Haneke v. Secretary of Health, Ed. and Welfare

• Citation: 175 U.S.App.D.C. 329,535 F.2d 1291
• Decision Date: 06 May 1976
• Docket Number: No. 74-1786,74-1786
• Parties: Weslie C. HANEKE, Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1291

535 F.2d 1291

175 U.S.App.D.C. 329

Weslie C. HANEKE, Appellant, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, et al.

No. 74-1786.

United States Court of Appeals, District of Columbia Circuit.

Argued May 28, 1975.

Decided May 6, 1976.

David Rein, Washington, D. C., for appellant.

Mary-Elizabeth Medaglia, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Michael A. Katz, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.

Before BAZELON, Chief Judge, McGOWAN, Circuit Judge, and GEORGE C. EDWARDS, Jr., ^* Circuit Judge for the Sixth Circuit.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

This appeal presents the question whether the statutory principle of equal pay for substantially equal work requires the Civil Service Commission (CSC) to make position-to-position comparisons when a federal employee maintains that his position is improperly classified in relation to other jobs.

I

Appellant is a glassblower in the Instrument Shop of the Food and Drug Administration of the Department of Health, Education, and Welfare. His position is classified by HEW under the "Wage Grade" (WG) system pursuant to Subchapter IV of Title 5, "Prevailing Rate Systems." ¹ On April 27, 1972, he filed a classification appeal with HEW, requesting conversion of his position to the General Schedule (GS) (which would give him a higher salary and greater fringe benefits than the Wage Grade schedule), and backpay for the period of the alleged wrongful classification. ² He alleged as grounds for reclassification that he was doing work identical to that done by other workers in his own shop, ³ and by glassblowers in other named agencies, all of whom were classified under the General Schedule. On June 28, 1972, HEW denied the reclassification request, ruling that appellant's position was properly classified under the Wage Grade schedule, ⁴ apparently without considering whether the other workers were, as alleged, doing identical work. ⁵

Appellant appealed the HEW ruling to the CSC on July 7, 1972. ⁶ By letter dated March 9, 1973, his appeal was denied by the Chief of the Commission's Classification Appeals Office:

Under the law we must classify your position by comparing it with the applicable classification standard rather than to any other position. A position-to-position classification system would be impossible to administer and would result in a never-ending classification process.

J.A. at 11. The letter concluded that appellant's position properly fell within the definition of Glassblower WG-3204-14.

On September 13, 1973, appellant filed a complaint in District Court, ⁷ alleging that he "is classified as a Wage Grade worker while his fellow co-workers who do identical work are classified as Engineering Technicians under the General Schedule." J.A. at 3. The complaint charged that the Commission's refusal to reclassify appellant violated 5 U.S.C. § 5101 (1970), ⁸ which provides:

It is the purpose of this chapter to provide a plan for classification of positions whereby

(1) in determining the rate of basic pay which an employee will receive

(A) The principle of equal pay for substantially equal work will be followed; and

(B) variations in rates of basic pay paid to different employees will be in proportion to substantial differences in the difficulty, responsibility, and qualification requirements of the work performed and to the contributions of employees to efficiency and economy in the service; and

(2) individual positions will, in accordance with their duties, responsibilities, and qualification requirements, be so grouped and identified by classes and grades, as defined by section 5102 of this title, and the various classes will be so described in published standards, as provided by section 5105 of this title, that the resulting position-classification system can be used in all phases of personnel administration. ⁹ (Emphasis supplied).

Appellant sought an order requiring the Government to reclassify his position under the General Schedule and awarding him backpay for the lost wages that resulted from the defendants' failure to classify him under the General Schedule. In its answer, the Commission denied that the comparison employees performed identical work and asserted that appellant was properly classified under the Wage Grade schedule. It then moved for judgment on the pleadings or in the alternative for summary judgment, attaching as exhibits the various communications between HEW, the Commission, and appellant, and copies of the Commission's standards for the Wage Grade and General Schedule positions involved; appellant cross-moved for summary judgment. The District Court granted summary judgment for defendants, stating that "the complaint fails to state a claim upon which relief can be granted, or over which this Court has subject-matter jurisdiction, and . . . that no genuine issue exists as to any material fact and (that) defendants are entitled to judgment . . . as a matter of law." J.A. at 17. That order is the subject of this appeal.

II

Recognizing that there is "a difference between prospective reclassification, on the one hand, and retroactive reclassification resulting in money damages, on the other," United States v. Testan, --- U.S. ----, ----, 96 S.Ct. 948, 955, 47 L.Ed.2d 114, 124, 44 U.S.L.W. 4245, 4249 (1976) (No. 74-753), we consider these issues separately.

A. The Backpay Claim.

The Supreme Court's recent decision in United States v. Testan,supra, leaves no doubt that appellant's claim for backpay was properly denied by the District Court. ¹⁰ The plaintiffs in that case filed an action in the Court of Claims alleging that the duties they were performing were identical to those performed by other trial attorneys in a different agency in positions classified at a higher GS rating, and they sought an order directing reclassification and awarding backpay for the period of wrongful classification. They premised their claim on the same theory which appellant now presses upon this court, namely, that the Classification Act, 5 U.S.C. § 5101 (1970), see pages ---- - ---- of --- U.S.App.D.C., pages ---- - ---- of --- F.2d supra, confers a substantive right upon improperly classified federal employees to recover money damages against the United States for the period of wrongful classification. ¹¹

The Court of Claims concluded that the Classification Act gave rise to such a claim, and remanded the case to the Civil Service Commission to compare the duties performed by plaintiffs with those performed by the other specified trial attorneys and to report the results back to the court. Testan v. United States, 499 F.2d 690, 205 Ct.Cl. 330 (1974) (en banc). The court indicated that, if the CSC determined on remand that the plaintiff employees were improperly classified, it would be willing to enforce their "legal right" to equal pay for equal work by granting a money judgment. The Supreme Court reversed, holding that "neither the Classification Act nor the Back Pay Act (5 U.S.C. § 5596 (1970)) creates a substantive right . . . to backpay for the period of . . . wrongful classification." ¹² --- U.S. at ----, 96 S.Ct. at 957, 47 L.Ed.2d at 126, 44 U.S.L.W. at 4250. In light of this holding we affirm the District Court's denial of appellant's claim for backpay.

B. The Claim for Prospective Reclassification.

The distinction which the Court emphasized in Testan between retroactive reclassification resulting in money damages and prospective reclassification was a crucial one with respect to the jurisdiction of the Court of Claims. Tucker Act jurisdiction extends only to money claims against the United States, and the Court of Claims is without power to award essentially equitable relief. United States v. King, 395 U.S. 1, 2-3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52, 55 (1969); see Lee v. Thornton, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975); Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973). Consequently, the absence of a monetary cause of action deprived the Court of Claims of jurisdiction in Testan and made it "unnecessary for (the Supreme Court) to consider the additional argument advanced by the United States that the Classification Act does not require that positions held by employees of one agency be compared with those of employees in another agency." United States v. Testan, supra, --- U.S. at ----, 96 S.Ct. at 958, 47 L.Ed.2d at 126, 44 U.S.L.W. at 4250. The Supreme Court also noted, however, that the petitioners in Testan "are not entirely without remedy" and that "(a) possible avenue of relief and, and it, too, seemingly, is only prospective is by way of mandamus, under 28 U.S.C. § 1361, in a proper federal district court." Id. at ----, 96 S.Ct. at 956, 47 L.Ed.2d at 124, 44 U.S.L.W. at 4249.

Appellant alleged that the District Court had jurisdiction over the claim for prospective relief pursuant to 28 U.S.C. § 1361 (1970), and we agree. ¹³ That section has been interpreted by this court as authorizing federal district courts "to issue appropriate corrective orders where Federal officials are not acting within the zone of their permissible discretion but are abusing their discretion or otherwise acting contrary to law . . . ." Peoples v. United States Department of Agriculture, 138 U.S.App.D.C. 291, 295, 427 F.2d 561, 565 (1970). ¹⁴ The mandamus remedy is an extraordinary one, and it is to be utilized only under exceptional circumstances, which are set out in the margin. ¹⁵ In our view, this case satisfies the relevant prerequisites. Appellant alleges that the Classification Act requires the defendant officials to compare the duties performed by appellant with those performed by other specified federal employees who are classified differently, and he has exhausted all other available remedies. Under these circumstances, if the defendant officials have a statutory duty...