This adjusting process is described by personnel specialists as follows:
'The raw scores were converted to percentage scores by adding fifteen points to the score of each individual.'
After the 1955 examination which the plaintiff took for promotion to Lieutenant and in advance of publication of the roster it was discovered that the situation as to the written test was similar to that in 1954 as above related, and by way of adjustment 15 points were added to the score of each applicant as had been done in 1954. Following this adjustment the promotion register for eligibles for promotion to Lieutenant was certified by the Promotion Board. The first three candidates stood as follows: the plaintiff 86,8, Edwin Sutley 84.8, and Albert Krueger 83.4. If the adjustment had not been made the plaintiff's score on the examination as a whole would have been 71.8 -- a little above a passing rating, and none of the other eleven Sergeants taking the promotion examination for Lieutenant would have passed despite service by each of them of seven years or more on the United States Park Police force.
The plaintiff having challenged the official action relative to the addition of 15 points, the applicable principle to be applied is as stated in Hammond v. Hull, 76 U.S.App.D.C. 301, at page 303, 131 F.2d 23, at page 25:
'The presumption of validity attends official action, and the burden of proof to the contrary is upon one who challenges the action.'
It is the view of the court that the plaintiff has not sustained the burden of proving that the addition of the 15 points to the scores of candidates was improper or violative of the established Promotion Policy of the United States Park Police.
The remaining claim for consideration is that the Promotion Policy requires that a vacancy be filled by promotion of the highest numerically rated applicant. There is no statute or regulation of the Department of the Interior or Civil Service Commission requiring the promotion of the highest numerically rated candidate on the promotion register. The Promotion Policy of the United States Park Police providing for the establishment of promotion registers has no requirement that a promotion will or must be made of the highest numerically rated applicant. Nevertheless, the plaintiff grounds his claim to the promotion here involved on the Promotion Policy in the light of its purpose, interpretation and construction.
During the few years the Promotion Board functioned preceding the time of the present controversy the Superintendent of National Capital Parks, the Promotion Board, members of the Park Police force, and others, assumed that under the Promotion Policy only the top man on the eligible list could be recommended and appointed for promotion to vacancies in the force.
Accordingly, the Superintendent of the National Capital Parks in making recommendations to the Director of the National Park Service recommended for promotion the top men on the eligible list except in one instance when the top man relinquished 'any claim in the matter of the contemplated appointment' whereupon the next highest numerically rated candidate was recommended for and received the promotion. Following the 1955 examination the Superintendent in June 1956 recommended the top men on the eligible list for promotion including the plaintiff for Lieutenant. Opposition to the plaintiff's contemplated promotion was then interposed by his superior -- the Chief of the United States Park Police -- who favored the promotion of the third highest numerically rated applicant, Sergeant Albert Krueger. Apparently this was the first time since the institution of the Promotion Policy that the Director -- the appointing authority -- was faced with a disagreement between subordinate officials as to the candidate he should promote. The Director took the position that a selection might properly be made by him from the top three on the register in accordance with the policy of the National Park Service.
Thereafter, on November 28, 1956 the Chief of the Park Police recommended the promotion of Sergeant Albert Krueger to the rank of Lieutenant and that recommendation was endorsed and its approval recommended by the Superintendent and was approved by the Director. The order promoting Sergeant Krueger to Lieutenant was rescinded on December 7, 1956, after the plaintiff filed this action, and the position of Lieutenant is now vacant. In January 1956 the annual examination provided for in the Promotion Policy was postponed and it was announced that the 1955 promotion list would have to serve until a new list could be prepared.
The Supreme Court has held that the filling of an official position in the Government 'even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment', that the 'appointing power must determine the fitness of the applicant', and that 'it is one of those acts over which the courts have no general supervising power.' Keim v. United States, 177 U.S. 290, 293, 20 S. Ct. 574, 575, 44 L. Ed. 774. In the instant case as was said by Judge Letts in Campbell v. Deviny, D.C., 81 F.Supp. 657, 659, affirmed in 90 U.S.App.D.C. 176, 194 F.2d 881.
'The controversy involves the internal administration of a Federal Agency and is one which the courts for more than one hundred years have firmly and consistently refused to entertain. As a matter of public policy the courts will not assume to control the actions of executive officers in the exercise of their judgment and discretion in the complex field of personnel management. To do so would be to usurp the function and prerogative placed by law in the executive. * * * Few principles of law are more definitely established than that in which the courts express forbearance in matters involving the internal administration of the executive branch. Interference by the courts in such matters would be productive of nothing but mischief. * * * The courts have announced adherence to this principle in many decided cases.'
It has been held that the mere fact that there is serious controversy as to the meaning or proper construction of a regulation takes the act sought to be performed out of the category of plain ministerial acts subject to being enforced by mandamus. Hitchcock v. United States ex rel. Bigboy, 22 App.D.C. 275.
The following quotation from Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218, 50 S. Ct. 320, 324, 74 S. Ct. 809, indicates circumstances under which mandamus will and will not lie:
'Where the duty in a particular situation is so plainly prescribed as to be free from doubt and equivalent to a positive command, it is regarded as being so far ministerial that its performance may be compelled by mandamus, unless there be provision or implication to the contrary. But where the duty is not thus plainly prescribed, but depends upon a statute or statutes the construction or application of which is not free from doubt, it is regarded as involving the character of judgment or discretion which cannot be controlled by mandamus.'
The conclusion this court reaches is:
That under applicable principles of law mandamus is not available to the plaintiff to compel his promotion by the defendants and that the court lacks jurisdiction to grant the relief for which he prays. United States ex rel. Crow v. Mitchell, 67 App.D.C. 61, 89 F.2d 805.
An appropriate proposed judgment should be submitted by the attorneys for the defendants.