DEAR MR. CHAIRMAN:

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00965R000400290013-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 15, 2016
• Document Release Date: January 15, 2004
• Sequence Number: 13
• Content Type: LETTER

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DEPARTMENT OF THE AIR FORCE
Washington
Office of the Secretary
I refer to your recent request to the Secretary of Defense for
the views of the Department of Defense on S. 1489, 86th Congress, a
bill "To amend title 28 of the United States Code to provide for certain
judicial review of administrative removals and suspensions of Federal
employees". The Secretary of Defense has delegated to the Department
of the Air Force the responsibility for expressing the views of the
Department of Defense thereon.
The purpose of S. 1489 is to extend the jurisdiction of the
district courts specified in the bill to cover "appeals" of Federal
civilian employees for reinstatement or restoration to duty, and
for compensation for the period of removal or suspension, when 'the
appropriate administrative authority" has directed their removal or
suspension from the service. The bill further provides that any such
appeal shall be filed within sixty days after the date of the final
administrative action in the court having jurisdiction where the
appellant is employed, or in the District Court for the District of
Columbia, and that the appropriate officer or agency of the United
States shall respond to any such suit wherever initiated.
The Department of Defense is opposed to the enactment of S. 1489.
At the present time a suspended or discharged Federal employee has
a right to file a complaint in the District Court for the District of
Columbia to determine whether he has been afforded all the procedural
rights in the course of administrative review to which he is entitled
under both Statutes and Departmental regulations. The District Court
for the District of Columbia is the only district court now having
jurisdiction to hear such disputes. Blackmar v. Guerre, 342 U.S. 512;
Reeber v. Russell, 200 F.2d 334; Payne v. McKee, 153 F. Supp. 932.
The basis for this rule is that the head of an agency, as the statutory
appointing authority, is an indispensable party to any action seeking
restoration to employment, and that only the District Court for the
District of Columbia has jurisdiction over the person of agency heads
with headquarters at the seat of Government.
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The bill would clearly confer authority on all Federal district
courts to hear cases arising within their geographic areas at least
to the same extent as is now the case for the District Court for the
District of Columbia, notwithstanding the fact that there may be no
personal jurisdiction over the agency head. The Department of Defense
feels that it would not be in the. best interests of the United States
to modify existing provisions for judicial review of procedural matters
on removal and suspension actions. Enactment of S. 1489 would have the
effect of reinstituting the many problems of diversity of judicial
interpretation which arose under the so-called Tucker Act and which
led to its modification to exclude Federal employment matters.
The bill would also combine a reinstatement action with a claim
for back pay in order to free a plaintiff from pursuing two remedies,
one before the District Court and the other before the United States
Court of Claims. In view of the considerable experience gained by the
latter in actions involving compensation of Federal employees, the
Department of. Defense believes that the present exclusive jurisdiction
of the Court of Claims over pay matters should be preserved. This is
especially so considering that S. 1489 would give back-pay jurisdiction
to district courts generally, instead of restricting it to the District
Court for the District of Columbia.
As to the subject matter appropriate for judicial review, an
employee may secure review of his removal or suspension based upon an
allegation that. he has been denied the benefit of an essentially
procedural right. Boylan v. Quarles, 235 F. 2d 834; Love v. U.S. 98 F.
Supp 770, cert denied 342 U.S. 866. Even though the remarks of Senator
Keating when he introduced S. 1489 (Congressional Record, 20 March 1959,
4225), and the disclaimer in lines 22 and 23 of page 2 of the bill,
disavow any intent to expand the scope of judicial review, the bill is
still subject to the possible misinterpretation that it permits trial
de novo of suspension or removal actions on their merits. Should
T.- 14_89 be enacted despite the opposition of the Department of Defense,
it should be amended so as to indicate unmistakably that it does not
enlarge the jurisdiction of U. S. District Courts beyond that which
presently exists in the U. S. District Court for the District of Columbia
in such cases.
The following additional technical deficiencies are noted for
possible correction. The reference to "the District Court for the
Territory of Alaska'!, should be deleted in lines 6 and 7, page 1.
The bill should include language that would add a new section catch
line, ."1361. Removals and Suspensions of Federal Employees", to .
the analysis of chapter 85, title 28, United States Code. Some of
the language of the bill seems to be ambiguous. The phrases, "final
action by the appropriate administrative authority for the removal or
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suspension" (lines 2, 3, and 40 page 2) and "date of final administrative
action" (line 10, page 2), are not defined, thus making these statements
vague and confusing with respect to who or what is final administrative
authority or final administrative action. Finally, use of the term
"appeals" throughout the bill is confusing, since that word normally
connotes continuation of a single transaction. In a removal or suspension
case, the transaction is completed upon decision by the appointing officer
subject to whatever further administrative review is provided by statute.
Initiation of litigation to reverse that decision, or to secure restoration
of compensation, constitutes a new and independent action which should be
described as a "suit" rather than as an "appeal".
This report has been coordinated within the Department of Defense
in accordance with procedures prescribed by the Secretary of Defense.
The Bureau of the Budget has advised that there is no objection
to the submission of this report.
Sincerely yours,
Honorable James 0. Eastland
Chairman, Committee on Judiciary
United States Senate
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