintiff cannot rely on statutes or regulations or written contracts as the source of his "legitimate claim," we believe he is remitted to implied agreements or what Perry v. Sindermann, 408 U.S. at 602, 92 S.Ct. 2694 calls "unwritten common law." See also Colm v. Vance, 186 U.S.App.D.C. 132, 138, 567 F.2d 1125, 1131 (D.C. Cir. 1977) which, as to a Department of State employee, refers to "agency fostered policies or understandings" and "Department of State law."

The source of this plaintiff's "legitimate claim of entitlement," the sole source to all intents, was not known to him until after he filed this lawsuit. Defendant's counsel with admirable candor disclosed it to him. It is a HUD Handbook 302.2 entitled "Tenure of Attorneys." (Hereinafter HUD 302.2.) It refers to attorneys as the largest group of permanent employees who are under "the Schedule A authority of the excepted service." It purports to "establish a departmental policy on the acquisition of permanent tenure by attorneys." It tells how an attorney can by length of service acquire "permanent tenure." It is not disputed that plaintiff's length of service was sufficient. If an expectation of "permanent tenure" can be the basis of a "legitimate claim of entitlement" under the Roth standard, Mr. Fiorentino or any other HUD attorney might well have believed that he had such a claim.

The defendant, however, argues that "tenure" is a term of art in Federal personnel law. The CSC has defined it as follows:

Tenure means the period of time an employee may reasonably expect to serve under his current appointment. It is granted and governed by the type of appointment under which an employee is currently serving without regard to whether he has a competitive status or whether his appointment is in a competitive position or in an excepted position. 5 C.F.R. § 210.102(b)17

This regulation treats as irrelevant to "tenure" whether one has a competitive or an excepted position, although one in the latter is subject to being cut off at any time, whereas in ordinary speech the meaning of "tenure" is such that the incumbent of an excepted position would certainly not have it. Defendant produces affidavits by the author of the handbook and by the head of his division. Both aver that the sole purpose of HUD 302.2 was to prescribe how attorneys should be grouped in instances of Reductions in Force (RIF). There was no intent to impart to excepted positions some or all of the available panoply of protections applicable to positions in the competitive service. Thus the real question is whether the word "tenure" should be construed as one skilled in Federalese would use it, or as it would be understood in ordinary speech. The public has undoubtedly heard of the word most often in connection with disputes in the academic community such as Roth and Perry v. Sindermann dealt with. Defendant quotes some definitions that indicate that a professor with tenure will not be dismissed "without adequate cause" and "full academic due process" unless in a case of financial stringency (corresponding to the Federal RIF) or superannuation. It is clear there is a pretty close correspondence between the substantive rights of a professor with tenure, and a U. S. civil servant in the competitive service, faced in either case with a threatened dismissal for alleged misconduct. The details of the "due process" to be accorded may vary according to the rituals that might be favored in the two universes, but in essence, plaintiff is asserting that HUD 302.2, by saying he...

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