Lodge 1858, American Federation of Gov. Emp. v. Paine

Decision Date21 April 1970
Docket NumberNo. 22006.,22006.
PartiesLODGE 1858, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Appellants, v. Thomas O. PAINE, Administrator, National Aeronautics and Space Administration, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Edward L. Merrigan, Washington, D. C., for appellants.

Mr. Ralph A. Fine, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Edwin L. Weisl, Jr., and Messrs. David G. Bress, U. S. Atty. at the time the brief was filed, and Alan S. Rosenthal, Atty., Dept. of Justice, were on the brief, for governmental appellees.

Mr. Paul A. Porter, Washington, D. C., for appellee, National Council of Technical Service Industries.

Before BURGER,* TAMM and ROBINSON, Circuit Judges.

PER CURIAM:

Judge Tamm and Judge Robinson file separate opinions. Judge Tamm concurs in the result reached by Judge Robinson in his opinion. The judgment appealed from is vacated, and the case is remanded to the District Court for further proceedings.

So ordered.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal follows upon the District Court's dismissal of an action challenging demotions and discharges of civil service employees integrally with a reduction in force by the National Aeronautical and Space Administration (NASA) at its George C. Marshall Space Flight Center (Marshall) in Huntsville, Alabama. Appellants are six of the civil servants whose employment was altered by the reduction in force,1 and Lodge 1858, American Federation of Government Employees (the Union), suing in its own right and on behalf of all affected civil service jobholders at Marshall, whom it represents as exclusive bargaining agent.2 Appellees are the Administrator of NASA,3 the members of the Civil Service Commission,4 and the National Council of Technical Service Industries (NCTSI), a nonprofit corporation with a membership of companies supplying personnel pursuant to contracts with various federal agencies, including NASA.5

The gravamen of appellants' action is that NASA has bypassed controlling congressional enactments by procuring, through its service support contracts with private firms, manpower outside the civil service to perform tasks assigned by law to federal civil servants only. Their complaint charges that NASA, in curtailing its work force at Marshall, demoted some civil service employees and discharged others, while retaining in their preexisting positions contractor employees engaged in the same or similar activities. This, the complaint says, violated legislation restricting NASA's hiring of contractor personnel,6 the civil service laws and implementing regulations,7 and the Union's collective bargaining agreement with NASA.8 The complaint seeks declarations that, under these circumstances, the demotions and discharges of civil service employees are prohibited and the service support contracts are illegal, and injunctive relief with regard to each.

For further details, I look to the now dismissed complaint, the factual allegations of which must be accepted as true for purposes of this appeal.9 At the end of 1966, NASA had approximately 7,300 civil service employees at Marshall and, in addition, a dozen private concerns supplied some 5,900 contractor employees in a variety of job classifications.10 Congress has ordained, subject to certain exceptions,11 that "officers and employees as may be necessary to carry out NASA's functions * * * shall be appointed in accordance with the civil-service laws * * *."12 Marshall's contractor employees allegedly work on NASA property with NASA equipment side by side under common governmental supervision with civil service employees on exclusively NASA tasks that are identical or substantially so.13 On this basis, appellants contend that nongovernment personnel work in direct job competition with government personnel at Marshall, and in direct violation of law.14

The complaint also informs us that in the recent past the Civil Service Commission and the General Accounting Office have criticized some of NASA's service support contracts as illegal and wasteful.15 It informs additionally that NASA responded with a pledge of rectification but that, before taking any action in reference to the Marshall contracts, it announced that budgetary cuts necessitated reduction of its force of civil servants there,16 whereupon many, including the six individual appellants, were notified that they would either be separated from federal service or assigned to inferior positions at reduced rates of pay. The complaint avers that these appellants had served long and satisfactorily, but were subjected to the reduction in force although in each instance contractor employees performing substantially the same work were retained in their positions without any loss of pay whatsoever.17

Appellants sought relief against the reduction in force from NASA's Administrator, and then from the Civil Service Commission, requesting its intercession in the matter. The Commission replied that it was powerless to act because "NASA is solely responsible." The individual appellants and other affected civil service employees thereupon initiated appeals with the Commission's Atlanta Regional Office. Before rendition of any decision on the appeals, appellants filed their complaint in the District Court and moved for a preliminary injunction against the reduction in force.

At the hearing on the motion, the District Judge expressed concern that NASA's service support contracts might be out of tune with governing statutes, but found that NASA and the Civil Service Commission were cooperating in efforts to reconcile NASA's operational needs and its service support contract practices with legal requirements and Commission policies under the civil service laws.18 To maintain the status quo during that endeavor, the judge granted the requested injunction, but with a proviso for its dissolution in the event that the two agencies reached an accord. NCTSI, the nongovernmental appellee, was permitted, over objection by NASA and appellants, to intervene for the purpose of defending its members' contracts with NASA.19

Shortly thereafter, NASA and the Commission agreed that the great majority of the proposed demotions and separations should be canceled,20 and that the remaining personnel actions appeared tentatively to be legal.21 Appellants disagreed with the latter conclusion, but the judge dissolved the injunction without prejudice to any administrative remedies possessed by the individual employees,22 and later granted NASA's motion to dismiss.23 The grounds stated for dismissal were non-exhaustion of remedies open to the individual appellants before the Civil Service Commission, and non-reviewability of demotions in and separations from the civil service save on judicial examination of Commission action after exhaustion of such remedies.24

Appellants challenge the dismissal, and urge a reversal and a remand in order that the District Court may hear and determine the litigation on the merits. Appellees argue that dismissal was proper, not only for non-exhaustion of administrative remedies25 but also for lack of individual or organizational standing to question NASA's deployment of contractor personnel,26 an issue which, as I analyze the case, must be reached.27 I conclude in appellants' favor on standing,28 and find it unnecessary to resolve the exhaustion issue.29

I

I consider first the contention that the Union and the individual appellants are without standing to litigate the issues the resolution of which is central to the disposition appellants seek on the merits. NASA takes the position that the Union lacks standing to press any viewpoint on the case. NCTSI argues that neither the Union nor the individual appellants have standing to assert the illegality or inefficacy, as against civil service jobholders, of the service support contracts its member companies have made with NASA.30 My treatment of the problems starts with identification of the precise role those contracts play in the controversy appellants have submitted for judicial determination.

The essence of appellants' claim is that federal statutes, civil service regulations and the Union's collective bargaining agreement with NASA invalidate the service support contracts or at least, when reductions in force are undertaken, confer preference rights on civil service employees vis-a-vis contractor employees doing similar work. The gist of the countervailing argument is that appellants' complaint comes ultimately to an assault on NASA's service support contracts with outside concerns, which appellants have no standing to maintain.

Undeniably, the complaint launches a major attack on the legality of the contracts, and the relief sought would in one aspect consist in a declaration and injunction outlawing them. Even assuming NASA's authority to enter into such contracts, a matter I do not address on this appeal, there would remain for judicial decision the question whether federal civil servants have job retention rights superior to those of competing nonfederal employees. Appellants' complaint thus inevitably draws the efficacy of the service support contracts into the maelstrom of the controversy, and the standing issue is brought into sharp focus as a query as to whether appellants may assail the contracts by which non-civil service manpower is procured for Marshall.31

The argument against standing is pitched on the premise that appellants have no legally safeguarded right to freedom from governmental action creating employment competition for them. Of course, neither the Union nor the individual appellants are parties to the service support contracts, nor are they affected by the contracts otherwise than by the economic consequences wrought. Injury resulting from rivalry over jobs, it is urged, is not enough; appellants, it is claimed,...

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