Opinion
CIVIL ACTION NO. SA-00-CA-0517 HG.
May 31, 2001
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TO: Honorable H.F. Garcia United States District Judge
Before me is defendants' motion to dismiss, or alternatively, for summary judgment, filed September 8, 2000 (Docket Entry No. 12); plaintiffs' response, filed October 4, 2000 (Docket Entry No. 16) and reply briefs filed by both parties in the case. Plaintiffs, "preference eligible" veterans and former civil service employees at the Kelly Air Force Base ("AFB"), bring this lawsuit to challenge the Department of Defense's ("DoD") Priority Placement Program ("PPP"). as administered by the Civilian Personnel Office, San Antonio Air Logistics Center, at Kelly AEB, in San Antonio, Texas. The gravamen of plaintiffs' complaint in this suit is that the PPP is required, but fails to, give priority placement to preference eligible veterans in making placements within the DoD. According to plaintiffs, the PPP violates the provisions of the Veterans' Preference Act of 1944 ("VPA") applicable to retention decisions. The named-plaintiffs maintain that had the DoD factored in a veterans' preference eligibility criteria in its PPP, they would have been placed in available positions within agency.
Defendants filed a reply to plaintiffs' summary judgment response (Docket Entry No. 21) to which plaintiffs filed a sur-reply (Docket Entry No. 23).
It should be noted that defendants do not dispute that the plaintiffs are "preference eligible" veterans as the term is defined under 5 U.S.C. § 3502.
Docket Entry No. 3.
5 U.S.C. § 1302 3502 (2000).
Even though defendants have also moved for dismissal, or alternatively for summary judgment, on the grounds that the plaintiffs have not established any legally redressable injury because they were not matched for vacant positions in the PPP, the court abated entering a ruling on that issue at the request of both parties. Docket Entry No. 30. The abatement was requested due to the legitimate need of plaintiffs to conduct more discovery on the issue in order to properly respond to defendants' summary judgment motion. Docket Entry Nos. 24 29. The parties have also acknowledged that defendants' first asserted ground for seeking summary judgment, if granted, would dispose of the entire case. Docket Entry No. 12, at 11-17. Thus, this Memorandum is limited to a discussion of Defendants' first summary judgment issue: whether a legal basis exists for plaintiffs' claim that they are entitled to a veterans' preference in the PPP. Id.
The relevant facts of the case are not in dispute. Both parties also agree that the sole legal issue, which could be dispositive of the entire case, is whether the DoD is required, either by current statutory and/or regulatory mandate, to include a veterans' preference factor in its PPP. In that regard, plaintiffs have acknowledged that the current regulations issued by the Office of Personnel Management ("OPM") to further implement the goals of the Veterans' Preference Act ("VPA"), do not control the PPP's policies and procedures. Thus, plaintiffs in essence request that the court direct OPM to draft the necessary regulations which would guarantee them an additional veterans' preference in the DoD's PPP.
Docket Entry No. 3, at ¶¶ 10-11.
Id. at ¶ 39.
After carefully reviewing the applicable law and the legal arguments asserted by both parties, and mindful of the court's limited role of interpreting existing law, I recommend that the District Court grant defendants' summary judgment motion. The plaintiffs have failed to demonstrate a statutory basis for their claim that they were guaranteed a veterans' preference in the DoD's PPP. They have relied on only two statutoty provisions, 5 U.S.C. § 1302 (granting OPM with the authority to issue the necessary regulations for the implementation of the VPA) and 5 U.S.C. § 3502 (defining the rights of preference eligible veterans in a reduction-in-force situation). These two provisions do not apply to the PPP. Plaintiffs, in essence, are requesting that the court enter a decree ordering OPM to enact new regulations to include a veterans' preference in the PPP. The PPP, however, is an internal program created and administered by the DoD to assist their displaced employees by matching their job skills with vacant positions within the agency. The program is not governed by any statute, regulation, or rule, requiring that veterans' preference be one of the qualification factors considered in the PPP. Indeed, the undisputed facts of this case demonstrate that as preference eligible veterans, plaintiffs were given preferential treatment to the extent allowed by Congress (i.e., at their initial appointments to civil service employment and during the reduction-in-force ("RIF") at Kelly AFB, as mandated by 5 U.S.C. § 3502). The role of the courts is not to create, but rather to interpret and enforce existing laws as enacted by Congress. Finding that there is no justiciable controversy in this case, I recommend to the District Court that summary judgment be granted in favor of defendants.
Id. at ¶¶ 38-39.
Docket Entry No. 12, Exhibit 10, at 2.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket Entry No. 7.
II. Jurisdiction
Plaintiffs predicate jurisdiction of this court on various statutes: 28 U.S.C. § 1331, as an action arising under the laws of the United States; 28 U.S.C. § 1346(a)(2), as a claim against the United States founded upon any act of Congress, or any regulation of an executive department; 28 U.S.C. § 1361, as an action in the nature of mandanius to compel officers or employees of the United States or any agency thereof to perform a duty owed to plaintiffs; 28 U.S.C. § 1651(a), as seeking issuance of all writs necessary in aid of the court's jurisdiction; 28 U.S.C. § 2201, as seeking declaratory judgment; and 5 U.S.C. § 3330b (Veterans' Employment Opportunities Act of 1998), as a suit over violations of veterans' preference laws. Accordingly, this court has original jurisdiction, pursuant to 28 U.S.C. § 1331, to determine whether plaintiffs have failed to plead any statutory and/or regulatory authority affording them with a legal right to challenge the PPP in federal court.III. Statement of the Case
The plaintiffs in this action have brought into question the legal merits of the PPP. The PPP is an internal administrative DoD program, established and operated by DoD directives to provide additional placement assistance to DoD employees who are involuntarily separated or downgraded because of downsizing actions. Importantly, the PPP policies and procedures are not controlled by statute, regulation or executive order, but rather its applicability remains within the exclusive direction (and at the discretion) of the DoD. According to the evidence of record, the program has been in existence since 1965 when the Secretary of Defense at the time decided that all DoD managers place their job vacancies in a centralized automated database.
Indeed, the policy behind the PPP is to avoid adverse effects, to the extent possible, on DoD employees "caused by such actions as, but not limited to, reductions-in-force (RIFs), base closures, reassignments, consolidations, contracting-out actions, position classification decisions, rotation from overseas assignments, and transfers of function (TOFs)." Docket Entry No 16, Exhibit 5, Chapter 1800, Department of Defense, Priority Placement Program, June 30, 1998, DoD 1400.25-M, Section C, "Policy." Through a consolidated PPP, the DoD offers affected employees alternative employment opportunities with the agency. Id.
Docket Entry No. 12, at 2 Exhibit 3, ¶ 3.
Id. at Exhibit 2, ¶ 2.
The program begins by placing the applications of those DoD employees who are subject to displacement — whether by a RIF or otherwise — in a centralized automated database. A DoD employee subject to displacement can register with the PPP before the time of his or her scheduled displacement, and normally remains in the PPP automated database for a period of one year after separation from employment. At the time the employee registers for the PPP, he or she is required to identify other DoD locations to which reassignment or change to a lower grade would be accepted, and to also identify job skills he or she possesses for a possible "matching" with available positions within the agency. The PPP is neutral in operation, in that it only considers the employees' job skills and how these skills meet the specifications of available agency positions. It is undisputed that the PPP does not give preference eligible veterans any preferential treatment in making job matches and ultimate job placements. The supervisor in charge of filling the open job position at issue has the discretion to hire any well-qualified candidate referred by the PPP's job matching process, irrespective of that candidate's veteran status.
Id. at Exhibit 2, ¶ 3. Indeed, according to the sworn testimony of one of the DoD-PPP's coordinators, in the case of a RIF, the DoD employee will be automatically registered in the PPP upon receipt of a RIF notice. Id.
Docket Entry No. 12, at 2 Exhibit 2, ¶ 3. For example, according to the sworn affidavits of two of the plaintiffs, they were registered in the PPP at least three years before their actual separation from employment. Docket Entry No. 16, at Exhibit 7, Cipriano Galvan's affidavit in which he states that he first registered in the PPP subsequent to receiving his RIF notice, sometime in June of 1995 and his actual date of separation from employment was June 17, 1999; and Exhibit 8, Armando Tellez' affidavit, in which he states that after receiving his RIF notice in March of 1995, he registered in the PPP sometime in 1996. Tellez's actual date of separation from employment was July 2, 1999.Id.
The DoD's PPP applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (collectively known as the "DoD Components"). Docket Entry No. 16, Exhibit 5, DoD Directive 1400.25-M.
Docket Entry No. 12, at 3 Exhibit 4, at ¶ 4. For instance, contrary to the regulatory factors that an agency must consider for purposes of implementing retention priority in a RIF situation, such as tenure of employment, military preference, length of service, and efficiency or performance ratings, the DoD is not required by law to consider those factors in its PPP. 5 U.S.C. § 3502. See also Cuffee v. Office of Personnel Management, 74 M.S.P.R. 24 (1997), where the Merits Systems Protection Board dismissed petitioner's claim that the PPP failed to take his seniority into account when making placements, finding that the OPM regulations, 5 C.F.R. Part 330, Subpart F § 3330.601(c), specifically exclude the program from coverage.
See Docket Entry No. 3, at ¶¶ 8 9 Docket Entry No. 12, at 3 Exhibits 3 4.
Docket Entry No. 12, Exhibit 4, at ¶ 4. Interestingly enough, defendants have presented summary judgment evidence reflecting that "[t]he placement rate and the separation rate of alleged preference eligibles at Kelly AFB is approximately the same. of the 861 employees facing separation, 176 (20.4%) were veterans' preference eligibles. Similarly, 102 of the 188 PPP placements were preference eligibles (20.9%)." Id. at Exhibit 3, ¶ 6.
According to the procedural history of the case, this is not the first time that plaintiffs have attempted to challenge the PPP in federal court. The first legal challenge was brought on September 10, 1999 by plaintiffs' Union, the American Federation of Government Employees, Local 1617 ("AFGE"). The lawsuit was filed on the eve of massive layoffs of civil service employees (represented by the Union) scheduled to occur as part of the RIF procedures put in place to effectuate closing of the Kelly AFB. Specifically, the Union also moved for a temporary restraining order ("TRO") asking the court to enjoin the scheduled termination of over 100 preference eligible veterans. The District Court to which the case was assigned granted the TRO as requested. On September 20, 1999, the District Court, however, dissolved the TRO and dismissed the Union's complaint for lack of subject-matter jurisdiction pursuant to FED.R.CIV.P. 12(b)(1). The District Court found that the individual plaintiffs had not exhausted their administrative remedies, either to the Department of Labor or to the Office of Special Counsel, prior to bringing their lawsuit in federal court. As a result, the District Court did not address the legal merits of the plaintiffs' challenge to the PPP. Subsequent to the District Court's Order dissolving the TRO, the RIF layoffs, which were originally scheduled to take place on September 11, 1999, were ultimately implemented on September 25, 1999.
According to defendants' assertions, AFGE represented eighteen of the nineteen plaintiffs in this lawsuit. It did not represent Mr. Louie Rojas because he was an employee of the Defense Logistics Agency. Id. at 3 fn.3.
Id. at 3 Exhibit 5, Complaint, in Cause No. SA-99-CA-991-OG, at ¶ 11.
Docket Entry No. 12, at 4 Exhibit 6.
Id. at Exhibit 6, at 5.
Docket Entry No. 12, at 4.
It is undisputed that at the time plaintiffs were affected by the September 1999 RIF, they were afforded a veterans' preference in retention, pursuant to 5 U.S.C. § 3502. All of the employees entitled to a veterans' preference, including the plaintiffs, were provided their statutory entitlements to available placement opportunities, and were considered for and offered placement opportunities based on their retention standing. This meant that during the RIP, plaintiffs, as well as all other preference eligible veterans impacted by the procedure, were able to retain their positions for a longer period of time than non-veteran employees.
Id. at 5-6 Exhibit 10, at 2.
The evidence further shows that nearly all of these employees, including the plaintiffs, were offered the opportunity to transfer to new duty locations with their jobs, at their current grade. Those who elected not to transfer were automatically placed on the DoD's PPP upon receipt of their RIF notices. Besides the PPP, there is also undisputed summary judgment evidence that Kelly AFB has had ongoing outplacement assistance programs since the base closure was announced in 1995. Through these programs, employees, such as the plaintiffs, have had other opportunities, aside from the PPP, to seek and secure jobs.
Id. at Exhibit 10, at 2 Docket Entry No. 21, at 8.
Id. Thus, the plaintiffs were able to participate in the PPP as soon as they received their RIF notices, taking full advantage of registering in the program while at the same time retaining their employment during the RIF.
Id. at Exhibit 10.
According to plaintiffs' first amended complaint, and the complaint filed in the September 1999 lawsuit, plaintiffs have not challenged, nor do they do so in this lawsuit, defendants' implementation of the RIP procedures. What plaintiffs claim in this lawsuit, as they did in their first, is that in addition to the preferential treatment afforded to them during the RIP phase, the defendants are also required by law to provide them with a veterans' preference in the PPP.
Docket Entry No. 16, Exhibit 1 (Affidavit of Roy Castorano), at 6; Docket Entry No. 3, at 26 (Plaintiffs' First Amended Complaint, Allegations of Law); and Docket Entry No. 12, Exhibit 5 (Plaintiffs' September 1999 Complaint) Exhibit 8 (Administrative Complaint of Juan Alvarez).
Having purportedly completed the administrative phase of their claims, the plaintiffs bring the instant lawsuit seeking a ruling from the court that the PPP, as currently administered by the DoD and as applied to them during the RIP phase at the Kelly AFB, is legally unenforceable.
According to defendants, and undisputed by plaintiffs, the Department of Labor addressed the claims of twelve plaintiffs on the merits, finding no legal basis for them. For instance, in denying plaintiff Juan Alvarez' administrative claim, the Department of Labor concluded:
[T]he Priority Placement Program of the Department of Defense is not a statutory program and our research . . . shows that this program does not require veterans preference. As a non-statutory program the Priority Placement Program of the Department of Defense is not covered by the Veterans Employment Opportunit[ies] Act. This means that our agency does not have jurisdiction to address your complaint.
Docket Entry No. 12, at 5 Exhibit 9, Letter dated November 9, 1999, from the Department of Labor to Alvarez. Defendants further state that the administrative claims brought by the other eighteen plaintiffs were legally the same as the one brought by Alvarez. Id. at 5 fn.6. Defendants also state that the reason the Department of Labor or Office of Special Counsel did not reach the merits of the claims brought by the other seven plaintiffs was because these plaintiffs purportedly failed to respond to further requests for information. Id. Nevertheless, I will assume, without ruling, that the claims of those seven plaintiffs are properly before this court pursuant to the administrative procedures set forth in 5 U.S.C. § 3330a-b.
IV. Issue Presented
Whether current law and related regulations mandate that the DoD factor in a veterans' preference in its PPP?
V. Summary Judgment Standard
Because defendants rely on matters outside the pleadings, and having considered the same for purposes of entering this Memorandum and Recommendation, defendants' motion is treated for all purposes as one seeking summary judgment. A party is entitled to summary judgment upon motion if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment; the requirement is that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
FED.R.CIV.P. 56(c); Celotex Corn. v. Catrett , 477 U.S. 317, 322 (1986); Banc One Capital Partners Corp. V. Kneipper , 67 F.3d 1187, 1198 (5th Cir. 1995); Neff v. American Dairy Queen Corp ., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied , 516 U.S. 1045 (1996).
Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 247 (1986).
Id. at 248. See also Thomas v. LTV Corp ., 39 F.3d 611, 616 (5th Cir. 1994).
Anderson v. Liberty Lobby, Inc ., 477 U.S. at 248; Wise v. E.I. DuPont De Nemours Co ., 58 F.3d 193, 195 (5th Cir. 1995); MacMillian v. United States , 46 F.3d 377, 380-81 (5th Cir. 1995).
Anderson v. Liberty Lobby, Inc ., 477 U.S. at 249; Kunin v. Feofanoy , 69 F.3d 59, 61 (5th Cir. 1995); and Banc One Capital Partners Corp ., 67 F.3d at 1198.
A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the moving party accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.
Celotex Corp. v. Catrett , 477 U.S. at 323; Wise , 58 F.3d at 195; Burfield v. Brown, Moore, Flint, Inc ., 51 F.3d 583, 588 (5th Cir. 1995).
Edwards v. Aguillard , 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp. v. Catrett , 477 U.S. at 325.
Id.
Once the moving party has carried that burden, the burden shifts to the nonmoving party to show that summary judgment is not appropriate. The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings. Rather, the nonmoving party's response must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial.
Fields v. City of South Houston , 922 F.2d 1183, 1187 (5th Cir. 1991).
FED.R.CIV.P. 56(e); Anderson v. Liberty Lobby, Inc ., 477 U.S. at 250; State of Texas v. Thompson , 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp. v. Catrett , 477 U.S. at 324; Fields , 922 F.2d at 1187; Neff v. American Dairy Queen Corp ., 58 F.3d at 1065; Engstrom v. First Nat'l Bank , 47 F.3d 1459, 1462 (5th Cir. 1995), cert. denied , 516 U.S. 818 (1995).
VI. Analysis
A. Plaintiffs' First Amended ComplaintAccording to plaintiffs' First Amended Complaint, they assert the following legal allegations against defendants:
The Defendants DEPARTMENT OF DEFENSE, WILLIAM COHEN, DEPARTMENT OF THE AIR FORCE, F. WHJTTEN PETERS, SAN ANTONIO AIR LOGISTICS CENTER, DEFENSE LOGISTICS AGENCY, and PAUL L. BIELOWICZ have violated and are violating mandates of 5 U.S.C. § 1302 by failing and refusing to honor the veterans preference standing of the Plaintiffs as preference eligibles with respect to retention by failing and refusing to give preference to the Plaintiffs as preference eligibles in awarding opportunities for retention in employment through the Priority Placement Program.
The Defendant OFFICE OF PERSONNEL MANAGEMENT has violated and is violating its legal duty under 5 U.S.C. § 1302 by failing and refusing to promulgate regulations requiring the Defendants DEPARTMENT OF DEFENSE, WILLIAM COHEN, DEPARTMENT OF THE AIR FORCE, F. WHITTEN PETERS, SAN ANTONIO AIR LOGISTICS CENTER, DEFENSE LOGISTICS AGENCY, and PAUL L. BIELOWICZ to give preference to preference eligibles in awarding opportunities for retention in employment through the Priority Placement Program.
The Defendant OFFICE OF PERSONNEL MANAGEMENT has violated and is violating its legal duty under 5 U.S.C. § 1302 3502 by failing and refusing to promulgate adequate regulations to protect the preference status of the plaintiffs as preference eligibles in the context of the Kelly Air Force Base closing and similar closings.
Docket Entry No. 3, at ¶¶ 32-34.
Plaintiffs further state that there is no adequate remedy at law for the injuries they have suffered and that they only seek redress in the form of equitable relief. Specifically, plaintiffs request that this court, in addition to entering declaratory judgment, also:
[E]nter appropriate orders requiring the Defendants DEPARTMENT OF DEFENSE, WILLIAM COHEN, DEPARTMENT OF THE AIR FORCE, F. WHITTEN PETERS, SAN ANTONIO AIR LOGISTICS CENTER, DEFENSE LOGISTICS AGENCY, and PAUL L. BIELOWICZ (1) to reinstate them to positions of employment equivalent in pay and duties to those they occupied prior to separation or demotion, in the San Antonio metropolitan commuting area; (2) to accord them preference, as preference eligibles, over non-preference eligibles in the application of the Priority Placement Program, both retroactively and prospectively . . . .
[E]nter appropriate orders requiring the Defendant OFFICE OF PERSONNEL MANAGEMENT (1) to promulgate regulations requiring the other Defendants to give preference to preference eligibles in offering opportunities for retention in employment through the Priority Placement Program; (2) to promulgate adequate regulations to protect the preference status of preference eligibles in the context of the Kelly Air Force Base closing . . . .
Id. at ¶¶ 38-40.
B. Arguments of the Parties
Defendants have moved for summary judgment on the grounds that according to their own pleaded allegations, plaintiffs have made an admission that there is no legal basis for their claim of entitlement to a veterans' preference in the PPP. It is undisputed that plaintiffs did receive a veterans' preference in retention at the time of the RIF, and defendants maintain that this is the only preference to which they were legally entitled. According to defendants, since the PPP is a nonstatutory, intra-departmental job placement program created and administered by the DoD, plaintiffs' position that they are entitled to an additional veterans' preference, after they have already been accorded preferential treatment in retention at the time of the RIF itself, is not supported by law.
Docket Entry No. 12, at 5 fn. 5. Defendants further note that: "[i]n addition to the veterans' preference plaintiffs received at the time of the RIF, as preference eligibles, plaintiffs already would have received a veterans' preference at the time of their initial appointments to federal service." Id. Exhibit 10, at 2.
Id. at 11-17.
Although plaintiffs do not dispute the defendants' description of the PPP, they argue that as a retention program, the law mandates that veterans be accorded preferential treatment in the program. They the claim that the PPP's application has in essence done away with any preferential treatment conferred to veterans by statute. Specifically, plaintiffs claim that the RIP mechanism under the OPM regulations, 5 C.F.R. Part 351, is not suitable for base closures and operates, in conjunction with the PPP, to "wipe out' any veterans preference. In that regard, they claim that the DoD has usurped the OPM's exclusive statutory authority under 5 U.S.C. § 1302 when it enacted the PPP. Based on my review of the applicable law and the undisputed facts of this case, I cannot agree with plaintiffs' arguments.
Docket Entry No. 16, at 2-15.
Id. at 5-10. This argument runs contrary to a provision of plaintiffs' Master Labor Agreement which expressly states that in the event of a base closure, displaced employees will be afforded placement opportunities to the extent provided by the PPP. Docket Entry No. 12, at Exhibit 12, Master Labor Agreement between the Air Force Materiel Command and the American Federation of Government Employees entered on July 31, 1998 (and approved by the DoD on September 29, 1998), Article 39, § 39.03.
Docket Entry No. 16, at 4.
Plaintiffs' claim for a veterans' preference in the PPP is not supported by any statutory authority and/or related regulations. Plaintiffs do not dispute that the PPP is an internal administrative DoD program, established and operated by DoD directives to provide additional placement assistance to DoD employees who are involuntarily separated or downgraded because of downsizing actions. The PPP policies and procedures are not controlled by statute, regulation or executive order, but rather its applicability remains within the exclusive direction (and at the discretion) of the DoD. The statutory authority on which plaintiffs rely in bringing this action does not afford them any additional veterans' preference than what was already afforded to them through the RIF phase. Plaintiffs' request that this court order the OPM to issue new regulations to require the DoD and the other defendants in this action to provide them with a veterans' preference in the PPP, both "retrospectively and prospectively," demonstrates that no legal authority currently exists in support of their position In essence, plaintiffs request this court to assume the legislative authority of Congress. This is obviously beyond the scope of this court's authority.
Id. at Exhibit 5, Chapter 1800, Department of Defense, Priority Placement Program, June 30, 1998, DoD 1400.25-M.
Docket Entry No. 12, at 2 Exhibit 3, ¶ 3.
Docket Entry No. 3, at ¶ 36.
C. Plaintiffs' Legal Authorities
Plaintiffs have premised the jurisdiction of this court on the Veterans' Employment Opportunities Act of 1998, 5 U.S.C. § 3330a 3330b. Under this statute, the plaintiffs can only seek judicial redress if their rights have been violated " under any statute or regulation relating to veterans "preference." Thus, plaintiffs must first establish that their alleged veterans' preference rights were violated under a particular statute or regulation. Plaintiffs have failed to meet this threshold requirement.
According to plaintiffs' pleaded grounds, they admit that their veterans' preference rights in the PPP can only derive from two provisions of the VPA: 5 U.S.C. § 1302 3502. Contrary to plaintiffs' assertions, neither of these provisions expressly provides for a veterans' preference with respect to the PPP.
Docket Entry No. 3, at ¶ 34.
In addition, as the agency in charge of investigating complaints that preference rights of veterans have been violated, due deference is given to the Department of Labor's conclusion that there is no legal basis for plaintiffs' claims. Docket Entry No. 12, at 11 Exhibit 9.
For instance, section 1302 grants authority to the OPM to:
[P]rescribe and enforce regulations for the administration of the provisions of this title, and Executive orders issued in furtherance thereof, that implement the Congressional policy that preference shall be given to preference eligibles in certification for appointment, and in appointment, reinstatement, reemployment and retention, in the competitive service in Executive agencies, permanent or temporary, and in the government of the District of Columbia.
5 U.S.C. § 1302(b). See also § 1302(c).
Consequently, OPM has no authority to promulgate regulations concerning veterans' preference rights unless it receives an express statutory mandate from Congress. Plaintiffs' argument that the OPM violated § 1302 by not prescribing regulations giving a veterans' preference right in the PPP, is not persuasive because such program is not required by statute (Title 5) or by executive order. As the Fifth Circuit has pointedly noted: "The Veterans Preference Act does not cloak veterans with any "penumbral rights'; its provisions are necessarily specific, and for claimants to benefit from them they must show themselves to be clearly within the ambit of those provisions." Before the OPM can exercise its authority to implement additional veterans' preference regulations in this area, there must first be a statute expressly authorizing OPM's actions. In fact, the OPM regulations as now written, excepts the DoD from coverage.
Plaintiffs have not pleaded a violation of any executive orders in the DoD's implementation of the PPP. Docket Entry No. 3, at ¶¶ 32-34.
See Jackson v. United States Postal Service , 666 F.2d 258, 261 at fn. 5 (5th Cir. 1982) (citing Crowley v. United States , 527 F.2d 1176, 1182 (Ct.Cl. 1975)).
See 5 C.F.R. § 330.902(a)(1), Subpart I — Full Consideration of Displaced Defense Employees, expressly excepting from coverage the DoD. This was the same regulation relied upon by the Department of Labor in dismissing plaintiff Alvarez' administrative claim. Docket Entry No. 12, at Exhibit 9.
Moreover, based on a reading of the plain language of the statute, it becomes apparent that § 1302 gives no specific preference rights at all. The provision contains only a general statement of policy, a listing of preferred groups, and a specification of federal positions covered. It provides that "preference shall be given . . . in certification for appointment, appointment, reinstatement, reemployment and retention;" it does not delineate what that preference shall be. The details are spelled out in subsequent provisions of the Act, mainly, the retention preference rights given to preference eligible veterans in a RIF situation, as prescribed by § 3502 of the Act. Therefore, besides setting the parameters for OPM to prescribe and enact regulations to implement the stated Congressional language of Title 5, § 1302, in and of itself, does not confer any specific legal rights on plaintiffs.
See Brannan v. Elder , 341 U.S. 277, 284 (1951) (interpreting 5 U.S.C. § 551, the predecessor of 5 U.S.C. § 1302) (citing Hilton v. Sullivan , 334 U.S. 323 (1948)). Plaintiffs rely heavily on Hilton to argue that the VPA must he construed to confer an unlimited and unconditional retention or preference right in veterans. Docket Entry No. 16, at 12-14. In reading Hilton . it appears that the Court was dealing with the preference veterans have over non-veterans, not with an absolute claim by veterans to retention under any and all circumstances. See Fass v. Gray , 197 F.2d 587, 591 (D.C. Cir.) (where the court held that veterans do not have an unlimited and unconditional retention preference right in RIF cases, immune from any rule-making power of the Civil Service Commission [what is now the OPM]), cert. denied , 344 U.S. 839 (1952). Hilton simply does not support plaintiffs' alleged entitlement to an additional veterans' preference in the PPP. See also defendants' discussion of Hilton docket entry no. 21, at 14-15.
Plaintiffs maintain the PPP is implemented under the auspices of Title 5 because the DoD directive which describes the policies and procedures of the PPP specifically cites to 5 U.S.C. § 301. Section 301, entitled "Departmental regulations" sets forth the general criteria that executive or militaiy departments must follow when enacting internal regulations, such as the PPP. The citing of that provision in the DoD directive does not provide plaintiffs with any legal rights to obtain the relief sought in this case,
With respect to the other statute relied upon by plaintiffs, 5 U.S.C. § 3502, that provision's plain language indicates that its scope is limited to veterans' preference in retention as it applies to employees who were "competing" in a reduction-in force situation. Pursuant to § 1302, OPM has specifically promulgated regulations, 5 C.F.R. Part 351, implementing this statutory mandate. It is undisputed that Defendants in this case fully complied with the veterans' preference requirements of§ 3502 when the September 1999 RIF was implemented at the Kelly AFB. Indeed, plaintiffs do not allege that their veterans' preference rights were violated during the RIF'S implementation. Because § 3502 is limited to the RIF process, any claims concerning the PPP are beyond the scope of the statute.
Docket Entry No. 12, at Exhibit 10.
Docket Entry No. 3, at ¶¶ 32-34. Further, even if plaintiffs were to bring any challenges to the RIF in this case, they failed to exhaust their administrative remedies with regard to those claims, and as such, any complaints about RIF procedures are not properly before this court.
See Brennan , 341 U.S. at 282-84.
The legislative history of the Veterans' Employment Opportunities Act of 1998. as cited by the defendants, further supports my analysis. Prior to adoption of the Act in 1998, the House of Representatives earlier considered proposed legislation as the Veterans' Employment Opportunities Act of 1997. Specifically, the House considered what plaintiffs seek in this case, namely, a provision which would have extended veterans' preference rights to the PPP and which would have provided preference eligibles with additional protection beyond the OPM regulations which implement the 5 U.S.C. § 3502:
H.R. 240 . . . provides preference eligibles with increased protections during reductions in force (RIF), [and] requires agencies to establish priority placement programs for employees affected by a RIF . . . The Committee also believes it is necessary to provide eligible veterans with stronger rights to move into other positions if they are released from their own jobs during a RIF. . . . In addition, the legislation provides preference eligibles with enhanced assignment rights to other positions and requires agencies to establish priority placement programs for preference eligibles who are separated as a result of a RIF.
Docket Entry No. 12, at 15-16 Exhibit 11, House Report 105-40 Part I (March 20, 1997).
The proposed legislation, which would have granted the veterans' preference rights plaintiffs seek in this case, however, was rejected and never became law. The consideration by Congress, but failure to pass into law, of a more specific veterans' preference statutory language, applying expressly to the PPP, further supports my conclusion that there is no legal basis for the veterans' preference sought by plaintiffs in this case.
See also Brannan , 341 U.S. at 285 (where the United States Supreme Court rejected a similar claim to extend veterans' preference rights beyond the express statutory confines of § 12, the predecessor of § 3502).
Also, plaintiffs' argument that by the very nature of the RIF process, they were not able to fully participate in the PPP, is not supported by the record. These plaintiffs were allowed to register in the PPP as soon as they received their RIF notices, taking full advantage of registering in the program while at the same time retaining their employment during the RIF for a longer period of time than non-veteran employees. In fact, according to the sworn testimony of plaintiffs Galvan and Tellez, they were registered in the PPP for almost three years prior to their actual termination dates. Just because the plaintiffs did not find placement through the PPP, does not make it an unlawful program.
Docket Entry No. 16, at 4-10.
Id . at Exhibits 7 8.
Docket Entry No. 12, at Exhibit 4, describing in more detail the plaintiffs' individual application and placement through the PPP.
D. The PPP is subject to the discretion of the DoD
According to a recent decision interpreting the VPA, internal employment decisions (as those made by the DoD through the PPP), involving transfers, promotions and relocations, are within the discretion of the agency and are not ordinarily the subject of judicial review. In Brown v. Department of Veterans Affairs , a group of military veterans who held employment positions with the Department of Veterans Affairs ("DVA"), and who had been passed over for promotions, petitioned for remedial action, alleging that the DVA failed to accord them veterans' preference points. The Merit Systems Protection Board (MSPB) denied the petitions at the administrative level. The petitioners then sought judicial review of the decision. The Federal Circuit Court of Appeals, in affirming the MSPB's decision found that petitioners failed to state a claim upon which relief can be granted. The dismissal of the petition was premised on the court's holding that veterans are not accorded any preference under the VPA when seeking promotion or intra-agency transfers. In reaching its decision, the court noted that although the granting of preference to veterans in certain aspects of public employment is an established principle of law (i.e., special point and service credit preferences), they are not entitled to limitless rights and benefits. In support of its holding, the court cited to other case decisions that have determined that, under the VPA, veterans' preference "does not apply to an employee's transfer or other intra-agency movement." Similarly, as the PPP only deals with movement of incumbent employees from one job to another within the DoD, the VPA does not accord the plaintiffs in this case with any veterans' preference rights.
247 F.3d 1222 (Fed. Cir. 2001).
Id . at 1222-25.
Similar to the VPA, the court also found that the Vietnam Era Veterans' Readjustment Assistance Act of 1974 ("VEVRAA"), 38 U.S.C. § 4214(b)(1), accords veterans' preference only for initial employment. Id . at 1224.
Id . at 1224 (citing Crowley , 527 F.2d at 1184, where the Court of Claims declined to accord veterans' preference under the VPA stating, "[t]here is perhaps no principle more settled in this area of the law than that promotion and non-promotion of employees within a department or agency of Government is a matter of supervisory discretion not ordinarily subject to judicial review.").
Id . (quoting Bates v. Runvon , 97 F.3d 1464, 1464 (10th Cir. 1996). See also Glenn v. United States Postal Service , 939 F.2d 1516, 1523 (11th Cir. 1991) ("[V]eterans' preference only applies to initial employment, not to movement of an incumbent employee from one job to another within an agency."); Stephens v. Coleman , 712 F. Supp. 1571, 1581-82 (N.D. Ga. 1989) ("N)either the [VPA) nor the regulations thereunder accord veterans preferential treatment in promotions."), cert. denied , 498 U.S. 998 (1990).
Indeed, plaintiffs have failed to cite any case authority in support of their proposition that veterans are entitled to placement preference in internal programs such as the PPP.