Freeman v. Morton, 73-1409.

• Citation: 499 F.2d 494
• Decision Date: 21 February 1974
• Docket Number: No. 73-1409.,73-1409.
• Parties: Enola E. FREEMAN, on behalf of herself and all others similarly situated v. Rogers C. B. MORTON, Secretary of the Interior, et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

499 F.2d 494 (1974)

Enola E. FREEMAN, on behalf of herself and all others similarly situated v. Rogers C. B. MORTON, Secretary of the Interior, et al., Appellants.

No. 73-1409.

United States Court of Appeals, District of Columbia Circuit.

April 25, 1974.

Argued February 21, 1974.

Eva R. Datz, Atty., Dept. of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, Leonard Belter, Asst. U. S. Atty., and Edmund B. Clark, Atty., Dept. of Justice, were on the brief for appellants. John A. Terry and James F. McMullin, Asst. U. S. Attys., also entered appearances for appellants.

Patrick F. J. Macrory, Washington, D. C., with whom Stuart J. Land, Washington, D. C., was on the brief, for appellees.

Before BAZELON, Chief Judge, McGOWAN, Circuit Judge, and CHRISTENSEN,^* United States Senior District Judge for the District of Utah.

CHRISTENSEN, Senior District Judge.

This is an appeal by defendants-appellants Rogers C. B. Morton and other officials of the Bureau of Indian Affairs (BIA), from a final order of the United States District Court for the District of Columbia granting summary declaratory judgment in favor of plaintiffs-appellees, Enola E. Freeman and three other employees of BIA, "that all initial hirings, promotions, lateral transfers and reassignments in the Bureau of Indian Affairs as well as any other personnel movement therein intended to fill vacancies in that agency, however created, be declared governed by 25 U.S.C. Sec. 472 . . . ." This section, which was a part of the Indian Reorganization Act of 1934 provides as follows:

Standards For Indians Appointed To Indian Office

The Secretary of the Interior is directed to establish standards of health, age, character, experience, knowledge, and ability for Indians who may be appointed, without regard to civil-service laws, to the various positions maintained, now or hereafter, by the Indian Office, in the administration of functions or services affecting any Indian tribe. Such qualified Indians shall hereafter have the preference to appointment to vacancies in any such positions. June 18, 1934, c. 576, § 12, 48 Stat. 986.

From the passage of the statute until the institution of this suit the Bureau had narrowly applied this preference provision by construing the term "appointment to vacancies" to mean initial hirings only. Appellees were, and presumably still are, employed by the Bureau of Indian Affairs. Each at one or more times during her employment applied for assignment to a vacant position within the Bureau, had been classified at least as "qualified" and in some cases as "well qualified" or "best qualified" and was denied the position when a non-Indian was given the assignment. In some instances the non-Indian had received a lower qualification rating than the Indian applicant. Challenging this construction as altogether too grudging, appellees asserted in this action that the Indian preference applies to all appointments whether filled from within or outside the Bureau, and whether effected through initial hiring, promotions, reassignments within the same office or lateral transfers from another office.

While this action was pending the Bureau issued a revised policy statement allowing Indians a preference not only in hiring but generally in promotions, transfers from outside the Bureau and reassignments within the Bureau which improved promotion prospects. Purely lateral reassignments within the Bureau, however, were excepted from such policy, as were promotions with respect to which the Commissioner found a "waiver" of the general policy to be in the best interest of the Bureau. Plaintiffs limited their claims for relief to a declaration of their preference rights.¹ The ruling of the district court that the Indian preference did not extend to training opportunities is not in question.² Neither party has attacked the preference on civil rights or constitutional grounds.³ Furthermore, the parties agree that all of the controlling facts appear without dispute of record and that the case was ripe for resolution by summary judgment one way or another.⁴ The Tenth Circuit holding that the Indian preference does not apply to reduction-in-force situations⁵ has not been questioned in these proceedings. And the parties have accepted the definition of "Indians" as those of one-quarter or more Indian blood⁶ as valid and as applying to each of the plaintiffs for the purposes of the statute. As a consequence of these circumstances the issues presented by the parties and to which we shall limit further discussion are narrow and apparently of first impression: ⁷

I. Does 25 U.S.C. § 472 apply to transfers and reassignments within the Bureau of Indian Affairs which are purely lateral? ⁸

II. Does that section allow the granting of exceptions to the preference policy with reference to promotions, as well as with respect to lateral transfers or reassignments, for exceptional administrative or management reasons?

I

The appellants argue that the district court's order is erroneously broad because it gives Indians preference "even as regards purely lateral reassignments . . . where a job and/or its occupant is merely relocated." They rely upon statements in Mescalero Apache Tribe v. Hickel, 432 F.2d 956, 960 (10th Cir. 1970), supra, and draw particular attention to a comment that "the language of § 472 was specifically limited to `appointments to vacancies' because of concern that the section as originally drafted would allow qualified Indian applicants to immediately displace `white' employees of the B.I.A."

But the reason Mescalero did not apply the Indian preference to reduction-in-force situations was simply that no "appointments to vacancies" within the contemplation of the preference statute were involved. The declaratory judgment under review here covers only "personnel movements . . . intended to fill vacancies in that BIA agency, however created. . . ." Under the order if no vacancies to be filled exist the preference does not apply, but if there is a vacancy to be filled, whether for initial hiring, or by or as a result of promotions, lateral transfers or reassignments in the Bureau, it does apply. We agree with the district court that this is what Section 472 means, and requires.⁹

Vague reference is made by appellants to "mere" relocations of jobs or reassignments of duties essential to efficient administration, which they imply are undesirably inhibited by the district court's judgment. It would be inappropriate for us to pursue such generalities not involved in the situations of the plaintiffs nor defined in the record, except to indicate, as did the trial court, that only appointments to vacancies are covered by the preference; readjustments in assignments or tasks not involving the creation of, or appointment to, vacancies are unaffected, unless of course these personnel adjustments are used as mere subterfuges to avoid the statute as interpreted here.

The most persuasive situation for an exception to the preference was specifically presented only after the entry of the court's order, in connection with the application for its stay:¹⁰ circumstances dictating the transfer of a particular non-Indian employee because of problems beyond his control or when his safety or continued effectiveness is threatened, for example. Even though such a necessity may be thought not to justify disregard of the preference in any lateral transfer to an existing vacancy, appellants argue that at least an exchange of positions would be proper to meet such an emergency. This lateral swapping of positions would bring into more acute question the meaning of "vacancy" as well as "appointment". Where two employees of identical status, with the approval of their superiors, merely exchange positions it is suggested by appellants that there would be no vacancy with respect to either position. Of course if this device were to be employed to shift an employee contemplating retirement or promotion from a position having an available Indian replacement to a position (on a different reservation for example) having only non-Indian replacements available, obviously the intent of the statute under any view would be defeated. Yet appellees say that the BIA should be permitted to utilize in good faith this theory of exchange of positions without applying the Indian preference.

As tempting as this continued softening of the statute may appear, we cannot approve it. That would require an unacceptable torsion of the term "vacancy" or the word "appointment", or both. Whether a vacancy exists depends upon whether a position is vacant and susceptible of being filled, not upon how it is filled. According to appellants' argument, for example, if an employee in office A should retire, his former position would be vacant only if his replacement were either promoted to that position or hired from outside the BIA to fill it; the determination of whether a vacancy occurs would be delayed until the vacancy no longer existed. We believe Judge Corcoran correctly reasoned that when a position is open, needing to be filled, it is vacant in the contemplation of the statute, and if the position is filled by transferring to it an employee from a position of similar status somewhere else within the BIA, that employee's former position also becomes a vacant position to be filled with due regard for the Indian preference.

Appellants' approach to the word "appointment" is to say that the word has come to mean, through custom and usage in civil service contexts, "initial hiring from outside", and it is suggested that this was the meaning intended by Congress in using the word in the statute. It is interesting to note in passing, as the record indicates, that Civil Service practice now accepts promotions as "appointments". But here we are not dealing with Civil Service application but practices expressly intended to depart from them....