Johnson, Secretary of National Defense v. Nelson. Johnson, Secretary of National Defense v. Reeves

180 F.2d 386

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 15, 1950
• Docket: 10109, 10110
• Status: Published

Opinion

PER CURIAM.

The appellees, war veterans employed by the Navy Department, sue to get back supervisory positions from which they were demoted during a reduction in force. They maintain that since their efficiency ratings were good or better, their veterans’ preference rights were violated when they were demoted-while non-veterans with equal ratings were not. 37 Stat. 413, § 4, formerly 5 U.S.C.A. § 648; 58 Stat. 387, § 2, 58 Stat. 390, § 12, 5 U.S.C.A. §§ 851, 861. Appellants rely largely on 58 Stat. 390, § 14, 5 U.S.C.A. § 863. It appears from appellees’ complaints that they have not exhausted their statutory rights of appeal to the Civil Service Commission. Apparently their appeals to the Commission were pending when they brought these suits and the Commission withheld decision in view of the suits.

We think the District Court erred in granting summary judgment to appellees. In Wettre v. Hague, 168 F.2d 825, the Court of Appeals for the First Circuit based a different conclusion on Order of Railway Conductors v. Pitney, 326 U.S. 561, 566, 66 S.Ct. 322, 90 L.Ed. 318, and Hilton v. Sullivan, 334 U.S. 323, 68 S.Ct. 1020, 92 L.Ed. 1416. But the Hilton case involved dismissal and this case involves demotion. The fact that administrative action is probably erroneous does not create an exception to the rule that administrative processes must be exhausted before judicial relief is sought. Securities & Exchange Commission v. Otis & Co., 338 U.S. 843, 70 S.Ct. 89, rehearing denied, 338 U.S. 888, 70 S.Ct. 187.

Reversed.