Donovan v. United States

OPINION OF THE COURT

ROSENN, Circuit Judge.

The role of the federal government as an employer has expanded rapidly over the last quarter century, and so too has its obligation to deal fairly and equitably with its employees.1 Nonetheless, federal employees’ rights are not unlimited and extend no further than the limits of federal law and the constitution. In this action we face the problem of closely defining such limits.

Plaintiff, a civilian employee of the United States Army Electronics Command *1205(“ECOM”), challenges the remedy afforded him by the Army after its erroneous refusal to grant him repromotion consideration following his reinstatement at ECOM subsequent to a reduction in force (“RIF”).2 He asserts that statutory and regulatory provisions entitle him to reclassification and back pay. The district court, recognizing its limited power to review Government employment practices, dismissed plaintiff’s complaint for failure to state a claim predicated on any provision upon which relief could be granted. We affirm.

I.

Plaintiff is a career civil service employee who had worked for various federal agencies from 1963 until 1969. On April 13, 1969, he was transferred to ECOM, stationed at Fort Monmouth, New Jersey, and given the position of Training Instructor (Electronics), a GS-9 conditional appointment. On March 27, 1970, pursuant to a cut-back in civilian positions, plaintiff was given a reduction in force notice. Before the RIF became final, however, he was separated from ECOM and appointed through the Interagency Board of Civil Service Examiners to a GS-7 position at the Federal Aviation Agency. On February 26, 1971, he was terminated for cause from this position.

Some months later, plaintiff secured reinstatement at Fort Monmouth as a guard, a GS-4 conditional position. At this time, plaintiff’s name should have been placed on the repromotion register at ECOM, thus permitting him to be repromoted non-competitively to his old job or any intermediate position between the guard job and his pri- or GS-9 rating. Instead, due to an administrative error, plaintiff’s name was omitted from the register. Not knowing of this, on February 20, 1972, he applied for and was promoted to the position of computer aid at the GS-5 level. But in November of the same year plaintiff realized that ECOM had failed to give him reemployment consideration. He then began to challenge his employment status, asserting claims with ECOM that he had been denied special re-promotion benefits due him under the Army’s civilian employee regulations. After failure to informally resolve this problem, plaintiff began formal grievance proceedings.

In his grievance against ECOM, plaintiff proved that he was erroneously denied re-promotion consideration. As a result, he demanded back pay and retroactive promotion. The acting commander of ECOM concluded that although plaintiff had been the victim of an error, no retroactive benefits could be given. Instead, he ordered that plaintiff be given “repromotional eligibility” to his old position at ECOM — that is that he must be given the job before others with less seniority on the eligibility list— and that he be given priority consideration for any available new job for which he qualified.

On appeal to the Army Civilian Appellate Review Office, the decision of ECOM was affirmed. The examiner found that plaintiff had been denied special repromotion consideration as required by personnel regulations and that the failure of the Army to place him on the repromotion register was in error. As to the appropriate relief for this violation, the examiner recommended priority consideration for the next available vacancy to which plaintiff qualified, but rejected his claim for retroactive benefits.

At the time of this decision, the Army had no positions available because of a job freeze. Nonetheless, ECOM sought an exception for plaintiff and some four months later he was appointed to a GS-9 level position. By 1974, plaintiff had progressed to a GS-11 rating, but the facts reveal that during the time plaintiff’s name erroneous*1206ly had been absent from the repromotion register, at least one other employee with lower seniority was appointed to a GS-9 vacancy. Therefore, plaintiff continued to press his administrative claims and to assert his retroactive benefits theory. By 1975, he had exhausted all channels of administrative relief.

This action was filed in January of 1976. Plaintiffs complaint asked the district court to declare that plaintiff would have been reappointed to his old job at an earlier date and hence would have been eligible for promotion earlier as well, had plaintiff properly been listed on the repromotion register. He then sought both retroactive reclassification and back pay under the Back Pay Act, 5 U.S.C. § 5596 (1976) (the “Act”) and under Civil Service and Army regulations. The district court dismissed the complaint for failure to state a claim upon which relief could be granted because plaintiff did not present sufficient proof of any statute or regulation allowing the district court to award back pay.3 This appeal followed.

On appeal, plaintiff raises four claims, only two of which we discuss in any detail: (1) whether the Back Pay Act entitled plaintiff to back pay and retroactive promotion and (2) whether the district court had mandamus power to order retroactive promotion with concomitant effects on back pay.4 We assess these issues independently.

II.

A claim for back pay by a federal employee, in essence, amounts to a lawsuit against the United States for monetary damages. In order to determine if such a lawsuit is proper, we must assess whether the United States has granted a right to sue it for damages, for it “has long been established . . . that the United States, as sovereign, ‘is immune from suit save as it consents to be sued . . . United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), quoting, United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Our duty then is to examine the federal statutes invoked by the plaintiff and ascertain whether they “confer a substantive right to recover money damages from the United States.” United States v. Testan, supra, 424 U.S. at 398, 96 S.Ct. at 953.

Plaintiff asserts that the Act is an explicit federal provision allowing the award of monetary damages against the United States in the context of an unwarranted employment decision of an agency of the Government. The Act provides in pertinent part:

(b) An employee of an agency who . is found by appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee—
(1) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect, an amount equal to all or any part of the pay, allowances, or differentials, as applicable, that the employee normally would have earned during that period if the personnel action had not occurred .

5 U.S.C. § 5596(b)(1) (1976).

In order for plaintiff to come within the terms of this section, he must prove: (1) *1207that he had “undergone an unjustified or unwarranted personnel action” and (2) that the action “resulted in the withdrawal or reduction of all or a part of [his] pay, allowances, or differentials.” Plaintiff cannot establish qualification under either requirement of the Act.

The terms “unjustified or unwarranted personnel action” standing alone cannot take us far in our quest to determine their meaning or to determine whether the Army’s delay in repromoting plaintiff to his old position in the instant case qualifies as such an action. We therefore turn for guidance to the regulations enacted by the Civil Service Commission pursuant to congressional authorization in the Act, 5 U.S.C. § 5596(c) (1976):

(d) To be unjustified or unwarranted, a personnel action must be determined to be improper or erroneous on the basis of either substantive or procedural defects after consideration of the equitable, legal, and procedural elements involved in the personnel action.
(e) A personnel action referred to in section 5596 of title 5, United States Code, and this subpart is any action by an authorized official of an agency which results in the withdrawal or reduction of all or any part of the pay allowances, or differentials of an employee and includes, but is not limited to, separations for any 'reason (including retirement), suspensions, furloughs without pay, demotions, reductions in pay, and periods of enforced paid leave whether or not connected with an adverse action

5 C.F.R. § 550.803(d) & (e) (1977).

We assume for the purposes of this appeal that the failure to give repromotion consideration to plaintiff was an unjustified or unwarranted action.5 However, unless this action was a “personnel action” as defined by the Act and the regulations, plaintiff cannot qualify for back pay under the statute.

The regulations state that a “personnel action . . includes, but is not limited to, separations for any reason . ., suspensions, furloughs without pay, demotions, reductions in pay, and periods of enforced paid leave . . 5 C.F.R. § 550.803(e) (1977). Under the doctrine of ejusdem generis it would appear that the language “includes, but is not limited to” indicates that any other action falling within the scope of the regulation must be of the same nature as those listed. The common thread of the activities outlined by the regulation is that they involve an actual reduction in job status. Thus, to qualify as a “personnel action” the agency’s action which is under attack must result in a reduction of job grade or level. This interpretation is reinforced by the Supreme Court’s understanding of the Act.

The statute’s language was intended to provide a monetary remedy for wrongful reductions in grade, removals, and suspensions and “other unwarranted or unjustified actions affecting pay or allowances [that] could occur in the course of reassignments and change from full-time to part-time work,” S.Rep.No.1062, 89th Cong., 2d Sess., 3 (1966). The Commission has so construed the Back Pay Act. See 5 C.F.R. § 550.803(e) (1975). So has the Court of Claims. See Desmond v. United States, 201 Ct.Cl. 507, 527 (1973).

United States v. Testan, supra, 424 U.S. at 405-06, 96 S.Ct. at 957 (emphasis supplied).

The unwarranted failure timely to promote plaintiff in accordance with Army regulations, though a wrongful act, is not the type of personnel action calling for back pay under the Back Pay Act, for the action has not caused plaintiff to suffer any reduction in grade but has only delayed his advancement to a higher level. Plaintiff’s claim under the act must therefore fall. Even were we to conclude that plaintiff had been subjected to a “personnel action,” his *1208claim would still fail because the action did not result in any “reduction” in benefits.

The delay in promoting plaintiff did not produce a reduction in his pay. Had plaintiff shown that his RIF was unlawful, he could have demonstrated a correlation between the challenged action of the agency and a pay reduction, but the facts in the instant case prove no more than that the plaintiff received the proper salary for the position in which he was employed. His claim amounts to an assertion that he should have been paid at a higher rate for a position to which he should have been but was not appointed. “The established rule is that one is not entitled to the benefit of a position until he has been duly appointed to it.” United States v. Testan, supra, 424 U.S. at 402, 96 S.Ct. at 955, citing, United States v. McLean, 95 U.S. 750, 24 L.Ed. 579 (1878); Ganse v. United States, 376 F.2d 900, 902, 180 Ct.Cl. 183, 186 (1967). Because plaintiff has suffered no real reduction or withdrawal of benefits, and has suffered only the denial of potential benefits, he cannot come within the terms of the Back Pay Act.6

III.

Plaintiff asserts that even if he cannot maintain a claim for monetary damages under the Back Pay Act, he is entitled to an order forcing ECOM to grant him retroactive promotion, and hence back pay and other benefits, by way of a writ of mandamus. 28 U.S.C. § 1361 (1970) (mandamus may be issued “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff”). Such a remedy has been recognized by the Supreme Court as a viable alternative for relief when a plaintiff cannot make out a claim under the Act. See United States v. Testan, supra, 424 U.S. at 403, 96 S.Ct. 948.7

Mandamus is an appropriate remedy whenever a party demonstrates a clear right to have an action performed by a governmental official who refuses to act. Grant v. Hogan, 505 F.2d 1220, 1225 (3d Cir. 1974) (mandamus available where there is a clear duty “owed the plaintiff or there is an abuse of discretion”). In order to establish the predicate for mandamus relief here, plaintiff must demonstrate an actual failure by ECOM officials to carry out clearly defined official duties. Thus, unless applicable principles of law require ECOM to grant retroactive repromotion, mandamus is inappropriate.

A government employee is entitled only to the rights and salary of the position to which he has been appointed. United States v. Testan, supra, 424 U.S. at 403, 406, 96 S.Ct. 948; Skrobot v. United States, 534 F.2d 237, 208 Ct.Cl. 475 (1975); Peters v. United States, 534 F.2d 232, 234, *1209208 Ct.Cl. 373 (1975); Selman v. United States, 498 F.2d 1354, 204 Ct.Cl. 675 (1974). A court, however, does have power to grant retroactive promotion when an employee has a “clear legal entitlement” to the desired classification based upon statute or regulation. See Peters v. United States, supra, 534 F.2d at 234.

The Civil Service Regulations applicable at the time plaintiff was reinstated at ECOM following his RIF, vested him with certain rights which would have insured his repromotion to his old position when a vacancy arose.8 Army regulations provided similar protection for RIF’d employees.9

Were these the only regulations applicable to agency action following reinstatement after a RIF, we might very well have ordered retroactive promotion with its concomitant benefits. See Skrobot v. United States, supra, 534 F.2d at 240 (dicta) (court indicates that under analogous provisions of FPM 335.4-3b it would award retroactive promotion and benefits); cf. Selman v. United States, supra, (two naval Assistant Judge Advocates General proved statutory entitlement to higher pay under 37 U.S.C. § 202(7); court ordered retroactive benefits). The regulations here, however, do not stop with establishing plaintiff’s entitlement to repromotion consideration. Rather, they specifically outline the proper remedies to be given to the aggrieved employee in the event of the failure of the agency to follow its regulations:

f. Promotion after failure to receive proper consideration. If an employee fails to receive proper consideration in a promotion action and the erroneous promotion is allowed to stand, the employee must be considered for the next appropriate vacancy to make up for the consideration he lost. (See Section 6-4c) He may be selected for promotion to this vacancy, in competition with others entitled to the same consideration, as an exception to competitive promotion procedures.

FPM 335.4-3f (emphasis supplied), see FPM 335.6-4c(l) (in action taken to correct erroneous promotion, employees not promoted . to be considered for vacated position before others); FPM 335.6-4c(2) (when employee not promoted to vacated position, must be given priority to next vacancy).

Plaintiff has received all that was due to him under these provisions. His entitlement to repromotion consideration, although erroneously delayed, does not mandate any retroactive repromotion by the agency. Rather, under applicable regulations, plaintiff was to receive no more than consideration for the next vacancy in the event of agency oversight. Thus, mandamus cannot be properly invoked for no provision calls for retroactive benefits and consequently no official failed to carry out any clear duty owed to plaintiff.10 The *1210district court, therefore, did not err in dismissing the claim for retroactive benefits.

IV.

Accordingly, the judgment of the district court will be affirmed.

. See generally Frug, Does the Constitution Prevent the Discharge of Civil Service Employees? 124 U.Pa.L.Rev. 942, 943-70 (1976).

. The Civil Service Commission considers a reduction in force to encompass releases of employees from their jobs due to separations, demotions, furloughs for more than 30 days, or reassignments requiring displacement, whenever the release is required because of “lack of work, shortage of funds, reorganization, reclassification due to change in duties, or the exercise of reemployment or restoration rights.” 5 C.F.R. § 351.201(a) (1977). After a RIF, the agency is required to provide an exception to competitive promotion procedures and repromote an employee to his former grade or give him special consideration for such a promotion in the event a vacancy occurs. See Federal Personnel Manual (“FPM”) 335.4-3(c)(l) & (2).

. In its order of April 26,. 1977, the district court characterized plaintiffs claim as involving the question of his entitlement to “retroactive back pay.” The court did not, however, discuss plaintiff’s other claims for benefits such as retroactive promotion and administrative reclassification. The court’s order dismissed “plaintiff’s action . . . with prejudice and without costs, for failure to state a cognizable claim . . . .” We treat this order as pertaining to all of plaintiffs claims, although the court addressed specifically only those for back pay.

. Additionally, plaintiff asserts that the defendants’ arbitrary and capricious refusal to grant him retroactive benefits amounts to an abuse of discretion and thus renders that decision nugatory. He also claims that the failure to grant him retroactive reclassification and back pay was a breach of his employment contract. We find neither argument meritorious.

. The failure of the army to give plaintiff repromotion consideration at the time of his reinstatement at ECOM appears to be a procedural violation of his rights as defined by the Civil Service. See FPM 335.6-4a(2)(a)(i).

. Plaintiff points to two cases in which courts have ordered back pay to claimants. Both cases, arising before Testan and under provisions other than the Back Pay Act, are easily distinguishable from the instant case. In Chambers v. United States, 451 F.2d 1045, 196 Ct.Cl. 186 (1971), the Court of Claims held that an employee, who had been denied employment rights because of her race, was entitled to retroactive promotion and back pay. The order, however, was based upon a clear statutory basis to remedy race discrimination. Selman v. United States, 498 F.2d 1354, 204 Ct.Cl. 675 (1974), is also distinguishable. In that case, two federal employees serving as captains in the Navy working as Assistant Judge Advocates General claimed that they should have received the higher pay of Rear Admirals. The court agreed and made such an award,. but unlike this case, there was a clear statutory provision providing for the higher pay.

Moreover, Testan itself reinforces the conclusion that plaintiff has no claim based on the delay in his repromotion for benefits under the Act. In Testan, two Government trial attorneys at the GS-13 level asked for back pay and retroactive benefits at the GS-14 level, asserting that their jobs had been incorrectly classified. The Supreme Court denied relief because the Back Pay Act gave no authority to the Court to award salary commensurate to positions to which employees were not appointed. Similarly, this case amounts to a demand for benefits of a position claimed by the plaintiff to be rightfully his but to which he was not appointed.

. The Court stated that such relief was available only prospectively. United States v. Testan, supra, 424 U.S. at 403, 96 S.Ct. 948. We assume for purposes of this appeal, without deciding, that in a proper case such relief also may be granted retroactively.

. The Civil Service Regulations provide in pertinent part:

c. Repromotion to grades or positions from which demoted without personal cause. (1) General. An agency must provide for an exception to competitive promotion procedures to allow for repromotion to a grade or position from which an employee was demoted in the agency without personal cause, that is, without misconduct or inefficiency on the part of the employee and not at his request.
(2) Special consideration for repromotion. An employee demoted without personal cause is entitled to special consideration for repromotion in the agency in which he was demoted. Although he is not guaranteed re-promotion, ordinarily he should be repromoted when a vacancy occurs in a position at his former grade (or any intervening grade) for which he has demonstrated that he is well-qualified. .
(3) Applicability to certain reemployed employees. The provisions of this paragraph apply to an employee who was separated by reduction in force and later reemployed at a lower grade.

FPM 335.4-3c(2) & (3).

. The regulations provide in pertinent part:

When a position from which an employee has been demoted through RIF becomes vacant and is being filled, the demoted employee will be promoted noncompetitively to the position. ... If more than one employee meets this criteria, the employee with the highest retention standing will be promoted.

Army Material Command (“AMC”) reg. 690-2.

. In contrast to plaintiff’s complaint over failure to retroactively promote him after a lawful RIF are the remedies provided by the Civil Service for a complaint over the RIF itself. In such a case, the agency specifically is charged *1210with granting retroactive benefits, see 5 C.F.R. § 351.903 (1977) (“when an agency decides that an action . . . was unjustified or unwarranted and restores an individual to his former grade ... it shall make the restoration retroactively effective. . . . ”). Mandamus in such an action could be proper. With no parallel remedy clearly given by any regulation dealing with an erroneous promotion action, plaintiff cannot qualify for the extraordinary relief provided by the mandamus statute.

The dissent notes that Testan distinguishes between an award of “prospective reclassification” and an award of “retroactive reclassification resulting in money damages.” Dissenting Op. at 1211. The dissent apparently equates a prospective reclassification with a retroactive reclassification not resulting in money damages. However, Testan could not have made this equation because prospective reclassification is not the same as retroactive reclassification; the terms have opposite meanings. The former implies promotion effective upon discovery of an error resulting in present reclassification. The latter implies promotion effective sometime in the past. Donovan has been awarded prospective reclassification at ECOM as permitted by Testan. We hold only that no statute or regulation entitles him to retroactive reclassification.

The dissent also states that we should ignore the “shackles” of the remedy enacted by the Civil Service to compensate employees for erroneous agency employment decisions and that we should substitute a remedy which we believe to be more “equitable.” Dissenting Op. at 1211. In our view this would not be an appropriate exercise of judicial discretion. Without clear authorization to do more, Donovan is entitled only to such relief as he has been provided by statute or regulation. The agency has fashioned the contractual terms of its obligation to its employees by the regulations it has adopted pursuant to congressional statute. We may not alter those terms by substituting our views of the contractual relationship between the parties.

Although it is true that Donovan’s promotion was erroneously delayed, it is undisputed that as soon as the administrative error was discovered, he was given immediate promotion in spite of a prevailing job freeze. Thus, Donovan received all available consideration.