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SHEWMAKER v. PARKER

June 18, 1979

Russell N. SHEWMAKER, Plaintiff,
v.
Joseph O. PARKER et al., Defendants.



The opinion of the court was delivered by: PARKER

MEMORANDUM

On December 8, 1977, Chairman Daniel Minchew of the International Trade Commission (ITC or Commission) reassigned plaintiff Russell N. Shewmaker from his GS-17 position as General Counsel of the ITC to the GS-17 position of Senior Advisor. Shewmaker brings this suit against the current Chairman of the Commission and individual Commissioners to secure reinstatement to his former position, on grounds that the reassignment was illegal because not approved by a majority of the Commissioners as allegedly required by the delegation amendment to the Tariff Act of 1930. *fn1" The relevant statutory section provides that

 19 U.S.C. § 1331(a)(2).

 The case comes before the Court on cross-motions for summary judgment. The parties agree that there are no disputed material facts and that the controlling legal question is whether the Chairman's reassignment of Shewmaker from General Counsel to Senior Advisor constituted a "termination of employment of a supervisory employee" under the statute. This statutory construction issue is, of course, a legal question left to the Court on administrative review. Administrative Procedure Act, 5 U.S.C. § 706.

 On the basis of the extensive administrative record filed in the case, the relevant legislative history and the memoranda of the parties, the Court finds that Shewmaker was "terminated" in an illegal manner. Summary judgment will be entered for plaintiff, ordering his reinstatement as General Counsel of the ITC.

 I. Background

 The International Trade Commission is an independent nonpartisan agency that investigates and reports to the President and Congress on matters concerning import trade, tariffs and trade agreements. The Commission has six members, three from each political party. The Chairmanship is a two year position filled by presidential designation and rotating by party among the Commissioners. The even number of Commissioners and lack of clear-cut administrative authority led the Commission, prior to 1977, to devote unwarranted amounts of time to administrative rather than substantive matters. To remedy the confusion and mismanagement, the 1977 Congress amended the Tariff Act of 1930. The delegation amendment authorizes the Chairman to make all administrative decisions, subject to the veto of a majority of the Commissioners in office, in all but two areas. 19 U.S.C. § 1331(a)(1). The Chairman may not "formulate the annual budget" or "terminate the employment of any supervisory employee . . . whose duties involve substantial personal responsibility for Commission matters," without approval by a majority vote of the Commissioners. 19 U.S.C. § 1331(a)(2).

 By Administrative Order dated December 8, 1977, then Chairman Daniel Minchew reassigned General Counsel Shewmaker to the newly-created position of Senior Advisor. The reason for the change was Minchew's "increasing dissatisfaction" with Shewmaker's performance as General Counsel. *fn2" The reassignment resulted in no change in pay, rank or grade for Shewmaker, who had been General Counsel for 13 years. The Senior Advisor post, however, is not a supervisory one. At the same time as Shewmaker's reassignment, the General Counsel position was reclassified as a GS-16 position and filled. Three Commissioners noted disapproval of Shewmaker's reassignment and the filling of the General Counsel position.

 Shewmaker pursued appropriate administrative remedies. He and the Commission stipulated that the controlling question of law in the grievance proceeding was whether his reassignment was a "termination" of employment under the delegation amendment. The Administrative Law Judge (ALJ) found in Shewmaker's favor, *fn3" but the Acting Director of Administration found that the ALJ had incorrectly analyzed legislative history and rejected the recommendations. The plaintiff's appeal of the Acting Director's decision led to a tie vote of the Commissioners, with Chairman Minchew participating over plaintiff's objections. This tie vote served to approve the Acting Director's decision against Shewmaker.

 The defendants' motion for summary judgment is based on their conclusion that the reassignment was a routine administrative matter, subject only to majority veto. They define the word "terminate" to mean "discharge" or "fire." Since Shewmaker was not discharged from service at the ITC, but continued there without a demotion, defendants deny that he was terminated.

 Above and beyond a "plain meaning" argument, defendants cite several aspects of the legislative history to support their definition. First, the term "discharge" was used in the original House version of the bill, which gave the Chairman broad administrative authority except that his initiation of action with respect to the "employment and discharge of key personnel," the budget, and external relations required ratification. *fn4" The proposed Senate bill went farther and provided the Chairman with plenary authority in all administrative matters, subject to veto. *fn5" Since the delegation amendment was a compromise, defendants argue that "discharge" is the broadest definition that can be used to define "terminate." Second, the words "discharge," "fire" and "terminate" were used interchangeably at several points in the hearings; *fn6" for example, Representative Charles Vanik, the Committeeman in charge of the bill, agreed with Senator Long that the proposal meant that the Chairman "can't discharge somebody without consent of the four members." *fn7" Finally, given the overall purpose of the delegation amendment to improve ITC administration, defendants argue that the exceptions to the Chairman's plenary administrative authority must be read narrowly. "Terminate" should consequently be read to mean "discharge" and not "reassign."

 The plaintiff Shewmaker takes a broad and integrated view of the meaning and legislative history of the delegation amendment. Agreeing that the amendment covers an actual discharge, plaintiff urges that it also covers transfers and reassignments from supervisory positions. The Court concurs with this position, grounded as it is on the well-established principle of interpreting a statute rationally in a ...


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