Testan v. United States

499 F.2d 690, 205 Ct. Cl. 330, 1974 U.S. Ct. Cl. LEXIS 14

• Court: United States Court of Claims
• Decided: July 19, 1974
• Docket: No. 128-72
• Status: Published

Opinions

Per Curiam ;

This case is before the court on exceptions by both parties to a recommended decision and findings by Trial Judge Spector. Plaintiffs, civilian lawyers, were employed by the Defense Personnel Support Center, Defense Supply Agency (DPSC) at Philadelphia, Pennsylvania. The suit is for back pay from 1970 and an order for reclassification to operate in futuro under Pub. L. 92-415, 86 Stat. 652. We heard it en banc on plaintiffs’ motion. The plaintiffs were classified at GS-13 and claim GS-14. They exhausted their remedies with the Civil Service Commission (CSC). The trial judge would hold that the refusal to reclassify at GS-14 was arbitrary and capricious but that the court cannot award the pay of a higher position to a person actually employed in a lower one. However, he would direct the CSC to reclassify for the future under Pub. L. 92-415.

We agree that the position of the CSC was arbitrary and capricious. Plaintiffs’ case is built mainly on the classification of attorneys doing similar work for another agency. Plaintiffs try cases before the Armed Services Board of Contract Appeals (ASBCA). The comparison attorneys do so also, on behalf of the Air Force Logistics Command (AFLC) at Dayton, Ohio. The Commission flatly refused to consider them or their jobs. Ordinarily, we agree, it is not arbitrary and capricious to refuse to consider the grade of employees other than the ones complaining. This case is peculiar in its facts. Where, as here, 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, we deem the case to be different. There may be a perfectly good explanation for the apparent discrepancy. We think as a reviewing court we are entitled to be informed by the CSC what it is, and not to have to take it on faith or speculate about it. Otherwise, we are in no position to assure ourselves that the mandate of the statute, 5 U.S.C. § 5101, (calling for equal pay for equal work), is being complied with. As the trial judge observes, the classification of lawyers is always difficult because of the spate of vague, subjective terminology in lawyer’s job descriptions. We think, in the circumstances here involved, the grades of other lawyers representing other procuring agencies before the ASBCA provide an essential benchmark. Without consideration ox them, or at least some of them, no confidence can be felt that the statute has been obeyed.

There is no iron rule that we cannot ever award the pay of a higher position to the incumbent of a lower one. We do that in Selman v. United States, 204 Ct. Cl. 675, 498 F. 2d 1354 (1974). Compare, also, Jarett v. United States, 195 Ct. Cl. 320, 451 F. 2d 623 (1971). The question always is as to legal entitlement to the higher position. If entitlement depends on the exercise of discretion by someone else we cannot substitute our own discretion. Allison v. United States, 196 Ct. Cl. 263, 451 F. 2d 1035 (1971) ; Pettit v. United States, 203 Ct. Cl. 207, 488 F. 2d 1026 (1973). Here, as in Pettit, a remand under Pub. L. 92-415 affords the opportunity to cm-ploy tbs authority having the statutory discretion, to exercise it under proper directions. In Bookman v. United States, 197 Ct. Cl. 108, 453 F. 2d 1263 (1972), we scrutinized the function of the CSC in classifying Government positions. We decided it was discretionary and not subject to our review except for arbitrary and capricious action or lack of support for a decision by substantial evidence. We adhere to that standard here. The theory of Allison and Pettit, however, was that the findings of the agency endowed with the discretion, if newly and correctly made, could create a legal right which we could then enforce by a money judgment. We did not consider our decisions therein to be merely declaratory, and neither is this one today.

It is unnecessary to construe the Back Pay Act, 5 U.S.C. § 5596, since, if it does not cover the situation here involved, neither does it 'limit the Tucker Act jurisdiction 28 U.S.C. § 1491, as it previously existed. It was so held in Allison and Pettit, supra. Defendant would in effect refuse any judicial review to a person perhaps denied equal pay for equal work in a job classification, in possible violation of 5 U.S.C. § 5101. When Congress desires to achieve this result, it knows how to do it. See, Chambers v. United States, 196 Ct. Cl. 186, 451 F. 2d 1045 (1971).

In accordance with the foregoing, we are constrained to differ with the trial judge both as to our supposed lack of power to award back pay and our supposed possession of power to direct the reclassification of the plaintiffs to Grade GS-14.

Accordingly, on considering the recommended decision and findings of Trial Judge Spector, and the exceptions of the parties thereto, and their briefs and oral arguments, it is

OEDEEED, as follows: This case is remanded to the Civil Service Commission pursuant to Pub. L. 92-415, 86 Stat. 652 and Eule 149(b) for a period not to exceed six (6) months from November 1, 1974 to conduct further administrative proceedings consistent with the court’s per curiam opinion and decision of July 19, 1974. Further proceedings in the court shall be stayed during the period fixed by this order of remand. Plaintiffs’ counsel is designated to advise the court by letter to the clerk of the status of the remand proceedings, and such advice shall bo given at intervals of 90 days or less, commencing from the date of this order.