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April 26, 1978

LEONARD LEOPOLD, et al., Plaintiffs,
U.S. CIVIL SERVICE COMMISSION, et. al., Defendants

Eugene H. Nickerson, United States District Judge.

The opinion of the court was delivered by: NICKERSON


This is a class action brought in 1971 by certain attorneys employed by the Immigration & Naturalization Service ("I.N.S.") of the Department of Justice of the United States. The attorneys commenced administrative proceedings on September 26, 1967, more than ten years ago, to have their job grade reclassified from GS-12 to GS-14. The Department of Justice denied their application, and the decision was affirmed by the Chief of the Classification Appeals Office ("C.A.O.") of the Civil Service Commission by letter dated May 31, 1968.

 On reconsideration the same Chief modified his earlier ruling and stated on April 3, 1969 that plaintiffs were properly classifiable at grade GS-13. A further request for reconsideration was denied on October 23, 1970, and in March 1971, plaintiffs commenced this action, asserting that the Commission's decisions were arbitrary and capricious in that they focused only on the type of cases handled by plaintiffs and not on their hearing officer functions and level of responsibility. Plaintiffs asked the court either to reclassify them retroactively at level GS-14 or to remand the case to the Commission, and to determine money damages.

 By order of Judge Rosling dated July 23, 1972, the case was designated as a class action on behalf of all similar attorneys employed by I.N.S. in grade GS-13. On March 29, 1974, Judge Judd, who assumed responsibility for the case after the death of Judge Rosling, considered plaintiffs' motion for summary judgment and remanded the case to the Commission, finding that it had been "arbitrary in not considering all the statutory criteria." In brief, Judge Judd held that the Commission's failure to consider one of those criteria, namely, level of responsibility, was an abuse of discretion as that term is defined in the Administrative Procedure Act.

 Judge Judd concluded that it would be inappropriate for the court to reclassify plaintiffs, not only because there were factual matters in dispute, but also because, "absent a showing that the Commission's administrative conduct is 'beyond repair'" [cf. Office of Communication v. Federal Communications Commission, 138 U.S. App. D.C. 112, 425 F.2d 543, 550 (1969)], such an order would be "beyond the scope of this court's authority." He ordered the matter remanded to the Commission for restudy in a manner that would eliminate its capricious and arbitrary action, and in particular for "a re-evaluation of plaintiffs' positions with specific reference to the level of responsibility factor."

 Instead of restudying the facts in accordance with Judge Judd's order the Commission resurrected some old 1968 notes and reaffirmed the grade GS-13 classification. A letter to that effect was sent to plaintiffs by another Chief of the C.A.O. on September 25, 1974.

 On plaintiffs' motion to hold the Commission in contempt, Judge Judd, "reluctant to impose fines on federal officials" concluded charitably that the Commission's action was based on a "misunderstanding" of the court's order. In a decision dated June 23, 1975 he again remanded the case to the Commission, finding that the agency action was not yet "beyond repair" so as to "justify this court making its own determination." He explicitly directed the Commission to re-evaluate the level at which plaintiffs performed in 1967 and "at the present time," based "on field studies and not on old material."

 Attorneys for plaintiffs and the Commission thereafter agreed that a study of plaintiffs' duties should be undertaken by an independent attorney, one Daniel Mathews. This report dated March 31, 1976 concluded that plaintiffs' jobs entailed responsibilities commensurate with a classification at grade GS-14, and that, insofar as it was possible to reconstruct matters as they existed in 1967, it appeared that plaintiffs were performing at level GS-14 at that time as well.

 On the basis of this report, re-classification to grade GS-14 was finally ordered by the Commission on November 4, 1976. However, the order was made retroactive only to August 15, 1976.

 Thus plaintiffs after nine years of litigation attained the classification to which they were entitled. They now move for summary judgment and seek differential backpay since 1967 (or one of a number of other "crucial dates"). In the alternative, they ask for an order directing the Commission to amend their employment records to reflect that plaintiffs were functioning at level GS-14 since 1967, which they term "prospective retroactivity", so that their pension benefits and annual step increases will be recomputed for the future and so that their eligibility for promotions may be based on the longer service in a particular grade.

 Under the authority of the Supreme Court decision in United States v. Testan, 424 U.S. 392, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976), plaintiffs' motion for backpay is denied. Despite the statutory policy of equal pay for equal work embodied in 5 U.S.C. §§ 5101, 5301, that decision held in a case involving a claim almost identical to the present one, that the doctrine of sovereign immunity bars claims for backpay by claimants such as plaintiffs.

 Plaintiffs attempt to distinguish the Testan case as involving only the jurisdiction of the Court of Claims. But the opinion explicitly reaffirmed the principle that "except as Congress has consented to a cause of action against the United States, 'there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States'" (citations omitted). 424 U.S. at 399. The Court held that neither the Classification Act, 5 U.S.C. §§ 5101, et seq., nor the Back Pay Act, 5 U.S.C. § 5596, waives sovereign immunity for claims for money damages by persons improperly classified.

 Thus, even though plaintiffs suffered monetary losses which appear to have been due to unjustifiable agency procrastination, indecision and error, the Testan decision precludes the awarding of damages.

 Plaintiffs contend that the court may compel payment of damages under 28 U.S.C. § 1361, which gives this court "jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." But the mandamus statute does not waive sovereign immunity. To hold otherwise would abolish the doctrine of sovereign immunity in every action for damages. ...

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