Jarett v. United States

• Decision Date: 14 July 1971
• Docket Number: No. 301-69.,301-69.
• Citation: 451 F.2d 623,195 Ct. Cl. 320
• Parties: Lawrence JARETT v. The UNITED STATES.
• Court: U.S. Claims Court

195 Ct. Cl. 320, 451 F.2d 623 (1971)

Lawrence JARETT v. The UNITED STATES.

No. 301-69.

United States Court of Claims.

July 14, 1971.

John I. Heise, Jr., Washington, D. C., atty. of record, for plaintiff; Heise, Kyle & Jorgensen, Silver Spring, Md., and Lebovici & Safir, New York City, of counsel.

J. Laurence Heizmann, Washington, D. C., with whom was Asst. Atty. Gen. L. Patrick Gray, III, for defendant; C. Michael Sheridan, Framingham, Mass., of counsel.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

ON DEFENDANT'S AND PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT

LARAMORE, Judge.

Plaintiff in this case is employed by the Merchant Marine Academy as head of the Department of Maritime Law and Economics. His employer, hereinafter referred to simply as the Academy, is under the auspices of the Secretary of Commerce pursuant to the Merchant Marine Act of 1936, as amended, 46 U.S.C. § 1126 (1964). Consistent with regular procedures, the Secretary of Commerce delegated his authority over the Academy to the Maritime Administration and he further delegated the authority to pay the faculty of the Academy to the Director of Personnel. The statutory authority necessary to establish faculty pay plans is acquired directly from section 216 of the Merchant Marine Act of 1936, as amended by P.L. 87-93, section 2, 75 Stat. 212 (1961), 46 U.S.C. § 1126(e) (1964). Said statute and actions taken pursuant thereto form the basis upon which plaintiff invokes the jurisdiction of this court to hear his case under 28 U.S.C. § 1491 (1964).

The background of this case shows that enactment of P.L. 87-93, section 2, supra, started an overall reconstruction of the salary structure at the Academy. Said revision of the Merchant Marine Act by P.L. 87-93 was primarily concerned with administrative enrollees at the Academy, but through the inclusion of subsection (e)¹ of the Act, the responsible officials were able to also restructure the salaries of those whose functions were not administrative. This took place through a negotiated agreement entered into by the Maritime Administration and the United Federation of College Teachers (UFCT) in May of 1968.

The agreement was made to cover members of the faculty other than department heads and assistant department heads and provided basically that a new salary schedule would be instituted at the Academy to make the salaries of the Merchant Marine Academy comparable or similar to that of the U.S. Naval Academy.² As noted, this agreement initially covered faculty members who were not department heads or assistant department heads. However, on June 28, 1968, a similar agreement was reached by the department heads and assistant department heads with certain additions to be noted hereafter.

Both agreements provided for what the parties to this case call "slotting." Simply stated, "slotting" is the process by which an individual is placed in a newly revised salary scheme. This is done by first adopting a new salary schedule and then deciding which slot in the old schedule compares to the new slot in the revised schedule. In our case this decision was made by a committee established pursuant to the June 28, 1968 agreement called the Management Committee. This committee is comparable to the Categorization Committee used by nondepartment heads established by the original agreement. That agreement, together with the additions which made it conform to the plaintiff's job, forms the basis for plaintiff's grievance. Furthermore, because the parties herein used the agreement as a basis for giving subsection (e) of 46 U.S.C. § 1126 (1964) a working nature, we will hereinafter treat that agreement, as amended, with the same respect as we do any other regulation of the Department of Commerce.

Getting back to the developments pursuant to that agreement, it should be noted that the agreement provided in Section II that:

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Those faculty members fully meeting the Maritime Administration qualification requirements of March 1966 (substitution of equivalency in engineering and nautical science departments will be permitted) for their rank may be converted to a higher rate in the upper pay category for their rank not exceeding the maximum in-hiring rate for the category, or one step above their current rate—whichever is higher—when the upper pay category is determined to be merited based on such factors as demonstrated professional competence and achievement, teaching ability, scholarly activity, and potential for future development.

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The determination of the appropriate category and step shall be made by a committee consisting of one educator outside the U.S. Merchant Marine Academy chosen by management; one educator outside the Academy chosen by the Union; and Irwin Gerard of the Federal Mediation and Conciliation Service.

To make that provision applicable to the department heads and assistant department heads a memorandum was attached. This memo indicated the fruits of the negotiations by the Superintendent of the Academy with the department heads to arrive at a working arrangement for revision of department head salaries. It provided, inter alia, that department heads were

to be evaluated by a management committee consisting of Mr. Girard and Captain Foy (sic) in the same fashion and using the same qualification standards which were used in the evaluation of all other members of the faculty. In addition to such criteria, the management committee will consider administrative experience and ability in their evaluation. The management committee will "slot" Department Heads on the Naval Academy adminstrative faculty scale and shall have the right to advance Department Heads up to and including step 47 of such administrative faculty scale. (Step 47 on the administrative faculty scale is identical with the maximum in-hiring rate for professors on the upper scale).

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Pursuant to this agreement plaintiff was slotted in step 41. This was a net increase to $20,666 from a step 38 which carried with it a salary of $18,374, plus $500 as compensation for being a department head. This slotting was made by the Management Committee on July 12, 1968 and adopted by the Maritime Administration on the same day.

Plaintiff, who was an educator with five degrees and had been on the faculty of the Academy since 1946, objected to the new slot. Plaintiff felt he had not been slotted properly in view of his rating as "outstanding" with respect to his professional competence, achievements and teaching ability. Consequently, on August 8, 1968, plaintiff filed a grievance pursuant to Administrative Order No. 202-770, issued February 5, 1963 by the Department of Commerce. In accordance with procedures set forth therein, a one-man review committee was appointed by the Acting Maritime Administrator to hear and consider plaintiff's grievance.

Following a hearing wherein witnesses were presented by both sides, the review committee presented its findings of fact to the Acting Maritime Administrator. It should be noted at this point that during the conduct of the hearing the Management Committee presented, among others, two witnesses who later took it upon themselves to evaluate the findings of the review committee.

The evaluations were first made by the Chief of the Compensation Division, Office of Personnel in the Department of Commerce who communicated his comments to the Personnel Officer of the Maritime Administration. The Personnel Officer in turn communicated the former's comments along with his own to the Acting Maritime Administrator who, after undoubtedly considering the above-noted ex parte communications, choose not to follow the recommendation of his self-appointed review committee. Moreover, the Acting Maritime Administrator chose to ignore findings by the review committee that indicated improper procedures in the slotting of the plaintiff. It is because of his decision and the resulting denial of plaintiff's grievance that the case is before this court.

We first note jurisdiction under our general jurisdiction statute, 28 U.S.C. § 1491 (1964):

The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department * * * in cases not sounding in tort.

This case could come within our jurisdiction by virtue of P.L. 87-93, supra, which is an Act of Congress, or the Merchant Marine Act of 1936. Furthermore, and as pointed out earlier, there is a regulation of an executive department involved herein. It is not the normal published type of regulation but because all parties involved treated the agreement to revise the salary structure as a regulation, we shall also accord it the status of a regulation.

Having noted jurisdiction for this action, we next consider any and all limitations placed thereon. For the first of such limitations one need not burn the midnight oil to discover the relevance of the Administrative Procedure Act, section 10, 5 U.S.C. § 1009 (1964) (recodified as 5 U.S.C. §§ 701-706 (Supp. IV 1965-68)). This act provides, inter alia, that:

§ 701. Applications; definitions

(a) This chapter applies, to provide judicial review according to the provisions thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

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§ 702. Right of review A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

To paraphrase, the Administrative Procedure Act restricts judicial review of agency actions when the action taken by the agency is pursuant to a statute which, by its terms, precludes judicial review. Furthermore, when the agency action is committed solely to the discretion of the agency, such...