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March 4, 1952


The opinion of the court was delivered by: LAWS

This is an action against the Civil Service Commission and others brought by a group of hearing examiners appointed pursuant to section 11 of the Administrative Procedure Act, 5 U.S.C.A. § 1010. Plaintiffs seek to have declared invalid certain regulations pertaining to their appointment, promotion, tenure, and compensation. The case has been submitted on motions for summary judgment filed by both plaintiffs and defendants.

Section 11 of the Administrative Procedure Act, referred to in this opinion as the act, provides in pertinent substance as follows:

 (a) Subject to the civil service and other laws to the extent not inconsistent with the act, each agency shall appoint as many qualified and competent hearing examiners as may be necessary for proceedings under the act.

 (c) Examiners are removable by their employing agency only for good cause determined by the Civil Service Commission.

 (d) The Civil Service Commission shall prescribe compensation for examiners independently of agency recommendations or ratings, and in accordance with the Classification Act of 1949, except the provisions thereof pertaining to performance ratings.

 (e) Agencies temporarily insufficiently staffed may use examiners selected by the Civil Service Commission from other agencies.

 (f) The Civil Service Commission is authorized to promulgate rules to implement this section of the act.

 The Civil Service regulations under attack were promulgated pursuant to the rulemaking authority granted the Commission by section 11 of the act. They provide in substance as follows:

 (a) When a vacancy occurs in a hearing examiner position, the agency in which the vacancy exists may choose the means by which it is filled, by promotion of one of the agency's hearing examiners, or by appointment, promotion, transfer, or reassignment of a non-hearing examiner. If the agency elects to fill the vacancy by promoting a hearing examiner, the Civil Service Commission selects the man to be promoted on the basis of competition among all the agency's hearing examiners whom the Commission has determined to be eligible for promotion. To be eligible for promotion, an examiner must have performed for at least 1 year work of a level of difficulty of the grade next below that which is to be filled by promotion. If the agency elects to fill the vacancy with a non-hearing examiner, it submits to the Civil Service Commission the name of the person with whom it desires to fill the position, and if the Commission finds such person qualified, it approves the agency's choice. 'Vacancies,' as the term is used in these regulations, may come about when the Commission reclassifies a position upward or downward. Civil Service Regulations, section 34.4

 (b) All hearing examiners are classified into civil service salary grades GS-11 through GS-15. Insofar as practicable, examiners are to be assigned in rotation to cases of the level of difficulty and importance that are normally assigned to positions of the salary grades they hold. The Civil Service Commission has published a manual of criteria to aid the agencies in determining which cases are of a level of difficulty and importance appropriate to each of the above five grades. Civil Service Regulations, section 34.10, 34.12; Class Specifications, Hearing Examiner Series, P-935-0.

 (c) Agencies are authorized to separate hearing examiners by way of reduction in force in much the same manner as other employees, except that agency performance ratings are not to be considered in determining a hearing examiner's retention preference Civil Service Regulations, sec. 34.15.

 (d) In emergency situations where the needs of the service require it, agencies may make conditional appointments of hearing examiners pending final decision on their eligibility for absolute appointment Civil Service Regulations, sec. 34.3(c).

 Plaintiffs' basic contention is that the regulations are in conflict with their parent statute because they destroy the independent status given hearing examiners by section 11 of the act. Defendants urge, first, that plaintiffs have not presented a case or controversy of which the court can take jurisdiction, because section 11 of the act confers no private rights on hearing examiners and because it is not claimed that any agency has in fact jeopardized their independence of judgment or has made imminent threats to do so. On the merits, defendants argue that the challenged regulations are not contrary to their parent statute.

 There can be no doubt that one of the major purposes of the act was to make hearing examiners independent of pressure from agencies whose cases they pass upon. Lack of such independence was one of the main problems to which the Attorney General's Committee on Administrative Procedure addressed itself in its final report of 1941. In an opinion holding that agencies have no authority under section 11 of the act to select hearing examiners for promotion, the Acting Attorney General said the following: 'One of the principal purposes of the Administrative Procedure Act was to render examining officers in administrative agencies separate, and genuinely independent of pressure, from the prosecuting officers or others in their agencies who might, directly or indirectly, influence their determinations.' Citing S. Rept. 572, 79th Cong. 1st sess., p. 29; H. Rept. 1980, 79th Cong. 2d sess., p. 46; Wong Yang Sung v. McGrath, 339 U.S. 33, 41-45, 70 S. Ct. 445, 94 L. Ed. 616; S. Doc. 8, 77th Cong., 1st sess., p. 56. In a letter from Senator Pat McCarran, to the chairman of the Civil Service Commission, discussing many of the matters which subsequently became the subject of this litigation, the distinguished author of the act said the following concerning the status of hearing examiners: 'It was intended that they be very nearly the equivalent of judges even though operating within the system of Federal administrative justice.' S. Doc. 82, 82d Cong., 1st sess., p. 9.

 Bearing in mind the distinctively independent status which section 11 of the act was intended to confer on hearing examiners, the first question is the standing in court, if any, of such examiners in their personal capacity to object to action by the Civil Service Commission which allegedly impairs that status. The court is of opinion that the examiners have such standing. While it may be conceded that the dominant purpose of the act was to guarantee even-handed administrative justice and not to confer benefits upon hearing examiners, it appears that Congress, as a means of attaining this dominant purpose, clothed examiners with the distinctive professional status mentioned above. Such status would not only assure impartiality at the hands of incumbent examiners, but would serve as strong inducement for persons of character and ability to become examiners, and the right to be assured this professional status is not to be disregarded because it is subordinate to another purpose. The court, therefore, is of opinion that the hearing examiners became vested with a property interest in maintaining a distinctive professional status and have standing to seek legal redress against steps which will relegate them to an inferior status.

 The next question to be decided is whether the alleged threats to that status are merely conjectural, speculative, or remote, as is said by defendants, or whether, as urged by plaintiffs, a genuine controversy over their rights presently exists. In support of their claim that the alleged injury to plaintiffs is conjectural and hypothetical, and consequently that no justiciable controversy exists, defendants rely principally on Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688; Eccles v. Peoples Bank, 333 U.S. 426, 68 S. Ct. 641, 92 L. Ed. 784, and United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754. Although those cases clearly support the proposition for which defendants cite them, the court believes the proposition to be inapplicable to the case at bar. In the Ashwander case, it was held that a justiciable controversy could not be founded on announcements of programs, plans, and policies. This is conceded. In the case at bar an affirmative step has been taken beyond that stage. Announcements of programs and policies have matured into official regulations which defendants assert are presently in effect. In the Eccles case, defendant in open court expressly disclaimed any present intention to take the action complained of, whereas in the case at bar the action complained of has occurred and is continuing daily. Plaintiffs challenge the Civil Service Commission's authority to classify them into grades GS-11 through GS-15 and to direct that cases be assigned to them according to an advance estimate of the difficulty and importance of the case as compared with the examiner's grade. Defendant Civil Service Commission has not disavowed any present intent so to classify hearing examiners nor to direct that cases be so assigned to them. On the contrary, plaintiffs are presently in those classifications and there is nothing to indicate that cases are not presently being assigned to them in the manner to which they object. In United Public Workers v. Mitchell, supra, the action which plaintiffs sought to prevent defendants from taking was conditioned upon plaintiffs' first taking action which they had not taken at the time suit was brought. As indicated above, the action complained of in the case at bar is not contingent on future events, but is an accomplished fact. Where regulations have been adopted and are about to be put into effect, one whose rights may be adversely affected may proceed to protect himself before suffering actual damage. The court is of opinion that a present justiciable controversy exists in favor of plaintiffs.

 The legislative plan of section 11 of the act contemplates no distinctions between hearing examiners in any given agency based on the difficulty and importance of the work they perform. Counsel for defendants claims that such classification of hearing examiners is necessitated by the Classification Act of 1949, 5 U.S.C.A. 1071 et seq., which section 11 makes applicable to hearing examiners' compensation, and that this requirement of the Classification Act is recognized by the provision of section 11 directing rotation of cases insofar as practicable. The court is of opinion, however, that the Classification Act simply fixed the formula for determining examiners' compensation if the work assigned to examiners of a particular agency varies in difficulty and importance from that assigned to examiners in another agency. Bearing in mind the purposes of the act, the court is of opinion that the provision requiring rotation 'insofar as practicable' relates to exigencies arising in the administration of business, such as illness of examiners, disqualification, unavailability by reason of unforeseen length of hearings, or for other reasons. Senator McCarran in discussing the rotation provision of section 11, said: 'it required assignment by rotation, not by classification.' (Letter to Chairmen Ramspeck, S. Doc. No. 82, 82d Cong., 1st sess. (p. 9)). It follows the Commission is without authority to classify hearing examiners within any given agency into grades 'g's-11 through ...

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