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FLAKE v. BENNETT

March 28, 1985

KATHLEEN FLAKE, et al., Plaintiffs,
v.
WILLIAM J. BENNETT, et al., Defendants



The opinion of the court was delivered by: OBERDORFER

 On March 22, 1985, this action came before the Court for a hearing on the parties' cross motions for summary judgment. Plaintiffs Kathleen Flake and William A. Delaney are GS-13 trial attorneys in the Office for Civil Rights ("OCR") of the Department of Education ("Department"). In April or May of 1984, both plaintiffs applied for promotion to the position of Senior Trial Attorney, GS-14-905. According to the official OCR job description for that position, a Senior Trial Attorney is responsible for "advising the Assistant Secretary for Civil Rights on complaint investigations, compliance reviews and negotiations prior to formal enforcement proceedings, the legal review of cases prior to findings of noncompliance and the assessment and disposition of appeals, filed by complainant appellants from findings and determinations reached in the Regional offices." Exhibit B to Flake Affidavit (February 14, 1985). He or she is also "expected to work in conjunction with lawyers from the Department of Justice, in the litigation of trials and appeals (primarily in federal courts), [and] in pertinent cases in which the Department is a party, or has an interest." Id. The occupant of the position must also "have an authoritative knowledge of the civil rights laws, related case law, and rules and regulations administered by the Office for Civil Rights." Id. The job description makes no mention of any activity or responsibility involved with the protection of the United States from internal subversion or foreign aggression.

 Nevertheless, the position has been designated "critical-sensitive" pursuant to the Department's personnel security program. As a result, the Department refused to process the plaintiffs' applications in the absence of completed Standard Form 86 and ancillary forms, which would have subjected plaintiffs to a full field security investigation.

 At approximately the same time that plaintiffs filed their applications, Mary VonEuler applied for promotion to Senior Trial Attorney. On September 6, 1984, after being told that the position had been designated "critical-sensitive," she submitted the required forms and consented to a full investigation. She was promoted to GS-14 on October 22, 1984.

 Although several other GS-14 and GS-15 employees in OCR are "critical-sensitive" employees, only VonEuler and the plaintiffs were asked to submit to a full field investigation as a condition of promotion. The plaintiffs view the full investigation requirement as an unwarranted invasion of privacy and as a violation of equal protection principles. They also contend, at the threshold, that the Department's designation of the GS-14 position as "critical-sensitive" is inconsistent with the Supreme Court's interpretation of the Act of August 26, 1950, 64 Stat. 476, 477, and Executive Order 10450, which provide the basis for security designations like the one at issue here. In support of the latter proposition, the plaintiffs cite Cole v. Young, 351 U.S. 536, 100 L. Ed. 1396, 76 S. Ct. 861 (1956), in which the Supreme Court held that neither the Act nor the Executive Order applied to the position of an employee whose work did not involve the national security.

 This suit was filed on November 30, 1984. On January 6, 1984 the defendant Office of Personnel Management published a revision of, among other things, the portions of the Federal Personnel Manual (FPM) that govern personnel security programs under the Executive Order. Sometime during February of 1984, the Department began to consider how to reevaluate its personnel security program in light of the FPM revision. The Department has now decided to solicit a consultant to review and recommend revisions to the personnel security program.

 The Department has determined that it will not make a final decision on its security designations until the outside consultant makes its recommendations. During the hearing on the pending cross-motions for summary judgment, counsel for the defendants represented that the consultant's evaluation may not be completed for over a year. The Department represents that, pending the completion of this independent evaluation, it will not impose its personnel security requirements on the plaintiffs. According to affidavits submitted by the defendants on the eve of the hearing in this case, plaintiffs' applications have been processed and the plaintiffs promoted, effective retroactive to October 22, 1984. Affidavit of John C. Yazurlo (March 18, 1985) at para. 8; Affidavit of Peggy B. Holly (March 18, 1985). At the March 22 hearing, however, counsel revealed that plaintiffs had not yet been informed of their promotions, and that Standard Form 50, which officially documents personnel action, had not yet been prepared.

 I.

 The defendants argue that this case is moot because the plaintiffs have obtained all of the relief that they requested in their complaint. However, the plaintiffs sought, among other things,

 
a declaratory judgment that the national security clearance requirement imposed by defendants on plaintiffs is unlawful, unconstitutional, and therefore invalid and that plaintiffs' applications for promotion should be considered and processed as of the date plaintiffs submitted their requests for promotion.

 Complaint, Prayer for Relief, para. 3. Flake avers that her application was complete but that the Department quit processing it when it was received by the Office of the Inspector General's Security Officer on August 1, 1984. Flake Affidavit (March 13, 1985) at para. 4. Delaney states that the Security Officer received his application on August 23, 1984. Delaney Affidavit (March 20, 1985) at para. 3. These statements are supported by a Memorandum from Helene Deramond to Antonio J. Califa dated August 30, 1984. See attachment to Flake Affidavit (March 13, 1985). It appears that but for the challenged security investigation requirement, the plaintiffs' applications were complete and they would have been promoted in August, two months before the October 22 retroactive date determined by the defendants. *fn1" Thus, there is a live controversy because the plaintiffs have not received the relief to which they claim they are entitled, i.e., that their applications be "considered and processed as of the date plaintiffs submitted their requests for promotion " (emphasis added).

 Moreover, there is another sense in which the plaintiffs have not yet received the relief that they have requested. At the hearing on the pending motions, counsel for defendants conceded that the forms that would make plaintiffs' promotions official have not yet been produced. A purported promotion is without effect in the absence of proper supporting documentation. See Wilson v. United States, 229 Ct. Cl. 510, slip op. at 2 (1981) ("a Government employee is entitled only to the rights and salary of the position to which he has actually been appointed by one having the authority to do so"). Accordingly, there is at this point still a controversy as to whether or not the plaintiffs must be promoted.

 The security review requirement affects both applicants and holders of the Senior Trial Attorney position. Thus, the fact that plaintiffs have been promoted does not mean that they will be immune from security review should the Department choose to enforce the program once again. Moreover, the defendants have conceded that "it is possible that upon completion of the Department's reevaluation, plaintiffs' positions may be designated critical-sensitive with the recurrence of the challenged personnel security procedures. . . ." Memorandum of Points and Authorities in Support of Defendants' Cross Motion for Summary Judgment at 11. The decision to seek the opinion of a consultant cannot be properly characterized as a "cessation" at all -- ...


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