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Donovan v. United States

argued: March 28, 1978.

JAMES D. DONOVAN, APPELLANT,
v.
UNITED STATES OF AMERICA; MARTIN R. HOFFMAN, SECRETARY OF THE ARMY; MAJOR GENERAL ALBERT CRAWFORD, COMMANDING GENERAL, U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH; MALCOLM R. MACKENZIE, CIVILIAN PERSONNEL OFFICER, U.S. ARMY ELECTRONICS COMMAND, FORT MONMOUTH



APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 76-28.

Adams, Van Dusen, and Rosenn, Circuit Judges. Adams, Circuit Judge, concurring in part and dissenting in part.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge.

The role of the federal government as an employer has expanded rapidly over the last quarter century, and so too has its obligation to deal fairly and equitably with its employees.*fn1 Nonetheless, federal employees' rights are not unlimited and extend no further than the limits of federal law and the constitution. In this action we face the problem of closely defining such limits.

Plaintiff, a civilian employee of the United States Army Electronics Command ("ECOM"), challenges the remedy afforded him by the Army after its erroneous refusal to grant him repromotion consideration following his reinstatement at ECOM subsequent to a reduction in force ("RIF").*fn2 He asserts that statutory and regulatory provisions entitle him to reclassification and back pay. The district court, recognizing its limited power to review Government employment practices, dismissed plaintiff's complaint for failure to state a claim predicated on any provision upon which relief could be granted. We affirm.

I.

Plaintiff is a career civil service employee who had worked for various federal agencies from 1963 until 1969. On April 13, 1969, he was transferred to ECOM, stationed at Fort Monmouth, New Jersey, and given the position of Training Instructor (Electronics), a GS-9 conditional appointment. On March 27, 1970, pursuant to a cut-back in civilian positions, plaintiff was given a reduction in force notice. Before the RIF became final, however, he was separated from ECOM and appointed through the Interagency Board of Civil Service Examiners to a GS-7 position at the Federal Aviation Agency. On February 26, 1971, he was terminated for cause from this position.

Some months later, plaintiff secured reinstatement at Fort Monmouth as a guard, a GS-4 conditional position. At this time, plaintiff's name should have been placed on the repromotion register at ECOM, thus permitting him to be repromoted non-competitively to his old job or any intermediate position between the guard job and his prior GS-9 rating. Instead, due to an administrative error, plaintiff's name was omitted from the register. Not knowing of this, on February 20, 1972, he applied for and was promoted to the position of computer aid at the GS-5 level. But in November of the same year plaintiff realized that ECOM had failed to give him reemployment consideration. He then began to challenge his employment status, asserting claims with ECOM that he had been denied special repromotion benefits due him under the Army's civilian employee regulations. After failure to informally resolve this problem, plaintiff began formal grievance proceedings.

In his grievance against ECOM, plaintiff proved that he was erroneously denied repromotion consideration. As a result, he demanded back pay and retroactive promotion. The acting commander of ECOM concluded that although plaintiff had been the victim of an error, no retroactive benefits could be given. Instead, he ordered that plaintiff be given "repromotional eligibility" to his old position at ECOM - that is that he must be given the job before others with less seniority on the eligibility list - and that he be given priority consideration for any available new job for which he qualified.

On appeal to the Army Civilian Appellate Review Office, the decision of ECOM was affirmed. The examiner found that plaintiff had been denied special repromotion consideration as required by personnel regulations and that the failure of the Army to place him on the repromotion register was in error. As to the appropriate relief for this violation, the examiner recommended priority consideration for the next available vacancy to which plaintiff qualified, but rejected his claim for retroactive benefits.

At the time of this decision, the Army had no positions available because of a job freeze. Nonetheless, ECOM sought an exception for plaintiff and some four months later he was appointed to a GS-9 level position. By 1974, plaintiff had progressed to a GS-11 rating, but the facts reveal that during the time plaintiff's name erroneously had been absent from the repromotion register, at least one other employee with lower seniority was appointed to a GS-9 vacancy. Therefore, plaintiff continued to press his administrative claims and to assert his retroactive benefits theory. By 1975, he had exhausted all channels of administrative relief.

This action was filed in January of 1976. Plaintiff's complaint asked the district court to declare that plaintiff would have been reappointed to his old job at an earlier date and hence would have been eligible for promotion earlier as well, had plaintiff properly been listed on the repromotion register. He then sought both retroactive reclassification and back pay under the Back Pay Act, 5 U.S.C. ยง 5596 (1976) (the "Act") and under Civil Service and Army regulations. The district court dismissed the complaint for failure to state a claim upon which relief could be granted because plaintiff did not present sufficient proof of any statute or regulation allowing the district court to award back pay.*fn3 This appeal followed.

On appeal, plaintiff raises four claims, only two of which we discuss in any detail: (1) whether the Back Pay Act entitled plaintiff to back pay and retroactive promotion and (2) whether the district court had mandamus power to order retroactive promotion with concomitant effects on back pay.*fn4 We assess these issues independently.

II.

A claim for back pay by a federal employee, in essence, amounts to a lawsuit against the United States for monetary damages. In order to determine if such a lawsuit is proper, we must assess whether the United States has granted a right to sue it for damages, for it "has long been established . . . that the United States, as sovereign, 'is immune from suit save as it consents to be sued. . . .'" United States v. Testan, 424 U.S. 392, 399, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976), quoting, United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941). Our duty then is to examine the federal statutes invoked by the ...


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