Elder v. Brannan, 341 U.S. 277 (1951)

Elder v. Brannan

Argued April 11, 1951
Decided May 7, 1951 *
341 U.S. 277

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

1. Petitioners are veterans entitled to the benefits of the Veterans’ Preference Act of 1944. They were appointed as attorneys in a Government Department in 1943, when a civil service regulation limited such appointments to the duration of the war plus six months, and persons so appointed were not to acquire a classified (competitive) civil service status. In 1947, through a reduction in force, petitioners and other attorneys in the Department were separated from the service, although nonveteran attorneys with classified status were retained. They sought relief in an action in the District Court, alleging that their separation from the service was unlawful.

Held: petitioners’ separation from the service was in accord with the Civil Service Commission’s retention preference regulations; the regulations were consistent with § 12 of the Act and were valid, and petitioners’ separation from the federal service was therefore valid. Pp. 281-285.

(a) Petitioners did not acquire a classified civil service status, and were not entitled under civil service regulations to retention preference over all nonveterans. P. 281.

(b) The proviso of § 12 of the Act does not give to veterans with an efficiency rating of "good" or better an absolute preference over all other employees, with or without classified status or its equivalent. Pp. 283-285.

(c) The Commission’s retention regulations, adopted pursuant to § 12 of the Act, can hardly be deemed invalid for making a distinction on the basis of tenure when they reflect a longstanding definition of "competing" groups, when they were issued by the agency which proposed the statutory language finally adopted, and when Congress indicated no intent whatsoever to supply a new standard. P. 285.

(d) The contention that, apart from § 12, veterans were given an absolute preference by § 4 of the Act of 1912, 37 Stat. 413, and that the preference so granted was carried over by the saving clause in § 18 of the 1944 Act, cannot be sustained as to these temporary war service employees. Pp. 285-286.

(e) Section 2 of the 1944 Act does not, in and of itself, extend absolute preference to veterans with limited tenure. No specific preference rights are granted by that section. P. 286.

2. Petitioners’ complaint also alleged that the Department had rehired some of the other attorneys, that some of those rehired had a lower classification on the retention register than that of petitioners, and that petitioners were thus wrongfully denied preference in rehiring. They did not allege that they had requested that their names be placed on the appropriate reemployment list, nor that the appointing officer failed to follow the procedures specified by §§ 7, 8, 15, and pertinent regulations.

Held: the complaint was insufficient to state a cause of action under the Act. Pp. 286-289.

(a) Section 2 of the 1944 Act grants petitioners no "reinstatement and reemployment" preference rights. Pp. 281-287.

(b) Reinstatement or reemployment preferences are not to be measured by retention preference regulations under § 12 of the Act. P. 287.

(c) Petitioners’ rights to preference in reemployment were governed by § 15 of the Act. They were entitled to those rights only if they requested that their names be placed on the appropriate reemployment list, and, even if they did so, their preference rights were violated only if the appointing officer failed to follow the procedures specified by §§ 7, 8, 15, and pertinent regulations. P. 289.

87 U.S.App.D.C. 117, 184 F.2d 219, affirmed in part and reversed in part.

In actions brought against the Secretary of Agriculture by two veterans who sought to be restored to their former positions in the Department, the District Court granted the motion of the Secretary for summary judgment. The Court of Appeals reversed and remanded the cause. 87 U.S.App.D.C. 117, 184 F.2d 219. This Court granted cross-petitions for certiorari. 340 U.S. 928. Affirmed in part, reversed in part, and remanded to the District Court, p. 289.