Reece v. United States, 71-1708.

• Citation: 455 F.2d 240
• Decision Date: 30 March 1972
• Docket Number: No. 71-1708.,71-1708.
• Parties: James C. REECE, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

455 F.2d 240 (1972)

James C. REECE, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendant-Appellee.

No. 71-1708.

United States Court of Appeals, Ninth Circuit.

February 8, 1972.

Rehearing Denied March 30, 1972.

Hubbard & Motroni, Sacramento, Cal., for appellant.

Bruce Babcock, Jr., Asst. U. S. Atty., Dwayne Keyes, U. S. Atty., Sacramento, Cal., for appellee.

Before HAMLIN, BROWNING and ELY, Circuit Judges.

HAMLIN, Circuit Judge:

This is an appeal from an order of the United States District Court for the Eastern District of California which dismissed appellant's complaint.

Jurisdiction is premised on the Administrative Procedure Act (5 U.S.C. §§ 701-704).

Appellant is a federal civilian employee of the United States Air Force. In 1967, he had achieved the rating of GS-301-13, logistics officer.

At this time, the Air Force determined to merge two aircraft management systems and thereby reorganize the supply division in which appellant worked. In the ensuing administrative realignment, appellant was to be transferred to a position of equal pay and grade within the merged systems. The GS-14 position as head of this amalgamated system was to be filled by another employee who was already a GS-14.

Appellant felt that he should have been promoted to fill this position. Thus, he protested his transfer, claimed he was entitled to a non-competitive promotion under the "job enlargement" provisions of AFR 40-335, and requested a Technical Review of his case.

This review was conducted, with the examiner concluding, among other things, that the reorganization was appropriate and that appellant was not absolutely entitled to promotion.

Subsequent to the decision on the Technical Review, appellant requested and received a review of these findings by the local commanding general. The general's decision comported with that of the technical review.

At appellant's request, these local decisions were reviewed by Headquarters, Air Force Logistics Command (AFLC). When this decision also proved unfavorable to appellant, he appealed to Headquarters, United States Air Force, where the local and AFLC decisions were once again followed.

These determinations received final review by the United States Civil Service Commission, with appellant once again being denied the requested promotion. His administrative remedies were thereby exhausted. He then filed suit in the court below.

After examining the voluminous administrative record, and hearing argument from both sides, the district court dismissed the action on grounds that: (1) there had been no waiver of sovereign immunity; (2) there was no proper basis for subject matter jurisdiction; (3) there was no showing of circumstances which would warrant the court's interference with matters of personnel management.

Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970), characterized a suit seeking to compel promotion in government service as a suit against the government. The court there concluded that, in the absence of government consent, such a suit cannot be maintained. The court specifically stated that the Administrative Procedure Act (APA) cannot be read as an implied waiver of all such immunity.

Except for the fact that the Gnotta case involved the claimed violation of an Executive Order, whereas appellant here is alleging failure to follow the mandates of an Air Force regulation, this appeal would appear to fall squarely within the sovereign immunity bar described in Gnotta.

We do not, however, have to reach this question. Nor do we reach the question of whether the district court had subject matter jurisdiction under 5 U.S.C. § 704.

Appellant here has alleged that the Air Force has not complied with promotion procedures outlined in AFR 40-335. Specifically, he contends he was entitled to a non-competitive promotion under the "job enlargement" provisions of that regulation.

As a general rule, promotion or nonpromotion within government service involves supervisory discretion and is not appropriate for judicial review. Gnotta v. United States, 415 F.2d at 1276.

Title 5 U.S.C. § 701(a)(2) specifically states that the judicial review provisions of the APA do not apply in cases where "agency action is committed to agency discretion by law." The "job enlargement" provision of AFR 40-335 clearly grants a great deal of this discretion to the agency.¹

Of course, if there is a patent abuse of this discretion, a court will review the action taken,...