United States v. Testan, No. 74-753

CourtUnited States Supreme Court
Writing for the CourtBLACKMUN
Citation47 L.Ed.2d 114,424 U.S. 392,96 S.Ct. 948
Docket NumberNo. 74-753
Decision Date02 March 1976
PartiesUNITED STATES, Petitioner, v. Herman R. TESTAN and Francis L. Zarrilli

47 L.Ed.2d 114
96 S.Ct. 948
424 U.S. 392
UNITED STATES, Petitioner,

v.

Herman R. TESTAN and Francis L. Zarrilli.

No. 74-753.
Argued Nov. 12, 1975.
Decided March 2, 1976.
Motion Denied May 3, 1976.

See 425 U.S. 957, 96 S.Ct. 1736.

Syllabus

Respondent Government trial attorneys with civil service grade GS-13 classifications requested their employing agency to reclassify their positions to grade GS-14, contending that their duties and responsibilities met the requirements for the higher grade and were identical to those of other trial attorneys classified as GS-14 in another agency, and that under the principle of "equal pay for substantially equal work" prescribed in the Classification Act, they were entitled to the higher classification. But their agency, and the Civil Service Commission (CSC) on appeal, denied reclassification. Respondents then sued the Government in the Court of Claims, seeking reclassification as of the date of the first administrative denial of their request, and each seeking backpay, computed at the difference between his GS-13 salary and his claimed GS-14 salary, from that date. The trial judge denied backpay but held that the CSC's refusal to reclassify respondents to GS-14 was arbitrary and that respondents were entitled to an order remanding the case to the CSC with directions so to reclassify respondents. The court en banc, while disapproving the trial judge's recommendation that the court was empowered to direct reclassification, held that if the CSC were to determine that it had made an erroneous classification the court was authorized to award money damages for backpay lost, that the CSC's refusal to compare respondents' positions with those of the other trial attorneys was arbitrary and capricious, and that the court had power to order the CSC to reconsider its classification decision. Accordingly, the court remanded the case to the CSC to make the comparison and to report the result to the court. Held :

1. The Tucker Act, which merely confers jurisdiction upon the Court of Claims whenever a substantive right enforceable against the United States for money damages exists, does not in itself support the action taken by the Court of Claims in this case. Pp. 397-398.

2. Neither the Classification Act nor the Back Pay Act creates a substantive right in respondents to backpay for the period of the claimed wrongful classification. Pp. 398-407.

205 Ct.Cl. 330, 499 F.2d 690, reversed and remanded.

Page 393

John. Rupp, Washington, D. C., for petitioner.

Edwin J. McDermott, Philadelphia, Pa., for respondents.

Mr. Justice BLACKMUN delivered the opinion of the Court.

This is a suit for reclassification of federal civil service positions and for backpay. It presents a substantial issue concerning the jurisdiction of the Court of Claims and the relief available in that tribunal.

I

The plaintiff-respondents, Herman R. Testan and Francis L. Zarrilli, are trial attorneys employed in the Office of Counsel, Defense Personnel Support Center, Defense Supply Agency, in Philadelphia. They represent the Government in certain matters that come before the Armed Services Board of Contract Appeals of the Department of Defense. Their positions are subject to the Classification Act, 5 U.S.C. § 5101 Et seq., and they are presently classified at civil service grade GS-13.

In December 1969 respondents, through their Chief Attorney, requested their employing agency to reclassify their positions to grade GS-14. The asserted ground was that their duties and responsibilities met the requirements for the higher grade under standards promulgated

Page 394

by the Civil Service Commission in General Attorney Series GS-905-0. In addition, they contended that their duties were identical to those of other trial attorneys in positions classified as GS-14 in the Contract Appeals Division, Office of the Staff Judge Advocate, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Dayton, Ohio, and that under the principle of "equal pay for substantially equal work," prescribed in § 5101(1)(A), 1 they were entitled to the higher classification.

The agency, after an audit by a position classification specialist, concluded that the respondents' assigned duties were properly classified at the GS-13 level under the Commission's classification standards. On appeal, the Commission reached the same conclusion and denied reclassification. The Commission also ruled that comparison of the positions held by the respondents with those of attorneys employed by the referenced Logistics Command was not a proper method of classification.

The two respondents then instituted this suit in the Court of Claims.2 Each sought an order directing reclassification of his position as of the date (May 8, 1970) of the first administrative denial of his request, and backpay, computed at the difference between his salary and grade GS-14 (and the claimed appropriate within-grade step), from that date. The trial judge, in a long opinion, App. 43-117, concluded that the respondents were not

Page 395

entitled to backpay due to their allegedly wrongful classification. Id., at 57. But he also concluded that the Commission's refusal to reclassify respondents to GS-14 was arbitrary, discriminatory, and not supported by substantial evidence, ibid., and that as a matter of law the respondents were entitled to an order remanding the case to the Commission with direction so to reclassify the respondents. Id., at 58, 117.

The Court of Claims considered the case en banc and divided 4-3. The majority disapproved the trial judge's recommendation that the court was empowered to direct the reclassification of respondents to GS-14, for the Court of Claims is not authorized to create an entitlement to a governmental position. "If entitlement depends on the exercise of discretion by someone else we cannot substitute our own discretion." 499 F.2d 690, 691, 205 Ct.Cl. 330, 332 (1974). The majority felt, however, that if the Commission were to determine that it had made an erroneous classification, that determination "could create a legal right which we could then enforce by a money judgment." Id., 499 F.2d, at 691, 205 Ct.Cl., at 333.

The majority agreed with the trial judge that the Commission's failure to compare respondents' positions with those of the Logistics Command attorneys was arbitrary and capricious. Id., 499 F.2d, at 691, 205 Ct.Cl., at 331. The court observed: "Ordinarily . . . it is not arbitrary and capricious to refuse to consider the grade of employees other than the ones complaining." But it went on to say: "This case is peculiar in its facts," for the employees "all belong to a small readily manageable cadre, their jobs have a large nexus of duties shared in common, and the other employees are specifically pointed out by the complaining employees." Id., 499 F.2d, at 691, 205 Ct.Cl., at 332. The court ruled that it had the power under the remand statute, 86 Stat. 652, now codified as part of 28 U.S.C.

Page 396

s 1491 (1970 ed., Supp. IV), to order the Commission to reconsider its classification decision "under proper directions." Accordingly, and pursuant to its Rule 149(b), the court remanded the case to the Commission to make the comparison and to report the result to the court.3

The dissent argued that the jurisdiction of the Court of Claims is limited to money judgments and, since none had been or could be ordered in this case, the court was without jurisdiction even to remand the case to the Civil Service Commission. In addition, the respondents had not stated a claim upon which relief could be granted, for they were asking for positions, and pay, to which they had never been appointed. The dissent further argued that there is no constitutional right to a governmental position to which one has not been appointed; that the salary of a Government job is payable only to the person appointed to that position; and that the court has no authority to take over the appointing power that the Constitution, Art. II, § 2, has placed in the Executive Department. It asserted that the decision of the majority was but a declaratory judgment, a legal function not within the court's jurisdiction. Finally, the dissent argued that the classification decision of the Commission was neither arbitrary nor capricious and was supported by substantial evidence. 499 F.2d, at 692-694, 205 Ct.Cl., at 334-338.

Page 397

We granted certiorari because of the importance of the issue in the measure of the Court of Claims' statutory jurisdiction, and because of the significance of the court's decision upon the Commission's administration of the civil service classification system. 420 U.S. 923, 95 S.Ct. 1116, 43 L.Ed.2d 392 (1975).

II

We turn to the respective statutes that are advanced as support for the action taken by the Court of Claims.

A. The Tucker Act. The central provision establishing the jurisdiction of the court is that part of the Tucker Act now codified as 28 U.S.C. § 1491:

"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, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 4

This Court recently had occasion to examine the jurisdiction of the Court of Claims under this statutory formulation. In United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969), the Court reviewed a decision (390 F.2d 894, 182 Ct.Cl. 631) in which the Court of Claims had concluded that it was empowered to exercise jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201. This Court observed that the Court of Claims was established by Congress in 1855; that "(t)hroughout its entire history," until the King case was filed, "its jurisdiction has been...

To continue reading

Request your trial
2558 practice notes
  • Talley v. U.S. Dept. of Agriculture, No. 09-2123.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 12, 2010
    ...the Act does not meet the Supreme Court's standards for financial relief against the Treasury. Decisions such as United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), and United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), say t......
  • Bowen v. Massachusetts Massachusetts v. Bowen, Nos. 87-712
    • United States
    • United States Supreme Court
    • June 29, 1988
    ...Page 922 ture claims is an action seeking specific relief and not damages, since no damage has yet occurred. Cf. United States v. Testan, 424 U.S. 392, 403, 96 S.Ct. 948, 955, 47 L.Ed.2d 114 (1976) (distinguishing "between prospective reclassification, on the one hand, and retroactive recla......
  • Harris v. United States, No. 09-421C
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 21, 2011
    ...the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Testan, 424 U.S. 392, 399 (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)) (omission in original), reh'g denied, 425 U.S. 957 (1976); see also Inter-Coast......
  • Ambase Corp. v. United States, Docket No. 12–3563–cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 9, 2013
    ...and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (internal quotation marks omitted). “Congress has broadly consented to suits against the United State......
  • Request a trial to view additional results
2562 cases
  • Talley v. U.S. Dept. of Agriculture, No. 09-2123.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 12, 2010
    ...the Act does not meet the Supreme Court's standards for financial relief against the Treasury. Decisions such as United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), and United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), say t......
  • Bowen v. Massachusetts Massachusetts v. Bowen, Nos. 87-712
    • United States
    • United States Supreme Court
    • June 29, 1988
    ...Page 922 ture claims is an action seeking specific relief and not damages, since no damage has yet occurred. Cf. United States v. Testan, 424 U.S. 392, 403, 96 S.Ct. 948, 955, 47 L.Ed.2d 114 (1976) (distinguishing "between prospective reclassification, on the one hand, and retroactive recla......
  • Harris v. United States, No. 09-421C
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 21, 2011
    ...the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'" United States v. Testan, 424 U.S. 392, 399 (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)) (omission in original), reh'g denied, 425 U.S. 957 (1976); see also Inter-Coast......
  • Ambase Corp. v. United States, Docket No. 12–3563–cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 9, 2013
    ...and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (internal quotation marks omitted). “Congress has broadly consented to suits against the United State......
  • Request a trial to view additional results
3 books & journal articles
  • Sovereign Immunity and State Regulation of Federal Facilities and Tribes
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part I
    • April 20, 2009
    ...Fostvedt v. United States, 978 F.2d 1201, 1202-03 (10th Cir. 1992), cert. denied , 507 U.S. 988 (1993) (quoting United States v. Testan, 424 U.S. 392, 399 (1976) (quoting Sherwood , 312 U.S. at 586 )); McCarty v. United States, 929 F.2d 1085, 1087 (5th Cir. 1991); Voluntary Purchasing Group......
  • Citizen Suits Against States and Territories and the Eleventh Amendment
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part II
    • April 20, 2009
    ...Id . at 56-57 (White, J., concurring in part). 21. Id . at 33 (Scalia, J., dissenting). 22. Id . at 33-34 (citing United States v. Testan, 424 U.S. 392, 399-402 (1976); U.S. Const. art. I, §9, cl. 7; United States v. Mississippi, 380 U.S. 128, 140-41 (1965)) (Scalia, J., dissenting). 23. Id......
  • Application of the ESA to Indian Tribes and Their Lands
    • United States
    • Endangered species deskbook
    • April 22, 2010
    ...exercising its superior sovereign powers”). 99. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (quoting United States v. Testan, 424 U.S. 392, 399 (1976), and United States v. King, 395 U.S. 1, 4 (1969)). it.” 100 As stated by the Eleventh Circuit, “whether an Indian tribe is subjec......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT