Prewitt v. U.S. Postal Service

• Decision Date: 05 November 1981
• Docket Number: No. 81-4205,81-4205
• Parties: 27 Fair Empl.Prac.Cas. 1057, 27 Empl. Prac. Dec. P 32,252 George Dunbar PREWITT, Jr., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee. Summary Calendar. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 311

662 F.2d 311

27 Fair Empl.Prac.Cas. 1057,

27 Empl. Prac. Dec. P 32,252

George Dunbar PREWITT, Jr., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 81-4205

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Nov. 5, 1981.

George Dunbar Prewitt, Jr., pro se.

Glen H. Davidson, U. S. Atty., John R. Hailman, Asst. U. S. Atty., Oxford, Miss., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before RUBIN, RANDALL, and TATE, Circuit Judges.

TATE, Circuit Judge:

This is a companion case to Prewitt v. United States Postal Service, No. 80-3525, 662 F.2d 292 (5th Cir. 1981) (Prewitt I ), which we also decided today. Undaunted by his unsuccessful experiences with the postal service in Prewitt I, in 1980 the plaintiff, George Dunbar Prewitt, Jr., submitted a new application for employment to the Greenville, Mississippi post office. This time, he applied for a position as a substitute rural carrier. As was the case in Prewitt I when Prewitt applied for a position as a clerk/carrier, the postal service found Prewitt medically unsuitable for employment as a substitute rural carrier. Prewitt then filed this second suit (Prewitt II ), in which he complains that, by denying him employment as a substitute rural carrier, the postal service once again discriminated against him because of his handicap, in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. ¹

In Prewitt II, the district court held an evidentiary hearing on Prewitt's motion for a preliminary injunction. At the close of the hearing, the district court found that it was empowered to make only a limited review of the postal service's decision not to hire Prewitt for the substitute rural carrier position. Because in the court's opinion the service had not acted contrary to law, acted arbitrarily or capriciously, made decisions unsupported by substantial evidence, or abused its discretion, the court denied Prewitt's motion for a preliminary injunction. Furthermore, "because of the uncontradicted state of the evidence furnishing substantial evidentiary support for the final determination of the Postal Service," the court dismissed Prewitt's complaint with prejudice. ²

Prewitt appealed the decision of the district court. At the oral argument for Prewitt I, we ordered consolidation of the two cases. Subsequently, we were informed of new developments that have a bearing on Prewitt II. These new developments require us to vacate the district court's order dismissing Prewitt's suit, and to remand Prewitt II to the district court with instructions to stay judicial proceedings until further administrative review of the decision not to hire Prewitt is completed.

Since its reorganization in 1971, the postal service has been responsible for its own hiring decisions. Since October 1, 1971, the U. S. Civil Service Commission (CSC), and its successor, the Office of Personnel Management (OPM), have neither managed nor had authority over the selection methods and procedures for postal employment.

Accordingly, until recently, the postal service has deemed 5 U.S.C. § 3318(b) to be inapplicable to it. This provision states:

(b)(1) If an appointing authority proposes to pass over a preference eligible (veteran) on a certificate in order to select an individual who is not a preference eligible, such authority shall file written reasons with the Office (of Personnel Management) for passing over the preference eligible. The Office shall make the reasons presented by the appointing authority part of the record of the preference eligible and may require the submission of more detailed information from the appointing authority in support of the passing over of the preference eligible. The Office shall determine the sufficiency or insufficiency of the reasons submitted by the appointing authority, taking into account any response received from the preference eligible under paragraph (2) of this subsection. When the Office has completed its review of the proposed passover, it shall send its findings to the appointing authority and to the preference eligible. The appointing authority shall comply with the findings of the Office.

(2) In the case of a preference eligible described in section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more, the appointing authority shall at the same time it notifies the Office under paragraph (1) of this subsection, notify the preference eligible of the proposed passover, of the reasons therefor, and of his right to respond to such reasons to the Office within 15 days of the date of such notification. The Office shall, before completing its review under paragraph (1) of this subsection, require a demonstration by the appointing authority that the passover notification was timely sent to the preference eligible's last known address.

For the first several years after 1971 the CSC, and later the OPM, had apparently at least informally agreed with the postal service's interpretation. However, by an opinion of its general counsel dated September 18, 1980, OPM advised the postal service that, in OPM's view, § 3318(b) is indeed applicable to the postal service. After discussions between representatives of the two entities, the postal service acquiesced in OPM's interpretation. On September 20, 1981, the postal service issued internal regulations establishing a procedure for OPM review of adverse determinations concerning preference eligible veterans.

On August 24, 1981, shortly before the postal service issued its new regulations, Prewitt moved in the district court for relief from the judgment entered in Prewitt II. Prewitt noted the postal service's failure to comply with 5 U.S.C. § 3318(b) in his case. The district court denied this motion on September 16, but on the following day the court vacated this decision and directed the postal service to respond to the motion.

On September 22, the postal service responded. The service stated that, pursuant to its newly-promulgated regulations, it would forward Prewitt's file to OPM for review of Prewitt's suitability to serve as a substitute rural carrier. The postal service added, however, that it would not ask OPM to review the decision that gave rise to Prewitt I, i. e., the determination that Prewitt was unsuitable for the clerk/carrier position.

Prewitt then moved, in both the district court and this court, for a stay of further administrative proceedings. He also asked this court to certify both Prewitt I and Prewitt II as class actions, and to rescind nationwide all actions taken by the...