387 F. Supp. 63 | D.D.C. | 1974
MEMORANDUM OPINION
This action, arising under the federal civil service laws, is before the Court on defendants’ motion for summary judgment and plaintiffs’ cross-motion for summary judgment. Plaintiffs are five civilian employees of the Department of the Army and the Department of the Air Force
FACTS
I.
The material facts in this case, as set forth below, are undisputed. There being no genuine issue as to any material fact, summary judgment may be entered pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The Civil Service Commission (CSC), on June 25, 1957, informed the Department of the Air Force that it was approving the Department’s proposed ART program, under which specified technical positions in the career civil service would be filled only by persons who became and remained members of the ac
Prior to the initiation of the ART program an Air Force Base consisted of two separate organizational units: “Flying Centers” and “Reserve Wings.” The latter are combat organizations comprised of active reservists who receive periodic military training. The Flying Center, on the other hand, is made up of both military and civilian personnel engaged primarily in maintaining and operating the Base’s facilities. As a result of the inauguration of the ART program the following changes were brought about:
Under the Air Reserve Technician Plan, the Air Reserve Flying Centers and the Reserve Wings will be integrated organizationally to provide within each Wing a permanent cadre or “hard core” of highly skilled personnel available for immediate mobilization. This hard core will consist of civilian reservists who in their civilian capacity will provide the basic functions of maintenance, supply, etc., heretofore provided by Air Reserve Flying Center personnel, and in addition in their military capacity will provide training for the remainder of the wing personnel who will continue to report only on weekends and during summer active duty tours. The hard core will constitute on an average approximately 20% of the strength of each flying wing.
The Air Force will assign to all ART positions comparable military designations and ranks. It is important to recognize that the civilian job and the military assignment are the same. This program includes the establishment as civilian positions of many combat type jobs that heretofore have always been held by active duty uniformed personnel, including such jobs as wing commanders.5
This merger of military and civilian functions at the Air Bases was further explained in a Continental Air Command “Personnel Policy and Procedures Manual” issued on April 7, 1958:
At present an Air Reserve flying center is the responsibility of and operated by an Air Force organization which is apart and separate from the Air Reserve flying unit being trained at the location. This organization is composed of approximately half military and half civilian personnel. Its primary mission is to maintain equipment and operate an Air Force facility to be used by an Air Reserve flying unit in accomplishing its training. To the extent possible, it does assist in the training of Reserve personnel though the responsibility for this training is properly that of the Air Reserve flying unit. On the other hand, there is the Air Reserve flying unit which utilizes the facility and equipment in providing for inactive duty training on the equivalent of one weekend per month and for one two-week period of active duty per year. Other than occupying and utilizing the same facility there is, at present, no direct connection or relationship between these two organizations. The*67 ART Plan provides generally for a consolidation of these two units through integrating that portion of the permanent party support requirement, which is directly related to the tactical portion of the Air Reserve flying unit, into the Reserve unit utilizing that facility. The majority of the positions thus integrated will be designated as ART and will be identified with an identical or comparable position in the Air Reserve flying unit.6
A CSC manual entitled “Recruitment of Air Reserve Technicians Through Competitive Examination” informed civil service examiners of the nature of the ART program, instructing them that the reserve technicians were to enjoy all benefits accruing to other employees in the competitive civil service.
On July 5, 1960 the Chairman of the CSC advised the Department of Defense that the proposed Army Reserve Technicían program was approved pursuant to an eight-point Memorandum of Understanding, with the following proviso:
This approval is based on our understanding that the Department of Army is in full agreement with the provisions of the enclosed Memorandum of Understanding, and will carry out both in letter and spirit the commitments it has made and the safeguards it has promised to apply with respect to employees who would be affected by the plan. It is also understood that the department of Army will comply fully and strictly with the requirements of the Veterans’ Preference Act of 1944 and the Commission’s regulations under that act in all of its activities under the plan.10
In November, 1960 the CSC issued a manual entitled “Recruitment of Army Reserve Technicians Through Competitive Examination”
On January 7, 1969 plaintiff Erwin P. Rolf, a preference eligible employee
Plaintiffs Guttenberger and Meadows, preference eligible civil servants at McGuire Air Force Base, received general notices of a RIF action on May 6, 1969. Neither of these plaintiffs was a member of the active reserves at the time of the RIF. Offers of reassignment to lower grade positions at McGuire were extended to both employees. Guttenberger accepted the reassignment, while Meadows declined the offer.
The New York Regional Director advised Guttenberger and Meadows, on August 14, 1969, of the rejection of their appeal. The letters, identical in content, stated that the RIF actions were necessitated by fund limitations and were not the result of the reorganization of the Base following initiation of the ART program. As to the argument that these plaintiffs had priority over reserve members with lesser retention rights, the letter reiterated the position that ART employees are in a competitive level distinct from the levels occupied by non-ART personnel. The letter further stated:
The duties formerly performed by you are not being performed by the Air Reserve Technicians but are being performed by other civilian employees or military personnel. It should be noted that the Air Reserve Technician personnel perform a separate function and exist solely for the purpose of training reservists during training weekends and active duty encampment.19
Neither Guttenberger nor Meadows appealed the decisions to the CSC Board of Appeals and Review.
Plaintiffs Morton and Minnich were employed by the Army at the Indian-tow'n Gap Military Reservation, Ann-ville, Pennsylvania at the time of the Department’s ART reorganization. Pursuant to the provisions in the agreement between the CSC and the Army, these employees were reassigned to positions within the ART program, in spite of the fact that neither was a member of the reserves.
LAW
This action was filed January 12, 1970, prior to the enactment of the District of Columbia Court Reform and Criminal Procedures Act of 1970, 11 D. C.Code § 101 et seq. (1973 ed.). Jurisdiction is therefore conferred on this Court pursuant to 11 D.C. Code § 521 (1967 ed.). Jurisdiction may also be premised on section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701— 706, empowering the district courts to review certain agency actions without regard to the amount in controversy. Pickus v. U. S. Board of Parole, 507 F.2d 1107 (D.C.Cir. 1974).
Exhaustion of Administrative Remedies
Defendants raise a preliminary issue of the failure of plaintiffs Meadows and Guttenberger to exhaust all available administrative remedies. These two plaintiffs both appealed their RIF actions to the appropriate CSC regional office. They did not, however, take a further appeal to the Board of Appeals and Review, as they were entitled to do under the civil service regulations. 5 C.F.R. § 772.307. Defendants contend that disregard for this final appeal procedure barred Meadows and Guttenberger from availing themselves of judicial resolution of their claims. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938).
Although a plaintiff is not required to pursue futile administrative procedures before initiating judicial action, Lodge, 1858, AFGE v. Paine, 141 U.S.App.D.C. 152, 436 F.2d 882 (1970), plaintiffs do not assert that the appeal procedures of the CSC were ineffectual in rectifying their alleged grievances. Nor could they argue that the Board of Appeals previous rejection of plaintiff Rolf’s challenge to the ART program excused them from further administrative action.
Defendants have also argued that plaintiff Minnich failed to exhaust his administrative remedies by not seeking a waiver of the age provisions barring his transfer into the active reserves. Army Regulation AF 140-315 allows for such waiver upon a showing that the employee is “indispensable” to the ART program and has at least five years remaining before mandatory re
Civil Service Commission’s Authority To Establish The ART Programs
This is not the first case in which the legality of the ART programs has been in issue. See Baum v. Zuckert, 342 F.2d 145 (6th Cir. 1965); Chloros v. Zuckert, C.A.No. 1233-64 (D.D.C. Order granting summary judgment to defendants March 17, 1965); Horvath v. Commissioners of Civil Service, No. 64 C 1312 (N.D.Ill. Order granting summary judgment to defendants Oct. 14, 1965). In each of these actions the court rejected challenges to the ART programs. In spite of these precedents, a detailed reexamination of the issues raised by plaintiffs in this action is warranted by the enactment, subsequent to the entry of the above-cited decisions, of legislation creating a National Guard technician program similar to the ones adopted by joint approval of the CSC, Army and Air Force. National Guard Technicians Act of 1968, 32 U.S.C. § 709.
The Department of Defense is an executive agency authorized to employ civil servants to the extent the necessary funds have been appropriated by Congress. 5 U.S.C. § 3101. The military departments of the Army and Air Force have the same statutory authority. Id. When operating within the confines of the civil service laws the military departments, as other components of the executive branch, must abide by the definitional requirements of Title 5. including section 2101, which provides:
[the civil service] consists of all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services .
The uniformed services include, inter alia, the Army and Air Force. 5 U.S.C. § 2102(2).
An initial issue presented by the agreements between the two military departments and the CSC, and inferentially raised by plaintiffs, is whether the ART programs unlawfully assign civilian personnel to the performance of military functions, thereby ignoring the statutory barrier between the civil and uniformed services. Section 2102 suggests that an Army or Air Force employee who is engaged in military duties (the extreme example being combat functions) could not be considered a civil servant.
Acceptance of the latter proposition, however, does not compel the conclusion that when military personnel perform the same duties assigned to civilians the civil service status of the latter is tainted. Apart from the easily identifiable combat roles, the duties of a given job do not alone determine whether an employee is in the uniformed or civil service. To take an easy example, there would seem to be no problem with having civilian clerk typists perform their jobs in coordination with military personnel who fulfill their military obligations as clerk/typists. Similarly, reserve technicians who are employed as flight mechanics do not become de facto uniformed personnel merely because these same job functions have been or continue to be performed by members of the military.
As to the mechanics of the ART operation, the agreements between the agencies explicitly distinguish between the ART employees’ military and civilian
As far as practicable, the CSC has taken precautionary steps to ensure the separation of military and civilian obligations. In this respect, the technicians are in a position similar to other civil service employees who voluntarily maintain membership in the reserves. Participation in reserve activities is not per se an unlawful interference with an employee’s status as a civil servant. The Court further concludes that compulsory membership in the reserves should be viewed as a condition of employment akin to other prerequisites imposed on employees for entrance into and maintenance of their positions (e. g., an attorney’s admission to practice before a Bar). This condition is not violative of the statutory definition of the civil service.
Plaintiffs point to two additional statutory provisions which allegedly indicate Congress’ concern for the separation of military and civilian functions. First is 5 U.S.C. § 2105(c):
An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, Army and Air Force Motion Picture Service, Navy Ship’s Stores Ashore, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of —
(1) laws (other than subchapter IV of chapter 53 and sections 5550 and 7154 of this title) administered by the Civil Service Commission .25
The simple response to the proposed applicability of this provision is that the technicians are paid from appropriated funds
The second citation proffered by plaintiffs is subsection (d) of the same statute:
A Reserve of the armed forces who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States because of his appointment, oath, or status, or any duties or functions performed or pay or allowances received in that capacity.
Contrary to plaintiffs’ interpretation, this statute merely states that during those times when a reservist is not on active duty, or on active duty only for training purposes, he is not deemed an officer or employee of the United States and may engage in certain activities which might normally be foreclosed to
Legality of the ART Programs In Light Of the Enactment of the National Guard Technician Act of 1968
When Congress considered the Guard technician bill in 1968 there already existed state technician- plans which required membership in the National Guard as a continuing requirement for civilian employment. The federal statute carried over many of the features of these state programs, including compulsory membership in the Guard, but additionally provided for the inclusion of the technicians in the federal civil service, subject to certain exceptions:
(d) A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States. However, a.position authorized by this section is outside the competitive service if the technician employed therein is required under subsection (b) to be a member of the National Guard. .
(f) Sections 2108, 3502, 7511, and 7512 of title 5, United States Code, do not apply to any person employed under this section.”28
Both the Senate and House Armed Services Committee Reports
Noting that at the time of consideration of the bill 95% of all Guard technicians were required to be military members of the National Guard, the Senate and House Committees both recommended a continuation of this policy:
The, concept of the technician program is that the technicians will serve concurrently in three different ways: (a) Perform full-time civilian work in their units; (b) perform military training and duty in their units; and (c) be available to enter active Federal service at any time their units are' called.32
However, it was thought that special provisions should be made to accommodate the peculiar situation wherein civilian status was. dependent upon fulfillment of military obligations. For this reason, the 95% of the technicians who were required to hold military positions in the National Guard were placed in a non-competitive status within the civil service. The • remaining technicians were placed in the competitive service.
Pursuant to section 3301 of Title 5 the President is responsible for devising standards by which individuals are to be admitted into the civil service and the duties to be performed by civil service employees. Executive Order No. 10577
' Sec. 1.2. Extent of the competitive service. The competitive service shall include: (a) All civilian positions in the executive branch of the Government unless specifically excepted therefrom by or pursuant to statute or by the Civil Service Commission The Commission is authorized and directed to determine finally whether a position is in the competitive service.
* * * * * *
See. 2.1. Competitive examinations and eligible registers. . . . The Commission is authorized to establish standards with respect to citizenship, age, education, training and experience, suitability, and physical and mental fitness, and for residence or other requirements which applicants must meet to be admitted to or rated in examinations.
* -x- * -x- * *
Sec. 6.1. Authority to except positions from the competitive service. (a) The Commission is authorized to except positions from the competitive service whenever it determines that appointments thereto through competitive examination are not practicable.
Pursuant to 5 U.S.C. § 3101 the Army and Air Force were entitled to employ civilian ART personnel. The CSC had the power under 5 U.S.C. § 3301 and Executive Order No. 10577 to determine whether or not the ART employees should be within the competitive service and which qualifications and conditions of employment should be imposed. The agencies exercised their authority to establish the ART programs long before the National Guard program was incorporated within the Federal civil service. Unless clearly contrary to law, the Court should follow the CSC’s interpretation of these statutory provisions. Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).
When Congress addressed itself to the issue of Guard technicians it indicated through the legislative reports that placement of the technicians in non-competitive status was necessitated by the military obligations accompanying the job. However, this conclusion was not framed in a manner suggesting that the non-competitive status was compelled by force of law. Rather, the reports point to the need to maintain the efficient operation of the technician programs and the civil service as the reason for the decision. No mention was made of the already existing Army and Air Force programs. Thus the passage of the National Guard Act does not support the inference that Congress was expressing the view that the Army and Air Force programs were illegal or that the CSC had abused its broad discretionary powers under section 3301 and Executive Order No. 10577. Accordingly, it is
Plaintiffs further argue that even if the technicians have been properly placed within the competitive service, the definition of the separate competitive levels for ART employees results in the violation of special statutory benefits to which preference eligible employees are entitled. See 5 U.S.C. §§ 3312, 3351, 3363, 3504. Plaintiffs contend that only Congress may accomplish this abrogation of statutory rights, again drawing support for this position from the National Guard Technician Act, which specifically provided for the exemption of the Guard technicians from certain preference eligible benefits. 32 U.S.C. § 709(f).
Section 3312 of Title 5 provides:
In determining qualifications of a preference eligible for examination for, appointment in, or reinstatement in the competitive service, the Civil Service Commission or other examining agency shall waive—
(1) requirements as to age, height, and weight, unless the requirement is essential to the performance of the duties of the position; and
(2) physical requirements if, in the opinion of the Commission or other examining agency, after considering the recommendation of an accredited physician, the preference eligible is physically able to perform efficiently the duties of the position.
A preference eligible is similarly entitled to a waiver of these requirements when being considered for promotion to, transfer to or retention in a position in the competitive service. 5 U.S.C. §§ 3351, 3363 and 3504. These waivers are mandatory, except to the extent that the Commission is to determine whether these requirements may be essential to the performance of the duties of the position.
Participation in the active reserves as a condition of civil service employment does not itself interfere with veterans’ rights under the Act. The decision whether or not to join and remain in the reserves is within the control of the job applicant. Reserve membership is something which the prospective employee is free to embrace or reject. See Baum v. Zuckert, supra. However, when a veteran seeks entrance or promotion into an ART position and is rejected on the basis of age, height, weight or physical disability, he is entitled to the special considerations set forth in sections 3312, 3351, 3363 and 3504 of the civil service laws.
The Commission has rejected plaintiffs’ claims for preference under these
Although an argument may be made that the statute’s focus on the duties of the position should be distinguished from the fulfillment of concomitant conditions of employment (such as the reserve membership requirement), the courts have traditionally accorded great deference to the interpretation of a statute by the agency charged with its enforcement. Udall v. Tallman, supra. Additional weight should be attached to the agency interpretation when Congress has had the opportunity to alter the administrative construction and has refused to do so. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965). The Air Force and Army technician programs have been in force since 1957 and 1960, respectively. The documents and agreements establishing the two programs clearly set forth the reserve membership requirements and the effect they have on potential and incumbent employees. In congressional hearings on appropriations military personnel have testified on numerous occasions about the reserve technician plan and the manner in which it is operated.
JUDGMENT
Upon consideration of defendants’ motion for summary judgment and plaintiffs’ cross-motion for summary judgment, the memoranda of points and authorities in support thereof and in opposition thereto, and it appearing to the Court, for the reasons set forth in the accompanying Memorandum Opinion, that there is no genuine issue as to the material facts in this case and that defendants are entitled to judgment as.a matter of law, it is by the Court this 21st day of November, 1974,
Ordered that defendants’ motion for summary judgment be, and the same hereby is, granted, and it is further
Ordered that plaintiffs’ motion for summary judgment be, and the same hereby is, denied, and it is further
Adjudged, ordered and decreed that judgment be, and the same hereby is, entered for defendants against the plaintiffs.
. Although the plaintiffs alleged in their complaint that this action is brought on their own behalf and on behalf of a class of civil service employees, a petition to certify as a class action has not been filed. Accordingly, the Court does not treat this as a class action and the discussion which follows is limited to the facts presented and relief claimed by the named plaintiffs.
. Letter from Harris Ellsworth, Chairman, Civil Service Commission, to David F. Smith, Assistant Secretary of the Air Force, June 25, 1957.
. See 5: Ü.S.C. § 2102.
. Civil Service Commission Letter No. 57-45, June 28, 1957.
. Id. at 2, 4.
. COXACM 40-1 at 4, April 7, 1958.
. OSO FPM Supp. 930-71, August, 1966 (replacing Handbook X-151). The manual noted that the duties of certain civilian positions, sucli as operations and training officers, would include the briefing of combat crews and the training of reserve members. CSC FPM Supp. 930-71, August, 1966.
. See 5 C.F.R. § 351.403.
. The manual also discussed the possible overlap of ART and non-ART functions, in spite of the maintenance of distinct competitive levels. It was advised, however, that no more than 30% of an ART employee’s responsibilities should be devoted to non-ART duties. FPM Supp. 930-71, Appendix at A-4.
. Letter from Roger W. Jones, Chairman, Civil Service Commission, to Charles C. Finucane, Assistant Secretary of Defense, July 5, 1960.
. CSC FPM Supp. 930-72, August, 1960.
. Memorandum of Fnderstanding If 2.
. The manual provided that ART positions could also be filled on a non-competitive basis. FPM Supp. 930-72 at 3.
. The duties of the ART employees were identified as “preparation and maintenance of personnel records and files, payrolls for the members of the unit, military correspondence, instruction in Army regulations and procedures, interview and personnel processing of new members of the unit, screening of qualifications, placement and assignment of duties, determining retirement points, and personnel and administrative guidance to members of the reserve units.” Id., Appendix C at C-l.
. See 5 U.S.C. § 2108.
. See 5 U.S.C. §§ 3312, 3351, 3502, 3504.
. Decision dated August 7, 1969.
. Meadows later accepted reinstatement to a different position, effective September 2, 1969.
. See letter from Robert J. Drummond, CSC Regional Director, to John S. Guttenberger, August 14, 1969.
. See CSC FPM Supp. 930-72 at 1, providing that non-reservists 'occupying technician positions may continue to serve in their jobs after the ART reorganization, although they are subject to reassignment as reservists become available to perform the technicians’ duties.
. Letter from John E. Bayler, Chief, Employment Services Branch to Frances Morton, Jan. 5, 1968; letter from John E. Bayler to Samuel Minnich, May 14, 1969.
. The BAR’S decision in Rolf’s case was entered on August 7, 1969. Rejections of Guttenberger’s and Meadow’s appeals by the New York regional office were dated August 14, 1969.
. The legality of the National Guard Act was upheld in Local 371, AFL-CIO v. Brink, C.A. No. 2088-70 (D.D.C. Order June 22, 1972).
. Sec Memorandum of Understanding, j[jf 6, 7.
. See Bowen v. Culotta, 294 F.Supp. 183 (E.D.Va.1968) for an explanation of non-appropriated fund activities.
. See testimony of Maj. Gen. Tom E. March-banks, July 29, 1969, Hearings on the Department of Defense Appropriations before the House Subcommittee of the Committee on Appropriations, 91st Cong., 1st Sess.
. For a discussion of this statute see Reservists Committee To Stop The War v. Laird, 323 F.Supp. 833 (D.D.C.1973), aff’d, 495 F.2d 1075 (D.C.Cir.1972); rev’d 418 U.S. 208, 94 S.Ct. 2962, 4 L.Ed.2d 706; 45 Comp. Gen. 405 (1966).
. 32 U.S.C. § 709(d), (f).
. S.Rep.No.1446, 90th Cong., 2d Sess. (1968) ; H.R.Rep.No.1823, 90th Cong., 2d Sess. (1968), U.S.Code Cong. & Admin.News 1968, p. 3318.
. S.Rep.No.1446 at 2; H.R.Rep.No.01823 at 3.
. See statement of Maj. Gen. Francis S. Greenlief, July 29, 1969, Hearings on the Department of Defense Appropriations before the House Subcommittee of the Committee on Appropriations, 91st Cong., 1st Sess.
. S.Rep.No.1446 at 2; H.R.Rep.No.1823 at 2.
. 19 Fed.Reg. 7521 (Nov. 1954). There have been numerous amendments to the origina) Order, but none affect tbe provisions quoted herein.
. Plaintiffs’ reliance on section 3502 of Title 5, which directs the CSC to prescribe regulations which will give “clue effect’ to military preference in any RIF action, is misplaced. The Commission is granted broad discretion in devising a workable classification system which will accommodate the needs of the executive branch in a RIF action with the rights of preference eligible employees. See Hilton v. Forrestal, 83 U.S.App.D.C. 44, 165 F.2d 251 (1947), aff’d, 334 U.S. 323, 68 S.Ct. 1020, 92 L.Ed. 1416. Further, veterans’ rights under § 3502 operate only within the employee’s competitive level. This provision does not allow a preference eligible employee to displace employees in -other competitive levels. Novogroski v. United States, 153 F.Supp. 421 (Ct.Cl.1957).
. The conflict between the operation of the ART programs and these provisions of the Veterans Preference Act is exemplified in the claims of plaintiffs Minnieh and Rolf, both of whom are preference eligible employees. Minnieh was employed in the Army ART program when the initial reorganization was made, but was denied promotion to a higher position because lie failed to satisfy the age requirements of the active reserves. Rolf sought transfer to an Air Force ART position after he received notice of a RIF affecting his non-ART job, but was rejected because he ,could not meet the physical requirements for entrance into the Reserves.
Plaintiffs’ reference to Ms. Morton’s situation is inappropriate in this context, since she is not n preference eligible employee.
. See, e. g., Testimony of Brig. Gen. Felix L. Vidal, March 3, 1959, Hearings on the Department of Defense Appropriations before the House Subcommittee of the Committee on Appropriations, 86th Cong., 1st Sess.; Testimony of Maj. Gen. Joseph ,T. Nazarro and Brig. Gen. Felix B. Vidal, March 20, 1958, Hearings on the Department of De- ' fense Appropriations before the House Subcommittee of the Committee on Apjjropriations, 85th Cong., 2d Sess.