Albert Piccone v. The United States

NICHOLS, Judge

(concurring):

I concur in all the points of Judge DAVIS’s opinion. However, it reaches its destination without considering, except obliquely, a matter the parties briefed and argued at length. I would prefer to deal with that issue head on, and hereby do so.

Our commissioner, in his report to the court, stated that the Federal Personnel Manual and the Naval Civilian Personnel Instructions were not introduced in’ evidence during the trial but that judicial notice was taken of them. Referring to certain provisions of the former, he relied on them to show that the action of the Navy was premature and unauthorized insofar as it separated plaintiff for disability while his application for disability retirement was still pending on appeal.

Before us, defendant urges that the cited portion of the Manual was not referred to at the trial or in the party’s requests and briefs. It says the Manual does not have the status of a regulation. If defendant had known the commissioner would rely on it, defendant might have produced, its says, expert evidence as to its meaning and intendment. Anyway, defendant urges that the supposed regulation says no more than that the Civil Service Commission would prefer that *877 separation action be postponed in the circumstance referred to.

It is possible to adjudicate this case without determining whether the Manual (which is not in the Code of Federal Regulations) is a regulation and whether the involved provision is or is not precatory. The Naval Civilian Personnel Instructions may well be deemed sufficient, for our purposes, and defendant does not challenge our reliance on them, only our interpretation of them. Even if the Manual provision is precatory, it may be considered as support by the expertise of the CSC for a holding that the timing of the Navy action was too arbitrary to stand. Cf. Daub v. United States, 292 F.2d 895 , 154 Ct.Cl. 434, 437 (1961). But even so, we ought to notice defendant’s point, because it invokes the inherent responsibility of this court for proper conduct of its trials.

Since Service v. Dulles, 354 U.S. 363 , 77 S.Ct. 1152 , 1 L.Ed.2d 1403 (1957), it has been commonplace in all Federal courts that agencies are bound by their own regulations in adverse action cases against their employees. This being so, it becomes necessary, in my opinion, to avoid jumping to the conclusion that every piece of paper emanating from a Department or Independent Agency is a regulation. Greenway v. United States, 175 Ct.Cl. 350 , n. 5 at 362, cert. denied, 385 U.S. 881 , 87 S.Ct. 167 , 17 L.Ed.2d 108 (1966). If it is published in the Federal Register and the C.F.R., that would normally indicate it was a rule or regulation and moreover, problems of judicial notice would not exist. If it is not so published, whether it is a regulation would seem to depend in part on its contents and in part on agency intent ascertained by extrinsic evidence.

The Administrative Procedures Act, 5 U.S.C. §§ 1002 , recodified as 5 U.S.C. §§ 552 by P.L. 89-554, approved September 6, 1966, provided that Federal Register publication must be given to “substantive rules * * * as authorized by law * * * or interpretations * * * adopted by the agency” for public guidance, but it excepts a matter related solely to the internal management of an agency. It would seem that a document not within the “internal management” exception would be published in the Register and C.F.R. if the agency thought it was a regulation, and non-publication thus affords at least a clue that the agency does not so regard it. The CSC has a large body of material that is published as rule or regulation in 5 C.F.R. Chapt. 1. Some material in the Manual is a counterpart to this C.F.R. material but more is not. The CSC says in Subch. 2-1 of the Manual:

The Federal Personnel Manual system is the official medium of the Commission for issuing its personnel regulations and instructions, policy statements and related material on Government-wide personnel programs, to other agencies. To make the system a more convenient reference tool, it also includes a certain amount of information about the Commission’s organization and procedures, and of material issued by bodies other than the Commission, such as acts of Congress, Executive orders, opinions of the Attorney General, and decisions of the Comptroller General.

Thus is appears that the Manual is not wholly regulation being made up also of instructions, policy statements, and related materials. In Nordstrom v. United States, 342 F.2d 55 , 169 Ct.Cl. 632, 638 (1965) we held that an instruction in this Manual was, it seemed, “more directory than a mandatory requirement from which specific legal rights can flow.” Whether the regulation portions have their counterparts in the C.F.R., does not appear. The ones our commissioner relied on have no such counterpart.

The Commission further states in Subch. 2-3 that the basic:

“Manual is written for personnel officers as a group * * * ”

The set in our library fills about one and a half shelves, including supplements, and also the volumes of superseded pages which have to be maintained to enable *878 one to ascertain what the Manual said on any specific past date. It is in looseleaf and continually being modified with new pages. No doubt all this is an essential thread to enable the overburdened personnel officer to find his way through the Minoan labyrinth of Government personnel procedures. The Commission is, or should be, aware the volumes are also much used by lawyers and judges as law books. E. g. plaintiff’s attorney in this case stated in oral argument that he subscribes to the “system.” They are frequently cited in court opinions, as in two I have recently written for the court, Burton v. United States, 404 F.2d 365 , 186 Ct.Cl. - (Decided December 13, 1968); and Heffron v. United States, 405 F.2d 1307 , 186 Ct.Cl. - (Decided January 24, 1969).

When the Commission wants to make sure that an “instruction” will not be mistaken for a “regulation” and fastened on some Department in a Service v. Dulles decision, it knows how to do so, as witness Manual, Chapt. 752, Subch. 2-3a (1):

It is usually best to deliver a notice to the employee personally and, if possible to obtain his written acknowledgment of its receipt.

(2) * * * If the agency relies on the mails, it probably is assuming an unnecessary risk.

No court is going to say, I suppose, the Government is “bound by its own regulation” to effect notice of separation action to employees by service in hand, not by .mail. But similar care is not always taken, nor can one expect it to be everywhere in such a behemoth of a book. Whence arises the controversy in the instant case and wherein, no doubt, is the seed for many others. In view of the position taken by defense counsel in this case, I deem it urgent that the Commission clarify its intentions about the Manual. A regulation is one kind of law, and like any other kind, the intent of the promulgating authority is a crucial factor, if ascertainable. The Supreme Court in deciding whether a HUD pronouncement is precatory or a regulation, has just now attached great weight to statements by HUD officials as to what they intended. Thorpe v. Housing Authority of City of Durham, 393 U.S. 268 , 89 S.Ct. 518 , 21 L.Ed.2d 474 (Decided January 13, 1969). This is a matter directly related to the administration of justice right under our noses.

The same observation applies to other Government Manuals and Handbooks that have been or may be used in court as sources of “regulations” by which the defendant is bound. Khuri v. United States, 154 Ct.Cl. 58, 64 , cert. denied, 368 U.S. 913 , 82 S.Ct. 193 , 7 L.Ed.2d 130 (1961), is an example of language in such a Manual held not to constitute a regulation.

As long as the possibility remains of mistake as to the intentions of the Commission or other issuing agency, I think certain precautions ought to be observed before any judge or trier of fact concludes that a document not published in the Register is a regulation and that he should take judicial notice of it. If one party asks him to do this, and the other does not object, I suppose the basic problem vanishes, though in that case I think the requesting party should furnish or be ready to furnish the entire document, not just selected excerpts, and the whole should be studied with care so that its true character is clearly understood. If the whole is too voluminous, as e. g. the Postal Manual in Burton, supra, at least the whole of any relevant chapters should be furnished. If the idea of citing such material comes from a source other than the parties, I think the parties should be informed of what is contemplated, so they can submit anything they have on whether the supposed regulation is a regulation. (Clearly, too, the habit of constantly substituting new loose-leaf pages makes it important for the trier of fact to have the assurance the defendant is best able to supply, that the version he has before him is the one that was in effect on the pertinent date.) Defendant here says it might have submitted “expert evidence” as to “meaning and intendment.” I do not know exactly what *879 defendant means but I can visualize evidence that would have been competent. An agency interpretation of its own regulation is accorded “due respect.” Baldwin v. United States, 175 Ct.Cl. 264, 269 (1966), cert. denied, 385 U.S. 1014 , 87 S.Ct. 725 , 17 L.Ed.2d 550 (1967). If the contrary were not so entrenched, I would urge that judicial notice never be taken of putative regulations not published in the Register, but that they always be matter of fact for proof as fact, as indeed is done in a portion of our trials. In Greenway, supra. n. 5 , 175 Ct.Cl. at 362, Commissioner Gamer refers to a Handbook not being in evidence as one reason for not noticing it. As things are I occupy a median position, only urging that in taking judicial notice certain precautions should be observed. If it had been necessary to the decision of this case to know whether the portion of the Federal Personnel Manual relied on by the commissioner was a regulation, I would have favored return of the case to him for trial on the point.

CONCLUSION OF LAW

The court concludes as a matter of law that plaintiff is entitled to recover on his claim and judgment is entered to that effect, in accordance with the opinion, with the determination of the amount of recovery to be reserved for further proceedings under Rule 47(c).