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Hondros v. United States Civil Service Commission and United States Civil Service Commissioners

decided: October 13, 1983.


Seitz, Chief Judge, and Adams and Garth, Circuit Judges. Adams, Circuit Judge, concurring.

Author: Garth


GARTH, Circuit Judge:

The United States appeals from an order of the district court entered on March 25, 1982, directing the United States Marshals Service to reinstate Nathan Smith to the remainder of Smith's term position as a deputy United States Marshal, and to appoint Smith to a career position as a United States Marshal "at that level and grade he would be entitled to had he been appointed to the position of career deputy United States Marshal in 1973 and had served continuously until today." For the reasons discussed below, we affirm the order of the district court in part and reverse in part.



An overview of those regulations governing the hiring of civil service employees is necessary for our disposition of this appeal. Civil service employees are members of either the "competitive service"*fn1 or the "excepted service."*fn2 An employee typically becomes a member of the "competitive service" by taking an examination administered by the Office of Personnel Management ("OPM"). See 5 U.S.C. § 3304 (1976 & Supp. V 1981). An applicant who meets the minimum requirements for entrance to an examination, and who receives a rating of 70 or more on the examination, is known as an "eligible." 5 C.F.R. §§ 210.102(b)(5), 337.101(a) (1983). OPM is required to enter on a civil service "register"*fn3 the names of all eligibles in accordance with their numerical rankings. 5 C.F.R. § 332.401 (1983).

An agency seeking to hire an employee must submit a request to OPM for a "certificate" of eligibles.*fn4 When OPM receives a request for certification of eligibles, it prepares a certificate by selecting names from the head of the appropriate register. This certificate consists of a sufficient number of names to permit the agency to consider three eligibles for each vacancy, 5 C.F.R. § 332.402 (1983), the so-called "rule-of-three."*fn5 A hiring official from the agency, known as the "appointing officer," 5 C.F.R. § 210.102(b)(1) (1983), is obliged to fill each vacancy "with sole regard to merit and fitness" from the three eligibles ranking highest on the certificate who are available for appointment. 5 C.F.R. § 332.404 (1983).

With a few exceptions not here relevant, eligibles appointed from a register become "career-conditional" employees. 5 C.F.R. § 315.301(a) (1983). These career-conditional employees may become "career" employees upon the completion of a three-year period of "creditable service." 5 C.F.R. § 315.201(a)(b) (1983).*fn6 Those employees who successfully complete the first year of the three-year service period generally have greater procedural rights than those who do not. For example, prior to the completion of the first year of a career-conditional employee's service period -- the "probationary period" -- the employee may be dismissed "if he fails to demonstrate fully his qualifications for continued employment." 5 C.F.R. § 315.803 (1983). During this period such an employee is accorded limited procedural rights,*fn7 and may seek review of a dismissal only on the grounds that the dismissal was discriminatory or effected by improper procedures.*fn8 Career employees (and career-conditional employees in their second or third years of service), in contrast, enjoy the much greater procedural protections of the Lloyd-LaFollette Act.*fn9 See generally Sampson v. Murray, 415 U.S. 61, 80-82, 94 S. Ct. 937, 948-949, 39 L. Ed. 2d 166 (1974).

Members of the "excepted service" are subject to less rigorous entrance requirements, and are accorded fewer procedural protections, than are members of the competitive service. Among the members of the excepted service are employees appointed for a definite term of employment, or "term employees." These employees do not acquire competitive status by virtue of their term appointment.*fn10 Term employees may be appointed for terms of one to four years "when the needs of the service so require." 5 C.F.R. § 316.301 (1983). Unlike members of the competitive service, who must generally submit to competitive examinations, term employees may bypass the rigors of the competitive process if OPM so authorizes. 5 C.F.R. § 316.302(b) (1983).*fn11 Term employees, on the other hand, are accorded none of the procedural protections of the Lloyd-LaFollette Act,*fn12 and only limited procedural rights by regulation.*fn13

In general, there are no provisions for the conversion of term employees to career-conditional employees.*fn14 A term employee who wishes to acquire competitive status must therefore make use of the ordinary procedures for entering the competitive service. Those procedures include taking a competitive examination, obtaining a position on a civil service register, being certified as one of the three highest rated applicants for each vacancy, and being selected by an appointing officer with sole regard to merit and fitness." See p. 281 supra.

Both term and competitive employees may be released from employment when a shortage of funds, reorganization, or reclassification so requires.*fn15 The procedures governing these releases are captioned "Reduction in Force," see 5 C.F.R. Part 351 (1983), and employees released pursuant to these procedures are said to be "RIF'd." An employee who is properly "RIF'd" does not enjoy a number of the procedural protections of the Lloyd-LaFollette Act. See 5 U.S.C. § 7512(B) (1976); 5 C.F.R. § 752.401(c) (1983); Rasmussen v. United States, 543 F.2d 134, 137, 211 Ct.Cl. 260 (1976).

With this understanding of the governing Civil Service regulations, we turn to the facts giving rise to this appeal.


Nathan Smith was hired in August of 1971 as a term employee of the United States Marshals Service (the "Service"), an arm of the Department of Justice. The Marshals Service administered an "Anti-Air Piracy Program" in the early 1970s for the purpose of combatting a rising number of combatting a rising number of aircraft hijackings. Marshals for the Air Piracy Program were hired, pursuant to 5 C.F.R. § 316.302(b) (1983), as term deputies without regard for Civil Service Commission registers. See note 11 supra. Smith, who was not at that time on a Civil Service register, was hired for a term ending June 30, 1982 "subject to a character investigation."

The record indicates that at the time Smith was hired, agents of the Marshals Service represented that the Service intended to "convert" term deputies hired for the Air Piracy Program to career positions. According to Gerald LaRosa, deputy marshal with responsibility for the Philadelphia airport, both the Philadelphia marshals and responsible officials in Washington "were under the understanding that [term deputies] were all going to be assumed into the Marshals Service."*fn16 The Agency made these representations for the purpose of attracting more highly qualified candidates than would otherwise have applied for term positions. John Doyle, at the time one of four "specialists" in the United States for the Marshals Service, explained the Marshals' dilemma as follows:

We were having trouble getting good employees because it was a temporary position to work in this program. . . . And the people that we wanted to hire in a lot of cases they didn't want to stay because . . . it was only a temporary thing[.] So they told them in Washington, they told the Marshals to tell them that they would be converted to a permanent basis. I know because . . . they would constantly call me on the phone in Washington and ask me when they were going to be converted because we were promising they were gong to be converted.*fn17

Accordingly, Nicholas Vinci, Chief Deputy Marshal in Philadelphia, explained to each term deputy, including Smith, that the Service intended to confer permanent status on term deputies provided that they completed the requisite one-year period of probation.*fn18

In fact, however, the applicable Civil Service regulations did not permit the Service to "convert" term deputies to permanent positions. See pp. 282-283 & note 14 supra. The regulations required, and members of the Marshals Service understood, that any term deputy seeking a permanent position had to make use of the ordinary procedures for entering the competitive service. Consequently, on June 16, 1972, Bert Lederer, then Personnel Officer for the Marshals Service, directed all hiring officials to employ the regular Civil Service Registers in order to "convert" term deputies. Lederer's communique provided:


The Service had, however, overlooked an important obstacle to its plan to "convert" term deputies that impeded its ability to convert Smith. A number of its term deputies, including Smith, were not on Civil Service Registers at the time of Lederer's announcement. Moreover, the appropriate Philadelphia register had closed on March 9, 1971, rendering it impossible for term deputies who had applied for employment after March 9 to obtain a position on a register. The Civil Service Commission did not correct this defect until September 20, 1972, when the Commission amended its examination announcement and accepted applications for the Philadelphia register until October 11.

Between August of 1971, when Smith was hired, and September of 1972, when the Commission reopened the Philadelphia register, the Service obtained a character report on Smith compiled by the Federal Bureau of Investigation. This FBI report revealed that Smith had received four reprimands by the Philadelphia Police Force, where he had served with some distinction for 27 years. According to the FBI, Smith "received 'Outstanding ' performance rating and numerous commendations from within and outside the [Philadelphia Police Department] from 1955 to 1968." Tr. at 757. The report also indicated, however, that Smith had been charged with "Conduct Unbecoming an Officer" in 1969 arising from an indictment for the sale of a stolen automobile, that Smith had "resigned under these charges," and that he had been found not guilty of all charges on June 26, 1970.*fn20

On January 5, 1972, James Berryhill, then Acting Personnel Chief for the Marshals Service, drafted a letter proposing Smith's removal. Berryhill's letter recited that Smith had received four reprimands while serving on the Philadelphia Police Force, had been charged with "Conduct Unbecoming an Officer," and had "resigned while these charges were still pending." Berryhill directed that Smith's immediate superior, Marshal Charles Guy, sign this letter and present it to Smith. Although the record reveals that Marshal Guy staunchly supported Smith's competence as a marshal -- and indeed that Guy drafted a letter to Wayne Colburn, Director of the Marshals Service, protesting Berryhill's instruction and asserting that Smith, "since being in my employ, has done an outstanding job and I am not convinced otherwise," Tr. at 786 -- Guy dutifully signed Berryhill's letter and passed it on to Smith.

Smith responded in writing to Berryhill's proposed removal on January 19, 1972, in accordance with the procedural provisions governing the dismissal of term employees during the "trial period." See notes 7 and 13 supra. Because of the importance of the FBI report to this appeal, we review Smith's response to it in some detail.

The first two reprimands identified by the FBI, Smith stated, were:

due to my failure to notify a Detective assigned to my division that he was to appear in Court. This notification of the court appearance was sent over the teletype machine and an oversight of this sort is automatically placed against the detective in charge at the time the notice comes through the teletype machine. There is no right of defense on the part of the person receiving the reprimand, since it is not considered detrimental to his standing in her personnel file. This reprimand took place December 17, 1962, over 9 years ago, and it is impossible for me to recollect the reason for the oversight; however, even though the reprimand is placed against the detective in charge of that particular shift, it is the duty of each individual to check the teletype himself for notice of court appearances. The particular Detective Division to which I was assigned at that time was constantly kept busy with assignments, causing oversights of this nature by many detectives.

Tr. at 778-79.

The third reprimand identified concerned the failure to note in a logbook that an automobile had been reported on fire in a parking lot, and that a human leg had been found in the city incinerator. Smith had not been notified of this reprimand -- apparently in contravention of police regulations -- and had been given no opportunity to explain the oversight.

The fourth reprimand identified by the FBI concerned the failure to "receipt" a vehicle properly. Smith explained that he had signed a receipt for the vehicle which was then parked for five days in front of the Police station, Smith then took "two regular days off and when I went back on duty on the 8:00 A.M. to 4:00 P.M. tour the car was gone." Smith had "no knowledge of what happened to the car or when it was removed from its position." Tr. at 779.

Finally, responding to the charge of conduct unbecoming an officer, Smith asserted that "there has never been a charge of conduct unbecoming an officer in my personnel file, nor have I ever been confronted with such a charge." Smith acknowledged that such a charge could only have arisen from an indictment for the sale of a stolen automobile, and that Smith had been acquitted of this charge. Smith further stated that "since I was found not guilty of all charges, my court record was expunged, [and] no departmental charges were placed against me. . . ." Tr. at 780.

In addition to these responses, Smith indicated that while on the Philadelphia Police Force, he had received three departmental awards and 21 "Official Commendations." During Smith's service as a term deputy, Smith had also received a "commendation for outstanding performance of duty" for averting a possible hijacking.

In summary, the four "reprimands" in Smith's record were for omissions in the nature of administrative errors. The record reveals no charge of "conduct unbecoming an officer." Smith was therefore a man who, during 27 years of service on the Philadelphia Police Force and in the Marshals Service, was honored 25 times with awards of commendations, committed four administrative oversights, and was acquitted of criminal charges lodged against him.

On February 1, 1972, Bert Lederer, who succeeded James Berryhill as Chief of Personnel, notified Smith that the Service intended to remove Smith from his position as deputy marshal effective February 4, 1972. Lederer "found" that Smith was in fact charged with conduct unbecoming an officer, despite Smith's assertion that no such charge appeared in his record. No explanation for this "finding" exists in the record, nor does the record disclose any documentation of the charge's existence. Citing this finding and the four reprimands recited above, Lederer removed Smith "for the good of the Service." Lederer's February 1 memorandum made no effort to relate the four administrative errors committed during Smith's 27 year tenure on the Philadelphia Police Force to Smith's ability to inspect airline passengers for the Marshals Service.

On February 9, 1972, without any explanation, Lederer reversed his position and cancelled Smith's termination. Lederer's terse two-sentence memorandum stated only that Smith would not be terminated and that Lederer's letter of February 1 "is hereby cancelled." Although Lederer's memorandum of February 9 gave no reason for his sudden change of position, Lederer later testified that his decision had "in essence" been overruled by the Director of the Marshals Service, Wayne Colburn. Tr. at 235, 238.

Smith completed his probationary period with the Marshals Service without incident. On June 29, 1972, the Marshals Service requested from the Civil Service Commission a certificate of eligibles for appointment to career-conditional positions as deputy marshals. The Commission certified four names for consideration: Paul Hondros, Allen Cox, James Duross, and Anthony Pasquarella. All four applicants had obtained positions on Civil Service Registers by June of 1972. Nathan Smith, who was not at this time on a register -- and who could not have been on a register, since the Commission had not reopened the Philadelphia register until September, see pp. 284-285 supra -- was not certified for consideration. Instead, the Service extended Smith's term appointment until June 30, 1975.

Thereafter, a series of events ensued that bordered on the comic. Smith obtained a position on the Philadelphia register on September 27, 1972. According to Donald Merrill, area manager of the Civil Service Commission, if the Marshals Service had requested a certificate on September 27 identical in nature to that requested on June 29, then Smith would have been ranked either first or second on the certificate.*fn21 Moreover, Nicholas Vinci, Chief Deputy Marshal in Philadelphia, testified that if Smith's name had been on a certificate, then Vinci would have appointed Smith to a career-conditional position.*fn22

Nevertheless, for reasons that are somewhat unusual, Vinci did not request a certificate from the Commission until December 13, 1972. Vinci's delay was attributable to a special procedure adopted by the Service for the Air Piracy Program.*fn23 On December 11, however, President Nixon imposed a hiring and promotion freeze on all federal agencies "to remain in effect until the new federal budget is submitted to Congress some time in January [of 1973]." Tr. at 389. The Commission promptly returned Vinci's December 11 request for a certificate.

For reasons that are wholly unexplained, the Commission did not keep a copy of Vinci's December 11 request on file until January. Instead, the Commission apparently regarded it as essential that Vinci file the same request a second time after the termination of the President's hiring freeze. For even more irregular reasons, however, Vinci never filed a second request.

Vinci's decision not to request a second certificate was attributable to James Berryhill, curiously the same official who sought unsuccessfully to dismiss Smith on the basis of the FBI's report on Smith's character. According to Vinci, on January 15, 1973, Bert Lederer distributed a memorandum informing Vinci and other hiring officials that term deputies who had not been "approved for conversion, pending certification from the appropriate [Civil Service] register," should take a new, nationally administered examination, "if they are not within reach of the [Deputy Marshal] register.*fn24 On its face, Lederer's January 15 memorandum appears not to have applied to Smith: Smith, of course, had been approved for conversion pending his certification from the Deputy Marshal register, and was within reach on the register. Nevertheless, in January James Berryhill informed Vinci personally that Vinci was "not to bother with the registers' formerly used for the appointment of career deputies because the Service planned to use a new national examination. Tr. at 394-95. In addition, Vinci testified that Berryhill said "he would get back to me about the [January 15 memorandum]." Id. Berryhill never "got back to" Vinci. As a consequence, Vinci never requested a certificate of eligibles, and Smith was never appointed to a career-conditional position.*fn25

These irregularities reached their climax during the summer of 1973. The Commission postponed the announcement of its new national examination, slated to be announced in April of 1973, until August. In June of 1973, however, the United States reversed its two-year practice of staffing the Air Piracy Program with deputy marshals, preferring instead to staff these positions with private employees. Consequently, the Service "RIF'd" all term deputies appointed to the Program. The Service did not, however, "RIF" its career-conditional employees; these permanent employees had been assumed into the Marshals Service as a whole. Smith received a notice of separation under RIF procedures in ...

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