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HARDY v. ROSSELL

March 29, 1955

Jane HARDY, Vito Joseph Figlioli, Adolph J. Raynis, Robert Mautte, John F. Gallagher, Ernest L. Davis, Albert A. Fusco, Catherine I. McByrne, Virginia A. McKee, on their own behalf and on behalf of others similarly situated, Plaintiffs,
v.
James D. ROSSELL, Regional Director of the United States Civil Service Commission, and/or James P. Googe, as Regional Director and Lawrence H. Baer, as Acting Regional Director, his successors in such position; Aleer J. Couri, United States Appraiser of Merchandise, Customs District No. 10; and Robert W. Dill, Collector of Customs of the Port of New York, Customs District No. 10, Defendants



The opinion of the court was delivered by: RYAN

These motions were brought on by an order to show cause why the defendants should not be restrained from effecting certain downgradings in the offices of the Collector of Customs of the Port of New York and the Appraiser of Merchandise of the Port of New York. The actions of the defendants have been stayed pending determination of this motion. Defendants have cross-moved for summary judgment.

Plaintiffs seek an injunction pendente lite to prevent the defendants from carrying out the downgradings until 'the final determination of the matters set forth in the Complaint herein.' Plaintiffs sue in a representative capacity, on behalf of themselves and others similarly situated. On this motion we will not consider whether this suit is appropriately brought as a class action, assuming rather that plaintiffs can do so.

 It affirmatively appears that at least the named plaintiffs have filed timely administrative appeal to the United States Civil Service Commission. *fn1" We will therefore assume further that all of the plaintiffs are presently pursuing their administrative remedies.

 One more preliminary matter: this motion has been broadly drawn. It seeks to enjoin all administrative action until this Court can pass upon the merits of the complaint. The motion could have been more narrowly drafted so as to provide only that plaintiffs be held in status quo until the determination and disposition of all administrative appeals. We have considered plaintiffs' contentions as if they had asked for either or both forms of relief.

 Briefly the facts are these: during the year 1953 and thereafter the Civil Service Commission conducted a position classification survey in the offices of the Collector of Customs of the Port of New York and the Appraiser of Merchandise of the Port of New York in which offices plaintiffs are employed. As a result of this survey plaintiffs were downgraded in their government positions, certification thereof being made.

 Two grounds are advocated as bases for relief. The first is that irreparable damage will result to plaintiffs in that they will suffer salary reductions and lose many valuable rights of government tenure, among which the loss of right to promotions within grade, loss of right to promotions to higher grade and loss of mandatory increments to their salaries. These rights, plaintiffs contend, could not be restored to them even if they prevail before the Commission or subsequently before the courts. Plaintiffs' second contention is that this Court should now determine the issues since the administrative action was clearly illegal, in that the Commission did not adhere to statutory requirements and establish proper standards for the reclassified positions.

 At the outset it is clear that plaintiffs' available administrative remedies have not been exhausted. *fn2" Administrative appeals are pending. An attempt is here being made to circumvent these appeals by alleging irreparable injury, but it is not every injury that will admit of judicial intervention into the administrative processes. Courts cannot inject themselves even where a petitioner asserts that resort to the administrative tribunal will deprive him of a constitutional right, unless it can be shown that the administrative procedure itself denies due process of law. *fn3" The paramount consideration must be the nature of the injury which the plaintiffs will suffer and the reasonableness of requiring them to bear that injury in light of all the circumstances. *fn4" The injuries plaintiffs fear are indeed serious to them involving their prestige and very standard of livelihood. To allow them to bear this burden cannot be regarded as a normal incident or expectation of government employment. *fn5" But we must be mindful that at least one consideration basic to the exhaustion doctrine is that, as Mr. Justice Holmes declared some years ago, 'even fundamental questions should be determined in an orderly way.' *fn6"

 What impels our determination here, however, is that plaintiffs will not suffer any injury if they prevail upon administrative appeal. 5 Code Fed.Regs. § 56.1(c)(2) (Cum.Supp.1954). *fn7" Under this Regulation if the Commission on appeal determines plaintiffs were erroneously downgraded then the plaintiffs have the right to full restoration of rights and back pay.

 On the contrary it is contended that by virtue of three decisions of the Comptroller General of the United States the Civil Service Commission lacks the authority to make full restoration. *fn8" These decisions are inapplicable to the case at bar, firstly, because they did not involve the Classification Act, 5 U.S.C.A. § 1071 et seq. Secondly, the Civil Service Commission is empowered under the Classification Act 'to issue such regulations as may be necessary' to administer the Act. *fn9" Regulations have been promulgated thereunder which provide for restoration of plaintiffs' benefits, if they have been improperly deprived of them. *fn10" If it is administratively determined that plaintiffs have been wronged, the Civil Service Commission certifies the reversal of their position to the appropriate department, thereby placing the affected employees in their proper grade. 'Such certificate shall be binding on all administrative, certifying, pay roll, disbursing, and accounting officers of the Government.' *fn11" (Emphasis added.) Under 5 U.S.C.A. § 1101(b) any employee or employees affected may at any time request the Commission to exercise the authority it has under § 1101(a). Sections 1101 and 1103 apply with equal vigor to initial determinations of the Commission as well as to reversals by the Commission of the its initial determinations. *fn12" Thirdly, the aforementioned decisions are inapplicable because defendants have submitted a communication from the Civil Service Commission to the effect that the Comptroller General has approved the Commission's Regulation in 5 Code Fed.Regs. § 36.1 (Cum.Supp.1954). *fn13" And fourthly, there is recent authority contrary to the Comptroller General's view. *fn14"

 It may be argued that irreparable harm will result to those employees whose responsibilities were increased after the date of the survey. The last sentence of 5 Code Fed.Regs. § 36.1(c) set out below *fn15" might lead to this conclusion. However though the added responsibilities were assigned to these plaintiffs after the date of the survey it was before the actual certifications of downgrading. No reallocation can become operative until certifications are made. Therefore the date of 'adverse action' spoken of in the Regulation must have reference to the date of certification and not the survey date, and this part of the Regulations is inapplicable to plaintiffs at bar. If they are successful before the Commission they are nevertheless entitled to retroactive restoration of rights and pay.

 For the foregoing reasons we find plaintiffs' first contention of irreparable damage to be without substance.

 Plaintiffs cite Shargel v. Hollis *fn16" in their support. However in that case Judge Dimock held that the plaintiff had no administrative remedy, hence could not exhaust what did not exist, and thus the exhaustion doctrine had no applicability. Here the plaintiffs have an administrative remedy which they are presently pursuing and which can give them all that they seek.

 Plaintiffs' second contention is that this Court should now intervene because the administrative action complained of was clearly illegal. Stemming from a dictum in Order of Railway Conductors of America v. Pitney, *fn17" there has arisen a line of cases holding that there the administrative action is 'clearly illegal' the need to exhaust administrative remedies is vitiated. *fn18" Although on the face of it this principle has alluring appeal we cannot agree with it as a hard and fast 'rule of law'. First of all if the administrative action is clearly illegal it will in all likelihood be overturned on appeal within the administrative agency. Within the genius of our government courts and administrative tribunals operate within their respective spheres and frequently both are charged with the power to vindicate alleged administrative wrongs. *fn19" But where expert judgment is called for -- and the operation of a large enterprise, private or public, indeed involves specialized knowledge -- administrative agencies may well be better equipped to determine issues of the sort presented at bar. *fn20" Judicial withdrawal at this stage in the proceeding simply means that the courts will wait for complete and mature administrative reflection, the screening out of its errors, and the utilization of its special competence.

 It may be argued that if administrative action is 'clearly illegal' and if in any event it will be overturned in the process of administrative review, we should at the start save the parties the trouble and expense of pursuing their administrative remedies. Again the simplicity of the statement is deceiving. One of the basic purposes of the doctrine requiring exhaustion of administrative remedies is to give full vent to the administrative process, allowing a full record to be made, prior errors to be resolved, and for all we know at this time, eliminating any ...


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