Gray v. Office of Personnel Management

• Decision Date: 27 August 1985
• Docket Number: No. 84-5052,84-5052
• Citation: 771 F.2d 1504,248 U.S.App.D.C. 364
• Parties: Lawrence E. GRAY, et al., Appellants, Augustus A. Simpson, Jr. v. OFFICE OF PERSONNEL MANAGEMENT, an Agency of the U.S. Government, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1504

771 F.2d 1504

248 U.S.App.D.C. 364

Lawrence E. GRAY, et al., Appellants, Augustus A. Simpson, Jr. v. OFFICE OF PERSONNEL MANAGEMENT, an Agency of the U.S.

Government, et al.

No. 84-5052.

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. 83-00354).

James H. Curtin, Washington, D.C., with whom Francis A. O'Brien, Washington, D.C., was on brief, for appellants. Stephen M. Ryan, Washington, D.C., entered an appearance for appellants.

Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, William H. Briggs, Jr., Asst. U.S. Attys., and James S. Green, Atty., Office of Personnel Management, Washington, D.C., were on brief, for appellees.

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

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

In this appeal, we are called upon to determine whether the District Court properly dismissed two consolidated actions brought by four Department of Labor Administrative Law Judges. The appellants were among a group of ALJs who remained at their GS-15 pay level despite an Office of Personnel Management directive promoting thirty-nine of their colleagues to GS-16. Eighteen months after petitioning OPM to direct their promotion and not having received a definitive response, appellants filed suit in federal district court challenging OPM's failure to promote them as violative of, inter alia, the Classification Act, 5 U.S.C. Secs. 5101 et seq. (1982), the Back Pay Act, id. Secs. 5596 et seq. (1982) and their Fifth Amendment right to due process. The District Court dismissed appellants' statutory claims for lack of subject matter jurisdiction, citing this Court's decision in Carducci v. Regan, 714 F.2d 171 (D.C.Cir.1983), and rejected on the merits appellants' constitutional claims.

I

The relevant facts are not in dispute. The appellants, Melvin Warshaw, Lawrence Gray, Edward Murty, Jr. and Peter Giesey, are presently GS-16 Administrative Law Judges employed by the Department of Labor. However, in August 1981, when OPM directed the promotion of thirty-nine GS-15 ALJs at the Department of Labor to GS-16, appellants were not among those promoted.

A

The August 1981 promotions represented the culmination of an effort by OPM to restructure the Department of Labor's ALJ corps. Prior to April 1981, ALJs at the Department fell into one of three position descriptions: performance of (1) exclusively GS-16 level casework, or (2) exclusively GS-15 level casework, or (3) a combination of the two types of casework. The third category of ALJs, referred to by the parties as "dual position" ALJs, were compensated at the GS-15 level.

Pursuant to its authority to review agency implementation of classification standards under the Classification Act, OPM reviewed the classification of ALJ job descriptions at the Department. As a result, in April 1981 OPM reclassified from GS-15 to GS-16 two of the types of cases presided over by "dual position" ALJs, namely cases under the Longshoremen's and Harbor Workmen's Compensation Act ("Longshoremen's") and cases under the Comprehensive Employment and Training Act ("CETA"). This reclassification tipped the balance of GS-15 and GS-16 level cases handled by "dual position" ALJs in favor of a GS-16 classification for such judges. OPM, accordingly, examined the overall workload performed by the Department's ALJ corps and determined that, as a result of the reclassification of CETA and Longshoremen's cases, thirty-six new GS-16 ALJ positions should be created. Consulting the GS-16 "Register," ¹ OPM determined that thirty-nine of the fifty-one "dual position" ALJs were qualified to fill the new positions and, in consequence, directed their promotions pursuant to 5 C.F.R. Sec. 930.204(b) (1985). ² Appellants were not listed on the Register, however, and were therefore not among the thirty-nine ALJs promoted in August 1981.

B

Appellants filed an appeal with OPM late in 1981. They asserted that notwithstanding the reclassification of job descriptions and the promotion of thirty-nine "dual position" ALJs, the actual work assignment practices at the Department had remained as before. The unhappy result of the confluence of promotions and unaltered work assignments was that both the thirty-nine recently-promoted ALJs and those left to languish at the GS-15 level were still functioning as "dual position" ALJs. Consequently, appellants argued, the merit system principle of equal pay for equal work was being violated in contravention of both the Classification Act and the Civil Service Reform Act of 1978 ("CSRA"), Pub.L. No. 95-454, 92 Stat. 111 (codified as amended in scattered sections of 5 U.S.C. (1982)). In addition, appellants argued that pursuant to 5 C.F.R. Sec. 930.204(b) (1985), supra note 2, all "dual position" ALJs should have been promoted to GS-16 as soon as the Longshoremen's and CETA cases were reclassified, inasmuch as these ALJs were, at that time, performing principally GS-16 work.

OPM investigated appellants' complaint and concluded that the Department of Labor had, in fact, failed properly to implement OPM's reclassification plan. As OPM had envisioned the plan's operation, a bright line was to be drawn between GS-16 and GS-15 ALJs; that is, in OPM's contemplation, only GS-16 ALJs (who comprise 70% of the total ALJ corps at the Department of Labor) would perform GS-16 work and those ALJs would perform only GS-16 work. In contravention of this clear demarcation of GS level and level of responsibility, the Department was assigning GS-16 work to both GS-16 and GS-15 ALJs, all of whom would then devote approximately 70% of their time to performing GS-16 work.

C

In response to DOL's apparent management disarray, OPM froze GS-16 promotions for otherwise qualified GS-15 ALJs; moreover, OPM refused to act on individual appeals until the unhappy situation of blended responsibility could be resolved. Meanwhile, however, appellants repeatedly filed with OPM individual requests for promotion to GS-16. Frustrated in their attempt to speed up resolution of their respective appeals, appellants took leave of the administrative battlefield and repaired to federal district court.

In March 1983, shortly after the District Court actions were instituted, OPM's Director informed appellants that his agency could not authorize, at that time, additional GS-16 promotions because the 1981 reclassification and promotion scheme remained improperly implemented; it was therefore not possible at that stage, the OPM Director maintained, to determine whether additional GS-16 positions would be available once the plan finally began to operate as intended. The Director further represented that once the management task at hand was completed, appellants' appeals would again be reviewed.

D

Despite these assurances, appellants continued to pursue their cases in district court. In his complaint, appellant Warshaw sought to compel OPM to direct his promotion outright. Jurisdiction was founded on the Mandamus Act, 28 U.S.C. Sec. 1361 (1982). The gravamen of Mr. Warshaw's complaint was that, inasmuch as he had "fulfilled the promotional requirements contained in 5 C.F.R. Sec. 930.204(b)," he should be considered "among the eligible GS-15 ALJs that DOL ... had previously requested OPM to select for appointment to vacant GS-16 ALJ positions." J.A. at 14 (Complaint filed in Warshaw, C.A. No. 83-0248).

In Gray, three appellants filed a separate complaint seeking damages and injunctive relief in addition to mandamus. Jurisdiction was based, inter alia, on the Administrative Procedure Act, 5 U.S.C. Secs. 706 et seq. (1982), the Back Pay Act, 5 U.S.C. Sec. 5596, the Mandamus Act, supra, and the Fifth Amendment. The gravamen of the Gray appellants' complaint was that, had OPM applied 5 C.F.R. Sec. 930.204(a) (1982), instead of the newly promulgated Sec. 930.204(b), OPM would have been required to promote all fifty-one "dual position" ALJs. See supra note 2. As a result, appellants asserted, they were being denied equal pay for equal work in contravention of both the Classification Act and the CSRA. In their prayer for relief, appellants sought, among other things, an order compelling OPM to direct their promotion, back pay, punitive damages and attorneys' fees (based on a claim of OPM's bad faith in refusing to respond to their request for promotion). J.A. at 32-34 (Complaint filed in Gray, C.A. No. 83-0354).

The Warshaw and Gray cases were consolidated and a single order, entered on December 21, 1983, dismissed the cases for lack of subject matter jurisdiction, based upon this court's supervening decision in Carducci v. Regan, 714 F.2d 171 (D.C.Cir.1983). ³ With respect to appellants' non-constitutional claims, the District Court held that, in light of this court's holding in Carducci (i.e., that " 'the exhaustive remedial scheme of the CSRA would be impermissibly frustrated by permitting far lesser personnel actions not involving constitutional claims[ ] an access to the courts more immediate and direct than the statute provides with regard to major adverse actions,' " J.A. at 4-5 (quoting Carducci, supra, 714 F.2d at 174)), appellants were required to process their claims through the Office of Special Counsel ("OSC") and, if appropriate, the Merit Systems Protection Board ("MSPB"), before repairing to federal court. ⁴ Specifically, the District Court concluded that appellants' claims did not rise to the level of "adverse actions" within the meaning of 5 U.S.C. Sec. 7521 (1982); ⁵ however, the District Judge observed that their allegations could constitute grounds for a claim of "prohibited personnel practices" under id. Sec. 2302(a)(2)(A)(x) ("significant change in...