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ROTH v. BROWNELL

UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA


December 15, 1953

ROTH
v.
BROWNELL, Atty. Gen. et al.

The opinion of the court was delivered by: KEECH

This case is before the court on cross motions for summary judgment.

The plaintiff seeks a judgment declaring that his separation from his position in the Department of Justice was unlawful and void because in violation of the Lloyd-LaFollette Act, 37 Stat. 555 (1912), as amended 62 Stat. 354 (1948), 5 U.S.C.A. § 652(a) *fn1" and not in conformity with § 9.102 of the Civil Service Regulations, 5 C.F.R. § 9.102, *fn2" and directing the defendants to restore him to his position as Trial Attorney GS-14 in the Department.

 Plaintiff acquired a competitive civil service status on April 15, 1943, under the Ramspeck Act, 54 Stat. 1211 1940), as amended 59 Stat. 666 (1945), 5 U.S.C.A. §§ 631a and 631b and Exec.Order No.8743 of April 23, 1941, 6 F.R. 2117.

 On May 1, 1947, by Exec.Order No. 9830, 12 F.R. 1259, U.S.Code Cong. Service 1947, p. 1972, all attorney positions in the government service were placed on Schedule A as excepted from the competitive service. That order provided, however, that whenever such a position was occupied by a person having a competitive status, he should be separated from his position only in accordance with the Civil Service Rules and Regulations. Under the provisions of Exec.Order No.9973 of June 28, 1948, 13 F.R. 3600, U.S.Code Cong.Service 1948, p. 2658, and Exec.Order No.10440 of March 31, 1953, 18 F.R. 1823, U.S.Code Cong. and Adm.News 1953, p. 1000, it was specifically provided that the Civil Service Rules and Regulations should apply to removals from Schedule A positions, not of a primarily confidential or policy-making character, of persons who had competitive status. On June 25, 1953, by Exec.Order No.10463, 18 F.R. 3655, U.S.Code Cong. and Adm.News 1953, p. 1026, 6.4 of the Civil Service Regulations was amended to provide that the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedule A. *fn3"

 On June 29, 1953, the defendants, the Attorney General and Deputy Attorney General of the United States, notified plaintiff that his employment in the Department of Justice would be terminated as of July 31, 1953. This termination was effected without giving plaintiff a statement of the reasons for his removal or a hearing.

  The defendants contend that plaintiff's separation from his position was in conformity with Exec.Order No.10463, now in effect. It is the defendant's position that Exec.Order No.10463, in so far as it conflicts with Civil Service Regulation § 9.102 in its application to incumbents of Schedule A jobs who have competitive status, supplants § 9.102, and that 5 U.S.C.A. § 652(a) is not a statutory bar to the executive action taken in Exec.Order No.10463.

 Plaintiff argues that his position did not become a Schedule A job on adoption of Exec.Order Mo.9830 of May 1, 1947, which placed attorney jobs within the Schedule A exception from the classified civil service, because this would have in effect removed him from the classified civil service without compliance with the provisions of 5 U.S.C.A. § 652(a). Although plaintiff concedes that civil service employees have no vested rights to their positions, he urges that a competitive status employee in a classified position acquires a statutory right to the removal procedures prescribed in 5 U.S.C.A. § 652(a), which cannot be divested by changing the classification of his position to a Schedule A excepted status.

 The court does not construe 5 U.S.C.A. § 652(a) as vesting any such right. That statute accords the removal procedures there prescribed to persons in the 'classified civil service of the United States.' As stated by the Court of Appeals of this District in Bailey v. Richardson, 86 U.S.App.D.C. 248, 255, 182 F.2d 46, 53, 'Status and service are different terms in civil service parlance. * * * A person is in the classified civil service when he has a competitive status and occupies a classified position in the executive branch of the Government.' Under 5 U.S.C.A. § 631, R.S. § 1753, the President is given authority 'to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof.' Under this general grant of authority he may determine whether positions shall be included or excepted from the classified civil service. There is no express limitation on this power. To hold that, although the President has authority to change positions from classified to excepted, such action cannot, by reason of § 652, affect any position occupied by an incumbent with competitive status, is to imply a limitation which would withdraw from the President's power to reclassify as excepted every position in the government occupied by a competitive status employee until the present incumbent resigned, retired, died, or was removed under charges pursuant to 5 U.S.C.A. § 652(a). Such a result is not warranted by the language of 5 U.S.C.A. § 652(a).

 The court holds, therefore, that there is no statutory bar to reclassifying positions* as Schedule A excepted positions or to permitting summary removal of persons in such reclassified Schedule A positions without compliance with the provisions of 5 U.S.C.A. § 652(a). *fn4"

 Executive Order No.10463 is not ambiguous. It plainly states, 'Except as may be required by the Veterans' Preference Act, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedule A * * *.' No exception is made with reference to incumbents having competitive status, as in the sentence which follows dealing with removals from positions listed in Schedule B, and as hitherto specifically provided in Exec.Orders No.8743, 9973, and 10440 as to Schedule A incumbents with competitive status.4A

  Furthermore, the letter of the Chairman of the Civil Service Commission dated June 16, 1953, *fn5" submitting for the President's approval the draft of order adopted as Exec.Order No.10463, clearly states the situation existing at that time, the policy behind the proposed order, and its purpose to withdraw from application of the Civil Service Rules and Regulations as to removal all Schedule A positions, regardless of the status of the incumbent.

 Although Mr. John W. Macy, Jr., Executive Director of the Civil Service Commission, in a letter dated November 3, 1953, and addressed to the plaintiff, states that it was not intended that Exec.Order No.10463 should affect the removal rights of employees with competitive status who were appointed to Schedule A positions prior to their listing in Schedule A, *fn6" the unequivocal terms of the executive order and letter of transmittal are to the contrary.

 The court, therefore, will grant the defendants' motion for summary judgment.

 The court is aware that under its decision the statutory safeguard from summary removal relied on by a large number of government employees is held not to exist. The question of the desirability of this situation is not a matter for the court.

 Counsel will submit promptly an appropriate order.


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