Perdeaux v. United States
Opinion of the Court
Plaintiffs-appellants, 138 in number, are Field Witness Security Specialists for the United States Marshals Service (USMS). They assert that in July 1993, USMS personnel officer Kaye McWhirter reclassified them from General Schedule (GS) 1811-12 to a new GS 1811-13 “Criminal Investigator” position, but they never actually obtained the GS-13 rank. According to plaintiffs, because Ms. McWhirter possessed “final authority” to execute this action, and because the applicable regulation provides for such actions to become effective not later than the beginning of the fourth pay period following the date of reclassification, they have a “legitimate claim of entitlement” to, and hence a property interest in, the upgraded position. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Defendants’ subsequent failure to implement the reclassification, plaintiffs contend, constitutes a denial of their due process rights under the Fifth Amendment. Based on this claim, they sought an order from the district court compelling the defendants retroactively to reclassify them.
The district court (Gershon, /.), concluding that Ms. McWhirter lacked “properly delegated authority” to approve the modification, granted summary judgment to defendants. Perdeaux v. United States, 205 F.Supp.2d 58, 65 (E.D.N.Y. 2002) (citing 5 C.F.R. § 511.701(a)(1)). Judge Gershon found that Department of Justice policy, operative on the date of reclassification, required bureau personnel officers to seek advice and approval from the Department’s Justice Management Division (JMD) before effectuating any personnel change covering twenty or more positions. Ms. McWhirter never submitted this proposed action to JMD for review. The court below, therefore, held that the reclassification was defective, and that plaintiffs possessed no more than a “unilateral expectation” of promotion, which did not amount to a Fifth Amendment property interest. 205 F.Supp.2d at 62, 65 (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701).
In affirming, we need not decide whether JMD’s approval was necessary. At a minimum, DOJ policy' — -in effect in 1993, the relevant date for this suit — required bureaus to seek advice from Department staff on all classification actions covering twenty or more positions. DOJ Order 1511.4B dictated that “[hjeads of bureaus shall refer to the Personnel and Training staff for review any proposed action which will affect the grades of 20 or more positions. ..” (effective Oct. 29,1976, rescinded Jan. 13, 1994, in a memorandum from Assistant Attorney General Stephen R. Colgate) (emphasis added).
Plaintiffs offer no evidence to the contrary. Moreover, they admit that USMS failed to consult the Department for advice regarding this particular personnel action. Consequently, the reclassification never took effect, and plaintiffs cannot assert a cognizable Fifth Amendment property interest. Roth, 408 U.S. at 577, 92 S.Ct. 2701. Defendants are therefore entitled to judgment as a matter of law.
.DOJ Order 1511.4B was issued when certain executive agency classification decisions required the approval of the Civil Service Commission; the Order remained in effect after the Commission was replaced by the Office of Personnel Management, which eventually abandoned these requirements. Paragraph 5b of the Order establishes the three actions that DOJ could take upon review of a classification proposal affecting 20 or more employees: (1) support the proposal and seek the concurrence of the Commission, (2) not support the proposal and urge the submitting bureau to reconsider the action, or (3) advise the bureau that the action was not the type requiring consultation with the Commission. Plaintiffs assert that the second option did not reserve to DOJ a right of approval. Even if that interpretation of the regulation were correct, however, it would not excuse a bureau, such as the Marshals Service, from its obligation to submit a classification proposal for review and advice.
. Apparently, the Marshals Service did not view itself as empowered to act without DOJ approval. Its service manual expressly identifies "[classification changes which impact upon the grade level of twenty or more positions” as one of the "[djelegations of authority retained by the Department of Justice or the Office of Personnel Management.” USMS Manual § 4.17-4(a)(5) (citing DOJ Order 1511.6).
. Defendants argue that the Civil Service Reform Act of 1978 precludes a constitutional claim for equitable relief arising out of federal government employment actions. We need not resolve this issue since, for the reasons stated above, plaintiffs' complaint fails on its merits. To the extent defendants suggest that
Reference
- Full Case Name
- Stephen PERDEAUX v. UNITED STATES of America George W. Bush, President of the United States John Ashcroft, United States Attorney General Benigno G. Reyna, Director, United States Marshals Service Kay Cole James, Director, Office of Personnel Management
- Cited By
- 1 case
- Status
- Published