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06/15/50 Elder v. Brannan


June 15, 1950








Date Decided: June 15, 1950.


WILBUR K. MILLER, Circuit Judge.

The appellant, Robert D. Elder, was honorably discharged from the United States Army after active service in World War I.1 He passed a competitive civil service legal examination in September, 1942, and on August 1, 1943, was employed as an attorney in the Department of Agriculture. Although he had had at all times an efficiency rating of "good" or better, he was notified on May 29, 1947, that, as a part of a reduction in force made necessary by lack of funds, he would be dismissed as of June 30, 1947. He sued on June 5, 1947, to enjoin the Secretary of Agriculture from discharging him, claiming the right to be retained because of the statutory preference given to veterans. After his dismissal he continued his effort, by amended and supplemental complaint, to obtain an adjudication that he had been wrongfully discharged and should be reinstated. The Secretary moved for summary judgment, with respect to which affidavits were filed by both sides. The District Court in granting the motion said:

"It seems clear that plaintiff was a war service appointee and did not have a permanent Civil Service status. His separation was effected in full compliance with the applicable statutes and regulations. Upon consideration of such facts plaintiff may not succeed."

Elder appeals. He claims that by passing a competitive civil service legal examination and by serving a probationary period of one year, he attained a classified civil service status and that under statutory provision2 he had an absolute right not to be discharged, dropped or reduced in rank or salary in the event of a reduction in force. He further maintains that, even if he had not acquired classified civil service status, he had under these statutes a preference in retention and reinstatement which had been violated.

The Secretary replies that appellant was a war service appointee whose tenure was limited to the duration of World War II and six months thereafter, and that he had not attained the classified civil service status he claims. He asserts that Elder was properly classified in group B-1 under the Civil Service Commission regulations governing the retention preference of veterans in a reduction in force;3 that those regulations are valid under § 12 of the Veterans' Preference Act of 1944 and that the appellant's dismissal was in accord with the regulations. The Secretary claims the proviso of § 4 of the Act of 1912 does not apply to war service appointees.

The first question then is whether Elder had reached or become entitled to classified (competitive) civil service status.

Executive Order No. 9063, issued February 16, 1942 (3 Code Fed.Regs., Cum.Supp.1943, 1091), authorized the Civil Service Commission to adopt such special procedures and regulations as it might deem necessary to avoid delay in recruiting employees during the war emergency. The President expressly provided, however, that persons appointed under such special procedures to positions subject to the Civil Service Act and the Commission's rules should not thereby acquire a classified (competitive) civil service status, but, in the Commission's discretion, might be retained for the duration of the war and six months thereafter.

Pursuant to this Executive Order, the Civil Service Commission prepared and adopted the War Service Regulations effective March 16, 1942 (5 Code Fed.Regs. § 18.3, Cum.Supp.1943), setting up special procedures of the sort and for the purpose contemplated by the Order. The subsequent appointment of attorneys was governed by the regulations of the Board of Legal Examiners of the Civil Service Commission, which contained the following (5 Code Fed.Regs. § 17.1, Cum.Supp.1943):

"(g) All appointments to attorney and law clerk-trainee positions shall be for the duration of the present war and for six months thereafter, unless otherwise specifically limited to a shorter period, and shall be made subject to the satisfactory completion of a trial period of one year Such appointment shall be affected under Executive Order No. 9063 of February 16, 1942, (Title 3, supra ), and persons thus appointed will not thereby acquire a classified Civil Service status. No person shall be appointed unless (1) he has qualified by passing an appropriate examination prescribed by the Board or, (2) in case of special emergency, the Board has authorized his appointment subject to subsequent examination. Such appointments shall in other respects be governed by the requirements and procedures prescribed by these Regulations. This paragraph shall become effective March 16, 1942."

Since the foregoing was the regulation in effect at the time the appellant was appointed, his acceptance of employment necessarily was subject to the terms thereof. Nothing occurred later to change the nature of his status or tenure. It follows that throughout the period of his employment he was a war service appointee with tenure limited to the duration of the war and a period of six months thereafter, entitled to the preference given by law to veterans in that status.

Elder's preference does not arise from the proviso of § 4 of the Act of 1912 because the application of that section is confined by its terms to those having classified civil service status.But he has preference under the Veterans' Preference Act of 1944, and particularly under §§ 2 and 12. The latter provides that

"In any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings: . . . Provided further, That preference employees whose efficiency ratings are 'good' or better shall be retained in preference to all other competing employees . . .."

We held in Hilton v. Forrestal, 1947, 83 U.S.App.D.C. 44, 165 F.2d 251, that the term "competing employees" used in § 12 of the Act refers to employees competing within the bounds of such classifications as the Commission might establish by regulations. The Civil Service Commission promulgated on May 1, 1947, retention preference regulations for use in reductions in force which set up classifications for the grouping of employees so that those classified in each group would be regarded as "competing" with one another. Those classifications and the subgroups into which they were divided, which are reproduced below,4 were approved by us in the Hilton case. We do not read the Supreme Court's opinion in Hilton v. Sullivan, 1948, 334 U.S. 323, 68 S. Ct. 1020, 92 L. Ed. 1416, as holding to the contrary. It results that, since the appellant was a war service appointee with an efficiency rating not less than "good", he was properly classified in group B and subgroup B-1, a status which gave him the highest preference for retention among all war service appointees whenever a reduction in force became necessary.

The record does not clearly show that any war service appointee of Elder's grade or lower, with a classification for retention preference inferior to subgroup B-1, was retained when he was discharged, so it does not appear that his preferential right to be retained was directly violated. We note, however, that appellant's preference as a member of subgroup B-1 is not limited to the right to be retained over competing employees in lower subgroups when reductions in force occur; by express congressional enactment his preference extends also to reinstatement and re-employment. For § 2 of the Act of 1944 provides:

"In certification for appointment, in appointment, in reinstatement, in reemployment, and in retention in civilian positions in all establishments, agencies, bureaus, administrations, projects, and departments of the Government, permanent or temporary, and in either (a) the classified civil service; (b) the unclassified civil service; . . . preference shall be given to . . . (4) those ex-servicemen and women who have served on active duty in any branch of the armed forces of the United States, during any war, . . . and have been separated therefrom under honorable conditions; . . .."

Elder's rights under this section of the statute were violated if he was denied re-instatement or re-employment when other attorneys, classified in a lower subgroup than B-1, who had been released with him, were re-employed. He alleges that this happened. He pleads that soon after the reduction in force said to have been due to lack of funds, certain attorneys of the same grade as his, but who were in a lower classification under the regulations for retention, were reinstated or re-employed as attorneys in the office of the Solicitor for the Department of Agriculture, but that he was denied re-employment. The complaint gives the names of six attorneys of the lower retention subgroup B-2 so re-employed in preference to the appellant.5

These allegations, which charge wrongful discrimination against Elder in the reinstatement of non-veterans in October, 1947, were not denied by the Secretary and nothing in the affidavits which he filed tends to contradict them. There was, therefore, no genuine issue concerning the material fact that Elder's right to preference in re-employment had thereby been denied him. So, on the record presented to him, the trial judge erred in granting summary judgment to the Secretary of Agriculture; to the contrary, the appellant was entitled to summary judgment in the state of the pleadings.

We note, however, that appellee's motion for summary judgment apparently was based on his mistaken idea that the only question in the case was whether Elder's discharge was lawful. The appellee seems to have overlooked the appellant's charge of discriminatory re-employment, for he did not deny the charge nor treat with it in the affidavits which he filed. The trial judge also failed to consider the undenied allegations concerning discrimination in re-employment, else he would not have awarded summary judgment to the appellee. It is possible that, upon remand, the Secretary may be able to raise an issue of fact concerning the alleged discrimination against Elder in the re-employment of attorneys. Fountain v. Filson, 1949, 336 U.S. 681, 69 S. Ct. 754, seems to indicate that he should be given an opportunity to do so. The judgments are reversed and the cases will be remanded. If the record remains as it is, the District Court should enter summary judgments to the effect that on October 27, 1947, both appellants were wrongfully denied reinstatement. But if the Secretary of Agriculture denies the allegations of discrimination against the appellants in re-employment, the District Court will, of course, proceed to determine the issue of fact thereby created.

Reversed and remanded.

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