UNITED STATES v. TESTAN
Legal provision: Tucker
Argument of John P. Rupp
Chief Justice Mr. Chief Justice Burger : We will hear arguments next in United States against Testan and Zarrilli.
Mr. Rupp you may proceed.
Mr. John P. Rupp: Mr. Chief Justice and may I please the Court.
This case is here on the Government’s petition for writ of certiorari to review a decision by the Court of Claims.
Two questions were presented in the petition.
First, whether the Court of Claims had jurisdiction over this case and second, whether in determining the correctness of respondent's classifications, the Classification Act requires that there positions be compared with the positions held by employees in another Federal Agency.
The relevant facts are both few and largely undisputed.
Respondents were employed as trail attorneys by the Defense Supply Agency of the Defense Personnel Support Center in Philadelphia.
There positions are subject to the Classification Act and under that Act, they were at all relevant times classified at civil service grade GS-13.
On December 9, 1969, they submitted requests to their employing agency seeking reclassification to civil service grade GS-14.
In support of those requests, they argued that they were entitled to reclassification at GS-14 under standards, the general standard promulgated by the Civil Service Commission.
And secondly, that their positions were identical to positions occupied by attorneys employed by the Air Force Logistics Command in Dayton, Ohio, positions that were classified one grade higher than their own.
After an audit by a position classification specialist, respondents' employing agency informed them that they were properly classified at GS-13.
On appeal, the Civil Service Commission endorsed that conclusion, made the same finding and denied respondents request for a classification.
The Commission also ruled and informed respondents that the comparisons that they had requested did not constitute a proper method of classification under the Classification Act.
Respondents then filed the present suit in the Court of Claims, seeking an order directing their reclassification to GS-14 as of the date of the first administrative denial of their requests and backpay accrued from that date.
The Court of Claims in a four to three decision ruled that it had jurisdiction over the case under the Tucker Act and on the merits that the Civil Service Commission had been arbitrary and capricious in not making the comparisons that respondents had requested, the Court therefore, remanded the case to the Civil Service Commission with instructions to undertake the requested comparisons and to report the results to the Court.
Justice Harry A. Blackmun: Do you know by any chance whether there had been many requests for comparisons since the Testan case was decided by the Court of Claims?
Mr. John P. Rupp: I know of one.
Justice Harry A. Blackmun: Just one?
Mr. John P. Rupp: There -- I know of one that resulted in a decision.
There is case decided by the District of -- District Court in the District of Columbia Chapter in which the Court held the comparisons were not required, were not appropriate.
I did not know and I may have misconceived your question initially.
I did not know whether many such requests have been made directly to the Civil Service Commission and then had not been pursued after they have been denied.
I do know that the Civil Service Commission’s policy is uniformly to deny such requests.
As noted in our reply brief the central and in our judgment dispositive issue presented by this case is whether any federal statute or statutes gives respondents a substantive right to recover from the United States money damages for the period of a wrongful civil service classification.
In assuming jurisdiction in this case, the Court of Claims conceded that the classification process involves substantial discretion, a concession which I think flows naturally from this case decision in the Ramsbeck case.
The Court of Claims also conceded that it was without power to direct respondents for classification.
The Court reasoned, however, that if respondents found administratively to be entitled to reclassification, that determination could create a right to money damages or right to reclassification which the Court could then force by way of a money judgment.
Well, I think it’s fair to say that the Court of Claims dealt at best equivocally with the issue of its jurisdiction.
The Court appeared to assume first that a substantive right to the recovery of money damages against the United States could appropriately be found by implication.
And second, that the history of the relationship between the Federal Government and its employees, evidence is an intent on Congress’ part to permit the recovery of money damages for the period of wrongful Civil Service Classification.
We submit that both of these assumptions which are together essential to what holding at the Court of Claims had jurisdiction over this case, so that the cause of action was stated are incorrect.
It is settled of course that the jurisdiction of the Court of Claims under the Tucker Act is limited to cases in which the claimants seek actual presently due money damages, claims founded upon the Constitution, any federal statute, etcetera.
To that extent then we acknowledge that Congress has waived in the Tucker Act a portion of the sovereign immunity or the historic immunity of the United States to suit.
But its essential I think to recognize that the Tucker Act is not itself create any substantive rights to the recovery of money damages from the United States.
Whether the claimants such as respondents are entitled to the recovery of money damages depends in our view, upon the existences of the statute or combination of statutes, a substantive provision of some sort in a statute expressly and unequivocally waiving the immunity of the United States to the recovery of money damages from the Public Treasury.
It is not sufficient for these purposes in our view nor indeed is it even relevant that the existence of such a substantive right might be thought responsive to a particular conception of public policy.
The settled rule followed in countless cases, many of which are cited in our main brief at pages six through eight, prohibits Courts from implying authority to collect upon the Public Treasury which is precisely what the Court of Claims did here and what respondents would have them do.
Respondents' contention to the contrary apparently precedes from their view as the Tucker Act, of the Tucker Act as constituting not only a grant of jurisdiction to the Court of Claims over particular types of cases, that is those involving claims from money damages, but also is creating substantive rights to money damages whenever the provisions of any Federal statute have been violated.
We submit that those are separate issues and that they must be analyzed separately.
An example, in the Federal Tort Claims Act, it is quite clear that Congress there waived a portion of the historic immunity of the United States to suit.
It incorporated the Law of the Place and gave to private parties a substantive right to proceed against the United States for certain types of tortuous activities.
It did not, however, waive the immunity of the United States to suits in the Court to such suits in the Court of Claims.
Respondents' failure to appreciate the distinction between substantive rights and a grant of jurisdiction leads them to the a conclusion that would render meaningless, the multitude of federal statutes in which Congress has expressly created a right to money damages in particular and clearly defines circumstances in favor of private parties.
Respondents' view would render the Back Pay Act, certainly superfluous as would it render a meaningless -- a number of other statutory provisions, for example, the provision in the Equal Employment Opportunity Act of 1972, 42 U.S.C. 2000 (e) (5) (g) which --
Justice William H. Rehnquist: Of course if you read, if you read the Wickersham case, Mr. Rupp, you wonder if the Back Pay Act was not superfluous?
Mr. John P. Rupp: Well, the Wickersham case, it is important to recognize I think that the context in which the Wickersham case was decided.
Prior to the passage of the Civil Service Act 1883, this Court held in several cases that federal employees who were discharged or not promoted stated no cause of action, were not entitled to judicial redress, notwithstanding the cause or reasons, the grounds for their suspension.
Justice William H. Rehnquist: Keim and those case?
Mr. John P. Rupp: Keim and Hennan are the principal cases, I suppose.
With the passage of the Civil Service Act of 1883, which was measurably strengthened by the Lloyd-LaFollette Act in 1912, this Court, beginning with the United States versus Wickersham, and other Courts recognized that federal -- and that Congress intended that federal employees should not be separated from their position wrongfully, that they were entitled to the privileges and emoluments of the position to which they were appointed until they were wrongfully separated.
That is what those statutes meant, separation for cause and not otherwise.
At the same time, however, the Courts have continued to recognize that people are not entitled to receive the salary of the position to which they have never been appointed.
Justice William H. Rehnquist: But really, all the Back Pay Act does is say if you are wrongfully denied your emoluments, you’re entitled to backpay, I would have thought -- I thought that was established by Wickersham?
Mr. John P. Rupp: Well, to some extent it was.
It certainly covered a -- some kinds of cases and maybe the kinds of cases that will arise in the majority kind of cases.
Although the Back Pay Act extended protections to classes of employees who had not been there to -- for protected by judicial decision.
If you look at the legislative history particularly of the Back Pay Act amendments passed in 1966, Congress thought it was filling in the gaps left by the Back Pay Act of 1948, which the legislative history indicated was tied to Section 7101 of the Lloyd-LaFollette Act and judicial decision.
At the time they passed those amendments in 1966, they gave a rather careful consideration to the costs of the coverage that they were providing for.
Now, if the violation of any federal statute, including the Classification Act gave rise to a cause of action for backpay, it would have been a hold if you liked to pass the Back Pay Act or any number of other federal statutes such as the --
Justice Harry A. Blackmun: The Civil Service Commission is in fact paying different wages for the same work.
What is the remedy of people such as these respondents?
Mr. John P. Rupp: Well, there are two, I suppose and they are or perhaps more properly stated they are part of the same process.
The first thing they may do is file a request for reclassification with their employing agency.
A position classifications specialist is then obligated to look at their positions to perform an audit of their positions and attempt to determine whether their positions have been properly classified.
At that -- if the decision by the employing agency which draws upon the audit is not satisfactory to the employees, they have the right to appeal to the Civil Service Commission.
Justice Harry A. Blackmun: Totally prospective?
Mr. John P. Rupp: Yes and I want to make that clear.
We are not here saying simply that these employees are entitled to backpay.
We are saying as well that they are not entitled to retroactive reclassification.
Justice Harry A. Blackmun: What is the second route?
Mr. John P. Rupp: Well again it is part of the same route.
Once the employees have exhausted their administrative remedies, I suppose that there might be cases in which they could file suit in the District Court seeking perspective equitable relief.
Although I do not see any basis, any jurisdictional basis for such a suit other than the Mandamus Act 28, 1361 and I concede as well that the scope of review on mandamus is restrictive.
Justice William H. Rehnquist: Certainly, it does not cover discretionary decisions then?
Mr. John P. Rupp: No, it does not.
The claim that the --
Justice Harry A. Blackmun: Maybe there just is no review.
That would not be an appropriate remedy?
Mr. John P. Rupp: Well, if you have a case in which the Civil Service Commission says for the future we will not promote anyone with blue eyes or anyone who is black, I have little doubt that the District Court would entertain a suit under the mandamus action and would overturn that determination.
If however it is --
Justice William H. Rehnquist: There you would have 1331 jurisdiction?
Mr. John P. Rupp: And 1331, yes, that is right.
In a case in which there were a decision within the discretion of the employing agency in the Civil Service Commission going to the duties and responsibilities performed and whether under the relevant standards those duties and responsibilities merited --
Chief Justice Mr. Chief Justice Burger : (Inaudible)
Mr. John P. Rupp: Thank you.
Chief Justice Mr. Chief Justice Burger : Mr. Rupp, you have about 15 minutes left.
Mr. John P. Rupp: Mr. Chief Justice and may it please the Court.
The principal point of my argument this morning was that it is inappropriate to imply authority to collect from the Public Treasury of the United States.
To complete that discussion let me only make a couple of additional points.
The first is that the principles that are discussed this morning do not govern Fifth Amendment taking cases in the citation by respondents and amici in this case to those cases appears to us consequently to have been misplaced.
The Fifth Amendment by its very terms is as this Court recognize in the Rail Reorganization Act Cases, a self executing waiver of sovereign immunity.
It would mean nothing if it did not meant that.
This Court has recognized that, beginning with the Cosby Case, and that view was reaffirmed in the Rail Reorganization Act Cases.
The Fifth Amendment is not implicated in this case and those cases do not govern here.
The second and the last point I would like to make in that regard is that neither is this a case like Bivens or Bell versus Hood where the immunity of the United States is not directly implicated.
The issue in those cases, fundamentally, in those cases is fundamentally is whether the activities complained of the basis for the suit in those cases were Acts of the Sovereign with respect to which the defendants there were entitled to claim sovereign immunity.
Although that issue may not be finally be disposed of, it seems relatively clear that if the person or a Federal employee is acting unconstitutionally or beyond the scope of his or her statutory authority, those allegations are not made here.
Justice William H. Rehnquist: Must the United States be the only defendant in the Court of Claims?
Mr. John P. Rupp: Yes.
This Court has so held.
The importance of the Court of Claims, to the Court of Claims assumption of jurisdiction in this case of its being able to imply a cause of action against the United States stems precisely from the fact that there is no federal statute expressly and unequivocally waiving or implying a substantive right in favor of individual federal employees to collect from the Public Treasury for the period of an assuredly wrongful Civil Service Classification.
Indeed the respondents in the amici had appeared to concede that there is no such substantive provision is explicitly so providing in the Classification Act, and in fact when the scheme provided for in the Classification Act, the classification process provided for in that Act is viewed as a whole, it seems to me apparent that Congress did not intend that classifications would operate either retroactively or that reclassification might provide a predicate for the recovery of backpay.
For example, the Classification Acts provides in a number of provisions that the classification certificates issued by employing agencies in the first instance and on occasion in the event of review by the Civil Service Commission are to be binding on payroll, certifying and other officials with authority to disperse monies from the Public Treasury.
There is no provision in the Classification Act, warning either at retroactive reclassification or the award of backpay.
Neither, I should note, is there any suggestion, however, tenuous in the legislative history of the Classification Act supporting the claim made by respondents in this case.
That omission it seems to me is particularly significant in light of the long standing rule that federal employees are entitled to receive only the salaries of the positions to which they were appointed, notwithstanding the fact that they may have performed duties of another higher paying position.
Furthermore, although the Classification Act has been in effect for approximately 50 years, although significantly amended in 1948, but in its essential and effect for over 50 years, we have been able to locate only one of the case in which the Court of Claims or any other Court, we know of no other Court, that so held by implication as the Court of Claims did here.
The only other case in which the Court of Claims appeared to assume in dicta and again without reaching the issue that the Classification Act might provide a warrant for a retroactive reclassification or the award of backpays, the case Bookman (ph) versus the United States.
Prior to the decision in Bookman, the Court of Claims had consistently and repeatedly held that federal employees were only entitled to the salaries of the positions to which they were appointed.
They so held in cases such as Bear versus the United States, Price versus the United State and Coleman versus United States and as recently as 1968, none of those cases were cited or discussed in the Court’s opinion in this case.
In the series of decisions extending over 40 years, beginning shortly after passage of the Classification Act, the Comptroller General of the United States has taken the same position, that is that reclassifications may operate perspectively only and that federal employees may not recover back pay for the period of a wrongful classification.
The only exception to this general rule that has been recognized has been for administrative errors, attributable to the failure of the subordinate to implement a valid classification decision made by the employing agency or the Civil Service Commission.
Justice William H. Rehnquist: It is not often that the Justice Department relies on the Comptroller General to support its views, is it not?
Mr. John P. Rupp: No, that may be true.
Although the Court of Claims in this case expressly disclaimed the erroneous on the Back Pay Act, let me make a couple points in that regard.
Again the Back Pay Act is not explicitly provided for the payment of money damages for the period of a wrongful classification.
The Back Pay Act authorizes the award of backpay and “to an employee subjected to an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction” of all or part of his compensation.
That language does not cover the situation with which we have been presented here which does not involve the withdrawal or the reduction of compensation, but in assuredly wrongful failure to increase compensation.
If there is any ambiguity in that language, and I think there is none, the legislative history of the Back Pay Act makes unmistakably clear that Congress meant that act to apply only to wrongful suspensions, demotions, removals and other unwarranted and unjustified personnel actions resulting from the reassignments or a transfer from full or part-time work.
The Back Pay Act originally grew out of the Lloyd-LaFollette Act of 1912 which governed dismissals and suspensions.
As amended in 1966, the Congress filled in a number of gaps in the Act, but did not provide for the recovery of backpay for persons wrongfully classified.
The Court of Claims prior to this case has held as well that the Back Pay Act does not provide a predicate for the recovery by federal employees of backpay for the period of wrongful classifications.
For it would have ruled otherwise other than it did in this case then it would have required to overrule a long line of its own decision, including Desmond versus United States, Dianish versus United States and Gaines versus the United States.
Even if a substantive right to the recovery of money damages against the United States for the period of a wrongful classification could appropriately be found by implication and as I’ve argued this morning and in our briefs that it cannot be.
I think that, we believe that the Court of Claims would no less assuredly have been without jurisdiction over this case.
We have discussed in some detail the history of the relationship between the federal government and its employees.
In our briefs, we discussed it a bit further this morning.
The fact is that when Congress was considering the Classification Act and the Back Pay Act, the prevailing rule was that wrongfully classified Civil Service employees were not entitled to the recovery of backpay.
Congress could have provided in either the Classification Act or the Back Pay Act, for such recovery, it did not.
It seems to me that it is persuasive evidence of Congress' intent not permit the recovery of backpay such as that sought by respondents in this case in the circumstances presented in their compliant.
One final point on the jurisdictional or cause of action aspect of this case, that is the argument made by the amici that our position in this case would leave respondents wholly without remedy for wrongful classifications.
As their discussion of the substantive provisions of the Classification Act reveals, I think, Congress created in the Classification Act an elaborate set of administrative safeguards to ensure that the goals of the Act would be met in practice, including the goal of equal pay for substantially equal work.
We have also acknowledged that a suit could be brought in District Courts seeking perspective classification, although that remedy, the scope of that remedy is of course a limited one.
To the extent that persons wrongfully classified or assuredly wrongfully classified are without backpay for the period of that wrongful classification is a matter in our view to be left to Congress.
They have resolved this far not to provide backpay under the circumstances.
With respect to the merits of the contention that the Civil Commission was arbitrary and capricious in refusing to compare respondents’ positions with the positions held by employees in another federal agency, let me say only that that kind of position to position comparison was very substantially the kind of classification scheme which Congress rejected in 1923 when it enacted the Classification Act.
They are inseparable in our view, practical difficulties associated with the suggestion that the Civil Service Commission has a duty to compare positions under any circumstances.
The Court of Claims attempted to deal with these difficulties in part by suggesting that its holding was limited to circumstances which the complaining employees and employees referred to, had a large nexus of duties performed in common.
Justice Byron R. White: If we agree with you in your first point, we do not reach this issue?
Mr. John P. Rupp: That is correct.
Justice Byron R. White: But we would have to if we did not?
Mr. John P. Rupp: If you hold that the Court of Claims had jurisdiction in this case, you would have to reach point two.
We believe the case is over as soon as you have looked at jurisdiction.
The entire thrust of the Classification Act is to require the classification of positions by reference to generally applicable standards repeatedly in the Classification Act.
The Civil Service Commission is required to promulgate generally applicable standards.
Employing agencies are obligated to look at those classification standards in making classifications, in reviewing the appropriateness of classifications.
The Civil Service Commission is required again to scrutinize the classification decisions reached by employing agencies in light of the General Classification Standards.
One of the great problems that would be presented with the Civil Service Commission to have a duty to perform comparisons of the type requested by respondents is that the employing agency in the first instance would not have access to the kind of information it would need to make such comparisons.
You would then have the decision made by -- a classification decision made by an employing agency not taking into account the full range of considerations made appropriate by the Court of Claims' decision in this case.
Not only then would federal civil service employees have the prospect of to bite it said very largely the same apple, they would also have the prospect of review by a body obligated to take into account considerations that could not have been taken into account by the employing agency.
We believe that there is a very great likelihood that that would stimulate appeals in a large number of cases in which appeals were not warranted.
Chief Justice Mr. Chief Justice Burger : I suppose one of the considerations among many others would be the budget, would it not?
Mr. John P. Rupp: Well, yes, that is right and --
Chief Justice Mr. Chief Justice Burger : If there was a sudden judicial order somewhere to move all of the class of 13s to grade 15, you would have quite a problem?
Mr. John P. Rupp: Well, that is a problem.
There is a further problem then --
Chief Justice Mr. Chief Justice Burger : There would be even more important problems over the budget?
Mr. John P. Rupp: Well, there is the problem that you suggest and we referred to that in our brief and another related problem is that the Civil Service Commission could not necessarily assume that the position appointed to by the complaining employees was properly classified.
I suppose it would have prima facie, be entitled to prima facie considerations of proper classification, but to do the kind of job that the Court of Claims appeared to require in this case would require the Civil Service Commission not only to make the comparison that it had been requested, but to validate the classification of the positions being pointed out.
At least in theory that is going to double the work of the Civil Service Commission.
Justice William H. Rehnquist: I did not mean to interrupt.
If a plaintiff files a complaint in the Court of Claims and says that the Back Pay Act and the Classification Act together, give me a claim for money damages against the United States and goes on to detail particulars.
The Court of Claims decides that neither of those Acts does give a claim for money damages against United States.
Does the Court of Claims dismiss for one of jurisdiction or for failure to stay the claim on which relief could be granted?
Mr. John P. Rupp: They do both.
Justice William H. Rehnquist: I thought they had to do one or the other?
Mr. John P. Rupp: Well, in theory, of course they should do one or the other.
Decisions from the Court of Claims --
Justice William H. Rehnquist: I do not mean as a practice, but I mean, what should they do, largely under your argument?
Mr. John P. Rupp: Well, their support for either preposition; I think the Proper Courts to dismiss for failure to state a cause of action.
Although there is support for the contrary, particularly given the implications of sovereign immunity.
Justice Potter Stewart: But it says a jurisdiction is only to award monetary damages even though another Court might have a jurisdiction over a cause of action as to something else.
Would not it proper dismissal be for one of jurisdiction or perhaps it is not worth assuming?
Mr. John P. Rupp: Well, it may not be.
I think Mr. Justice Blackmun’s opinion in Gnotta would lead to that conclusion.
I think the contrary of argument could be made with some reasonableness.
It is without significance here.
Chief Justice Mr. Chief Justice Burger : Congress’ determination that there was no cause of action stated in that Court would be essentially the same as jurisdictional determination, would it not?
Mr. John P. Rupp: That is correct and they would be obligated to do precisely the same having reached that conclusion.
Chief Justice Mr. Chief Justice Burger : Very well.
Justice Harry A. Blackmun: Mr. Rupp before you sit down, I ask this purely out of curiosity that Judge Consee (ph) did not sit on the case below, did he, and Senior Judge Larmour (ph) did.
I just wondered why that juxtaposition through such a word.
It is not important, but I just wondered if you happened to know?
Mr. John P. Rupp: I do not know.
I am sorry.
Chief Justice Mr. Chief Justice Burger : Mr. McDermott.
Argument of Edwin J. Mcdermott
Mr. Edwin J. Mcdermott: Mr. Chief Justice and may I please the Court.
The contentions of the petitioner are that the respondents are correctly classified as GS-13.
Now, the issue depends upon the Civil Service Commission’s, General Attorney series and upon the equal pay for equal work statute.
Chief Justice Mr. Chief Justice Burger : You are starting with their second intention, are you not?
Mr. Edwin J. Mcdermott: Well, so far it is first --
Chief Justice Mr. Chief Justice Burger : You can come back to jurisdiction (Voice Overlap)
Mr. Edwin J. Mcdermott: So far as jurisdiction is concerned, the Tucker Act gives the Court jurisdiction and we submit that it absolutely waives sovereign immunity insofar as it goes.
Now, that provides that the Court of Claims who have jurisdiction to enter judgment upon any claim against the United States founded either upon the Constitution or any act of Congress or any regulation of the Executive Department or upon any express or implying contract with the Unites States or for liquidated or un-liquidated damages in case it is not sounding in tort.
Now, we submit that our case is based upon one that Classification Act and also upon the equal pay for equal work at.
Now, the Court of Claims below in the per curiam opinion in which the Chief Judge and Judges Davis and Joshua (ph) and --
Unknown Speaker: It was four to three?
Mr. Edwin J. Mcdermott: Four to three and Nichols joined, ruled this; they said that this case is peculiar in its facts.
Whereas here, employees all belong to a small betterly manageable category.
Their jobs have a large nexus of duties shared in common and other employees were specifically pointed out by the complaining employees, we deem the case to be different.
Now, the case on which the Court of Claims depended was the Selman case, Selman against United States.
In that case, Navy Captains had been assigned as Assistant Judge Advocate Generals of the Navy.
And the statute provided that if an officer was assigned to that position, he was entitled to the pay of rear admiral-lower half.
Nevertheless he was only paid at the rate of Navy Captain’s pay.
Now, when it came to the Court of Claims, the Court of Claims ruled that the statute was mandatory and gave them the pay of a rear admiral-lower half for the period of their service and gave Selman backpay for 44 months.
Now, this case, the plaintiffs are trial attorneys before the Armed Services Board of Contract Appeals.
Now, the trial judge pointed out and he set forth the position, descriptions of both the plaintiffs which are under GS-13 and the Air Force Attorneys which are GS-14 and he said that there is really do difference between the position descriptions.
The duties are the same.
They prepare cases, try cases, file posturing briefs, file pre-trial briefs, interview witnesses, secure expert witnesses, they do everything, the same job is both of them.
Now, he said that if you apply the equal pay for equal work statute and if you look at the General Attorney series, you come to the inescapable conclusion that the plaintiffs are entitled to be classified at grade GS-14.
Justice William H. Rehnquist: You have to make two jumps though to have the Selman case control this case, do you not?
You have got that there is language in either the Back Pay Act or the Classification Act that is equally mandatory and you have got to show that Selman is right in the light of our decision in the King case?
Mr. Edwin J. Mcdermott: Well, Selman is right because it was pursuant to a statute which provided for that pay, a pay of a rear admiral-lower half for an Assistant Judge Advocate General, it is a specific provision of a statute.
Now, we say that whereas Selman depended upon the provisions of a statute, we depend upon the provisions of the General Attorney Series and the trial judge and he studied this case, I think very well, he said this, “that the action of the comparison of the position descriptions at the DPSC and the AFLC demonstrate that they are strikingly similar” and he was of the opinion that one classifier, for instance, how that Dayton would look at the General Attorney Series of the position description and come to the conclusion and it was properly classified at grade GS-14.
Whereas the position classifier at the Defense Personnel Support Center will look at the same position description, the same General Attorney Series and come to the conclusion, that it was properly classified at GS-13.
Now, he said the position descriptions are almost strikingly similar and the duties of the trial attorneys are the same.
Now, also, Mr. Rupp argued that the Back Pay Act does not cover the situation.
Now, in the amicus curiae brief, at page 16 on line 17, there is an analysis of the Back Pay Act.
Now, it is submitted that the phrase unjustified or unwarranted personnel action within the meaning of the Back Pay Act applies as well to this action wrongly classifying the plaintiffs in this case as it would as if there were a removal or reduction in rank or a suspension.
And he -- that is pointed out that the Congress left that phrase almost open for interpretation and that the Civil Service Commission did the same thing.
And that there is no statement in any of the Congressional hearings or reports defining what is meant by unjustified or unwarranted personnel action.
And that is merely a question of interpretation of the statute and we submit that, on that basis we are entitled to recover.
Now, so far as jurisdiction is concerned, we depend on three things.
One, the General Attorney Series and the trial judge has found that we are entitled to grade GS-14 there under.
There are only two factors that are concerned there and that was and he went into them quite thoroughly in his opinion.
Now, actually if you look at this case and you look at the Selman case, and in Selman, the Court said, that they were entitled to the rank of -- to the grade -- payable rear admiral-lower half because the statute so provided.
We say that we are entitled to the grade of GS-14 because the General Attorney Series so provided and the equal pay for equal work statute so provides.
Now actually, if you come down to the position of the Civil Service Commission, that says that we disregard the statute which says equal pay for equal work and we look at the position description of the person only under the series which is applicable to it.
Now, the Court of Claims and the trial judge ruled that that was improper and arbitrary and capricious because the Commission actually refused to follow a Congressional Mandate of equal pay for equal work.
And there are many cases, recorded claims where that provision has been established and enforced.
Now, we submit also that the trial judge found that there was discrimination in this case and he specifically found that out, found that in his opinion where he said on the evidence in this case he has concluded that the refusal to classify plaintiffs to GS-14 is arbitrary, discriminatory and is not supported by substantial evidence.
Now, if there be discrimination in this case, then we cite the decision of the Court of Claims in Chambers against United States, and that ruled that a black applicant for a position in the Social Security Administration who had been discriminated against was entitled to backpay.
Now, that is a very well written opinion by Judge Nichols and I suggest that if that opinion be followed and fact of discrimination be found to have been adopted by the trial judge as a finding, based upon his review of the record then I suggest that we are entitled to relief.
Now actually, if you look at what is referred to as the remand statute, all that the Court of Claims has done here has been to follow it.
They found that the Civil Service Commission’s action was arbitrary and capricious and that the Commission should comply with the mandate of the statute calling for equal pay for equal work.
And the Court of Claims ruled that the grades of other lawyers representing in other per curiam agencies before the Armed Services Board of Contract Appeals provide an essential benchmark and without consideration to them no confidence could be felt to the statute calling for equal pay for equal work has been obeyed.
Now the statute, that is 92-415, that is what is referred to in Mr. Rupp’s brief as the remand statute, provides that in any case within its jurisdiction the Court of Claims shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper.
And the senate report pointed out that the Act provides the United States Court of Claims with the necessary means to compel administrative or executive bodies to take further action where it is necessary to make an adequate record.
And that is all that the Court of Claims has done here.
It said that that it disagrees with the trial judge that the Court has the right to reclassify people, but that is a job for the Civil Service Commission and it remanded it back to the Civil Service Commission to take into consideration, the equal pay for equal work statute and to find if the plaintiffs using as a benchmark the grade applied to the trial attorneys from the Air Force at Dayton to determine whether or not they were entitled to grade GS-14 and that is all that the remand statute does.
So we ask the Court in consideration of this case to find first all that the Court of Claims had jurisdiction.
To consider this, it is never necessary for a statute to itself provide that for a breach of it, a person shall have an action against United States because that is what the Tucker Act does.
The Tucker Act gives jurisdiction to the Court of Claims.
And there are many statutes and regulations, the breach of which do not spell out the right to sue in the Court of Claims for damages.
So we submit that there is -- first all there is jurisdiction and that it is a good thing for the practice of law generally to raise the grades of lawyers who appear before the Armed Services Board of Contract Appeals.
Now, we have a letter from the chairman of the Armed services Board of Contract Appeals in which he says that generally most of the lawyers who appear before them are grade GS-14.
The only exception appears to be the trial attorneys for the Defense Personnel Support Center and when they do the same work that other lawyers do before the Armed Services Board of Contract Appeals then I submit that they are entitled to the same pay because it is equal work, equal pay for equal work and that is a statutory definition and reinstate and I submit that the Court of Claims’ judgment should be affirmed.
Thank you, sir.
Chief Justice Mr. Chief Justice Burger : Thank you gentlemen.
The case is submitted.