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08/04/87 Sharon Andrade, Et Al., v. Alfred S. Regnery

August 4, 1987




Before: MIKVA and WILLIAMS, Circuit Judges and WEIGEL,* Senior District Judge.


Sharon Andrade, et al., Appellants, Terrence S. Donahue, et

Appeal from the United States District Court for the District of Columbia, Civil Action No. 82-00848.


Opinion for the Court filed by Circuit Judge, MIKVA.

MIKVA, Circuit Judge:

Seven present or former employees of the Office of Juvenile Justice and Delinquency Prevention challenge their demotion or termination under a reduction in force program . Appellants and others originally resisted implementation of the RIF on a number of grounds, many of which this court previously dismissed for reasons of ripeness and failure to exhaust administrative remedies. See Andrade v. Lauer, 234 U.S. App. D.C. 384, 729 F.2d 1475 (D.C. Cir. 1984) (Andrade I). In Andrade I, however, we also remanded to the district court for adjudication of appellants' constitutional claim that the RIF was implemented and carried out by government officials whose tenure violated the requirements of the Appointments Clause, U.S. Const. art. II, ยง 2, cl. 2. On remand, the district court granted the government's

motion for summary judgment on the Appointments Clause claim, prompting appellants' second visit to this court. We now affirm.


The relevant facts of this dispute have already been set out in our opinion in Andrade I, see 729 F.2d at 1478-80, and can be briefly recapitulated here. Appellants were demoted or fired as part of a RIF that went into effect on March 26, 1982. At that time, the OJJDP was one of a group of five agencies housed within the Department of Justice under the general authority of the Attorney General. The OJJDP's function was to administer federal programs concerned with juvenile delinquency. Among the five agencies housed with OJJDP were two others that figure in this case: the Office of Justice Assistance, Research, and Statistics and the Law Enforcement Assistance Administration .

At the time the RIF was implemented, Congress was unhappy with the performance of the LEAA and for three years it had refused to appropriate any new funding for the agency. The LEAA therefore was receiving no money to pay its employees and was effectively being phased out of existence. The LEAA's prospects for survival were brightened considerably on June 16, 1981, when Assistant Attorney General Kevin Rooney issued an order grouping the five DOJ agencies into one "competitive area." Under federal personnel regulations, when a RIF is instituted, employees in the same competitive area complete to retain their jobs. Normally, a competitive area is confined to employees of a single agency. See Andrade I, 729 F.2d at 1479. Thus, ordinarily the RIF occasioned by the cutoff in funds of the LEAA would have affected only LEAA employees. After the Rooney order, however, the upcoming RIF would affect employees from all five agencies, including the OJJDP and, in particular, appellants.

Officials of the five agencies began to make plans for a RIF late in 1981. The plans were administered principally by Robert Diegelman, Acting Director of OJARS, and, to a lesser extent, by Charles Lauer, Acting Deputy Administrator of OJJDP. Diegelman had been appointed to his post on August 4, 1980, while Lauer had been designated Acting Deputy Administrator of OJJDP on February 13, 1981. Appellants maintain that both Diegelman and Lauer exercised authority in violation of the Appointments Clause, because neither official was ever nominated by the President or confirmed by the Senate.

On December 3, 1981, Diegelman sent a notification to appellants informing them that a RIF was to be instituted sometime early in 1982. On February 26, 1982, the seven appellants were formally notified that they were among the 14 OJJDP employees who would be laid off or demoted in a RIF to be implemented on March 26, 1982. Shortly before the RIF was implemented, on March 23, 1982, an Assistant Attorney General formally appointed Lauer to be the Deputy Administrator of OJJDP. On March 25, Lauer signed an affidavit purporting to ratify all actions affecting OJJDP taken in connection with the upcoming RIF, which went into effect as scheduled the following day.

On March 25, 1982, appellants, along with 21 other OJJDP employees who feared they would be fired in future RIFs, initiated this long-standing litigation by bringing an action for a preliminary injunction in the District Court for the District of Columbia. Plaintiffs claimed that the imminent RIF would violate federal regulations, a federal statute, and the federal constitution (i.e., the Appointments Clause). The district court dismissed the claims of the other 21 employees on ripeness grounds. The court also dismissed appellants' claims, finding that appellants had ...

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