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FRIEDMAN v. SCHWELLENBACH

April 1, 1946

FRIEDMAN
v.
SCHWELLENBACH et al.



The opinion of the court was delivered by: BAILEY

This is an action for declaratory judgment, mandamus, and injunction. Originally named as defendants were Paul V. McNutt, individually and as Chairman of the War Manpower Commission, and Harry B. Mitchell, Lucille Foster McMillin, and Arthur S. Flemming, individually and as members of the United States Civil Service Commission. Because of the resignation of Mr. McNutt as Chairman of the War Manpower Commission and the transfer on September 17, 1945, pursuant to Executive Order No. 9617, 50 U.S.C.A.Appendix § 601 note (10 F.R. 11929), of that wartime agency and all of its functions, employees, and records, with certain exceptions not here material, to the Department of Labor, Lewis B. Schwellenbach, individually and as Secretary of Labor, has been substituted as a party defendant herein by order of the court dated November 13, 1945.

 The defendants moved to dismiss the complaint but the court deferred action until the filing of an answer. Since the filing of the answer the plaintiff and defendants have filed motions for a summary judgment.

 On February 16, 1942, the President, by virtue of the authority vested in him by section 2 of the Civil Service Act, 5 U.S.C.A. 633, issued Executive Order No. 9063 (7 F.R. 1075) authorizing the Civil Service Commission to adopt and prescribe such special procedures and regulations relating to the recruitment, placement, and changes in status of personnel in Federal service as it determined to be necessary in order that there would be no delay during the war emergency in filling positions in the Federal service with qualified persons. Said Executive Order further provided that the procedures and regulations thus adopted and prescribed were to be binding with respect to all positions affected thereby which were subject to the provisions of the Civil Service Act and rules. The second paragraph of Executive Order 9063 stated that persons appointed solely by reason of any special procedures adopted under authority of said order to positions subject to the provisions of the Civil Service Act and rules were not thereby to acquire a classified (competitive) civil-service status, but, in the discretion of the Civil Service Commission, might be retained for the duration of the war and for 6 months thereafter.

 The President on February 20, 1942, by Executive Order No. 9067 (7 F.R. 1407), further authorized the Civil Service Commission to secure information as to employees of executive departments and agencies who were deemed competent to perform essential war work in departments or agencies having a higher priority classification, and with the consent of the employees concerned, to effect the transfer of any such employee to meet the personnel needs of a department or agency, having a priority classification, and to adopt such rules and regulations and to establish such procedures as might be necessary to carry out its responsibilities thereunder. This Executive Order remained in effect until September 27, 1942 (Executive Order No. 9243, September 12, 1942, 5 U.S.C.A. § 631 note).

 Pursuant to Executive Orders 9063 and 9067, the Civil Service Commission prepared and adopted the War Service Regulations, effective March 16, 1942 (Title 5, C.F.R., Sum. Supp., Chapter I, Part 18; 7 F.R. 7723).

 In order to expedite employment and transfers to meet war conditions, the Civil Service Commission, pursuant to the aforesaid Executive Orders, expanded its use of conditional appointments and conditional transfers, a practice whereby the Commission effects an immediate employment or transfer, subject to a condition. The condition ordinarily imposed is that the person shall be subject to a character investigation for the purposes of ascertaining the qualifications determinable by such investigation. This procedure enables the Commission to fill a vacancy immediately and complete its examination of the applicant or transferee at a subsequent date. Prior to the war, the Commission's policy was to publish an announcement of the examination, stating the type of position, required qualifications, place of examination, etc., hold an examination, establish a register and certify three names from the top of the register to the agency subject to a character investigation. To meet the necessity of rapid expansion of employment, the Commission, under the authority of Executive Order 9063, dispensed with this peace-time practice and resorted to the speedier methods of recruitment. Persons were placed on the job under a conditional appointment or conditional transfer, and thereafter the Commission conducted its investigation to ascertain certain factors of qualification before certifying as to the eligibility of the applicant or transferee.

 Plaintiff was transferred on May 29, 1942, from the Federal Works Agency to the Division of Central Administrative Services, Office for Emergency Management. This transfer was expressly made 'subject to character investigation investigation.' Without change in status plaintiff, while said investigation was being conducted and while certain of the events hereinafter described were taking place, was involved first in an interoffice transfer (September 16, 1942) to the War Manpower Commission Personnel Branch, Central Administrative Services, Office for Emergency Management, and later (March 27, 1943) in a group transfer shifting all personnel functions of the Office for Emergency Management to the constituent agencies of the Office for Emergency Management, in plaintiff's case, the War Manpower Commission.

 Until plaintiff's conditional transfer, effective May 29, 1942, to the Office for Emergency Management, his previous employment with the Federal Government had at all times been in positions excepted from the classified civil service, Act of November 26, 1940, Section 1, 54 Stat. 1211, 5 U.S.C.A. 631a. Said conditional transfer brought plaintiff for the first time within the scope of the War Service Regulations and the Civil Service Rules, and within the jurisdiction of the Civil Service Commission. He was at no time in the Federal classified civil service.

 War Service Regulation II, Sec. 3, provides as follows:

 'An applicant may be denied examination and an eligible may be denied appointment for any one of the following reasons:

 '(g) a reasonable doubt as to his loyalty to the Government of the United States;

 'Any of the reasons stated in the foregoing subdivisions from (b) through (h) inclusive, shall be sufficient cause for removal from the service.'

 These disqualifications are elements that come within the scope of an investigation and which usually are only ...


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