Reply Brieg for the Veterans Elder and Furman 473 — Elder v. Brannan

at -The veterans’ right t to reference i reinstatement siandion §2

of the Act of 1 lated Oc r 27, 1947, and has since

been wrongfully denied: (No.. 473)(_\_ pee BR :

) Summary of Argiiment (No. 473) | L Se ce One &

3 ae oe Section 15 hy inapplicable and irrelevant to these “excepted”

positions in the unclassified. service \____. -. /§

2. Section 14 is inapplicable and unava ble to veterans i

‘nae limited. tenure wantin mer nintrae watered eeriom amine these v sips aleibidees ow Se |

. As. The regulations for reductions-in-f Se der Section a

were eeeanepatie and irrelevant in No. 473 13

_ 4. Presentir uestion, the wi t of certiorari in No. Seatac:

_ 473 shoul be dismis NE SESE, ELIE AS PRON 14

"II. The veterans’ right to preference in retention was violated "

~- and wrongfully enied since June 6, 1947 (No/ 474) __-____ ‘15

1. The Veterans’ retention preference under th ae selfied civil

was not and is not restricted to those havi

service: etatns A nel ASSIS ON 15

_ 2. The rights of these veterans unde the 12 provision are

‘© "preserved by Section 18 of the Act of 1944 nS | |

|, CONCLUSION cen mnnnntamnginienpedonnntmicincicieraen SA

| BSR UH Seed es i decoame

Cases: SG: - BRS i sin arn

\:Borg v. Campbell Art 0,244 U a Sd ESR SRO he 22.

\Canepbell. v. et ca “ 5388.2 $ a, 620 22

olorado v. Toll, 208 0 ans . S. 228, 2 Rineteashedanemmes 24

uke v. United States, 297 re 1, PR 2 ANA IRESE Sa SR 23 ,

Federal Radio Commission v. Bros. Bond & | Mortgage

5 BRO Gh OR, BO a, 23

Helverig v. Hallock, 309 U.S. 106, 119-121 _._._ esmicn rm aely OO

: lvering Vv. Powers, 293 U.S. 214,- "294 MES IRS SPOT Bl RE 22

Co. v. Davidson, 257 U.S. 506,514 _..._

Interstate Commerce Commission.’ v. Union Pac. R. Co., 222 U.S. as:

| Lynch ¥. ¥. ‘hilden Produce C3, 268 0, S.3i6, $20-301 =~ 22

a-King Products,Co. v. Blair, 271.U.S. 479, 482... 24

McKenna v. White, 237 Mass. 485, 192 N.E. 84, a3. _ | See EA 13

Medbury v. United ‘States,.173 U. S.. 492, 497-498 | Siesbcdunacass am

I nian Vv. United States, 294 U.S. 4 35, 440 PEE TAS De taladohcdsewisg deaiee 22

2 7*In addition to cases cited in the Veterans Brief for the Petitioners —

“filed _— 19, 1951.

\

ae eee efo Index Continued

Mitchell v. Cohen, Bn One a

orrill v. Jones, 106 U.S. 466, 467 inside

Pope v. United States; 323 U.

Roth v. State, 158 Ind. 242, 254, 63. N. E. 460, 464, 466 a Sie Re

Snyder v. Buck, 75 F. Supp. 902, 907-908 ______...__-_-____.._

“= ex asa Eckles v. Kansas City,- — Mo. App. —. 257 Ss. W. 197,

State ex rel. Hart v. Duluth, Minn. 238,.55 N. Ww. 118, 119-120 13

Tagg Bros. v. United States, 280. U.S. 420, 442 22

United States v: Carolina Carriers ar ., 315 U.S. 475, pment ed — 23

United States v. Ge U. ai

United States v. Laug lin, 49 U.S. EES Rina RR Se re

Utah Light & Power Co. v. nited States 7 Se 399, 410 SEES

Vi ian. R. Co. v..\System Federation, ney Sa aie

\-. Williams v. Panning, 332 U.S. cette ais i 3e

. Rept. t. No. & 624 Cong. 2a Sess., Pp. 14 elinieiphianin ani ienmen steno | WE

Cong. wh pos Bisa E

‘8. Rept’ Nes 832, ate 2a Sess, p.\7 -._-.-.--- el REG 16

H: Doc. 910; aie oe 2d Sess., PP. me Tae e------ 0 -16

aa es THE. el gee

Supcem Court of the Binited states

a October Term, 1950.

5 ONS 7s ee

‘Cuamzs F. Buaxnayy Se of Agriculture, | 3

See :

a ere

- Rosert D. Euprik. AND Guinicn ‘Onanpier Furmax, : x

» Respondents

ogg

ea eats ie. BE 5 /

Rosser D. ELDER AND GREENE CHANDLER Fumuas, z

eee 7 - Petitiqners ey

| | : Sex :

Cyantze F. Brakwax, “Secretary of Agriculture,

a See Repent. 3

\ > @

8

On Cross-Writs of Ueiticrari to the United States 5 Court: of

Appeals for the District of Columbia. 7

| Rr REPLY BRIEF FOR THE VETERANS

awh - ELDER AND FURMAN.

Sees ’

| STATEMENT. |

The petitioner-respondent Secretary of Agriculture ‘will

- be referred to as ‘‘the Secretary”; Elder and deze as

“1. “the veterans’? or ‘‘the petitioners’. |

On March 19, 1951, the veterans filed their con: \yolidated

Brief in both No, 473 and 474, dealing with the entire range.

PT eee en Eee ne

eee

i both cases as “Petitioners”, i in pe cane) to the practi-

eal purpose of Rule‘28(1) of this Court. The consolidated |

. ‘*Statement’’ at pp. 5-9 of such “Brief for the Petitioners’’

comprises ‘all facts material - to the consideration of the .

ok questions ciiesamseeal in both No. 473 and No. eg

‘The Veterans’ ’ Right to | Preference in Reinstatement Under

§2 of the Act of 1944 Was Violated October 27, 1947,

And Has Since Been mental Denied. Dabo 473) 2

: Summary of argument. , :

ie - Section 15 is: “nappiedble and irrelevant to. the issues in :

- . No. 473. - The: provisions of Sections 7 and: 8, which are Be

incorporated by reference in Section 15, prescribe an in-

tegral procedure applicable and available only with respect’ .

to positions in the competitive service subject to the Civil | |

| ‘Service Act and Rules, and inapplicable and unavailable’ |

with réspect to the ‘‘unclassified’? and ‘‘excepted’”’ Attor~

. hey positions which ‘are the subject of the instant suits. ie |

Such Attorney. positions rere ‘‘excepted’’ from the com- |.

. Serviee Act and Rules since May 1, 1947, by Schedule A of.

’ “the new Civil Service Rules (86.4, 12 F. R. 2839].

The regulations | for reductions-in-force under Section 12

. are admittedly and clearly inapplicable and irrelevant to.

- the issues in No. 473. (No. 473, Secy. Br. ‘28; Veterans’ . ~*

_ “Brief for the ‘Petitioners’’, 41-42). The. Court of Ap- ee a

|" peals expressly held ‘hat such regulations for reductions- - - |

_- in-foree under Section 12 were not violated (R. 91-92) and. |

held that only the rights to. preference in reinstatement °

under Section 2 were violated (R. 93-95). Such regula-

tions are-thus no part of the basis for the judgment of the

- Court of Appeals attacked by: the Secretary. in No. O79, 6-*:

: The Secretary’s Petition for a writ of certiorari in No.

| 473 Javantes the sole question whether Section 15, rather 5

: petitive civil service and from the operation of the Civil i ae

\

Ng

tee

“ne j . = Fs s 5 2 4 é a

° 5 . . - °

aa) . ‘ . .

‘3 . . » .

- p . . \ .

°

En en

" - ]

. Vis ie> Ba, é i Apes |

¥ +8 rH ye : 4

3 Se. ‘ ny i |

oa ‘ 7 . }

. ’ 9° H

- than the regulations for reductions nfanoe under Section Poni &

12. governs the ‘‘reemployment rights of veterans: properly

separated from their positions in. federal service”’ (No. -

473, Secy. Petition, p. 2). ‘Since each of. these alternatives

' is unavailable, inapplicable, and irrelevant to the issues in

No. 473, the sole question presented by the Secretary i isir-

relevant and moot.. Since no other question is presented ey

by the Sécretary’s Petition for a writ of certiorari in No. ae

473, the writ. of certiorari in No, 473 should be dismissed.

‘Rule. 38(2), p. 30,-of the. Revised Rules. of the epaueaae

— Court of the United States provides inter alia:

oh ee ae Only the questions specifically brought for- —

ward by the petition for the writ of certiorari will be ©

consiflered: nc Binal ed :

3 e=

stone 20g Aa IROL

one

Section 9) embodies the vonical policy ne purpose of

the Veterans’ Preference Act of 1944. Section 2 itself des-

* ignates, erates, grants, prescribes, and defines the initial .

scope and effect of five specific preferences which Congress

~ therein commands “shall-be given’? in the undlassified ‘civil .

service, as well as in the classified civil service, and in the |

comprehensive scope throughout the Government. therein’ _

prescribed. iand defined, to four primary Sabece of veter- .

_ ans. In Section 2 this grant is in no way qualified by or .

conditioned upon prune of employment, length -of service, .,

or efficiency rating... 4

_ Among the five preferences. sO granted i is the third spe-

cific preference in reinstatement.

mre? In each of several later sections ofthe Act, e.g. 5, 7,

/8, 12, 13, and 16, Congress has further defined, extended, _

_ or limited the scope and effect to be given one or more of

the nigel airy granted under Section 2. For ex-

Cs ample, in tion 12 Congress. limited the preference in

retention to a. sub-class of veterans’ preference employees -

whose’ efficiency ratings are ‘‘good”’ or better. AndinSec- ~ |

tion 5 Congress extended, rather than limited; the scope and

effect of the specific preferences in reinstatement, reten-

tion, and appointment, so that the waivers as to age, height,

fer? . , n * ; =

REIL: ETN PRMD I MEE IE OHS 2

¢

ee Pe

3 rer.

db sigsee

tase

further defined, stonpk in Section 5-as above-noted._

Any additional provision or exception from ‘the general .

“policy embodied in Section 2 is subject to the elementary

‘rule that exceptions from a general policy | which a ‘law ems * os

- bodies should be strictly construed, that is, ‘should be inter-

3 preted so.as not to destroy the remedial, processes-intended —

to be accomplished by the enactment. Spokane & Island R.

Co. v. United States, 241 U. S. 344, 356; Piedmont.& North- —

“ern Ry. Co. v. Interstate Commerce Commission, 286 U.S.

~ 999, 311-312.

In enacting Section 2\ | Congress adopted the iawn and

settled construction of its key provisions by the Courts of

"the State of New York,:a construction which confirms the.

intention and purpose expressed by the plain language of

Section 2 and makes the natural import and meaning there-

of effective. ‘Capital Traction Co. v. Hof, 174.0. 8. 1, 36;

Willis v. Eastern, Trust & Banking Co., 169 U. 8.295, 307; |

and see Stutebach v. Coler (1900) 62 App. Div. 219, 70 N. *

Y. S. 901, 904-907, affd. 168 N. Y. 416, 419-421; and other

cases cifed and discussed at pp. 33-37 of the ‘veterans’

“Brief for the Petitioners’’. .

“The reports of committees of the Congress, iio. of

sponsors, and other matters incidental to legislative his-

fe tory, cannot be. resorted to forthe purpose of construing —

Section 2 of the Act.of 1944 or any other statute contrary

to its plain language and meaning and to the natural im-

port of its terms, Ex Parte Collett, 337 U.S. 55, 61; United ©

States v. Shreveport Grain & Elevator Co., 28% U.S. 77,

83. The rule is that expression by. the’ legislature an er-

roneous opinion about the law does not alter it. K nicker.

bocker Ice Co, v. Stewart, 253 U. S. 149,163. .

Counsel for the- Secretary contend that certain. regula-,

tions of the Civil Service Commission deal with ‘treinstate-

. ment?” as ‘a type of reemployment available. only to per-,

soi 7 with competitive status’’, or as- -confining any right to

ere to employees with competitive status. -¢

Seetion 2 expressly prescribes’ that preference in. rein-

_statement shall be given to veterans in the unclassified civil

= ge

~ lations: fail to carry. out the will of Congress as expressed

3 tie

ras a 7 we —in the statute, operate to create a. rule out-of harmony with -

——

_ the statute yand.are an unauthorized nullity. insdfar -as -vet-

ANS: té concerned. ‘Manhattan General Equipment Co.

Soa ae Commissioner of Internal Revenue, 297 U. S. 129, AS

-’ Campbell v. Galeno Chemical Co., 281 U. S. 599, 610.

The rights of each of these veterans to the specific oret-

Be TRESS Srp

. a

erence in reinstatement in the position from which he had’ -

been renioved—Attorney, Grade P-3—were violated by the

. reinstatement, or reemployment, or employment: of non-

veterans in such positions on October 27, 1947, et’ seq.

while continuing to exclude the veterans therefrom. Cf. Peo-

_ ple ex rel. Shields v..Scannell (1900), 48°App. Div. 69, 73,

‘62 N. Y. S. 682, 683; Meenaugh v. Dewer Y District Attor-

ney (1939) 17 N: Y. S. 2d 599, 601. So 3

Ra Section 15 is inapplicable and irrelevant to these

“excepted” dunner in n the unclassified service. (No.

: . 473) |

‘The S retary concedes that in Section 2 Congress does

3 <‘‘declar a general policy i)

be 5 ae

But‘ his eounsl contend that in Beetion: 15 os Neivaie

car rorully delimited the scope of the veterans’ reemployment

[si¢] rights’? (No. 473, Br.;11) and that ‘‘their rights to-be

rehired [sic] depended on Section 15, which deals specific-

ally ‘and exclusively with. the Feeney ent [sie] prefer-

“ence”? (No. 473, Br. 21, 2),

Throughout their No. 473 Brief counsel caeeiel in this :

spurious assumption that the specific preference in rein-

statement designated and prescribed by Section 2 is in-

~ Service ag, well as in the classified civil service.. Such regu- | |

preference” Sa 473, Br. 13, |

a

- tended: by Ciediies to. mean ihe anmnk thing 4 as the prefer-

_- ence in reemployment, and vice versa, and intended to mean

the same thing as the term ‘‘recertification and reappoint-

_ ment’’ employed in Section 15. In plain words, of course, -

_ Section 15 makes no. reference to either. reinstatement or

Teemployment; and neither of these terms is commensurate

in meaning, area, or character with ‘‘recertification and re-

appointment.’’ But it is unnecessary to pursue the Secre- ..

tary’s assumption ‘to its extinction in some etymological .

swamp. - :

For Section 15 in itself discloses that its provisions do

not and cannot affect the rights of either of the two veter-

- ans in the instant case with respect to the position of At-.

torney, Grade P-3, from which each has been removed.

| Section 15 provides conditions. upon compliance with 3

which .a preference eligible “shall then be eligible for. re-

certification and reappointment in the order and according ;

to the procedure as provided for in Section 7 and 8 here-

of * * * for every position for which his nn have

been established.’’ :

Section 15 does. not srovide that a veteran ‘shall then be

eligible’? for recertification alone, or for reappointment __

alone, or for 2 neccmcemsiis and/or’ ahaa teens but that

‘such veteran. =< |.

‘«* * * shall then be éligibie. for ‘resertification AND ae

reappointment IN THE ORDER and according to the

procedure as provided for in. Sections 7 and 8 hereof. as

_ [Emphasis supplied).

| Necessarily, ‘certification for appoistnent"? or ‘‘recer-

tification for reappointment’’, precedes appointment or re-

appointment as the case may ‘be, and does not follow ap-

_ pointment or reappointment. Section 8 commences with

- the determinative provision:

‘See. 8. When, in accordance with civil service taive

and rules a’nominating or appointing officer shall re-

est certification of eteaicg dt ‘aed wie‘ Shiaucenamaag pur-

Re ao

"poses, the Civil Service ‘Coneniasion shall certify, from...

< the top of the appropriate register of eligibles, a. num- .

; -ber of tiames * e he {Emphasis supplied]

; -By virtue of Section 8, therefore, the indareal consecu-

_* «tive procedure of Section 15 in ‘‘recertification and reap- |

3 _ pointment’”? is explicitly confined to definite situations ‘‘in

~ aecordance with the civil service laws and rules’. The spe-

_ eifie procedure ‘defined under Section 8 and Section 15 is’

, Ror s 4 ade applicable only with respect to situations

and positions in the competitive service subject to the eivil =

service laws and rules. Such integral consecutive pro- _

cedure is accordingly unavailable and inapplicable with rée- st

spect to any-situation or position which is not subject ae

er which is “excepted’’ froin, the competitive service and,

| from the: operation of the Civil Service Act and Rules. ae oe

_At this point this Court will doubtless be aware, and ake.

judicial notice. from the Civil Service: Rules and Regula-

-. tiorls cited by both parties herein, that there i is no ‘‘appro-

\ priate register’? or even list of Attorney eligibles from.

which the Civil Service Commission can certify any names ~

“whatever—and that there has been tio such register or list’ =}

since May.1, 1947, Since that date any attorney who calls ee 5

at the Civil Service Commission, and inquires abont.em-

ployment in an Attorney position with the.Government,is =)

: politely but definitely told that the Civil Service Commis- = |__

sion has nothing\to do with Attorney positions or withthe

: employment’ of. Attorneys, that there is no examination of .

‘any sort, no register of Attorney eligibles, no list of same,

and'no available information about any agency which may

_ require the services of an Attorney. : |

/ This, by the simplest, of detuitioes, | is what is: meant by

an ‘‘excepted position’, aE

- Counsel for the Secretary have repeatedly insisted. fe. g.

No. 473, Secy. Br., 19, 21] that the Attorney positions here

’ in' question have been expressly excepted from the com-— .

petitive service and from the ‘Civil Service Act and Rules.

die the listing under. Schedule A of the new Civ il Service

SER

PERL TS Gaatlaie hae et

‘Rules effective May 1, 1947 (2 F. BR: 2839, § 6.4), which | moe Py

oe _: provides:

' “864 Lists, of positions’ excepted from thie’ com- |

petitive service—(a) Schedule A. The following posi-. 4

jtions are those excepted from the competitive service.

je ph ticle VE ; :

| (ii) Cooks*** — : ee oe

a: SIV) RRSOO Oya a os

| (v) Chinese, Japanese, and Him interpreters.

* © #99. i @

7 Thesé Rules of May 1, 1947, further provide: - ae

‘*§-1.1° Positions and employees affected by these -

Rules. (a) These rules shall apply to all positions in |

. the competitive service: *°* * The competitive service |

shall include all civilian poSitions in;the executive

branch of the Government unless specifically excepted

| oe nal :

.

therefrom. * * * | : 7 : :

'(b) Persons. occupying such: positions shall be con-

(sidered as being in the competitive service when they

ave a competitive status. * * * A competitive status.

_ shall be acquired by probational appointme:.t through

competitive examination, or may be granted by statute, _-

Executive order, or by Civil Service Rules.’? (12 F. RJ ~~

fp BE SA. a Behe eg SERN Bye GP

Accordingly, such integral consecutive procedure for .

rscertieton and reappointment’? under Section 15 is

Se her se. applicable only to positions and employees jn the

-. ¢ompetitive sérvice subject to the Civil Service Act and

Rules, and is nw sé inapplicable to positions in the pariah

¢aste of Cooks, \Aftorneys, Chinese, Japanese, and Hindu : - ;

interpreters, et alj which have been since May 1, 1947; \ex- .

_pressly excepted from the competitive service and Civil

Service Act and/Rules. §§1.1}/and 6.4, supra. \- \

‘The attention /of the Court is invited at this point to t

correlative significanc of the above definitions by the Civil

Service Rules in connection with an alternative aspect of

Mm

the Argument/ under Rart IV’ at page. 45.of our previous

\ : ¥

* has been remo

a

“A

- . rt . a \ f . ae : L . i

‘ bal hy . 4 . % bes Ld ‘ he a - ce e .

. ‘ e a ; 7 s , ’ od A aSh5

* ae ’ 2 - ’ . .

+3 : a ° . . ” b 3 ° ?

e Pon : i 9 - \ ; \ ry

*% eae ee. . 5 ae ae . oe -

: : Z 2 ; ae | / .

e brief, By virtue of § 1. 1 and 6.4 of the ‘Bales neither ‘a

cepted from the competitive service—as. Attorney, Grade

P-3—is subject to the Civil Service Act and Rules. » A\ non- |

en veteran i in such. unclass fied noncompetitive. position, what-

ever his ‘civil service status or tenure, would thus not. be

- subject tothe regulations for réductions-in- -force tinder said

- ’ “veteran nor a nonveteran employee who i is ina position ex- |

° °

_. Civil Service Act and Rules. -(§ 20.3, 12. FR. 2850). There-

" fore classification i ina higher retention ‘subgroup A-2 would

_ not be available to a nonveteran over a veteran in such po-

e%

. sition. Being expressly excepted - and negatived: by the ~

‘Commission under § 6.4 of its Rules, the alleged basis of

Marae ‘administrative construction,” and (2): administrative —

utory preference i in retention of the veteran

_ employee whose | efficiency. ratings. are “<¢00

must be” deemed to prevail and be given effect ied the See-

retary, the Commission, and the District Court. |

| . action, alike fails in the premises ;- -and the cet stat-_

preference :

”” or better:

=

It is also to be observed that the eligibility fo or ‘‘recer-

tification and reappointment’? under Section 15 expressly

extends to ‘every position for which his qualifications have. -

been established.’’ ‘ |

Under the terms of Section 2 the grant of the specific

prefere rence in reinstatement i is, by its. intrinsi¢ natural im-

port; ecessarily limited to ‘‘the position from which he

- Caminettiv.U

v. Lexington Mill Elevator Co.; 232 U. S. 399, 409-410. °

yed.”? Collins v. United States,.15 Ct. Cl. 22; : :

ed States, 242 U.S. 470, 485; United States Cle

- The language of Section 2,\as well as of Section 15, 8; Sor:

ind 7, affords no tenable basis\for the writing i in of-a'con-- :

2 _ clusion that Congress intended, in the guise of ‘‘recertifica- *.

tion. and reappointment’ under Section 15, to extend the

preference in reinstatement from ‘its intrjnsically limited *

seope and effect in ‘‘the position ‘from w ich, he: has ‘been.

removed”? to a conflicting and\variant s

respect to ‘every [other] position for wh¢h his qualifiea- -.

~~ tions have been established’” (Bex. 15; supr, ).

e

165.

i ye Nor do the plain terms of Sections 2. 7, ‘8, and 15, con-

GaN stred. together, afford any; reasonable basis for a deter-

ee Ae mination, that Congress. intended to, subject the specific

_ preference. in ‘‘reinstatement’” to. any of the. conditions |

: pes ‘which it imposed on ‘recertification: ‘and’ reappointment”. oe

a" Bee Thompxoa v. United States, 280 U:.S. 420, 442. ie

die Counsel argue . that: reinstatenient isa Tight limited - to.

“persons with compétitive status, and for support refer to

-- a Civil Service regulation (5 CFR (1949) sPart 7) and the. .

Federal’ Persorinel-Manual. (py, Z1-245), which counsel say

A \**make- ise of reinstatement’? as ‘‘a type of reemployment ei

available. only to Rereone: with Sompetifive status. lt ane ee

me A 473, Sey. Br...19), es

e Words used by Congrede4 ina Statute are a peosamed to

in their usual and most ordinary’ dense, ‘and ‘with

- the meanjng commonly attributed to them: If the language

is plain id thie meaning clear, the duty of interpretation

-< doesnot arise: and the sole function of ‘the courts is to.

ues nforee the. statute Sesiding to its’ terms. Caminetti:v :

Tnited States, 242 U.S. 470, 485; United States v. Lesing- main

oS a ‘ton Mill & Elevator Co., 282 U.S. 399, 409. ee

A - The inceptive attention arid: weight to be given to con-

< ‘temporanéeus construction ‘of a, statute by administrative —

Officers charged with. its execution is a rule of interpreta-.

N: Ae tion, but it ‘is by, no ‘means an absolute one. _ It: does not :

: preclude an inquiry by the-courts as to the original correct- oa

_. ness of such consttuctioh. However long continined by suc- _

‘cessive officers, such administrative’ construction must yield -

' “to the positive language of the statutes. Houghton v. Payne,’

194 US, 88, 100; Armstrong Paint ێ Varnish. Works v..

> Nu-Enamel org: 305 U. 8. 315, 330, 331 ; Hretwster'y. Gage,

ae MOE BC S8F B86. a ¥

~~. + The Commission’s: ‘alleged constriction of. ttie word sre. eae

instatement””, dated 1949, would change in a radical fashion

fhe natural import and most ordinary sens¢ of: the word as:

well as s the meaning commonly attributed t ‘it.

3

-

7

Bee ee Be x weg

| ‘Moteawi, it wholly dicpecainds the anions of Codeteed i

in Section 2 that the preference. in. reinstatement shall be: to

given in ‘the unclassified civil service as well as in the classi-

fied civil service, and thus achieves a rule out, of harmony |

Ss with? ‘the-statute which has the effect of nullity. Manhattan .

When Congress further defined

| _. General Equipment Co. v. - Commissioner fof Internal Rev- |

enue,.297 U. S. 129, 143.. ret | revet

Counsel for the Secretary insist that: v

“The later ‘sections of the Act define the s bstance

of ‘preference’ with respect to appointment, retention, . -.

re gence and’ Peemiploranet,. be 473, peey. ee.

/ : ee

. the s same breath counsel concede: - ne e

-» Phere is no basis i in the statute for substitiiting the ©

preferences created in the one employment : area for —

those mateblintont in hes other. " A ae 473, saa Br.

23)... Fa Oe es oes

We: auite agree that ‘there | is: iho ‘eiiahie: thesis ‘for: sub-.

‘stituting the. preference created in reemployment for the |

i preference created in reinstatement, and no tenable basis —

dure of ‘‘recertification and rea pointment”’ for the in-

insically different, preference: cheated 1 in reinstatement

jn the. Position from we he [the veteran] has peen,

moved’’. :

his view i ‘is indicated. &

gress | ‘throughout the seve

confirmed. by. the. action ‘of

‘sections. of the statute:

ights with respect to the -

, and appointment —

| q

preferences in reinstatement, retentio

in Seetion 5, it did so explicitly, using the\Section 2 terms

reinstatement, retention, and appointment to indicate ‘its:

| intention farther to define each of these specific prefer-

ences. _When Congress in Section 12 further dealt with |

“and imposed the condition of a ‘‘good”’ sm ing a

upon the previously absolute preference in - retenti

created under Section 2, Congrest ae so septiaitly; using: /

ae ook

kor substituting the purely competitive and classified pro- — i]

‘

: ‘ie’ unmistakable. terci: ‘shall bé reidined: in’ preference”, :

as in Section 5.with: the term ‘‘retenfion”. In like manner

_ Congress referred definitely to ‘fcertification’’ throughout... - —

Py Sections 8; 13, 15, and 16, in further dealing. with and defin- ~

"Ing in ‘seope’ ’ the specific preference in “certification for.

- appointment?’ created. in liinine in Section 2. The same is

true with respect to the specific preference in appointment

created and preseribed ‘by: Section 2 and further dealt with - :

_in like/manner in Sections 5, 7, 8, 13, 15, and 16.

. In addition to, the elementary considerations involved and

previously diseusséd, the provisions of Sections 15, 8, and

_7 of themselves necessitate the conclusion that they are

- unavailable, inapplicable, and irrelevant with respect to the

- situation and the Attorney\ position involved in the instant

cease. If a given rrpdaireg were intended—i. e. that

veterans’ rights to the specific preference i in- reinstatement, .

.. designated, created, prescribed, and defined under Section

- 2, are intended to. be further defined, limited, « or eliminated

for all-practical purposes under Section 15—it would have

- beén-easy for the Congress to have expressed such inten-. °°

tion in apt terms. Unitéd States vy. First National Bank of

Detroit, °234°U. S. 245, 246. Remedial rights and processes

- may not be disposed of by.conjecture. Thompson v. United

States, 280 U. S. 420, 442 ; Spokane & Island R. Co. v. United :

States, 241 U. 8. 344, 350; Piedmont & Northern Ry. Co.'v..

‘ Interstate Commerce Commission, 286 U. Ss. 299, 311- 312.

2. ‘Section 14 is inapplicable and unavailable: to’ these.

_ veterans of limited tenure.

: ” Section 14 ‘of the 1944 Act. i is expressly made applicable

only to preference ‘ eligibles of “ permanent or indefinite”’

these veterans have no such ténure but were accorded only

tenure bimits to the duration of the -war\and six months

# present pesition.”” - $2 » 2 FR. 2850, _ Hegulation for

nS tenure of smpeyment while’ the Secratary insists. that — ae

* thereafter, and so cannot be ‘considered “employees who. .

- have met’ all requires ts for indefinite retention in their

-.. Duluth, 53 ian: 238, 55 N.

~

sale) a 7 138

‘Bae RR hans Epon a ot Ge Stra atte Pa Re, tat OP Ae fer ae Bony

misaion’ ihereuigiag which | hese veterans + adsl kaetr pur-

sued and exhausted (R. 55), was plainly inapplicable with |

“respect. to the agency action complained of herein. . The

of employer agency action

express terms of Section 14 ce it dpplicable. only i in-cases |

- part) of the individual] employee so dismissed. For cause

_. means some dereliction or\genéral neglect of duty,.or‘some | .- |

delinquency. affecting the general character of the officer,

3 or his fitness for holding the office, or his incapacity to.dis-

"charge the duties thereof. McKennaiv. White; 287 Mass.

_ 485, 192°N. EB, 84, 85, 86; Roth v. State, 158:Ind. 242, 254, 63

NSE. 440, 46 466; State-ex- rel. Ecklés v. Kansas iy —

‘Mo. App. — 257 S. W. 197, 00-201 ; State ex‘rel. Hart v. -

Ww. 118, 119-120; ~ef. United

States v. Wickersham, 201 U. S: 390, 394-396.

Section 14 of the 1944 Act was thus inapplicable both to

‘these veterans of limited. war-service tenure and to the i in-*.

involving dismissals, etc., for.

« cause, i.e. delinquency, | ine ciency, or misconduct on the-

| stant ease of releases purely in reduction in force, involv:

ing no such delinquency, vac ind or misconduct.

‘3. The regulations for reductions. in-force under Section ae

are inapplicable. and. irrelevant in Tr. 473.

The, Court of ‘Appeals expressly held that such regula. ,

tions for reductions-in-force under Section 12 were not vio-

lated (R. 91-92) and held that only’ the rights" to’ preference

in reinstatement under Section 2 were violated (R. 93-95).

Such regulations are thus no part of the basis for the judg-

- ment of the Court of Appeals attacked by the Secretary in

No. 473. The regulations for ‘reductions-in-force: under

Section: 12 are clearly and admittedly inapplicable and ir- E

" - relevant to the. issues in No. 473.- (No. 473, Secy. Br. 23;

Veterans’ “*Brief for the Petitioners”, 41-42).. ae

Repetition of argument at ‘pp. Al- 45 of our preceding .

Brief would be an imposition. :

oo :

a , Preventing no further question, the writ of certiorari in =

No. 473 should be dismissed.

The Secretary’ $ Petition for a writ of éertiorari in ‘Wo.

473 presents the sole question whether Section 15, rather:

- than’ the regulations for reductions-in-force under Section

12, governs the ‘ reemployment rights of veterans properly:

separated from their positions in federal service’’. (No. 473,

~~ Seey. Petition, p. 2). Since each of these alternatives is ;

unavailable, inapplicable, and irrelevant to the issues in -

No. 473, the aforesaid sole question Drevenied by the Sec-.

. retary is irrelevant and moot...

Counsel forsthe Secretary were well aware that under

Rule. 38 (2) ofthis Court:

‘6°

Only. the. questions specifically brought for-

- ward by the petition for the writ of certiorari will be -

considered. a uae? ie

Nevertheless, in “their. instarit Brief for the ‘Bometiry in

No. 473, counsel proceed to argue at length further ques-

' tions concerning the veterans’ rights to preference under ‘

Section 2. But only rights under Section 15 and under the -

regulations: for reductions-in-forée_ under Section 12 were’

brought forward by the Secretary ’3\Petition for a writ of

° certiorari in No. 473. Counsel for Secretary aré not -

entitled, in defiance of the Rules of this Court, to conduct a

fishing excursion into every other question which now or

later occurs to them, and to argue from a blank sheet ‘atiy

or alliof such questions. =

Since the sole question in No. 473 fails and n no other ques-

tion was brought: forward by the Secretary’ 3. Petition. for.

a writ, of certiorari, the writ of certiorari in No. 473 should

: be dismissed. SOONG Seta

Se PR ee

a so re) . eA : 1.

The Waacar Right : to Prifereane in Retention Was Vio-

lated and Wrongfully Denied Since J une e 1947. Hoe

/474) 3

be The veterans’ retention. fe ete under the 1912 pro:

ay vision was not’and is not restricted to those ico oid

' classified civil. ‘service status. =

/ ts their. present. Brief i in No. 474 counsel persist in urg-.

‘Ang the same view which was sage ny. the. Court of oP

as peals when it held that: }

| “Elder’s- [petitioners’] prelerehes dos’ not arise 4

- from the proviso of § 4 of the Act of 1912 because the -

fees _ application. of that section is confined by its terms: to

/

|

The court thus fidopted the argument ‘then made that:

\ @ “Section 4, to. which the [1912] proviso was attached,

\. -eoneerned civil service tenure in the District of. Co- ;

\ those having classified civil service status.’’. (R. 91). a

or

a a ee Se ee a Ana eg

4 wee. ° . a ee .

lumbir The proviso obviously partakes of that pur-

. pose and is limited by the context to —o with

\ such qs service status.”’ trae

No provision concerning civil service tenure or civil serv- .

ice status appears in Section 4 or in any part of Cie Aet of

1912.

‘There was ‘an unsuccessful effort to insert a provision |

concerning civil service tenure or status in a ‘rider abor-

tively designated as ‘Section 5°’ which finally failed of .

passage. Such ‘‘Section 5’’ provided. that civil service _

tenure be limited to five years. Both § 4 and ‘“Section 5”

were introduced as riders to the Legislative, Executive, and

Judicial Appropriation Act for the fiscal year 1913, and to

“each section was later appended on the floor the same vet-

‘erans’ preference proviso as a rider appended to a rider.

During the subsequent legislative. proceedings. ‘this un-

; hatched ‘Section 5’’, both with and without’ the veterans’

16 : oh

we proviso sieuded therete, was Lecsaiedls repuilisted and

was finally dropped altogether. Meanwhile § 4, with the’

sanie veterans’, proviso appended, was in due course in-

eluded in the omnibus ‘Appropriation, measure as finally

enacted August 23, 1912: (37 Stat. 360, 413), A consecutive eee fe

statement of the proceedings follows herewith.

‘The “£1912 proviso’? was a rider appended to a- ‘rider in-

serted in the Annual Legislative, Executive, and Judicial.

Appropriation Act for the fiscal ‘year 1913, finally enacted

August 23, 1912.- The House Committee on ‘Appropriations.

recommended “Section 5” of the: bill (H, R. 24023) which ©

‘provided for limitation of civil's service tenure to five years,

_ without. any veterans’ preference’ proviso. H. Rept. No. :

; 633, 62d.Cong., 2d Sess., p. 14. -A veterans’ preference pro-

- _ viso was added on the floor of the House. 48 Cong, Rec., p.

6191; The Senate. Committee on Appropriation struck out

- ‘Section 5”’, including. the appended proviso, and inserted ~~

a new Section 4 establishing a system of efficiency ratings’

: i -for the classified service in the several executive’ depart-

‘ ments ‘in the District of Columbia, also without any veter-

ans’ pteference proviso. S. Rept. No. 832, 62d Cong., 2d

_ ‘Sess., p. 7. The Conference Agreement thereafter included

both § 4 (as.above) and ‘‘Section 5’’ (limiting civil service

tenure to 7 years), with an identical veteratis’ preference

proviso attached to each of the two Sections. H. Doe. 910,

62d Cong. ., 20 'Sess., pp. 66-67. In this form the measure was _

‘vetoed in toto by the President, because of his objection to

“Section 5’? and to still another rider abolishing the Com:

merce Court. Id., pp.-1-4.. The measure, as finally passed

by both House and Senate and approved by the President,

dropped ‘Section 5” entirely, but included §*4 with the

veterans’ preference proviso appended thereto. The en-.

' tire Section 4, as finally enacted, reads as now sa hee

in the Statutes at Large, 37. Stat. 3600, 418°. :

The entire legislative proceedings, supra, serve as an an

lustration of the futility and unsoundness of ‘‘construct-

ing”? a Congressional “intention” upon such. fortuitous

“maneuvers. Ex parte Collett, 337 U. Ss. 5§,°61. " In this in- =: ;

stance, the circumstances warrant no more than an infer:

ence of-the utter indifference of Congress to the context aad

into which an independent and substantive provision.is en-/ |

grafted as a parasitic rider with the single intention of get-

. ting it passed and on the books as, law..

The opinion in Chesupeake & Potomac Tel. Co. v. Man:

ning, 186 U. S. 238, 242, 246, describes similar.set of legis-

lative maneuvers. See, also, some of. the other cases in-

which such a proviso has been interpreted as an ixidepen- ie

dent and substantive. “provision separate’ and distinct: from

the eontext of the seetion in which it is found, ‘and. as in- ©

tended to apply. generally to all cases within the meaning

of the language used.. United States v. Babbit, 66 U. S. 55,

. 61; Springer v. Government of the Philippine Islands, 277

‘U. S. 189, 207; McDonald v..United States, 279 U. S. 12,.

20-21; Georgia Banking & Railroad Co. v. Smith, 128 U. S.

wee y; ® 181; American Express Co. v. United States, 212. U. 8.

522, 534; Interstate Commerce. Commission Vv. Baird, 194

U.S. 25, 36, 37. =

. It is not without significance that sseithee the 1876 pro- -

vse ie which granted an absolute retention preference to |

erans ‘‘equally qualified’’—nor the Section 3 in which |

iti is found, nor the omnibus Appropriation Act of 1877 of

which it forms a part,Contains any mention of the classified

civil service or of classified (permanent) tenure of employ- .

-ment or any language even remotely suggesting that the ©

veterans’ preference given under Section 3 had any connec-

tion whatever with the classified civil service or to veterans -

having classified (permanent) tenure of employment:

There has, i in fact, been a total lack of rational connection

between veterans’ preference and tenure of employment

throughout the entire legislative history of ~ 1876 and -

1912 provi8os. 7

‘The 1876 proviso has been ‘oonatroed by this Court to-°

gether with the 1912 proviso in pari materia with the 1944

_-*! Aet as forming one act and as embédied in the 1944 Act.

Hilton v. Sullivan, 334 U.S. 323, 335- 339.

AL Natt Rew RCE PN

;

t

|

‘lative recogniti

18 | | , ‘ \ ARS

“The well- established Sale requires. that the later of such

the 1944 Act—be regarded as a legis-

n-and declaration of the true construction _

‘ of the prior law of 1912 and as intended to remove any

- doubt previously existing as: to the. meaning of ‘such prior

law. Weedin v. Chin Bow, 274 U.S. 657,. 668: Johnson v. -

‘Southern Pac. R. Co., 196.U, 8. 1, 21; Wetmore v. Markoe,

sits in pari matert

196 U. 8.28, 76-77; Cope v. Cope, 137 U. S. 682, 688; Bailey

When Congress, in the forthright language of. Section 2

of the Act of 1944, declared and commanded that. prefer-_

ence in retention shall be given in’ the junclassified civil

service as well as in the classified civil service the question ena?

was settled plainly, completely, and hogmsce

It comes simply to this:

~v. Clark,. 21 Wall. 284, 288); United States vy. Freeman, “a

How. 556, 564-569 ; dissunder*: Alexandria, 5 ‘Cranch; 1,-7. -

(a) Section 4; to: which the 1912 proviso was stashed, es

did not concern civil service tenure. So the 191% proviso.

could not ‘‘partake of that purpose and be limited by the

context. of the section to employees with ee cul service

status.’ ce

-(b) Section 4. of the 1912 Act did sciablish a system ‘of Tes

efficiency ratings for the classified service, _Quaere, whether

&

the 1912 proviso partakes of that purpose or is limited by’ cue

the context of the ‘section to employees in the: classified ‘ee

. service? ss ,

°

(c) Congress, in Section 5 of the ‘Act of: 1944, declares :

and commands that preference i in reténtion shall be given

in (a) the classified: civil: service ; {b) the unclassified civil

- . service: this is conclusive legislative recognition and dec-

laration. that the preference in retention under the.’ prior

law of 1912 és not and was not limited to the classified serv-

ice, - but: extends to the unclassified civil service as well.

: Weedin v. Chin Bow, and other cases abdve cited.

Nowhere in his Brief in No. 474 does the Secretary face 3

down the obvious and. unmistakable intention of Congress

when it placed this provision at the forefront of the Act :

Ne

et

19:

i: 1944: In his Brief | in No. 473 he concedes that Section ae

2 does ‘declare a general. policy of :preference’’ (Br., 13).

It is'respectfully submitted that -the foregoing i is an essen-

ids he

| ‘tial part of the policy and purpose of Congress.

2. The rights of these veterans under the 1912 provision are |

preserved by §18 of the 1944 Act.

‘Counsel argue that the 1912 proviso. ‘thas no standing de

independent legislation for it was superseded by the 1944

Act.’’ Counsel:cite H. Rept. No. 1289,.78th Cong., 2d Sess.,

-p. 7, where such a statement was’ made,-. presumably with .

the normal import of “displace, supplant, repeal.’’ |

. As stated by the Senate Committee on Civil Service, Sec- .

. tion 18 of the: Act of 1944 ‘‘contains a saving clause for the |

protection of existing rights under present laws, Executive:

i orders, rules and regulations.’’ -S. Rept. No. 907, 78th

Cong., 2d Sess., p. 4. Section 18 reads:.

“Bee. 18. All Acts and ‘parts of Acts: Laocudiatent

with‘ the-provisions hereof are hereby modified: to con-

_ form herewith, and this chapter shall-not be construed -

‘to take away from any preference eligible any rights

heretofore granted to, or possessed by, him under any.

_ existing law, Executive order, civil-service rule or reg-

ulation, of any department. of the Governinent 0 or offi-

. eer thereof. rs

The ‘eolseticn of this saving ‘clatise appliss with pre-

. eision to each of these petitioner veterans. Each received |} °

-.. an honorable discharge from the United States Army—’ |”

_ Elder on December 9, 1918; Furman on May.5, 1942—and

since these respective dates each has been an honorably

disch; rged soldier as well as an.ex-serviceman who served

on active duty in the Infantry branch of the armed forces |

of the United States during World War I and World War -

II respectively, and each was ‘separated therefrom under

honorable conditions (R. 3, 77, 50). From August 1, 1943,

to June 6, 1947—almost four: years—each of them ‘was em-

ployed in a civilian position in the United States Depart-

OPN Sa ne ernie, ‘yyten.

: «

20

.. ment of Agriculture at Washington, D. C., with depart- .

mental efficiency ratings of ‘‘good”’ or better. (R. 50, 3,

*

1). |

These undisputed allegations, without more, establish:

(1) that each of the petitioner veterans has, been a vet-

erans' preference eligible and preference etployee since

_ a definite date long prior to the enactment on June 27, 1944,

standing absolute retention preference rights given by the

1912 provision and embodied in the 1944 Act, Hulton v.

Sullivan, 334 U.S. 323, 336-339, were granted to and have

‘of the Veterans’ Preference Act of 1944; ure the long

3 been possessed by these petitioners since 1918 and 1942 re-- :

spectively and since Juhe 27, 1944, have been protected

and preserved. for eaeh of them under the saving clause in

© Section 18 of the Act of 1944. Mitchell v. Cohen, 333 U. S.

ea ee |

In Knickerbocker Ice Co. v. Stewart,. 253 .U. S. 149, 162, se

the Court said: ; , :

«The usual function of a.saving clause is to preserve

something from immediate interference—not to create: |

ambiguity; and the rule is that expression by the legis- -

lature of an erroneous opinion concerning the law does

. ‘hot alter it.” 2 |

es In United’ States ‘ Shreveport Grain and Flevator Co.,

287 'U. S. 77, 83, the Court said: ~ NSS

~ « 2

“Tn proper. cases such reports [of committees of

the Congress] are given consideration in determining

the meaning of a statute, but only where that meaning

_is doubtful. They cannot be resorted to for the pur-

pose of construing a statute contrary to the natural

import ‘of its terms (cit. cases). Like other extrinsic

sids to construction, their use is ‘to solve, but not

-to create an ambiguity’ (cit. cases). Or as stated in

United States v. Hartwell, 6 Wall. 385, 386, ‘If the lan-

guage is clear it is conclusive. There ¢an, be no con-

struction when there is nothing to construe’.’’ .

. ho tn

B a z aay : :

ane A

rey Pe

ca . -

, 21 i ee Pt as Ok

‘There is nothing ambiguous ‘about the saving ‘elatise ine :

Section 18. But even it has had “‘legislative cone :

dragged out for dissection in this case.

The committee, reports stated simply that the saving

clause in Section 18 protects existing statutory rights of -

4 ‘peacetime veterans.’’ H. Rept. No.- 1289, 78th Cong.,

2d Sess., p. 3; S. Rept. No. 907,.78th Cong., 2d Sess., p. 2.

' °$o it was argued below that this saving clause ‘Swas in-

tended merely té protect the preference of peace-time vet-_

-erans”’, and accordingly that all but peace-time veterans

are excluded from such preference, protection, and benefit,

Of, course, ‘this construction that the 1912 provision was

_ preserved with open arms-for peace-time veterans but de-

nied to war-time veterans, was cut from the same cloth as

the construction that the 1912 provision was *‘superseded.”’

-It is obvious that both could not be true. Each of these~

pseudo-constructions i is peculiarly repugnant to the entire:

; spirit, intent, and policy. of the Congress ‘since the begin- _

ning of the Republic to extend certain [not uncertain and.

- jllusory] benefits to'those who have risked their lives in the.

‘armed forces during*wartime.’’ H. as No. 1289, 78th

— Cong., 2d Sess., p. 2; 30 Cong. Record p 3502, 78th Ome

March 27, 1944.

- Rither of such constructions would be manifestly. i incom--

-* patible with the determination of this Court in Hilton v.

_ - Sullivan, 334 U, 8, 323, 337-339: that the purpose of Con-

gress in passing’ the Act of 1944-was not to take away but

to strengthen and broaden—precisely the opposite from

' narrow—the veterans’ preferences then embodied in stat-

utes and executive orders, and that any interpretation or

holding is prohibited which would mean ‘that passage of

the Veterans’ Preference Act of 1944 narrowed the existing

- seope of veterans’ preferences i in case of reduction i in force

of. government personnel.

Counsel for the Secretary argue that:

**Respondents [veterans] apparently ihe (Resp.

Br., p. 31) that this savings-clause’.preserves the 1912

statute, as they construe it, asa separate and indepen-

petletnhniniihiethn eteeton aes Lactate — —

.

a Ae

trees metensnn ee tenran

2 ee See Peep rene

ee AN SM BeMd BRINE Se D = a .

URN LILLE TNS RNAI

. *.

. g. .

, ” . . . :

¢ . ?

F a0 4 >

, : r .

_—_ ¢}... —— po = .

oe

-_: .drop, or reduce in rank or salar any such veterah gov-

—-= — =

—— | OO

“s source of retention benefits id Wo, 474, ‘Secy Br.,. :

Lest the Court be misled, we quote from re page 31 of —

our Brief cited by counsel : ;

‘*Pursuant to Section 18 of the Act of 1944 niids he

. above determination of this Court, the Secretary of

‘Agriculture was subject under the second proviso of

Section 12 of the-Act of 1944 to beembodied import and

effect of the absolute 1912 command not to discharge,

ernment employees as these petitioners.’ ’». (No. 473- 474,

Veterans’ Br. 21) [Emphasis, supplied] oN

Iti is respectfully submitted that both the 1912 provision

_ and its embodied rights, import, and effect in/the Act of

1944 have been administered by the Civil Service Commis-

sion under an unfounded and erroneous. administrative con- *

struction expressed in regulations which fail to carry into

'_ effect the will of Congress as expressed in the Act of 1944

with’ its embodiment and broadening of the rights, import,

_and effect of these earlier acts in pari materia. The regu-. -

lations thus operate to create a rule out of harmony with

the statutes and are an unauthorized nullity. Manhattan

General. Equipment Ca, v. Commissioner. of Internal Reve-

nué, 297.129, 143; Morrill v. Jones, 106 U. 8. 466, 467; Miller

v. United States, 294 U. S. 435, 440; Campbell v. Galeno ©

Chemical Co., 281 U. 8. 599, 610; Helvering v. Hallock, 309,

U8. 106, 119-121; United States v: Carolina Carriers Corp., \.

’ 315 U.S. 475, 489; United States v. George, 228 U.S. 14, 21;

International Ry. Co. v. Davidson, 257 U.S. 506, 514; Borg: |

_-v. Campbell Art. Co., 214 U. 8. 236, 248; Helvering v. Pow-

ers, 293 U. S. 214, 994 ; Lynch v. Tilden Produce Co., 265

U. S. 315, 320-321 ; Utah Light & Power Co. v. United States,

243 U. S. 389, 410. |

“The facts that the cate haa sioad: for some time,

that the statute had been reenacted, and that former deci-

sions had to be overturned, were held by this Court not to

excuse the court from applying the law correctly and from

F ‘ : 23 b

. overturning the previously ineorrect decisions. H elvering os

v., Hallock, 309 U. 8. 106, 119-121, supra. :

‘Neither the. court nor the commission is edichaited ae

dopa¥ting | from the: ‘preseribed statutory ‘standards because _

of any doubts: which may exist as to the wisdom of follow- |

ing the course which Congress has chosen. United States v.

Carolina Carriers Corp., 315 U.S. 475, 489, supra. Reh

' Where statutory: rights, as ‘here, have been denied Gs :

agency action, the decision of the Civil Service Commis-. _

sion, denying the appeals of these veterans and approving |

the: ‘Secretary.’ 8 agency action in denial and violation of

such rights; is clearly subject to revision by the ‘Court.

The agency action of the Secretary, the dministrative

construction embodied in the regulations, and the adminis-

_ trative decision of the Civil Service Commission approving es

such action, alike turned on a pure question of law, in re- |

spect of which the Seeretary and: the Commission miscon- °

strued the law. The administrative determination of that

- question is subject to judiciab review in the present suits.

_' Dismuke v. United $tates, 297 U. S. 167, 171; Tagg Bros.

-y. United States, 280 U. S. 420, 442 1s Securities & Exchange.

~ Commission ¥-Chener Y, 318 U. 8. 80, 94-95; Virginian R.. |:

Co, v. System Federation, 300 U.'S. 515, 562 ; “United. States |

_v, Laughlin, 249 U. §. 440, 443; Medbury v. ‘United States, |

173 U.S: 492, 497-498 ; Federal Radio Commission v. Nelson |

Bros. Bond & Mortgage Co., 289 U. 8. 266; 276: Tatetstott/,

Commerce Commission v. Union Pac. R. Co., 222 U. 8. 541; |

‘547, 548.

Such administrative Aestedcn'e or allan cannot. shies: a)

or diminish the satel of statutes enacted by Congress,

_ nor add tv or subtract from the terms of.an act of Con-

\ gress, nor confer. legality u upon agency action which .is in

. direct violation of the statutory legal rights of these peti-

tioners to the long standingabsolute retention preference

of veterans given by the 1876 and 1912 Acts and broadened, —

strengthened, and embodied in the 1944 Act. The pdwer

of ae ‘ivil Service Commission will not, in the absence of

a plain\command, be deemed to extend to the denial of a

\

/

ea

right whieh the statutes create.and to whieh the petite ners; :

upon facts” found or admitted by, :these. administrative - ;

officers, are entitled. (Cases cited supra) |. fovce

_- $uch review is now prescribed: by express. provision: | nee

of Section 10 of the Administrative Rracedure Act of Jun

41946, - §10, 60/Stat. 243, 5 U. S. C.\$ 1009, Cf. Snyder *

uck, 75 F. Supp. 902, 907-908 (D. C.,D. C., 1948) ; Ma- eee

g Producté Co. 'y. \Blair, e71 U. 8. 479, 483; Pope v. |

ited Sta! sg, 323 U.S. 1, 14. |

hese suits for violation of the ut rights: of the petit

tidmer vetérans under the applicable statutes may be miain-

ita ned ¢ against the Secretary. of Agriculture without join- ,

ing the. Civil Service Commission which promulgated the

lations pursuant to which the Secretary assumed to act. -

- Williams v. Fanning, 332 U. S. 490, 493-494; Colorado. y.

Toll, 268 U. S. 228, 230. Adequate relief.may be afforded

b “an-adaptation of court procedure to a remolding of the

situation as nearly as may be to what it should have been”

initially.’’ dison v. Holly Hill Fruit Products.Co., Bee Ne

_ UL S. 607, 620; Jones .v. Securities é- eaonange Commis | :

sign, 298°U. 8. 298-0. S. 1, 17. Ho ae De Si

CONCLUSION. s

or the reason stated i in our foregoing briefs 1 in No, 473 |

< inbofar as it reverses the judgments of the District Court.

Insofar as it fails: to afford ‘appropriate: ‘relief to. peti-—

_ tidnérs in No. 474, the judgment of the Court of Appeals“

_.. should be reversed and the-causes remanded with direction.

for such relief as this Court may deem just and proper.

_ Respectfully submitted,

C. L. Dawson; * .

Rosert D. Exper, :

~ Sean CHANDLER FuRMAN,

\ Attorneys. for Petitioners.

April 7, 1951

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