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ZUCKER v. BAER

October 8, 1965

Harry H. ZUCKER, Plaintiff,
v.
Lawrence H. BAER, as Regional Director, New York Region, United States Civil Service Commission, and John W. Macy, Jr., Chairman, Ludwig J. Andolsek and Robert E. Hampton, Commissioners, Comprising and Constituting the United States Civil Service Commission, Defendants



The opinion of the court was delivered by: MCLEAN

McLEAN, District Judge.

 This is an action pursuant to 5 U.S.C. § 1009 to review and set aside a decision of the Regional Director of the New York Region of the United States Civil Service Commission. Defendants move for summary judgment.

 Plaintiff is employed by the Veterans' Administration as a Veterans Claims Examiner, Grade GS-9. He contends that his position is improperly classified, and that it should be in Grade 11. The Veterans' Administration having failed to grant plaintiff's request for a reclassification, he, together with other Grade 9 Examiners, made application on July 16, 1964 to the New York Region of the Civil Service Commission for reclassification of the position. Apparently this application was made pursuant to 5 U.S.C. § 1101, which empowers the Commission to "decide whether any position is in its appropriate class and grade" and to "change any position from one class or grade to another class or grade whenever the facts warrant."

 On November 20, 1964, the Regional Director denied the application. He rendered a decision in the form of a letter addressed to plaintiff in which he concluded:

 
"It is our considered judgment that the present grades of the positions occupied by the appellants are correct and it is our decision that your position is properly classified as Veterans Claims Examiner GS-996-9."

 Plaintiff attempted to appeal from this decision to the Board of Appeals and Review of the United States Civil Service Commission in Washington. On December 23, 1964, the Chief of the Classification Appeals Office wrote a letter to plaintiff in which he stated:

 
"* * * the Commission has delegated authority to its regional offices to make final decisions on classification appeals. Therefore, the November 20, 1964 decision of the New York Region terminated your right to appeal to the Civil Service Commission in this matter."

 This letter went on to state:

 
"While this Bureau may reopen and reconsider any regional office appeal decision, we do so only on the basis of a showing of probable error in the decision or upon presentation of material facts not previously considered by the region."

 As far as appears, plaintiff did not apply for any such reopening. Nevertheless, defendants do not now claim that plaintiff has failed to exhaust his administrative remedies. On the contrary, they concede that he has.

 The scope of judicial review of a determination of an administrative agency is limited. The court may not substitute its own judgment for that of the agency as to the merits of plaintiff's claim. Under 5 U.S.C. § 1009(e), the court may set aside agency action only if it finds that action to have been unlawful in one or more of the respects specifically set forth in the statute. Of these, the only criteria which could possibly apply here are actions which are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "short of statutory right," or "without observance of procedure required by law." On this motion defendants assert that the court must determine these questions solely upon the basis of the administrative record. Indeed, they go farther and contend that since the administrative record is conclusive, the court must decide this case upon a motion for summary judgment, and that no trial of the action is permissible.

 The initial difficulty that I encounter in considering this argument is that there is no administrative "record" here, in the usual sense of that term. The Regional Director was not required by law to hold a formal hearing upon plaintiff's application, and he held none. Hence, all that we have in the way of a "record" is the Director's decision. There is no transcript of testimony from which the court could determine what the evidence was upon which that decision was based.

 Defendants have supported their motion for summary judgment by an affidavit of an Assistant United States Attorney which merely recounts the various administrative steps heretofore summarized. To this there is attached a copy of the Director's decision and copies of certain correspondence and of documents submitted to the Director by the Veterans' Administration, i.e., classification standards, job descriptions, memoranda of staff conferences, and the like. The moving papers do not include any affidavit from the Director or any other employee of the Civil Service Commission, and the court is thus left with no way of knowing what investigation the Director made or what evidence he considered except to the extent that this is reflected in his decision.

 The problem which confronted the Director was not an easy one, because the so-called standards and job descriptions which purport to define the respective positions of Claims Examiner Grade 9 and Claims Examiner Grade 11 are phrased in vague and general terms. There is no sharp, precise distinction between the ...


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