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December 22, 1981


The opinion of the court was delivered by: Shadur, District Judge.


Lorraine Pratte ("Pratte") has sued the National Labor Relations Board ("NLRB"), its General Counsel and the Regional Director of its Region 13 (headquartered in Chicago), seeking injunctive and declaratory relief because of NLRB's claimed unlawful revocation of Pratte's appointment as a staff lawyer. By agreement of the parties, their written submissions (the verified Complaint and affidavits) constitute the evidentiary record for this Court's ruling under Fed.R.Civ.P. ("Rule") 65(a). In accordance with Rule 52(a) this memorandum opinion and order reflects the Court's findings of fact and conclusions of law.

Findings of Fact

Pratte is a June 1981 graduate of Harvard Law School, where she established a fine record (among other things, as Articles Editor of the Civil Rights-Civil Liberties Law Review). Because she decided on labor law as a field of interest, she applied to NLRB's national office and the Chicago Regional Office.*fn1 In mid-January 1981*fn2 NLRB offered her employment as a Law Clerk-Trainee (Grade GS-9) at an initial salary of $18,585 a year. Pratte accepted the offer with alacrity, turning down a higher-paying position as an Assistant District Attorney in Philadelphia and abandoning any other placement efforts.

On February 3 (just a week after Pratte's prompt acceptance) the same NLRB person who had extended the offer*fn3 wrote to say NLRB was "unable to honor the written commitment which was made to you after November 5, 1980." That action was occasioned by President Reagan's January 20 announcement of an immediate hiring freeze for all civilian employees of government agencies. But the letter went on:

  We regret the necessity for this action; however, we
  will place your application in the group who will be
  given first priority for positions with this Agency
  when we are able to renew our hiring program. The
  instructions from the Office of Management and budget
  provide that agency heads may request exemptions from
  the freeze where they believe that circumstances
  warrant such action. We intend to submit such a
  request to OMB concerning your situation and we will
  advise you of the results once they are received from

  We sincerely regret any inconvenience that the hiring
  freeze has placed on you, and we hope that your
  interest in working for the NLRB will continue.

True to its word, NLRB wrote Pratte March 17:

  In my letter of February 3, 1981, I regretably [sic]
  had to advise you that this Agency could not honor the
  written offer of employment which had been made to you
  after November 5, 1980. I am now pleased to inform you
  that the National Labor Relations Board has recently
  received its new authorized personnel ceilings for
  Fiscal Year 1982 from the Office of Management and
  Budget. We are now able to extend offers of employment
  for professional positions.

It therefore offered employment on the same terms as before. Just as with the initial offer the Toback letter said:

  You will be assigned to our Chicago Regional Office,
  and we will expect you to enter on duty on or about
  October 5, 1981, which is the beginning of Fiscal Year
  1982. If our budget permits, some new employees may be
  able to enter on duty prior to October 5, 1981. If you
  accept our offer, please indicate when you will be
  available to commence work.

Toback's letter was confirmatory of the telephone call that had been made to Pratte by NLRB's Deputy General Counsel March 10. At that time she was told to "hold on" if she could because NLRB had been informed by the Office of Management and Budget that "the money would be coming through." Just three days after receiving the new Toback letter Pratte visited his office in Washington and drafted and delivered a handwritten acceptance letter. She had already forwarded the requested security clearance forms at the time of the original offer, so that she understood all systems were "go."

By letters dated August 5 and August 31 NLRB confirmed Pratte's appointment. Its August 5 letter spoke in future terms ("You will be appointed as a Law Clerk-Trainee . . . effective October 5, 1981"). August 31 converted that to the present:

  This will confirm your Accepted Appointment as Law
  Clerk (Trainee), GS-904-09, $18,585 per annum.
  Assignment is in our Chicago Regional Office located
  at the Everett McKinley Dirksen Building, 219 South
  Dearborn Street, Chicago, Illinois. This is a
  sensitive position and the appointment is subject to a
  Full Field Investigation under Executive Order 10450.
  It is also subject to an Administrative Trial Period
  of One year. All other conditions will remain as
  stated in Mr. Toback's letter to you dated 8-5-81.
  A tentative reporting date of October 4, 1981, has
  been set pending receipt and approval of your medical
  We look forward to your joining the National Labor
  Relations Board staff.

All the conditions referred to in the August 5 and August 31 letters ...

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