Before ROBINSON, Chief Judge, and TAMM and MIKVA, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
NATIONAL TREASURY EMPLOYEES UNION, and unincorporated
Nos. 81-1294, 81-1295, 81-1296, 81-1297, 81-1298 1981.CDC.208
Appeals from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 81-00195, 81-00284, 81-00240, 81-00199, and 81-00198).
Opinion for the court filed by Circuit Judge TAMM.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
In these cases, we are called upon to determine the legality of the federal hiring freeze ordered by President Reagan on January 20, 1981, as it applies to those persons who had been notified between November 5, 1980, and January 20, 1981, that they had been unconditionally selected for federal jobs and who had not begun work on or by January 20, 1981. Plaintiffs raise a number of theories under which they believe they are entitled to relief. They contend, inter alia, that the individual plaintiffs were irrevocably appointed to the jobs in question, that there non-employment was a taking of property in violation of the fifth amendment, that the federal government was estopped from denying employment to them, that the President was without authority to rescind the appointment authority of the department heads, and that the freeze as applied violated the Impoundment Control Act of 1974. We address each of these claims below. I. CONTENTIONS RELATING TO THE APPOINTMENT PROCESS
The class of individual plaintiffs in these cases is composed of
(all) persons, whether currently employed by the federal government or not, who were issued written confirmation of their selection for employment with an executive branch, department or establishment of the United States between November 5, 1980, and January 20, 1981, and who were directed to report to duty on a date certain, and who, as a result of defendant Reagan's "Memorandum for the Heads of Executive Departments and Agencies" and defendant McComber's OMB Bulletin No. 81-611, were subsequently informed that the appointment was withdrawn.
Class Certification Order (Feb. 26, 1981), Joint Appendix at 87. *fn1
The plaintiffs contend that the hiring freeze was unlawful as applied to members of the class because they had been legally and irrevocably "appointed" to the positions for which they had been selected. The district court concluded that members of the class had not been appointed, but had only been given offers of jobs, which could be revoked. *fn2 We agree with plaintiffs that class members were appointed to the jobs in question; we disagree, however, as to the possibility of revocation.
For more than one hundred and seventy-five years, the rule as to when an appointment takes place has been clear: "when the last act to be done by the (appointing authority) was performed ...." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156, 2 L. Ed. 60 (1803). See, e.g., Goutos v. United States, 212 Ct. Cl. 95, 552 F.2d 922, 925 (Ct.Cl.1976). Although the parties agree that this is a proper statement of the law, they differ as to its application to the facts of these cases.
We note initially that the problem before us arises only because the statutes and regulations concerning this appointment process are unclear. Congress or an executive agency it authorized could establish a process in which the point of appointment was specified, or obvious beyond dispute. See, e.g., 5 U.S.C. § 3301(1) (1976). Neither has done so. Even absent statutory or regulatory clarification, the ambiguity in these cases might have been resolved had the relevant authorities included in the written notification of selection some indication that appointment itself was conditioned upon some future discretionary event. Cf. Goutos v. United States, 212 Ct. Cl. 95, 552 F.2d 922 (Ct.Cl.1976) (necessity of filling out form clear to all involved in process). Here, however, the "selection" was stated in absolute terms. In the absence of authoritative guidance, therefore, this court must proceed to determine whether appointments actually occurred.
What guidance there is resides in the Federal Personnel Manual (FPM or Manual), issued by the Office of Personnel Management . *fn3 The Manual is "the official medium of the Commission (sic) for issuing its personnel regulations and instructions, policy statements, and related material on Government-wide personnel programs, to other agencies." Ch. 171, subch. 2-1 (January 31, 1972). *fn4 The Government contends that the Manual supports the conclusion that the filling out of a Standard Form 50, or the filling out of a Standard Form 52 followed by the entrance of the "selectee" onto duty, is the last act within the meaning of Marbury. As authority for its contention, it cites FPM Supplement 296-31, Book V, Table 3, at 26:10 (Item 34), which provides in its entirety:
Information Item No. Specific Instructions
other 34 Show signature (or other authentication)
and and title of appointing
title officer, SF 50 must be signed or
authenticated on/before effective
date of the action unless approval
signature on SF 52 (Part II, item
k) is that of the appointing officer
or unless the effective ...