                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-14-2003

Hinkel v. Secretary Navy
Precedential or Non-Precedential: Precedential

Docket No. 02-4542




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"Hinkel v. Secretary Navy" (2003). 2003 Decisions. Paper 81.
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                          PRECEDENTIAL

                                Filed November 14, 2003

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 02-4542


                  PAUL HINKEL;
                DONALD REYNOLDS,
                              Appellants
                         v.
  GORDON ENGLAND, Secretary, United States Navy

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
            (Dist. Court No. 01-CV-1971)
        Magistrate Judge: J. Andrew Smyser

      Submitted Under Third Circuit LAR 34.1(a)
                 October 15, 2003
Before: SLOVITER, ROTH and CHERTOFF, Circuit Judges

             (Filed: November 14, 2003)
                   KEITH E. KENDALL
                   2215 Forest Hills Drive
                   Harrisburg, PA 17112
                   Counsel for Appellant
                                 2


                         THOMAS A. MARINO
                         United States Attorney
                         JOSEPH J. TERZ
                         Assistant United States Attorney
                         Middle District of Pennsylvania
                         P.O. Box 11754
                         Harrisburg, PA 17108
                         Counsel for Appellee


                  OPINION OF THE COURT

CHERTOFF, Circuit Judge:
   Appellants are GS-11 level employees of the United States
Navy. They allege that the Navy determined that their jobs
should be classified at the GS-12 level but has failed to
implement the classification. They filed suit seeking a writ
of mandamus compelling defendant Gordon England,
Secretary of the Navy, to classify them accordingly.
Appellants appeal the Magistrate Judge’s decision granting
defendant’s motion for summary judgment.1 We shall
affirm.
  This Court exercises plenary review over a district court’s
grant of summary judgment and applies the same standard
the district court should have applied. See Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).
We generally review mandamus decisions for abuse of
discretion, but we review non-discretionary elements de
novo. See Stehney v. Perry, 101 F.3d 925, 929 (3d Cir.
1996).

                                 I.
  Appellants Paul Hinkel and Don Reynolds are Program
Managers in the Navy’s Ships Systems Department, a
subdivision of the Ships Support Directorate; at all times
relevant to this lawsuit their positions were classified at the
GS-11 level. In 1997 their supervisor, Valerie Steinman,

1. The parties consented, pursuant to 28 U.S.C. § 636(c), to proceed
before a magistrate judge.
                                  3


identified eleven Program Manager positions under her
supervision (including appellants) that she felt, given those
positions’ job responsibilities, should be classified to the
GS-12 level.2 Steinman submitted a proposal for appellants’
reclassification to Gail Sheffer in the Human Resources
office. Sheffer performed a sample “desk audit” of two of the
eleven positions and concluded that, given the job duties of
the positions, they were GS-12 level.
   Steinman then submitted the proposal to James Ramsey,
Deputy Director of the Ships Support Directorate.
Appellants allege that Ramsey approved the proposal and
the Navy has failed to implement their reclassification to
the GS-12 level. The Secretary of the Navy contends that
appellants have not become GS-12 level employees because
Ramsey determined that reclassification was unwarranted
and rejected Steinman’s proposal. This factual dispute is
immaterial to the resolution of appellants’ claim, however,
and we assume for purposes of this decision the facts as
alleged by appellants.

                                 II.
  There are two prerequisites to issuing a writ of
mandamus. Appellants must show that (1) they have no
other adequate means to attain their desired relief; and (2)
their right to the writ is clear and indisputable. See In re
Patenaude, 210 F.3d 135, 141 (3d Cir. 2000); Aerosource,
Inc. v. Slater, 142 F.3d 572, 582 (3d Cir. 1998). To assess
appellants’ entitlement to a writ of mandamus, we turn to
two statutes: The Classification Act, 5 U.S.C. §§ 5101 et
seq. and the Civil Service Reform Act of 1978, Pub. L. No.
95-454, 92 Stat. 1111 et seq. (codified in various provisions
of Title 5 of the United States Code) (“CSRA”).
  The Classification Act makes it the responsibility of each
federal agency to place every position under its jurisdiction
in the appropriate class and grade in conformity with

2. The Navy had recently reclassified to the GS-12 level Program
Managers from another division of the Ships Support Directorate who
performed similar work as appellants. That reclassification apparently
provided the impetus for Steinman’s efforts.
                             4


standards published by the Office of Personnel
Management (“OPM”). 5 U.S.C. § 5107. An employee who
wishes to challenge the appropriateness of his position’s
classification may appeal to the OPM, which is authorized
to, inter alia, (1) “decide whether a position is in its
appropriate class and grade”; and (2) “change a position
from one class or grade to another class or grade when the
facts warrant.” 5 U.S.C. § 5112(a). The OPM is statutorily
required to entertain an employee’s appeal of his
classification. 5 U.S.C. § 5112(b).
  In the past, courts reviewed classification decisions under
mandamus jurisdiction. In Haneke v. Sec’y of Health, Educ.
& Welfare, 535 F.2d 1291 (D.C. Cir. 1976), for example, the
court ordered the Civil Service Commission (OPM’s
predecessor agency) to determine whether the plaintiff
should be reclassified based on the fact that other
employees at the Department of Health, Education, and
Welfare were classified at a higher level even though they
were doing the same work. See also United States v. Testan,
424 U.S. 392, 401 n.5, 403 (1976) (noting the availability of
mandamus to compel prospective reclassification).
  In 1978, however, Congress enacted the CSRA. The CSRA
establishes a three-tiered scheme for review of personnel
actions taken by federal agencies:
    (1) for major personnel actions specified in the statute
    (“adverse actions”) [see 5 U.S.C. §§ 7501-7701], direct
    judicial review after extensive prior administrative
    proceedings; (2) for specified minor personnel actions
    infected by particularly heinous motivations or
    disregard of law (“prohibited personnel actions”), review
    by the Office of Special Counsel [of the Merit Systems
    Protection Board], with judicial scrutiny “limited at
    most, to insuring compliance with the statutory
    requirement that the OSC perform an adequate
    inquiry,” [Cutts v. Fowler, 692 F.2d 138, 140 (D.C. Cir.
    1982)]; and (3) for the specified minor personnel
    actions not so infected, and for all other minor
    personnel actions, review by neither the OSC nor the
    courts.
Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir. 1983).
Courts that have addressed the interplay between the
                              5


Classification Act and the CSRA have concluded that
classifications running afoul of the Classification Act qualify
as “prohibited personnel actions” and therefore are subject
to the CSRA’s second tier of review. See Barnhart v. Devine,
771 F.2d 1515, 1523 & n.12 (D.C. Cir. 1985); Karamonos
v. Egger, 882 F.2d 447, 450 (9th Cir. 1989); Towers v.
Horner, 791 F.2d 1244, 1246-47 (5th Cir. 1986).
  We agree. The CSRA defines “prohibited personnel
action,” in part, as a personnel action where “the taking of
or failure to take such action violates any law, rule, or
regulation implementing, or directly concerning, the merit
system principles contained in section 2301 of this title.” 5
U.S.C. § 2302(b)(11). The merit system principles codified at
5 U.S.C. § 2301 include “[e]qual pay . . . for work of equal
value.” 5 U.S.C. § 2301(b)(3). Similarly, a purpose behind
the Classification Act is to promote “the principle of equal
pay for substantially equal work.” 5 U.S.C. § 5101(1)(A).
And the Act also requires that each position be placed in its
appropriate class, and each class in its appropriate grade.
5 U.S.C. § 5106.
   Moreover, an agency’s failure to implement a
reclassification—as appellants here allege—constitutes a
“failure to act” that violates the CSRA’s merit system
principles. See Perdeaux v. United States, 33 F. Supp. 2d
187, 190 (E.D.N.Y. 1999); see also 5 C.F.R. § 511.701(a)(2)
(“The personnel action must occur within a reasonable
period of time following the date of the position action.”).
Thus an employee contending a failure to implement his
classification must bring his complaint to the Office of
Special Counsel (“OSC”). The OSC must then “investigate
the allegation to the extent necessary to determine whether
there are reasonable grounds to believe that a prohibited
personnel practice has occurred, exists, or is to be taken.”
5 U.S.C. § 1214(a)(1)(A).
   The result of the CSRA’s review scheme is that it
eliminates review of classification decisions of an agency or
the OPM—including the failure to implement a
reclassification—by way of writ of mandamus to the agency.
That is so because the CSRA provides employees
dissatisfied with their classification with other adequate
means to attain their desired relief—review by the OSC.
                               6


And insofar as suits for mandamus in the classification
context survive the CSRA, an employee may only seek a
writ of mandamus compelling the OSC to perform its
statutory duty to conduct an adequate inquiry. Barnhart,
771 F.2d at 1523-27. In other words, “by providing a new
avenue of review, the CSRA altered the point at which
mandamus potentially becomes available—that point at
which no alternative remedy is available—as well as the
entity against which mandamus may lie.” Id. at 1527.
  Here, appellants brought their complaint to the OSC. The
OSC replied to appellants by explaining that “[t]he policy of
the Office of Special Counsel is to await final action on
such classification appeals by the agencies and the Office of
Personnel Management, prior to taking action on
complaints involving classification decisions.” App. 61, 63.
Because plaintiffs had not “exhausted the classification
appeal process,” the OSC declined to take further action at
that time. Appellants claim that such exhaustion would
have been futile.
  We express no opinion about the exhaustion issue or
about whether appellants may properly seek a writ of
mandamus compelling OSC to perform an adequate inquiry
before bringing their appeal to the OPM. At the very least,
however, appellants have sought mandamus against the
wrong entity. Appellants’ claim for mandamus lies (if it lies
at all) against the OSC.

                              III.
  For the reasons stated above, we will affirm the
Magistrate Judge’s order granting defendant summary
judgment.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
