Hondros v. U.S. Civil Service Com'n

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: Before SEITZ, Chief Judge, and ADAMS and GARTH; GARTH; ADAMS
• Citation: Hondros v. U.S. Civil Service Com'n, 720 F.2d 278 (3rd Cir. 1983)
• Decision Date: 13 October 1983
• Docket Number: No. 82-1334,82-1334
• Parties: Paul HONDROS, James Martin Duross and Nathan Smith, Prior Deputy United States Marshals for the Eastern District of Penna. v. UNITED STATES CIVIL SERVICE COMMISSION and United States Civil Service Commissioners, Robert E. Hampton, Chairman, Jane B. Spain, Vice Chairman, Ludwig J. Andolsek, Commissioner and United States Marshals Service, Wayne B. Colburn, Director, Reis R. Kash, Associate Director, Donald D. Hill, Associate Director, John W. Cameron, Associate Director. Appeal of UNITED STATES MARSHALS SERVICE.

Page 278

720 F.2d 278

Paul HONDROS, James Martin Duross and Nathan Smith, Prior Deputy United States Marshals for the Eastern District of Penna. v. UNITED STATES CIVIL SERVICE COMMISSION and United States Civil Service Commissioners, Robert E. Hampton, Chairman Jane B. Spain, Vice Chairman, Ludwig J. Andolsek Commissioner and United States Marshals Service, Wayne B Colburn, Director, Reis R. Kash, Associate Director, Donald D. Hill, Associate Director, John W. Cameron, Associate Director Appeal of UNITED STATES MARSHALS SERVICE.

No. 82-1334.

United States Court of Appeals, Third Circuit.

Argued Jan. 24, 1983.

Decided Oct. 13, 1983.

Freddi Lipstein (argued), William Kanter, Civil Div. Dept. of Justice, Washington, D.C., Howard M. Goldsmith, L. Bruce Hoffman (argued), Goldsmith & Hoffman, Philadelphia, Pa., for appellees.

Gary Tilles, Asst. U.S. Atty., Philadelphia, Pa., for appellant.

Before SEITZ, Chief Judge, and ADAMS and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

The United States appeals from an order of the district court entered on March 25, 1982, directing the United States Marshals Service to reinstate Nathan Smith to the remainder of Smith's term position as a deputy United States Marshal, and to appoint Smith to a career position as a United States Marshal "at that level and grade he would be entitled to had he been appointed to the position of career deputy United States Marshal in 1973 and had served continuously until today." For the reasons discussed below, we affirm the order of the district court in part and reverse in part.

I.

A.

An overview of those regulations governing the hiring of civil service employees is necessary for our disposition of this appeal. Civil service employees are members of either the "competitive service" ¹ or the "excepted service." ² An employee typically becomes a member of the "competitive service" by taking an examination administered by the Office of Personnel Management ("OPM"). See 5 U.S.C. Sec. 3304 (1976 & Supp. V 1981). An applicant who meets the minimum requirements for entrance to an examination, and who receives a rating of 70 or more on the examination, is known as an "eligible." 5 C.F.R. Secs. 210.102(b)(5), 337.101(a) (1983). OPM is required to enter on a civil service "register" ³ the names of all eligibles in accordance with their numerical rankings. 5 C.F.R. Sec. 332.401 (1983).

An agency seeking to hire an employee must submit a request to OPM for a "certificate" of eligibles. ⁴ When OPM receives a request for certification of eligibles, it prepares a certificate by selecting names from the head of the appropriate register. This certificate consists of a sufficient number of names to permit the agency to consider three eligibles for each vacancy, 5 C.F.R. Sec. 332.402 (1983), the so-called "rule-of-three." ⁵ A hiring official from the agency, known as the "appointing officer," 5 C.F.R. Sec. 210.102(b)(1) (1983), is obliged to fill each vacancy "with sole regard to merit and fitness" from the three eligibles ranking highest on the certificate who are available for appointment. 5 C.F.R. Sec. 332.404 (1983).

With a few exceptions not here relevant, eligibles appointed from a register become "career-conditional" employees. 5 C.F.R. Sec. 315.301(a) (1983). These career-conditional employees may become "career" employees upon the completion of a three-year period of "creditable service." 5 C.F.R. Sec. 315.201(a)(b) (1983). ⁶ Those employees who successfully complete the first year of the three-year service period generally have greater procedural rights than those who do not. For example, prior to the completion of the first year of a career-conditional employee's service period--the "probationary period"--the employee may be dismissed "if he fails to demonstrate fully his qualifications for continued employment." 5 C.F.R. Sec. 315.803 (1983). During this period such an employee is accorded limited procedural rights, ⁷ and may seek review of a dismissal only on the grounds that the dismissal was discriminatory or effected by improper procedures. ⁸ Career employees (and career-conditional employees in their second or third years of service), in contrast, enjoy the much greater procedural protections of the Lloyd-LaFollette Act. ⁹ See generally Sampson v. Murray, 415 U.S. 61, 80-82, 94 S.Ct. 937, 948-949, 39 L.Ed.2d 166 (1974).

Members of the "excepted service" are subject to less rigorous entrance requirements, and are accorded fewer procedural protections, than are members of the competitive service. Among the members of the excepted service are employees appointed for a definite term of employment, or "term employees." These employees do not acquire competitive status by virtue of their term appointment. ¹⁰ Term employees may be appointed for terms of one to four years "when the needs of the service so require." 5 C.F.R. Sec. 316.301 (1983). Unlike members of the competitive service, who must generally submit to competitive examinations, term employees may bypass the rigors of the competitive process if OPM so authorizes. 5 C.F.R. Sec. 316.302(b) (1983). ¹¹ Term employees, on the other hand, are accorded none of the procedural protections of the Lloyd-LaFollette Act, ¹² and only limited procedural rights by regulation. ¹³

In general, there are no provisions for the conversion of term employees to career-conditional employees. ¹⁴ A term employee who wishes to acquire competitive status must therefore make use of the ordinary procedures for entering the competitive service. Those procedures include taking a competitive examination, obtaining a position on a civil service register, being certified as one of the three highest rated applicants for each vacancy, and being selected by an appointing officer with sole regard to merit and fitness." See p. 281 supra.

Both term and competitive employees may be released from employment when a shortage of funds, reorganization, or reclassification so requires. ¹⁵ The procedures governing these releases are captioned "Reduction in Force," see 5 C.F.R. Part 351 (1983), and employees released pursuant to these procedures are said to be "RIF'd." An employee who is properly "RIF'd" does not enjoy a number of the procedural protections of the Lloyd-LaFollette Act. See 5 U.S.C. Sec. 7512(B) (1976); 5 C.F.R. Sec. 752.401(c) (1983); Rasmussen v. United States, 543 F.2d 134, 137, 211 Ct.Cl. 260 (1976).

With this understanding of the governing Civil Service regulations, we turn to the facts giving rise to this appeal.

B.

Nathan Smith was hired in August of 1971 as a term employee of the United States Marshals Service (the "Service"), an arm of the Department of Justice. The Marshals Service administered an "Anti-Air Piracy Program" in the early 1970s for the purpose of combatting a rising number of aircraft hijackings. Marshals for the Air Piracy Program were hired, pursuant to 5 C.F.R. Sec. 316.302(b) (1983), as term deputies without regard for Civil Service Commission registers. See note 11 supra. Smith, who was not at that time on a Civil Service register, was hired for a term ending June 30, 1982 "subject to a character investigation."

The record indicates that at the time Smith was hired, agents of the Marshals Service represented that the Service intended to "convert" term deputies hired for the Air Piracy Program to career positions. According to Gerald LaRosa, deputy marshal with responsibility for the Philadelphia airport, both the Philadelphia marshals and responsible officials in Washington "were under the understanding that [term deputies] were all going to be assumed into the Marshal[s] Service." ¹⁶ The Agency made these representations for the purpose of attracting more highly qualified candidates than would otherwise have applied for term positions. John Doyle, at the time one of four "specialists" in the United States for the Marshals Service, explained the Marshals' dilemma as follows:

We were having trouble getting good employees because it was a temporary position to work in this program.... And the people that we wanted to hire in a lot of cases they didn't want to stay because ... it was only a temporary thing[.] [S]o they told them in Washington, they told the Marshal[s] to tell them that they would be converted to a permanent basis. I know because ... they would constantly call me on the phone in Washington and ask me when they were going to be converted because we were promising they were going to be converted. ¹⁷

Accordingly, Nicholas Vinci, Chief Deputy Marshal in Philadelphia, explained to each term deputy, including Smith, that the Service intended to confer permanent status on term deputies provided that they completed the requisite one-year period of probation. ¹⁸

In fact, however, the applicable Civil Service regulations did not permit the Service to "convert" term deputies to permanent positions. See pp. 282-283 & note 14 supra. The regulations required, and members of the Marshals Service understood, that any term deputy seeking a permanent position had to make use of the ordinary procedures for entering the competitive service. Consequently, on June 16, 1972, Bert Lederer, then Personnel Officer for the Marshals Service, directed all hiring officials to employ the regular Civil Service Registers in order to "convert" term deputies. Lederer's communique provided:

BEGIN [THE] PROCESS OF CONVERTING TERM DEPUTIES TO CAREER CONDITIONAL APPOINTMENTS THROUGH CIVIL SERVICE REGISTERS. SUGGEST YOU MEET WITH LOCAL AREA OFFICE OF [THE CIVIL SERVICE COMMISSION] AND ENLIST ADVICE AND GUIDANCE.... EXPLAIN THAT YOU ARE TRYING TO CONVERT YOUR TERM DEPUTIES. ¹⁹

The Service had, however, overlooked an important obstacle to its plan to "convert" term deputies that impeded its ability to convert Smith. A number of its term deputies, including Smith, were not on Civil Service Registers at the time of Lederer's announcement. Moreover, the appropriate...