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07/14/55 Simon J. Nash, v. Te Commerce Commission

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


July 14, 1955

Before PRETTYMAN, BAZELON and WASHINGTON, Circuit Judges.

UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.

Simon J. NASH, individually and on behalf of all eligibles

and preference eligibles awaiting appointment to Hearing

Examiner positions by certification from official registers

established by the Civil Service Commission on the basis of

its open competitive examination, conducted under Section

11 of the Administrative Procedure Act, Appellant, v. INTERSTATE COMMERCE COMMISSION, and Philip Young, George M.

Moore, and Frederick J. Lawton, as Members of the

United States Civil Service Commission, Appellees.

No. 12370 1955.CDC.107

Petition for Rehearing In Banc Denied Sept. 1, 1955.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WASHINGTON

WASHINGTON, Circuit Judge.

Prior to the decision of the Supreme Court in Riss & Co., Inc., v. United States, 341 U.S. 907, 71 S. Ct. 620, 95 L. Ed. 1345 (April 16, 1951), plaintiff-appellant Nash was employed by the Interstate Commerce Commission as an "Examiner" in Grade GS-9. He held hearings in cases similar to Riss. He was not an examiner appointed pursuant to Section 11 of the Administrative Procedure Act, 5 U.S.C.A. ยง 1010, although he had, while in his Interstate Commerce Commission position, taken and passed an examination to that end and was listed on a register of eligibles for such appointment in Grades GS-11, GS-12 or GS-13. Under a rule previously established by the Civil Service Commission the minimum grade of a Section 11 hearing examiner was GS-11, a higher-salaried grade than that occupied by Nash.

After the decision in Riss, the Interstate Commerce Commission could no longer utilize - for proceedings of the type there involved - examiners not appointed under Section 11. A regulation of the Civil Service Commission authorized the appointment of incumbent examiners, if they could meet certain required conditions, as Section 11 hearing examiners. *fn1 Subject to the approval of the Civil Service Commission, the Interstate Commerce Commission proceeded to appoint under Section 11, and the regulation just mentioned, a number of hearing examiners. It limited its appointments, however, to incumbents already in Grades GS-11 or higher. Plaintiff-appellant asked the Interstate Commerce Commission for an appointment under Section 11 at Grade GS-13, claiming that he met the requirements of the regulations because he had been placed on a hearing examiner register as eligible for appointment in Grades GS-11, GS-12, or GS-13. His request was refused. *fn2 He appealed to the Civil Service Commission without success. He then brought suit in the District Court on several alternate grounds, seeking as ultimate relief a declaratory judgment which would lead to his appointment as a hearing examiner under Section 11 at Grade GS-13 or GS-15. His suit was dismissed, and he appealed.

In our view, plaintiff-appellant's demand is in essence this: that he be selected for a higher rated post and paid a higher salary. Such a demand is primarily one for consideration and decision by the agencies involved, and not by the courts. Powell v. Brannan, 1952, 91 U.S.App.D.C. 16, 196 F.2d 871; Cf. Ramspeck v. Federal Trial Examiners Conference, 1953, 345 U.S. 128, at page 138, 73 S. Ct. 570, 97 L. Ed. 872. Nothing in the governing statutes and regulations gave plaintiff a vested right to the appointment he seeks. No procedural error was committed. There was no misconstruction of governing law, and no arbitrary or capricious action.

The judgment of the District Court, dismissing the complaint, must be

Affirmed.


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