Petition for Writ of Certiorari no — Elder v. Brannan

Pet Seopa, cametintn oe snares MALIN OSES

TAR LH

RS ESET

Oe a PTE A aN et eA ee Cel TG AE ee EN Nc NRE RE I a —

BY : othes Page

Opinion below... Byres. Letenecine shanties oo

_ ' ‘Jurisdiction - EIR R SsR oAaT arpa ec roe ar ene 2

- Questions presented _- sipirapaneenan ee

T. Statement Sta as ecenee ieee

Reasons for granting ‘the writ ._/:-.-._- AR ate ae ee Lana CEs,

Conclusion Saar RSueay SRR paathie Oe 16

Bh a : CITATIONS 7 3

lezen a Alexandria, § Cranch, 1, 7 RE ANE ai 10°

; t & Varnish Works v. Nacnasel Corp., 305

Wea ae Me a es

Bailey v. Clark, 21 Wall. 284, 288 __._____-- at

Blair v. City of Chicago 201 US, 460, || ee SE I |

‘Brewster v. Gage,\280 US. LEST» ESSER ane ieee ie ~ 14

Campbell v. Chemical Co., 281 US. 599, 610. 14

Caminetti v. United, States, eu Lai AN, 406 2. 14-15

Chesapeake ‘& Po

at eo AC RCE SIA ek i PN ROO 11, 12

Cope v. Cope, 137 wv S, 682, 688 i eas 10 .

Cox v. Hart, 260 U.S. 427, 435 inuarien 12

Dewey v. United States, 178 U.S. 510, Se Ee

Elder v. Brannan, 184 F. 2d 219, 335-339 Sign Ko

Ex parte Public National Bank, 278 U.S. 101, 12°

Georgia Railroad & Benking Co.-v, Smith, 138° US. 174, 181 11,12

‘Hilton v. Sullivan, 334 U.S

Houghton v. Payne, 194 U.S. 88, 100

§

Interstate Commerce ‘Commission v. Baird, “194 U. Ss. “25, 36-37 2. }

Johnson v. Southern Pac. Ry.:Co., 196 U.S. 1 a PEE gt dees

- Kvos, Inc. v. Associated Press, 299 U.S. 980, 2

Louisville & Nashville R. Co. v. United States, 8 Us. 740, "187,

wen ee ee a ee ee ee oe ee eee ee ee ee

Pieden Northers

. ~ Spokane & Island R. v. United "States, 241 U.S. 344, 350... 10

ox ER v. Government. f Philippine Islands, ag U.S. - game b ee

‘United States v. ‘Babbit, 66 US. 55, 61 9a Rg8 1°

” United States v. Freeman, 3 bine MOK GRADE oe 10

_ United States Vv. Lexington Mill & Elevator Co., , 232 US. 399,

- 409

. United States v: Morrow, US. 531, 534-535 _

OS States v. Standa Brewery, Inc., 251 US. “210, Be

altel Maine ¥ auer TA

“Mfebeter v, Pall, 208 US. WT, Bil. oo: 8

Weedin v. Chin Bow, 274 U.S. 657, 668 MAIS ERAT Rn SE A 10

Wetmore x. Markoe, 196 U.S. 28, WENT oo a

White v. United States, 191 U.S. 545, 551 scars Lack wh ca arity Gib ehcicoabcebisian =

23, 335-339 Paes Y 10, 11, 12, 15, 16

p Ras

a a < Sn pebo e

: . . :

Ce ee Tee eee

IN THE.

Supceme Court of the Anited states

Ocroser. » Tena, 1950.

No.

‘ Rosert D. Exper, Greene CHANDLER FurRMAN, Petitioners —

Ae

. Cuinnxs F. BranNAN, Secretary of Agriculture, Respondent. |

: See

ee

‘PETITION FOR A WRIT OF CERTIORARI TO THE

| UNITED STATES COURT OF APPEALS FOR THE.

DISTRICT OF COLUMBIA. =

Robert D. Elder and Greene Chandler Furman, peti-

tioners, pray that a writ of certiorari issue to review the —

judgments of the United States Court of Appeals for the —

District of Columbia entered in the above-entitled case on

‘June 15, 1950. “ : ,

\- pee,

‘OPINIONS BELOW.

The opinion of the United States District Court for ee

- District of Columbia (R.-72) has not been officially reported.

. The-opinion of the United States Court of Appeals for the.

District of Columbia (R. 88) is reported at 184 F. 2d 219.

gs

J JURISDICTION.

The Sulaminia of the United States’ Court of Appeals for -

ee District of Columbia were entered on June 15, 1950

(R. 96). The Government’s petitions for rehearing were _

denied October 2, 1950. Additional time for filing petition ~

for writ of certiorari was requested by the Government and.

extended to January 2, 1951. The spelen of wang oe

is invoked under 28 U. S. C. 1254. . ; Feet

_ QUESTIONS PRESENTED.

.e Whether- ‘Civil Service Commission regulations for re-

duction in foree—inso neat as such regulations grant to non-

veteran employees ‘ according to tenure of einployment”’

[under subgroups A-2, A-4]- superior retention preference

rights over veterans’ preference. employees whose efficiency —

ratings are ‘‘good’’ or better [subgroups B-1, C-1]—are

inconsistent with ant in violation of retention preference

- rights secured to such veterans under $§ 2, 12, 14, and 18 of

the Veterans’ Preference Act of 1944 and/or rights pos-

, sessed by such veterans under the proviso of § 4 of the Act .

of August 23, 1912, and under § 3 of the Act of August 15, .

1876, as such. rights are broadened, and in no respect

narrowed, by the Veterans’ Preference Act of — and

i embodied in the Act of 1944, | ve

2. Whether agency actio Oe. a ‘ peduction in force in a

- Federal Department in th District of Columbia—whereby |

veterans’ preference employees whose efficiency ratijgs ‘\.

: are ‘‘good’’ or.'better in civilian positions of Attorney, ©

.Grade P-3,.are discharged effective June 30, 1947, while |

other nonveteran nonpreference employees are retained in _

_ such positions of Attorney, Grade P-3, in preference to

such veterans ‘‘according to tenure of employment’’—is in

violation of retention preference rights of such veterans:

under applicable statutes aforesaid.

w/

-

- Whether agency ‘action in a reduction. in ‘force in a

Federal - Department in the District of Columbia—whereby |

veterans’ preference employees whose efficiency ratings

are ‘‘good’’ or better in civilian positions of Attorney,

Grade P-3, are dropped and excluded from daty.since June

6, 1947, while nonveteran employees are retained continu-

| ously: on active duty in such positions of Attorney, Grade

P-3,—is .in violation of rights of such veterans under ap-

-_plicable statutes aforesaid.

4, Whether the above-described | amin aropping,.

and/or exclusion from duty is to be regarded as in direct

- violation of the proviso of § 4 of the Act of August 23, 1912,

; and/or of the proviso of § 3 of the Act. of August 15, 1876. - ie

_. 5. Whether, in such a reduction in force, §§ 2, 12, ‘and 18 |

of the Veterans’ Preference Act of 1944 require that. any

veterans’ preference employee whose efficiency rating is ©

- good’? or better in a position of Attorney, Grade P-3,

- ghall be retained in preference to any nonveteran employee

in such a position of Attorney, Grade P-3, without regard _

. . to tenure of employment and length of service as between

such veteran and nonveteran, and without regard to the ©

efficiency rating of the nonveteran.

6. Whether, if the material allegations i in 1 the record a

main substantially as they are, the District Court should

enter summary judgments to the effect that since June 6,

- 1947, each of these veteran petitioners has been wrongfully |

: denied his statutory right to be retained on active duty in

his position of Attorney, Grade P-3, and is entitled to. re- |

instatement therein as of June 6, 1947.

7. Whether, if the material allegations in the coed ¥ ate

main substantially as they are, the District Court should

enter summary judgments to the effect that since June 30,.

1947, each, of these veteran petitioners has been wrongfully

denied his statutory right to be retained on active duty in.

his ‘position of Attorney, Grade P-3, and is entitled to re-

; instatement therein as of June 30, 1947.

+ 0 een PORT

.

ee ee ee eet

”.

Re Re eR GREE ERR ion elie eee

‘

8 Whether, if the material allegations in the reeord re-

main substantially as: they are, the District Court should:

enter summary judgments to the effect that each of these

petitioners has been entitled since August, 1944, to the

tenure of employment designated as permanent or classi-

- fied (competitive) civil service status, and that such tenure.

and status has been wrongfally denied him.

STATUTES AND REGULATIONS INVOLVED.

é The proviso. of § 4 of the Act of August 23, 1912, § 4,

387 Stat. 413, 5 U.S.C. A. § 648, provides as follows:

Provided, That i in the event of reductions being made a

‘in the force in any of the executive departments no

honorably discharged soldier or sailor whose record in

said department i is rated good shall be discharged or

dropped or reduced i in rank or salary.

“This proviso immediately follows the provisions s quoted

herewith: -

- See. 4..° The Civ il Bervine Connniaaion shall, subject

to the approval of the President tablish a system of

efficiency ratings for the classified service in the sev-.

eral executive departments in the District of Columbia

* * * Copies of all-records ‘of efficiency shall be fur-

_nished by the departments and independent establish-

’ ments te the Civil Service Commission for record in

accordance with: the provisions of this section: _Pro-

vided (et seq. supra) * * * —

* 6 The Veterans’ Preference Act of June 97, 1944, 58 Stat.

he 387, 5-U. 8. C., Supp. V, §$ 851-869, provides in pvrenent

aut as follows: - 3

Ss See. 2. In. certification for appointment, in sohadast mets

: ~ tionin, civilian positions in all esta$lishments, agen-

- cies, bureaus, administrations, projects, and depart: .

ments. ofS 1¢ Government, permanent or temporary,

AY the classified civil service; (b) the

fil: service; * * * preference shall be .

nent, in reinstatement, in inal eats and in reten-

S Caan Se . 5»

given to * * * (4) -those ex-servicemen and women

who have served on active duty in any branch of the

armed forces of the United States, during any war,

* * * and have been separated therefrom under hon-

orable conditions. | Bh Stes

CG 8 1 . * e “rghit .

See. 12.. In any reduction in personnel in any civil-

ian service of any Federal agency, competing employ- .

ees shali be released in aceardance with Civil Service

Commission regulations which shall give due effect to

tenure of employment, military preference, length of '-

‘service, and efficiency ratings;‘* * * Provided further, .

That preference employees whose efficiency tatings are

*‘good’’ or better shall be retained in preference to all.

> \. other competing employees * * * .

Ves vis ¢ | ‘

See. 18. All Acts and parts of Aéts inconsistent

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

form herewith, and this Act 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.

regulation,:of any department of the Government: or |

o

. Officer thereof.’

ee

errata ‘

_ Pertinent provisions of the Civil Service Commission |

regulatioris (5 Code Fed. Regs.’§ 20:3, Supp. 1947). are set

forth infra under Statement. pp. 7-8, 12-13.

| STATEMENT.

| Each of the petitioners was honorably, discharged from.

the United States Army after wartime service on active

duty in the Infantry—Elder during World War I and

Furman during World War II (R. 3,'50, 77). Each of

the petitioners was continuously employed from August 1,

1943, through June 6, 1947, in a civilian position of Attor-

ney, Grade’ P-3, in the Department of Agriculture, Wash-

ington, D. C., and had at all times efficiency ratings of

* * * * .

eee ee Ee

Py 6

eS good”? or better (R. 3, 50, 78). On May 29, 1947, each 3

of the petitioners received written notice dated May -29, .

1947, stating: ‘‘A reduction in force brought about by

: lack of funds necessitates your being separated effective — .

on or after. June 30, 1947, c. 0. b. Your last day of active. -

- duty in your present position will be June 6, 19477”. (R. 4,

8, 51). as

-. Sinee June 6, 1947, each: of. the petitioners | has beat: ia

“dropped and excluded from duty in his pesition of pein

ney, Grade P-3, while five wemen and three men, all no

veterans, have been retaiiedin continuotis employment on

_active duty in such positionsof Attorney, Grade P-3, since

» June 6, 1947 (R. 48, 50-51, 23-24). On July 30, 1947, re-

spondent gave each petitioner ‘‘formal notification of your

separation due to reduction in force effective June 3, 1947”7 _

(R. 60,46). The petitioners’ positions have not been abol-

ished, but have been filled by other nonveteran Attorneys,

Grade P-3, who have since June 6, 1947, been continuously

performing work, funetions, and ‘duties which were for-

merly performed by each of the petitioners (R. 50-51, 14)...

The eight nonveteran Attorneys, Grade P-3, above re-

ferred to as retained in preference to the veteran petition-

ers, were each carried on respondent’s records as ‘(1)

Without veteran preference with efficiency rating of i:

“good? or better. (2) Serving under an appointment with

-the equivalent of permanent competitive status in the

classified civil service,’? —and were assigned ‘‘according ”

to tenure of employment’? to the retention subgroup A-2

of the regulations (R. 48, 51). At the same time, each of

the veteran petitioners was -carried on the ‘respondent’s

_records as ‘‘(1) With veteran preference with efficiency

rating of ‘good’ or better. (2) Serving under an appoint-

ment for the duration of the war and six months there- |

after.’’ —and assigned ‘‘according to tenure of employ-

'. ment’’ to the inferior retention oe B-1 (R. 48, 38-

59). : ;

‘\

\

e\

a

\

Kener

The eg eremepbcant sued asa plaintiff in District Court

_ June 5, 1947, to efijoin the Secretary of Agriculture from

discharging him (R. 2, 76, 7, 82). After discharge, each

“continued his effort,-by amended: and supplemental com-

_plaint, to obtain an. adjudication. that he had been wrong-. >»,

fully discharged and should be einstated: (R, 13, 49, 84- /

85). The District Court entered. ummary judgments’ for

_ the defendant Secretary before answer (R. 74), stating i in,

‘its opinion: . ‘‘It seems clear that plaintiff was a war

service appointee and did not have a permanent. Civil Serv-

’ ice status. His separation, was effected i in full compliance

with the applicable statutes and regulations)’” (R. 72). |

-.On appeal, the Court of. Appeals adhered to the same

general thesis (R-88, 184 F. 2d 219), upholding the para-

mount. overall ‘retention~priority effect given\‘‘tenure of

employrtent”? by the regulations, and : ‘holding that peti-

tioners, as veterans’ preference employees whose efficiency —

}

Wh

* ratings ar e ‘‘good’’ or ‘better, have retention: preference

only over ‘saipapsek: in subgroup B-2 and lower, and have

Ww

3 vith elie whatever over any of the eight nonveterans

preference to the veteran. petitioners.

9

classified tenure in subgroup ‘A-2\who were retained |

§ 20.3 of ‘the Civil Service Commission: regulations “(2

F. R. 2850; 5 Code Fed. Regs. § 20.3 Supp., 1947), presum- :

ably promulgated pursuant to § 12 of the. Act of 1944, pro.

vides that, ‘‘for the purpose of. determining relative reten-—

tion preference i in reductions in force’, peice in each

‘‘competitive level’? [e...g. “‘ Attorney, Grade Pp-3’’|—vet-

erans as well as nonveterans—‘‘shall be classified accord-

ing to tenure’ of employment in ores retention

groups and subgrdups as follows:’’

Group A: All employees with avutualont of aeons

nent or classified civil servine tenure.

Group B: All employees. serving under appoint-

- ments limited to the duration of the present war, or i

otherwise. limited toa period i in excess of one year,

‘Group C: All employees serving under appoint- Cg:

ments limited, to one year or less:

“Bach Group, i in. turn, is subdivided into four subgroups :

; A-l.. - With veteran. er Wnless efficiency rat-

ing i is. less than ““Good”’. :

A-2. Without veteran referee unless ‘efficiency

* rating is less than Good”. . car

.. A-3. With veteran preference where efficiency, rat- iy

ing. is less than ‘‘Good”’. |

- 2 AA4e Without veteran preference where chiens Al

rating: is less than ‘‘Good’’... Bn ee Ri a

eae oy 5 With veteran preference unless efficiency rat: *

ing’ is less than “Good”. :

: me B-2; Without. veteran, mee unless efficiency

rating i is less than “Good” ails ‘oe

|

“Tn case of a reduction in force tho regulations require -

( 20.8) that within each ‘‘competitive level’’ [e. g..‘‘ Attor-

ney, Grade P-3’’] employees shall be teleased by starting

with the lowest subgroup, O-4, and proceeding upward in

‘inverse order+—C-4, C-3, C-2, and so on, releasing all em-

ployees in each lower subgroup befor proceeding to the -

next hope et seq. |

®

‘REASONS FOR GRANTING THE WRIT.

) Ae

In. ‘upholding retention preference, for nonveteran non-

preference employees having, the equivalent. of classified

civil service tenure under subgroups A-2, A‘4, over vet-

erans’ - preference employees whose efficiency ratings are

_ ‘good’? or better under subgroups B-1, C-1, —‘‘according .

_to tenure of employment’ instead of ‘abcording to the ee see

jo ee

; , mane

‘ ; | .

[ote

viso ‘mandate. of absolute’ fetention: ‘preference ‘for sych

- -veterans—the court below has decided an ‘important ques- — .

vie tion relating to the construction of the Veterans’ Prefer- |

ence Act of .1944 and earlier Federal statutes, and failed :

|Nito: give proper effect to applicable decisions of this Court,

Ee cited infra, in the respects indicated:

~(a) In failing: ‘to’ hold: that. the: “long standing ladtion

pteferences of veterans. given by Congress in the proviso ° fy

of § 3 .6f the Act-of August 15, 1876, and greatly strength-

as ened by the proviso of § 4 of. the. Act of August. 23, 1912,. -

have been broadened, and in no respect narrowed by the

Veterans’ Preference Act of 1944, and embodied in the Act

’ \ of 1944, Hilton v. Sullivan, 334 Us S. 323, 335-339; and in

failing to hold that, whatever the scope of veterans’ reten-

tion: preference rights prior to the enactment of the Vet-

erans’ Preference Act of 1944, the absolute retention pref- |

rence rights given by the proviso of §4. of the Act of Au- -

ist 23, 1912, must be. deemed to have been broadened by ;

'- §\2 of the Veterans’ Preference Act.-of 1944 to comprise: .

i status.

ployees of nan-classified civil service status, as/ well as the

‘the unclassified civil service and veterans’ at em- .*-|

cl; ssified civil-service > and veterans of classifi¢d civil serv-

~ (b) In failing to. find that: §2 of the Veterans’ Prefer-

enea Act of 1944 comniands. that preference in retention

_ shall be given in the unclassified civil service, as well asin

the classified civil service, and in failing to hold that §2 _

of the. Veterans’ Preference Act of 1944 is to be regarded <

as a legislative ‘recognition and declaration by/ Con ys

that the-absolute retention preferences, of veterans

by the proviso, of § 4 of the Act of August 23, 1912, applied

in 1912 and still apply since 1944 in respect of. veterans’

preference in ‘retention in the unclassified civilsservice, \2 as.

, well as in the classified . civil serviee, and has. never been

confined. in application to the classified civil service or vet-

-erans of ‘classified ‘civil service status. Weedin v. Chin . .-

We.

“Wage Beir, 274. U.S. 657, 668; Blair v. City of Chicago, ‘201 vU. s.

ee 400, 475; Johnson v. ‘Southern Pacific R. Co.,; 196° U.S: we

°.. 21; Wetmore.v, Markoe, 196 U. S.. 28; 76:77; Cope v. on, |

137: U. S. 682, 688; Bailey _v. Clark, 21 Wall. 284, 288;

_ >. United States v. ‘Freeman, 3 How. 556, 564-565 ; Alexander

mite, Alexandria, 5 Cranch, 1 at ‘Great ritehince Ry, Co. v.

re United States, "315 'U. S. 262, 277. cathe,

_(e) In failing to- “uphold: “thie dietnemtary. file that ex-

actions from a general policy which a law: ‘embodies shoald -

lone be’ strictly constriied, that, is, should be so. interpreted as

not to destroy the remedial processes intended to be- accom- |”

o “| plished ‘by the enactment; oo, ‘Spokane d & Island R: Co. v.

"| Bnited States, 241-U: 8.'344; 350; Piedmont & Northern’.

~Ry. v. Interstate Commerce Commission, 286 U. 8. 299, 311-. -

' 312; and in failing to hold that §:2 of the Veterans’ Pref-

- ‘erenee Act. of 1944 embodies. and is declarative of-the'gen-

_ @ral policy and Jong established ‘ptrpose of Congress. to.

~‘* geeure. substantial prefere ence [i. e,. priority in right] in’ :

ae ‘refention in émployment in the Government service, ex- ~

» ‘pressed -in-the absolute command of. $2: of the Act that :

such’ ‘preference ‘shall be given’ to designated veterans,

; their. “wives and: unmarried widows, i in the anclassified civil eae

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

comprehensive scope. defined i in §2 of the Actlof 1944.

-(d) In erroneously holding that: “Elder? 8 fpetitioners? a os

preference does not arise from the proviso of. $4 of the Act_

= of 1912 because the application of that section is confined

by its terms to those having classified: civil: service status.’

© (R91; 184° F.2d 219, 224) ; and in failing to hold that:.

“Phere is’ nothing ambiguous about’ this 1912 provision. |

‘It was an absolute command that: no governmental Maniaots

-. ment should. discharge, drop, or reduce in rank any honor- - |

‘ably: discharged. veteran ‘government employee with a rat- o

Me ing of *good’.””” Hilton. v Sullivan, 334 U. 8. 323,336. .

IPE :“(e) Tn. failing to hold that the proviso of §4.0f the re

oes of August 23; 1912, is. t6,be interpreted as an bilepenaent.

a tp Peg ean fe

°

%

oi ae he provision n separate and dietinet fromr the. :

context of the section in. which it is found, and as intended

to apply gene?ally to all cases within the meaning of the

‘language used.: McDonald v. United: ‘States, 279 U. 8. 12,

: “20-21; Springer. v. Government of the Philippine Islands,

277 U: S. 189, 207; United States v. Babbit, 66 U. 8.5, 61;

2 Chesapeake & Potomac Tel. Co. v. Manning, 186 U. 8. 238,

'\ 242,.246; Georgia Railrpad & Banking. Co. v.. Smith, 128 -

' . U.S. 174, 181; Interstate Commerce Commission v.. Baird,.

194 U.S; 25, 36, 37; and in failing to observe and hold that |

this Court so construed the proviso of § 4 of fhe Act of Au-

gust :23, 1912, in the. case of Hilton v. betta ato. U. 8.

388, 336.

(f) In failing ‘ct hold that tenure -of senployinent ‘ili ,

‘tary preferénee, length of service, and eeiemy ratings are .

oe sideration in the pied in of retetition eterencen as

S ‘between veteran and veteran and as between nonveteran

; and, nonveteran. ‘Cf. Hilton v. Sullivan, 334 U. 8. 323, 335.

: oa g) In. failing to old that the first: ‘part: of the second - _

. proviso of § 12 6f the Veterans’ Preference Act of. 1944 is . -

to: be regarded as the congressional creation: of a class of

veterans’ preference employees who “shall”, if they havé

the defined efficiency ratings of ‘‘good’’ or better, he re-- _

- tained in piteference to all other competing employees with- «..

- out regard to ‘tenure of employment and length of service.

as between veterans and nonvetefans. M. cDonald. v. United -

States, 279 U.S. 12, 20-21; Springer v. Government of. the

ee Philippine . I slands, StF. v. Ss. 189, 207; United States We.

- Babbit, 66.U.-S. 55, 61; Chesapeake & Potomac Fel. Co. v.

Manning, 186: U.S. 238, 242, 246; Georgia Railroad é Bank- ;

-+..ing Co. v. Smith, 128 U.:8. 174, 281; Interstate ‘Commerce: 5

Commission v.. Baird, 194. 8: 25, atl Cf. Hilton v.

. Sullioag, ‘334, U. &. 323, 835: 336. : ;

-

J.

1k

‘ e ‘ Ss .

oe : /

/

. .

Ook AIS em LOPE NE RNR NE PN Ree mes ¥ v

oa « . . =" “

Py .

. .

pe : at oe

| (ie. 12 .

y) In: failing to uphold the settled rule that every part

: of a statute must be construed in cdnnection with the whole,

~.* “go as to make all the parts harmonize, if possible, and give

'-, meaning to. each. Market Co. v. Hoffman, 101 U.S. 112,

115-116; Ex parte Public National Bank, 278 U. S. 101, 104;

and in failing to hold that: the Civil. Service Commission

_ regulations, applied herein, have not accorded any mean:

ing to the first part of the second proviso. of’ §12.of the -

Act. of 1944 that i is consistent with the requirements of law.

(i) In failing to’ hold’ that the first-part of. the second ; .

@ proviso of §.12 of the Veterans’ Preference Act of 1944 is

_ substantially the same as the 1912 provision which pro-

vided for ay. absolute reténtion preference without regard °

_to-tenure of employment and length of service. CE. Hil. . -

ae ton v. Sullivan, 334°U. S. 323, 338.

‘ef (3) Tn failing. to hold that. the first part of the second

* proviso of § 12 of the Veterans’ Preference Act of 1944 is:

- to be iriterpreted asa special withdrawal and exception of

3 the class of. veteraps’ preference employees whose effi-

ciency ratings are ‘good’? or better from the operation and -:

- operative effect of -the general terms, of the first clause of

§.12 of the Veterans’ Preference Act of 1944. Cox v. Hart,

260. U. S. 427, 435; McDonald v. United States, 279 -U. S.

12, 20-21; United States v. Morrow, 266 U. 8. 531, 534-535;

‘White v. ‘United States, 191 U. S. 545, 551; Chesapeake &

_, Potomac. Tel Co. y. Manning, 186 U. S. 238, 949 246; Georgia

~~ Railroad & Banking Co. v. Smith, 128 U. S. 174, 181; Minis

v. United States, 15 Pet. 423, 445; Cf. especially the specific ‘

application of this general. rule to the factor of length. of.

~~. service which: was alorie in issue between a nonveteran em-.

.- “ployee and veterans of the same classified tenure of em-

oe ployment, in Hilton v. Sullivan, 334 U. S.°323, 335, —

.§ 20:3 ‘of the csc regulations, supra, attempts to give :

« “aus effect td the four factors of the first clause of § 12 of

~... the Act of 1944, by first segregating all’ the Attorneys, Peas?

Grade: P- 3, in the _ Sempenitive: level”? 80 designated, and

c ‘ ‘

Na eS

’ a. "4 . Bele the ae

®

et oe

“then j seeing that these Atiieaied Grade P-3, are e “classified

cording to tenure of employment’? — the: categories

designated as Groups A, B, and Cc.

: “Tenure of employment”? is’ thus ‘given effect” as the

: overall and paramount criterion for priority i in the right to :

_ foe retained, per Groups A, B, and C.

ba Permanent. or classified tentire of: employment is given

. supreme effect as the highest value i in the gcale af etension

- BF lority, per Group AS

“Military preference"’—under the. ‘auuetlation ‘syeteran

preference” —is given a very secondary effect as a sort of |

minor abscissa within and subordinated to the overall and ©

Sa paramount criterion of. ‘tenure of employment” e. ge A-l,

B-1, C-1, A-3, B-3, C-3. oss |

: “Efficiency ratings’’ are givena staggered abscissa, exlas:

zs eonjointly ‘alge ‘military: preference’’, — | :

“Hength of service” is ‘given effect within the subgroups

by remote control from § 20.2 (b),/

- As above stated, all Attorneys, Grade P-3 -aeaterais 4 as.

ts ay as nonveterans—are included in the operative effect

_ thus given by § 20.3 of the CSC regulations to the general —

terms of the first clause of 12 of the Veterans’ Preference

Act of 1944. None of thé proviso-excepted : ‘class of vet-

“erans’ preference. Attorneys, Grade P- 3, whose efficiency

ratings are ‘‘good’’:or better Mas: been withdrawn or ex-

; " cepted. from the operation and operative effect .of: such -

general. terms of the first clause of § 12 of the Act‘of 1944: s

ihe regulations of the Civil Service: Commission thereby

assumed the legislative power of altering, amending, and. =

modifying this Aet of Congress by subtracting and elimi-_

" nating the settled legal funetion of the applicable proviso

which also contains an-absolute command of the Congress.

Oe Administrative | rulings cannot add to, or subtract from, _

a bi ternis. of-a Ve Act of Congress. United States v. ane, Y

mo

f aM,

Ee ee So

14

\

ard Brewery Co., 251 U. S. 210, 217-220; Miller v. Stand-

ard Nut Margarine Co., 284 U.S. 498, 508. |

Pu said by this Court in Campbell v. Cane Chemical

281 U. S. 599, 610: +i}

Pas “The limits of the’ power to make: iceulations are |

; well settled. (cit. cas.) " They may not extend a statute ,

or modify its provisions. ' fe : |

| Again, th Manhattan General ‘Equipment Co.'s Y.. Commis- 7

sioner of Internal agent 297 U. S. 429, 134, this Court

said:

Phe power. of an adininintrative officer or board to:

‘administer a federal | statute and prescribe rules and —

regulations to that end is not the power to make. laws—

for no such power can be delegatéd—but to carry into

effect the will of Congress as.expressed in the statute.

A regulation which does not do this, but operates to.

-. ereate a rule out of harmony with the statute, i is a s mere

5 maey én

The tnceptive attention and weight ti the given to con-

temporaneous construction of-a statute by administrative

- officers charged with its execution is a rule of interpreta-

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

preclude an inquiry by the courts ss to the original ‘cor- peat

-rectness of such construction. However long continued by |

.suceessive officers, such administrative construction must —

~ yield to the positive language of fhe statutes. H oughton v.

- Payne, 194 U. S.. 88, 100; Armstrong Paint &. Varnish —

Works v. Nu-Enamel Corp., 305 U. 8. 315, 330, 331; Brew- °—

' ster v. Gage, 280 U. S. 327, 336; Swendig v. Washington

Water: Power Co., 265 U. S. 322; 331; Louisville & Nash- «.

ule R. Co. ¥. United States, 282 U. S. 740, 757, 759; Texas.

& Pacific R. Co. v. United States, 289. U. S. 627, 640; United

_ States v. Tanner, 147 Us S, 661/ If the language is plain .

and the meaning clear, the duty of interpretation does not

arise and the sole function of the courts is to enforce the —

statute according to its terms. Caminetti v. United States,

1b

242 U. 8. 470, 485, United States v. Tatas Mill & Eleva-.

tor Co., 232-U. S. 399, 409 ; Dewey v. United States, ods,

U.S. 510, 520, 521; Houghton v. Payne, supra:

Under the positive language of § 12; viewed in its signifi.

cant relation with § 2 and $18 of the Veterans’ Preference,

Act of 1944 and the provisions of earlier statutes embodied

in the Act of 1944, the respondent Secretary was elearly a

and mandatorily required to retain these veteran petition-

ers in their positions as Attorneys, Grade: P-3, in prefer-

ence to all other nonveteran nonpreference Attorneys,

Grade P-3 [i.e, all Attorneys, Grade P-3, who are without

veteran preference]; and «espondent’s admitted. failure so.

” to do violated petitioners: legal ed under. these appli

: cable statutes. san a a pel

: Tn viliobdive’ fetention preference for nonveteran non- nape

ae preference employees having the ‘equivalent: of classified

-civil service tenure oyer veterans’ preference employees

whose efficiency ratings are ‘‘good’’ or better-—according ~

to tenure of employment instead of according to the pro-

viso mandate of absolute retention preference for such yet- -

- erans—the court below has decided a question of substance

_ and general importance relating to the construction of the’

ee Veterans’ Preference Aet of 1944 ‘and earlier Federal stat-

utes which has not been, but aoee be, -settled - y this :

~ Court.

\(a) The court ‘below. erred: in 5 holding, in respect “of

‘sg 20.3 of the CSC regulations for reductions in force, supra,

-. that:, ‘*Those classifications and the subgroups into which

they were divided, which are reproduced below, [footnote

—-4;.R\ 91-93; 184 F.2d 219, 221] were approved by usin the.

- Hilton case. We do not read the Supreme Court? 8 opinion

in Hilton wv Sullivan, 1948, 334 U. hs 323, as holding to.

the contrary.’ _ E

There was no merit in the Cerecuimeut $ colitention. thos

adopted we the Court: of : Appeals, — was that i in ap. Be

f ; rie ; oy

16

. holding the validity of the sheolsts retechion preference nee

Pee veterans of classified-permanent tenure of employment

given under subgroups A-1 Plus and. A-1, the Supreme .

Court in the case of Hilton. v. Sullivan approved and af-

firmed the validity of ‘the regulations for reductions in - -

' force in toto or ‘‘of necessity affirmed’ the validity of: the

' primary division. between A and B based ‘on the tenure of. -

employment of employees.’ sens | Brief f below; p. “ As |

2 e repeatedly stated by this Court:

this Court of the important | ‘questions ‘involved.’

CONCLUSION.

“this ghee pci be granted. iy :

Os: t, Dawson,

Rosxrt D. Exper,’

GREENE CHANDLER Furman,

rah or iey . Attorneys for Petitioners.

‘December, 1950.' ie Was .

For the reasons stated, ‘it is respectfully ee that

“The Sauer that can be. said i is that the point was in

the record if- anyone had seen fit to raise it. Ques-

tions that merely lurk in the record, neither brought ee:

to the attention of ‘the court nor ruled upon, are not

to be considered as having been so decided as to con-

stitute precedents.’? Kvos, Inc. v. Associated Press, -

. 299 U. S. 269, 279; Webster v. Fall, 266 U. S. 507, S11, .

The public interest ‘will be promoted by settlement i in -