National Treasury Emp. Union v. Reagan

• Decision Date: 11 August 1981
• Docket Number: Nos. 81-1294,s. 81-1294
• Parties: NATIONAL TREASURY EMPLOYEES UNION, an unincorporated association, et al., Appellants, v. Ronald W. REAGAN, individually and in his capacity as President of the UnitedStates, et al. Elaine M. BOUTILIER, Appellant, v. Ronald W. REAGAN, individually and in his capacity as President of the UnitedStates, et al. NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, et al., Appellants, v. Ronald W. REAGAN, individually and in his capacity as President of the UnitedStates, et al. Marc R. WINE, et al., Appellants, v. Ronald W. REAGAN, President of the United States, et al. Melody A. TROTT, on behalf of herself and others similarly situated, et al., Appellants, v. Ronald W. REAGAN, individually and in his capacity as President of the UnitedStates, et al. to 81-1298.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 239

663 F.2d 239

214 U.S.App.D.C. 62

NATIONAL TREASURY EMPLOYEES UNION, an unincorporated

association, et al., Appellants, v. Ronald W. REAGAN, individually and in his capacity as

President of the UnitedStates, et al.

Elaine M. BOUTILIER, Appellant, v. Ronald W. REAGAN, individually and in his capacity as

President of the UnitedStates, et al.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, et al., Appellants, v. Ronald W. REAGAN, individually and in his capacity as

President of the UnitedStates, et al.

Marc R. WINE, et al., Appellants, v. Ronald W. REAGAN, President of the United States, et al.

Melody A. TROTT, on behalf of herself and others similarly

situated, et al., Appellants, v. Ronald W. REAGAN, individually and in his capacity as

President of the UnitedStates, et al.

Nos. 81-1294 to 81-1298.

United States Court of Appeals District of Columbia Circuit.

Argued May 20, 1981.

Decided Aug. 11, 1981.

Robert M. Tobias, Washington, D. C. (John F. Bufe, Sharyn Danch and William F. White, Washington, D. C., on brief), for appellants National Treasury Emp. Union.

Joseph B. Scott, Washington, D. C. (Irving Kator, Washington, D. C., on brief), for appellants Marc Wine and Richard Peppin et al.

Michael J. Grealy, Raymond J. Malloy, Washington, D. C., for appellants National Ass'n of Government Emp. et al.

Philip Sturman, Baltimore, Md., for appellants-intervenors Diana M. Boyd, et al.

Philip L. Chabot, Jr., and Carol MacKinnon, Washington, D. C., for appellants Melody Trott et al.

Alfred R. Mollin, Atty., U.S. Dept. of Justice, Washington, D. C., with whom Thomas S. Martin, Acting Asst. Atty. Gen., and William Kanter, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellees.

David C. Vladeck and Alan Morrison, Washington, D. C., were on the brief for amicus curiae Public Citizen.

Before ROBINSON, Chief Judge, and TAMM and MIKVA, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

In these cases, we are called upon to determine the legality of the federal hiring freeze ordered by President Reagan on January 20, 1981, as it applies to those persons who had been notified between November 5, 1980, and January 20, 1981, that they had been unconditionally selected for federal jobs and who had not begun work on or by January 20, 1981. Plaintiffs raise a number of theories under which they believe they are entitled to relief. They contend, inter alia, that the individual plaintiffs were irrevocably appointed to the jobs in question, that there nonemployment was a taking of property in violation of the fifth amendment, that the federal government was estopped from denying employment to them, that the President was without authority to rescind the appointment authority of the department heads, and that the freeze as applied violated the Impoundment Control Act of 1974. We address each of these claims below.

I. CONTENTIONS RELATING TO THE APPOINTMENT PROCESS

The class of individual plaintiffs in these cases is composed of

(a)ll persons, whether currently employed by the federal government or not, who were issued written confirmation of their selection for employment with an executive branch, department or establishment of the United States between November 5, 1980, and January 20, 1981, and who were directed to report to duty on a date certain, and who, as a result of defendant Reagan's "Memorandum for the Heads of Executive Departments and Agencies" and defendant McComber's OMB Bulletin No. 81-611, were subsequently informed that the appointment was withdrawn.

Class Certification Order (Feb. 26, 1981), Joint Appendix (J.A.) at 87. ¹

The plaintiffs contend that the hiring freeze was unlawful as applied to members of the class because they had been legally and irrevocably "appointed" to the positions for which they had been selected. The district court concluded that members of the class had not been appointed, but had only been given offers of jobs, which could be revoked. ² We agree with plaintiffs that class members were appointed to the jobs in question; we disagree, however, as to the possibility of revocation.

For more than one hundred and seventy-five years, the rule as to when an appointment takes place has been clear: "when the last act to be done by the (appointing authority) was performed ...." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156, 2 L.Ed. 60 (1803). See, e. g., Goutos v. United States, 552 F.2d 922, 925 (Ct.Cl.1976). Although the parties agree that this is a proper statement of the law, they differ as to its application to the facts of these cases.

We note initially that the problem before us arises only because the statutes and regulations concerning this appointment process are unclear. Congress or an executive agency it authorized could establish a process in which the point of appointment was specified, or obvious beyond dispute. See, e. g., 5 U.S.C. § 3301(1) (1976). Neither has done so. Even absent statutory or regulatory clarification, the ambiguity in these cases might have been resolved had the relevant authorities included in the written notification of selection some indication that appointment itself was conditioned upon some future discretionary event. Cf. Goutos v. United States, 552 F.2d 922 (Ct.Cl.1976) (necessity of filling out form clear to all involved in process). Here, however, the "selection" was stated in absolute terms. In the absence of authoritative guidance, therefore, this court must proceed to determine whether appointments actually occurred.

What guidance there is resides in the Federal Personnel Manual (FPM or Manual), issued by the Office of Personnel Management (OPM). ³ The Manual is "the official medium of the Commission (sic) for issuing its personnel regulations and instructions, policy statements, and related material on Government-wide personnel programs, to other agencies." Ch. 171, subch. 2-1 (January 31, 1972). ⁴ The Government contends that the Manual supports the conclusion that the filling out of a Standard Form 50, or the filling out of a Standard Form 52 followed by the entrance of the "selectee" onto duty, is the last act within the meaning of Marbury. As authority for its contention, it cites FPM Supplement 296-31, Book V, Table 3, at 26:10 (Item 34), which provides in its entirety:

The table of which this item is part appears under the heading of "Tables Pertaining to Documenting Personnel Actions." Id. (emphasis added). The introduction to the Supplement states that "(t)his supplement provides guidance for personnel offices in processing personnel actions." FPM Supplement 296-31, Introduction (emphasis added). The form itself is entitled "Notification of Personnel Action." FPM, ch. 296-5, subch. 2-4(a) (emphasis added). The notion that the "processing" of this Form is anything more than the ministerial act which it would appear from its placement and description in the FPM Supplement is justified only by repeated references to the document's importance. Thus, it is said that these Forms are "the basic source documents by which rights and benefits under the laws and regulations pertaining to Federal service are determined." FPM Supplement 296-31, Book V, Introduction. ⁵ Elsewhere it is said that:

The Commission requires the preparation of notifications of personnel actions primarily to provide basic documentation of a person's Federal employment, to notify the employee of the personnel action, and to provide basic records which will permit agencies and the Commission:

(1) To determine the status and rights of employees as well as their eligibilities for promotion, transfer, re-employment, and other personnel actions.

(2) To show whether personnel actions authorized or ordered have been effected, and whether actions effected have been authorized.

(3) To expedite the payment of retirement refunds and annuities to persons separated from the service.

Once we have disagreed with the Government's characterization of provisions of the Manual as dispositive, very little remains of the Government's argument on this point. In the first place, any deference normally due the OPM's interpretation of its regulations, see, e. g., Odin v. United States, 656 F.2d 798 (D.C.Cir.1981), slip op. at 10-11 n.22, is undermined by the apparent inconsistency of this interpretation with previous constructions of the provision. In Foote v. Kreps, No. 79-2301 (D.D.C., filed Aug. 29, 1979), for example, the Government introduced an affidavit of William N. Turanin, Chief, Division of Career Management, Office of Personnel, Maritime Administration, in which Mr. Turanin stated that

Mr. Foote's Cross-Motion for Summary Judgment contains erroneous statements regarding personnel forms, practices, and procedures. It wrongly states that "a personnel action ... is not effective until the action is properly memorialized in a Standard Form 50 notification of personnel action" (Cross-Motion at 5). This is not true. The SF-50, Notification of Personnel Action (attachment 8), is the document used to record personnel actions after they are effective.... SF-50 simply documents the action.

J.A. at 181-82 (footnote omitted) (emphasis added). There is, moreover, a previous inconsistent decision by the Board of Appeals and Review (BAR) of the Civil Service Commission, In the Matter of ________, No. 315H-73-71 (BAR 1973), J.A. at 244, to the effect that

(the Deputy Assistant Regional Commission (Personnel)) performed the last act required of him when he notified ______ of his selection and told him to report for duty on February 26, 1971. The things that remained to be done before ________ would enter on duty were details to be performed by the appointee and others, not by the appointing officer.

Id. at 3, J.A. at 246. The BAR was a predecessor of the current Merit Systems Protection Board (MSPB). ⁶

The Government's principal reasons for the interpretation it offers in this case are in the form of an argument ab ...