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BRECH v. UNITED STATES INS

August 23, 1973

Milton James BRECH et al., Plaintiffs,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE and United States of America, Defendants


MacMahon, District Judge.


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

These are cross-motions for summary judgment on one statement of stipulated facts. Plaintiffs, all employees of the Immigration and Naturalization Service (INS), have challenged the methodology and the timing employed by the defendants in re-classifying their employment level as violative of the pertinent sections of the United States Code (5 U.S.C. § 5101 et seq.).

 The complaint originally alleged five claims and sought class action determination. Several of the claims therein have now been mooted or withdrawn, and it appears that the action is reduced to a claim by the individual plaintiffs, Brech and Fishman (now Roy) for correction of their records to show appointment to employment grade GS-11 from GS-9 on either April 3, 1967 (the day plaintiffs filed a request for on-site position audits for the purpose of reclassifying their positions) or April 30, 1969 (the day the Civil Service Commission ordered the standards sought by plaintiffs implemented) and for back pay from either of those dates to October 22, 1969 (the day plaintiffs were formally classified and paid at the GS-11 grade).

 Plaintiffs were employed as Immigrant Inspectors and classified under the Immigrant Inspector Series GS-1816. One of the plaintiffs was a GS-9 on April 3, 1967 and the other was soon to be promoted. They, along with fourteen other inspectors, filed a classification appeal with the Civil Service Commission (CSC) on that date. The Regional Office of the CSC accepted the appeal by letter dated April 7, 1967. The CSC requested plaintiffs' employer, INS, to provide certain information regarding the positions and classifications of the plaintiffs. INS supplied the information by letter dated April 28, 1967. Various communications followed, including a letter from plaintiffs' attorney setting forth for the first time a request for the CSC to review the entire published classification standards for Immigrant Inspectors.

 Plaintiffs' attorney wrote to the CSC on March 4, 1968 stating that the appellants agreed to having their classification appeal held "in abeyance pending the outcome of a survey presently being conducted by the Civil Service Commission. . . ." The survey referred to was one of the entire Immigration Inspector occupations undertaken by the CSC at the request of the Department of Justice. During 1968, the CSC survey proceeded apace and included fact-finding surveys at various locations throughout the United States and consultations with officers of the INS and with Immigrant Inspectors such as the plaintiffs.

 After the surveys and other collection of information, the CSC proposed a completely new classification standard to replace the one which had been in effect since 1959. The tentative draft of the new standard was released by the CSC on February 4, 1969 and was circulated to various persons including the plaintiffs.* Based on comments and review of the tentative standards, the CSC issued new final standards for the GS-1816 occupation on April 30, 1969. These final standards included some changes from the tentative standards.

 Following the promulgation of the new standards for Immigration Inspectors and Examiners on April 30, 1969 (which covered grades GS-4 through GS-11), six advance copies were forwarded to the Department of Justice on May 12, 1969. Further copies were not received until July 7, 1969; those copies were immediately distributed and reviewed by the central office of INS in Washington and the regional offices. On-site audits of the individual plaintiffs' jobs were undertaken in August 1969, and on October 22, 1969 the plaintiffs, with others, were promoted to the GS-11 level as Immigrant Examiners.

 The record indicates that a review of some 1230 individual Immigration Inspector and Examiner positions was required. Responding to an inquiry by Congressman Fascell as to the length of time between the promulgation and the implementation of the new standards, INS Commissioner Farrell, in a letter dated October 14, 1969, noted that:

 
"[The] complexities of this review were compounded by the fact that these positions are located in approximately 220 different Service offices throughout the country, including locations in Nassau, San Juan, Guam, Montreal, Vancouver, Honolulu and Alaska. Further compounding our study was the fact that the Service was under a mandate from the Civil Service Commission to prepare revised position descriptions for positions in this occupation."

 The CSC has received a congressional mandate to develop and administer a system for the classification and grading of employees of the federal government. 5 U.S.C. §§ 5103, 5112. That mandate, in the "purpose" section, contains a directive that "the principle of equal pay for substantially equal work will be followed." 5 U.S.C. § 5101[1][A].

 Two other specific directives to the CSC are pertinent. The first is that each position shall be placed in the appropriate class and grade based upon "the level of difficulty, responsibility and qualification requirements of the work." 5 U.S.C. § 5106. The second is that each agency " shall " classify its employees "in conformance with standards published by the Civil Service Commission." 5 U.S.C. § 5107.

 Plaintiffs claim that INS did not comply with these three directives and that therefore they are entitled to back pay and correction of their records.

 Plaintiffs argue that they were paid at a grade far below the one at which the government later determined they had been producing. Consequently, they maintain, they received the same pay as other Immigrant Inspectors performing lesser tasks and received less pay than others in government service performing substantially equal work.

 Our function here is limited, for "[it] is not the business of courts to substitute their untutored judgment for the expert knowledge of those who are given authority to implement the general directives of Congress." Air Line Pilots Ass'n v. Quesada, 276 F.2d 892, 898 (2d Cir. 1960). Judicial review is, thus, limited to (1) determining whether there has been substantial compliance with statutory and regulatory requirements and (2) determining whether the ...


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