1. Petitioners are veterans entitled to the benefits of the
Veterans' Preference Act of 1944. They were appointed as attorneys
in a Government Department in 1943, when a civil service regulation
limited such appointments to the duration of the war plus six
months, and persons so appointed were not to acquire a classified
(competitive) civil service status. In 1947, through a reduction in
force, petitioners and other attorneys in the Department were
separated from the service, although nonveteran attorneys with
classified status were retained. They sought relief in an action in
the District Court, alleging that their separation from the service
was unlawful.
Held: petitioners' separation from the service was in
accord with the Civil Service Commission's retention preference
regulations; the regulations were consistent with § 12 of the Act
and were valid, and petitioners' separation from the federal
service was therefore valid. Pp.
341 U. S.
281-285.
(a) Petitioners did not acquire a classified civil service
status, and were not entitled under civil service regulations to
retention preference over all nonveterans. P.
341 U. S.
281.
(b) The proviso of § 12 of the Act does not give to veterans
with an efficiency rating of "good" or better an absolute
preference over all other employees, with or without classified
status or its equivalent. Pp.
341 U. S.
283-285.
(c) The Commission's retention regulations, adopted pursuant to
§ 12 of the Act, can hardly be deemed invalid for making a
distinction on the basis of tenure when they reflect a longstanding
definition of "competing" groups, when they were issued by the
agency which proposed the statutory language finally adopted, and
when Congress indicated no intent whatsoever to supply a new
standard. P.
341 U. S.
285.
Page 341 U. S. 278
(d) The contention that, apart from § 12, veterans were given an
absolute preference by § 4 of the Act of 1912, 37 Stat. 413, and
that the preference so granted was carried over by the saving
clause in § 18 of the 1944 Act, cannot be sustained as to these
temporary war service employees. Pp.
341 U. S.
285-286.
(e) Section 2 of the 1944 Act does not, in and of itself, extend
absolute preference to veterans with limited tenure. No specific
preference rights are granted by that section. P.
341 U. S.
286.
2. Petitioners' complaint also alleged that the Department had
rehired some of the other attorneys, that some of those rehired had
a lower classification on the retention register than that of
petitioners, and that petitioners were thus wrongfully denied
preference in rehiring. They did not allege that they had requested
that their names be placed on the appropriate reemployment list,
nor that the appointing officer failed to follow the procedures
specified by §§ 7, 8, 15, and pertinent regulations.
Held: the complaint was insufficient to state a cause
of action under the Act. Pp.
341 U. S.
286-289.
(a) Section 2 of the 1944 Act grants petitioners no
"reinstatement and reemployment" preference rights. Pp.
341 U. S.
281-287.
(b) Reinstatement or reemployment preferences are not to be
measured by retention preference regulations under § 12 of the Act.
P.
341 U. S.
287.
(c) Petitioners' rights to preference in reemployment were
governed by § 15 of the Act. They were entitled to those rights
only if they requested that their names be placed on the
appropriate reemployment list, and, even if they did so, their
preference rights were violated only if the appointing officer
failed to follow the procedures specified by §§ 7, 8, 15, and
pertinent regulations. P.
341 U. S.
289.
87 U.S.App.D.C. 117, 184 F.2d 219, affirmed in part and reversed
in part.
In actions brought against the Secretary of Agriculture by two
veterans who sought to be restored to their former positions in the
Department, the District Court granted the motion of the Secretary
for summary judgment. The Court of Appeals reversed and remanded
the cause. 87 U.S.App.D.C. 117, 184 F.2d 219. This Court granted
cross-petitions for certiorari. 340 U.S. 928.
Affirmed in part,
reversed in part, and remanded to the District Court, p.
341 U. S.
289.
Page 341 U. S. 279
MR. JUSTICE CLARK delivered the opinion of the Court.
These actions involve questions concerning the precise scope of
rights to employment in the federal service granted by the
Veterans' Preference Act of 1944. 58 Stat. 387, 5 U.S.C. (1946 ed.)
§ 851
et seq. The ultimate issues are two: (1) whether
under § 12 of the Act veterans with temporary war service
appointments are entitled to retention preference over nonveterans
with the equivalent of classified civil service status when
reduction in force discharges are made, and (2) whether the
reemployment rights of veterans lawfully discharged are governed by
§ 12 retention priorities or by other provisions of the Act.
We treat these cases together, as did the courts below, and
shall refer to Elder and Furman as petitioners. Petitioners are
honorably discharged veterans, and as such are concededly entitled
to whatever benefits the Act affords. They were appointed associate
attorneys in the Office of the Solicitor of the Department of
Agriculture in July and August, 1943. At the time of their
appointments, a civil service regulation was in effect under which
all appointments as attorneys were to be limited to the duration of
the war plus six months, and persons so appointed were not to
acquire a classified (competitive) civil service status. On May 29,
1947, petitioners and eighteen other attorneys in the Department
were notified
Page 341 U. S. 280
that, because of a reduction in force compelled by lack of
funds, they would be separated from service on June 30 following.
Nonveteran attorneys with the equivalent of classified status were
to be retained. The selection was made on the basis of civil
service retention preference regulations -- under § 12 -- which
plainly required that nonveterans with classified status or its
equivalent be given a higher retention priority than veterans
without.
Plaintiffs appealed to the Commission, which subsequently found
that their separation was in accord with the statute and
regulations. Meanwhile, however, they instituted these actions in
the District Court for the District of Columbia, alleging first
that they had acquired a classified status, and hence were entitled
under the regulations to a retention priority over nonveterans;
second, that, in any event, the statute gave veterans an absolute
retention priority regardless of status, and that Commission
regulations to the contrary were invalid.
While these actions were pending, the Department came into
additional funds, and several attorneys not reached for separation
resigned voluntarily or transferred. The Department then rehired
nine of the attorneys previously separated, the first of whom took
office on October 27, 1947. Some of the attorneys rehired were
nonveterans with a lower reduction in force retention priority than
that possessed by petitioners at the time all were separated. On
this ground, the latter amended their complaints before the
District Court to allege in addition that they had been deprived of
a preferential right to "reemployment" or "reinstatement." The
Secretary moved for a summary judgment, and the District Court
granted the motion. On appeal, the Court of Appeals affirmed the
judgment that petitioners' separation from the service was lawful.
But it found that the allegations concerning violation of
reemployment or reinstatement rights were well founded. The
court
Page 341 U. S. 281
therefore reversed and remanded with directions with the
Secretary be given leave to deny the facts alleged. 87 U.S.App.D.C.
117, 184 F.2d 219. From this judgment, the parties cross-filed
petitions for review. Petitioners sought review of the judgment
that their separation was lawfully carried out. The Secretary
sought review of the judgment that petitioners' allegations as to
deprivation of reemployment or reinstatement rights stated a cause
of action under the statute. We granted certiorari because of the
obvious impact of these issues on federal employment policies. 340
U.S. 928 (1951).
For reasons outlined below, we agree that petitioners'
separation from service was in full accord with the statute. We
disagree with the holding that the allegations of the complaint are
sufficient to state an unlawful deprivation of a preferential right
to reemployment.
I
As the Court of Appeals pointed out, there is no merit in
petitioners' contention that they had acquired a classified civil
service status, and were thus entitled under the regulations to
retention preference over all nonveterans. [
Footnote 1]
Page 341 U. S. 282
The validity of petitioners' discharge therefore turns on the
validity of the Commission's retention preference regulations. 5
CFR (Supp. 1947) § 20.3. These regulations were adopted pursuant to
§ 12 of the Veterans' Preference Act, 5 U.S.C. § 861, which reads
in part as follows:
"In any reduction in personnel in any civilian service of any
Federal agency, competing employees shall be released in accordance
with Civil Service Commission regulations which shall give due
effect to tenure of employment, military preference, length of
service, and efficiency ratings:
Provided, . . . That
preference employees whose efficiency ratings are 'good' or better
shall be retained in preference to all other
competing
employees and that preference employees whose efficiency ratings
are below 'good' shall be retained in preference to
competing nonpreference employees who have equal or lower
efficiency ratings. . . ."
(Emphasis added.) The regulations first define "competing"
employees on the basis of tenure of employment. The highest
priority is given Group A, which includes (1) employees having
classified civil service status, and (2) those holding positions
excepted from examination requirements and whose appointments are
without time limitation. Group B, second in retention priority,
includes employees without classified status or whose appointments
are limited to the duration of the war plus six months. Group C is
composed of employees appointed for one year or less. The
regulations then classify employees within each group on
Page 341 U. S. 283
the basis of veterans' preference and efficiency ratings.
Subgroups A-1, B-1 and C-1 include employees with both veterans'
preference and efficiency ratings of "good" or better. Subgroups
A-2, B-2, and C-2 include those with "good" or better efficiency
ratings but without veterans' preference. Under these regulations,
petitioners, as war service employees, were classified B-1, and
were separated while some nonveteran attorneys with an A-2
classification (permanent employees) were retained. The Secretary
had no other choice, since the regulations group employees by
tenure and limit the reach of veterans' preference to competing
employees of the same group.
Petitioners contend that this feature violates the statute, that
the proviso of § 12 plainly gives veterans with an efficiency
rating of "good" or better an absolute preference over all other
employees, with or without classified status or its equivalent. But
the proviso, like the body of § 12, contains the term "competing"
employees, which necessarily implies that a veteran's preference
operates only within a defined group. And since the statute does
not supply a definition, we must determine from the legislative
history of the Act, and from prior legislation and regulations,
whether the Commission's definition may reasonably be said to
"carry into full effect the provisions, intent, and purpose [of the
statute]." 5 U.S.C. § 868.
This Court made a similar examination in
Hilton v.
Sullivan, 334 U. S. 323
(1948). The decision in that case upheld that retention preference
regulations insofar as they granted veterans with classified status
an absolute priority over nonveterans of the same status regardless
of length of service. The Court stated that, in the light of all
pertinent history "no other interpretation of [§ 12] . . . can
fairly be reached."
Id. at
334 U. S. 336.
Since "length of service" and "tenure of employment" appear as
parallel terms in the body of § 12, it can be argued that, if the
proviso eliminates length of service as a barrier to veterans'
Page 341 U. S. 284
preference, it also eliminates tenure. But this ignores a
crucial difference in the historical treatment of these two
factors. Executive orders and Civil Service regulations prior to
1944 had consistently disregarded length of service in giving
veterans preference over nonveterans with the same tenure -- a fact
stressed in the
Hilton case.
Id. 334 at
334 U. S.
336-337. On the other hand, the regulations had just as
consistently distinguished "competing" groups on the basis of
tenure, and had confined the scope of veterans' preference to
employees of the same group. As early as 1932, the Commission
provided that reduction in force was to be carried out in inverse
order of tenure, permanent employees to be separated last.
[
Footnote 2] The rule was still
in force at the time the Veterans' Preference Act of 1944 was
passed. 5 CFR (Supp. 1943) § 12.304.
Moreover, the legislative history of the Act is barren of any
indication that this long established separation of "competing"
employees on the basis of tenure was to be broken down and
subordinated to veterans' preference. In general, the Act was
designed to "give legislative sanction to existing veterans'
preference" and to "give some additional strength" to that
preference. [
Footnote 3]
Additional rights granted were specifically brought to the
Congress' attention. One addition which was stressed, for example,
was the third proviso of § 12, which grants preference to veteran
employees of an agency when that agency is replaced or any of its
functions transferred to another
Page 341 U. S. 285
administrative body. [
Footnote
4] But in the only interpretive discussion of the proviso here
involved, Commissioner Flemming stated that it "simply continues
what has been in practice throughout the entire Federal service
since 1923." [
Footnote 5] More
important, two bills earlier proposed by veterans' organizations
would have specifically granted the right which plaintiffs claim in
this case -- absolute preference in retention regardless of tenure.
[
Footnote 6] These bills were
rejected in favor of § 12 as enacted, the language of which was
proposed by the Commission itself. [
Footnote 7] In sum, the Commission's retention regulations
can hardly be called invalid for making a distinction on the basis
of tenure when they reflect a longstanding definition of
"competing" groups, when they were issued by the agency which
proposed the statutory language finally adopted, and when Congress
indicated no intent whatsoever to supply a new standard.
Two further points remain. Petitioners contend that, apart from
§ 12, veterans were given an absolute preference by § 4 of the Act
of 1912, 37 Stat. 413, and that the preference so granted was
carried over by the saving clause in § 18 of the 1944 Act. 5 U.S.C.
§ 867. The flaw in this argument, as the court below pointed out,
is that § 4, by its terms, was confined to the classified civil
service. Its features were subsequently applied, under Executive
Orders, within the unclassified service, but, as indicated above,
temporary appointment veterans never had retention preference over
permanent tenure nonveterans.
Page 341 U. S. 286
Alternatively, petitioners contend that § 2 of the 1944 Act, in
and of itself, extends absolute preference to veterans with limited
tenure. 5 U.S.C. § 851. But it seems apparent that § 2 gives no
specific preference rights at all. The section contains only a
general statement of policy, a listing of preferred groups, and a
specification of federal positions covered. It provides that
"preference shall be given" in certification for appointment,
appointment, reinstatement, reemployment, and retention; it does
not delineate what that preference shall be. The details are
spelled out in subsequent sections of the Act, retention preference
being governed by § 12.
Cf. Hilton v. Sullivan, supra.
Section 2 was described throughout the legislative history as
merely "defining the groups to whom preference was to be granted."
[
Footnote 8]
Since retention rights are governed by § 12, and since the
regulations are consistent with the statute, petitioners were
properly separated from their positions in the Federal service.
II
The complaint that plaintiffs were wrongfully denied preference
in rehiring rests solely on the allegation that the Department
reemployed attorneys with a lower classification on the retention
register. The Court of Appeals concluded that this allegation, not
denied by the Secretary, was sufficient to state a cause of action
under the statute. It held that § 2 of the statute granted
"reinstatement and reemployment" preference rights, and that these
rights were measured by the retention preference regulations under
§ 12. 87 U.S.App.D.C. 117, 120, 184 F.2d 219, 222 (1950). Neither
of these holdings withstands analysis. Section 2, as has been
indicated, grants no specific rights except insofar as it may be
thought
Page 341 U. S. 287
to preserve, in conjunction with § 18, any rights previously
arising from statute, executive order, or regulation and not
granted by the other sections of the 1944 Act.
Nor are we able to accept the ruling that reinstatement or
reemployment references are to be measured by retention preference
regulations under § 12. Reemployment preferences are specially
dealt with elsewhere in the Act. Section 15 provides that all
preference eligibles who have been separated without fault on their
part may -- at their request -- have their names placed on all
appropriate registers or employment lists for positions for which
they are qualified. 5 U.S.C. § 864. It further provides that their
eligibility for reappointment is then governed by §§ 7, 8 of the
Act, dealing with appointments in general. 5 U.S.C. §§ 856, 857.
The names of preference eligibles are placed on the appropriate
registers or lists in accordance with their respective numerical
ratings, which are augmented by 10 points in the case of disabled
veterans, their wives, or unmarried widows of deceased veterans; 5
points in the case of other preference eligibles. 5 U.S.C. § 852.
The appointing officer may pass over a veteran in favor of a
nonveteran, but, if he does so, he must file in writing his reasons
therefor, and the Commission must examine those reasons to
determine their sufficiency. Section 15 further provides that no
appointment shall be made from an examination register, except of
10-point preference eligibles, when there are three or more names
of preference eligibles on any appropriate reemployment list for
the position to be filled.
There is no persuasive reason why the provisions of § 15 are not
applicable in this case. Petitioners make a two-fold argument to
the contrary: (1) that their right was to preference in
"reinstatement," rather than in "reemployment," and that
"reinstatement" preference is granted and governed by § 2; (2) that
§ 15 applies only to the competitive civil service, from which
attorneys
Page 341 U. S. 288
were excepted by regulations taking effect May 1, 1947. 12
Fed.Reg. 2839, 5 CFR (Supp. 1947) § 6.4. Even if valid, the first
contention is of no help to petitioners. "Reinstatement" -- to the
extent it had any peculiar meaning in civil service parlance prior
to the time that 1944 Act was passed -- meant reemployment of a
person upon formal request of the appointing officer. 1 Fed.Reg.
602, 5 CFR §§ 9.1, 9.101 (1939). [
Footnote 9] The preference accorded veterans was that they
might be reinstated without time limit, whereas a request for
reinstatement of nonveterans had to come within specified periods
after their separation. The term was not confined to reappointment
to a position formerly held. An involuntarily separated employee
could be reinstated in any part of the service, and the Commission
was authorized to provide for similar reinstatement of any
classified status employee. The apparent analogue of this type of
reemployment is contained in § 13 of the 1944 Act, which provides
that any preference eligible "who has resigned or who has been
dismissed or furloughed" may be appointed to any position for which
he is eligible "at the request of any appointing officer." 5 U.S.C.
§ 862. Petitioners would interpret § 2 as creating an entirely new
and absolute right of preference in "reinstatement," not dependent
upon the request of the appointing officer. Such an interpretation
would not only stretch § 2 beyond its apparent and intended scope,
but would, in effect, strike § 15 off the books, since no veteran
would ever
Page 341 U. S. 289
have cause to use the limited preference in reemployment there
granted.
The second claim, that § 15 covers reemployment only in
positions within the competitive civil service, is clearly
erroneous. The section provides that the name of a preference
eligible be placed on appropriate registers and lists
"for every position for which his qualifications have been
established, as maintained by the Civil Service Commission, or as
shall be maintained by any agency or project of the Federal
Government. . . ."
Petitioners were lawfully separated from their positions in the
Department of Agriculture. Their rights to preference in
reemployment were governed by § 15 of the Act. They were entitled
to those rights only if they requested that their names be placed
on the appropriate reemployment list. Their complaints contain no
allegation that they made such a request. And even if they did so,
their preference rights were violated only if the appointing
officer failed to follow the procedures specified by §§ 7, 8, 15
and pertinent regulations. Again, there are no such allegations in
the complaints. The complaints as they stand are fatally defective
in these respects, and, unless petitioners on remand are able to
supply the missing links in allegations and proof, the Secretary is
entitled to a summary judgment.
The judgment of the Court of Appeals is affirmed in part and
reversed in part, and the cases are remanded to the District Court
for further proceedings in conformity with this opinion.
So ordered.
MR. JUSTICE BLACK dissents.
* Together with No. 473,
Brannan, Secretary of Agriculture
v. Elder et al., also on certiorari to the same court.
[
Footnote 1]
Executive Order 9063, issued February 16, 1942, and in effect at
all times relevant, authorized the Civil Service Commission to
formulate special procedures for the recruitment of personnel
during the war, and further provided that
"[p]ersons appointed solely by reason of any special procedures
adopted under authority of this order . . . shall not thereby
acquire a classified (competitive) civil-service status, but, in
the discretion of the Civil Service Commission, may be retained for
the duration of the war and for six months thereafter."
3 CFR (Cum.Supp. 1943) 1091. On March 16, 1942, the Board of
Legal Examiners, functioning under the Commission, amended its
regulations to provide that all appointment to attorney positions
be effected under this Executive Order, and be limited to the
duration of the war plus six months. 7 Fed.Reg. 2201.
See
also Executive Order 9230, August 20, 1942, 7 Fed.Reg. 6665, 3
CFR (Cum.Supp. 1943) 1201, 1202. This regulation was continued in
effect by § 17.1(g) of the Board's regulations, 5 CFR (Cum.Supp.
1943) § 17.1(g), and § 17.1(g) remained in effect when, by
Executive Order 9358 of July 1, 1943, 8 Fed.Reg. 9175, the
functions of the Board were vested in the Commission itself. No
plausible reason has been or could be advanced for holding this
regulation invalid.
[
Footnote 2]
Minute of the Civil Service Commission, August 11, 1932.
See Civil Service Commission, Acts, Rules and Regulations
(as amended to September 15, 1934) p. 54.
[
Footnote 3]
Statement of Representative Starnes, author of the bill,
Hearings before Senate Committee on Civil Service on S. 1762 and
H.R. 4115, 78th Cong., 2d Sess. 8-9; statement of Representative
Ramspeck, Chairman of the Civil Service Committee, 90 Cong.Rec.
3505 (1944).
[
Footnote 4]
Hearings,
supra, note 3
at 9-10 For a specification of this and other additions to
veterans' rights,
see also, 90 Cong.Rec. 3503; S.Rep. No.
907, 78th Cong., 2d Sess. 2-4; H.R.Rep. No. 1289, 78th Cong., 2d
Sess. 3-4.
[
Footnote 5]
Hearings,
supra, note 3
at 27
[
Footnote 6]
H.R. 5101, 76th Cong., 1st Sess.; H.R. 5147, 76th Cong., 1st
Sess.
[
Footnote 7]
H.R.Rep. No. 1289,
supra, note 4 at 6
[
Footnote 8]
H.R.Rep.No.1289,
supra, note 4 at 3; SRep.No.907,
supra, note 4 at 2; 90 CongRec. 3503.
[
Footnote 9]
The provisions of Part 9 were superseded in part by the wartime
service regulations adopted in 1943, § 18.8 of which provided that
former employees with at least one year's service "may be
reappointed by war service appointment to any position for which he
meets the standards," and further provided that veterans who would
have status for reinstatement under Part 9 could be reemployed
without regard to length of prior service. 5 CFR (Supp. 1943) §
18.8.