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KAVAZANJIAN v. U. S. INS

August 18, 1975

Edward KAVAZANJIAN et al., Plaintiffs,
v.
U. S. IMMIGRATION AND NATURALIZATION SERVICE et al., Defendants



The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 Plaintiffs in this suit seek declaratory and injunctive relief and back pay in connection with their assertions that they were and are improperly denied classification of GS (General Schedule)-12 investigators of the United States Immigration and Naturalization Service (INS). For the reasons stated infra, the relief requested must be denied and the complaint dismissed.

 This action was commenced on July 15, 1969, by inter alia eleven named individual plaintiffs, ten of whom were at this time classified as GS-11 investigators for the New York Office of INS. The eleventh individual plaintiff, Edward Kavazanjian, had been a GS-11 investigator in the New York office until June 1967 when he was raised to class GS-12 (his quest herein is therefore for back pay). The eleven named plaintiffs represent other investigators similarly situated pursuant to a class action order entered on consent of the parties on August 18, 1971. Also plaintiffs in this action are Immigration and Naturalization Service Local No. 1917, American Federation of Government Employees, AFL-CIO, and the National Council of Immigration and Naturalization Locals.

 Named as defendants in this action are the INS, the United States Civil Service Commission (CSC), the United States, and named members of the Civil Service Commission.

 This Court has jurisdiction to review the actions of the INS and the CSC as they affected these plaintiffs pursuant to 5 U.S.C. § 702, which states that:

 
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

 The Court's review is, however, a limited one. Plaintiffs have the burden of showing that the actions of the INS and/or the CSC were, in the words of 5 U.S.C. § 706(2)(A) "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Cf. Almeda v. United States, 453 F.2d 1397, 197 Ct.Cl. 81 (1972); Albert v. United States, 437 F.2d 976, 979, 194 Ct.Cl. 95 (1971); Leopold v. United States Civil Service Commission, No. 71 C. 292 (E.D.N.Y. Mar. 29, 1974); Brech v. United States Immigration and Naturalization Service, 362 F. Supp. 914 (S.D.N.Y. 1973). It is to be noted, in connection with the requested review of the CSC's decisions, that: "The function of a reviewing court in a civil service case such as this is not to 'undertake to pass on qualifications of an employee for any given post' . . . nor to determine the proper functions and responsibilities of a particular Government position". (citations omitted) Bookman v. United States, 453 F.2d 1263, 1267, 197 Ct.Cl. 108 (1972).

 Plaintiffs' demands for back pay, which each has limited to $10,000, rely for jurisdiction on 28 U.S.C. § 1346(a)(2), which authorizes suits against the United States in federal district courts for amounts not exceeding $10,000; and plaintiffs' demands for peremptory relief have been posited under 28 U.S.C. § 1361, which authorizes mandamus of federal officials and agencies.

 The individual plaintiffs in this suit are, or were at the times complained of, investigators for INS. The INS is charged with overseeing problems involving immigration into this country, naturalization of citizens, and deportation of aliens. Depending on their specialties, INS investigators are denominated as either criminal investigators or general investigators and have responsibility to uncover frauds against the immigration laws, and to apprehend, arrest, and institute denaturalization and deportation proceedings where appropriate against aliens found to have violated federal laws. Some of the investigators additionally have liaison duties with other law enforcement agencies.

 The investigators, as federal employees, serve in positions which are classified under the General Schedule of the Government Organization and Employees Act, Title 5, United States Code. According to that Schedule, jobs are slated at different grade levels, which determine the incumbent's salary and his or her fringe benefits. Non-supervisory investigatory positions at INS may be classified at GS-9, GS-11, and GS-12. The standards for determining whether an investigator's job fell within class 9, 11, or 12 during the period relevant to this suit are set out in a document entitled "Supplement to the Position Classification Standards for the General Investigating Series, GS-1810-0, for Positions in the Immigration and Naturalization Service, Department of Justice", issued by the CSC in October 1959.

 It is the responsibility of each agency to place each position under its jurisdiction in the appropriate class and grade in conformance with standards published by the CSC. 5 U.S.C. § 5107. The INS for some years after 1959 did not classify any of its non-supervisory positions as GS-12, concluding that what GS-12 level work existed in its offices would be handled by supervisors, who were classified at GS-12 and above. As will be explained in more detail infra, plaintiffs and their fellow investigators in the New York INS office were instrumental in the change of this INS policy in 1967.

 The CSC has the responsibility to oversee the classification of all government employees subject to such classification. It is given authority to ascertain the facts concerning government positions, to decide whether they are in their appropriate grade and class, and to change a position from one grade or class to another when the facts warrant. 5 U.S.C. § 5112(a)(1, 3 & 4). Upon request of an affected employee, the CSC must exercise its authority. 5 U.S.C. § 5112(b). The process by which an employee requests the CSC to consider the propriety of his position's grade has been referred to by the parties as a classification appeal. This "appeal" is not, however, an appeal from any specific decision of the agency not to reclassify a job, and an employee need not petition his or her own agency for reclassification before invoking CSC review.

 Plaintiffs allege that some of the investigators attempted to persuade the INS to upgrade their positions as early as December 1963 and that the INS not only refused to act upon these requests for reclassification in good faith but, by misleading the investigators as to its intentions, also prevented them from filing appeals with the CSC before 1966. Plaintiffs' allegations of bad faith and evil motive on the part of the INS in responding to these early inquiries are simply not borne out by the credible evidence presented to this Court.

 In 1966, fifty-two investigators in the New York INS office whose positions were classified as GS-11 did file classification appeals with the CSC. This simultaneous action was stated by the CSC official involved to be the largest mass appeal filed with the CSC up to that date. The appeal was organized by plaintiff Kavazanjian in connection with the union to which he and other investigators belonged. ...


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