2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-2003

Hinkel v. Secretary Navy

Precedential or Non-Precedential: Precedential

Docket No. 02-4542

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

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PRECEDENTIAL

Filed November 14, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-4542

PAUL HINKEL;

DONALD REYNOLDS,

Appellants

v.

GORDON ENGLAND, Secretary, United States Navy

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(Dist. Court No. 01-CV-1971)

Magistrate Judge: J. Andrew Smyser

Submitted Under Third Circuit LAR 34.1(a)

October 15, 2003

Before: SLOVITER, ROTH and CHERTOFF, Circuit Judges

(Filed: November 14, 2003)

KEITH E. KENDALL

2215 Forest Hills Drive

Harrisburg, PA 17112

Counsel for Appellant
THOMAS A. MARINO

United States Attorney

JOSEPH J. TERZ

Assistant United States Attorney

Middle District of Pennsylvania

P.O. Box 11754

Harrisburg, PA 17108

Counsel for Appellee

OPINION OF THE COURT

CHERTOFF, Circuit Judge:

Appellants are GS-11 level employees of the United States

Navy. They allege that the Navy determined that their jobs

should be classified at the GS-12 level but has failed to

implement the classification. They filed suit seeking a writ

of mandamus compelling defendant Gordon England,

Secretary of the Navy, to classify them accordingly.

Appellants appeal the Magistrate Judge’s decision granting

defendant’s motion for summary judgment.1 We shall

affirm. 

This Court exercises plenary review over a district court’s

grant of summary judgment and applies the same standard

the district court should have applied. See Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

We generally review mandamus decisions for abuse of

discretion, but we review non-discretionary elements de

novo. See Stehney v. Perry, 101 F.3d 925, 929 (3d Cir.

1996). 

I.

Appellants Paul Hinkel and Don Reynolds are Program

Managers in the Navy’s Ships Systems Department, a

subdivision of the Ships Support Directorate; at all times

relevant to this lawsuit their positions were classified at the

GS-11 level. In 1997 their supervisor, Valerie Steinman,

1. The parties consented, pursuant to 28 U.S.C. § 636(c), to proceed

before a magistrate judge. 

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identified eleven Program Manager positions under her

supervision (including appellants) that she felt, given those

positions’ job responsibilities, should be classified to the

GS-12 level.2 Steinman submitted a proposal for appellants’

reclassification to Gail Sheffer in the Human Resources

office. Sheffer performed a sample “desk audit” of two of the

eleven positions and concluded that, given the job duties of

the positions, they were GS-12 level. 

Steinman then submitted the proposal to James Ramsey,

Deputy Director of the Ships Support Directorate.

Appellants allege that Ramsey approved the proposal and

the Navy has failed to implement their reclassification to

the GS-12 level. The Secretary of the Navy contends that

appellants have not become GS-12 level employees because

Ramsey determined that reclassification was unwarranted

and rejected Steinman’s proposal. This factual dispute is

immaterial to the resolution of appellants’ claim, however,

and we assume for purposes of this decision the facts as

alleged by appellants. 

II.

There are two prerequisites to issuing a writ of

mandamus. Appellants must show that (1) they have no

other adequate means to attain their desired relief; and (2)

their right to the writ is clear and indisputable. See In re

Patenaude, 210 F.3d 135, 141 (3d Cir. 2000); Aerosource,

Inc. v. Slater, 142 F.3d 572, 582 (3d Cir. 1998). To assess

appellants’ entitlement to a writ of mandamus, we turn to

two statutes: The Classification Act, 5 U.S.C. §§ 5101 et

seq. and the Civil Service Reform Act of 1978, Pub. L. No.

95-454, 92 Stat. 1111 et seq. (codified in various provisions

of Title 5 of the United States Code) (“CSRA”). 

The Classification Act makes it the responsibility of each

federal agency to place every position under its jurisdiction

in the appropriate class and grade in conformity with

2. The Navy had recently reclassified to the GS-12 level Program

Managers from another division of the Ships Support Directorate who

performed similar work as appellants. That reclassification apparently

provided the impetus for Steinman’s efforts. 

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standards published by the Office of Personnel

Management (“OPM”). 5 U.S.C. § 5107. An employee who

wishes to challenge the appropriateness of his position’s

classification may appeal to the OPM, which is authorized

to, inter alia, (1) “decide whether a position is in its

appropriate class and grade”; and (2) “change a position

from one class or grade to another class or grade when the

facts warrant.” 5 U.S.C. § 5112(a). The OPM is statutorily

required to entertain an employee’s appeal of his

classification. 5 U.S.C. § 5112(b). 

In the past, courts reviewed classification decisions under

mandamus jurisdiction. In Haneke v. Sec’y of Health, Educ.

& Welfare, 535 F.2d 1291 (D.C. Cir. 1976), for example, the

court ordered the Civil Service Commission (OPM’s

predecessor agency) to determine whether the plaintiff

should be reclassified based on the fact that other

employees at the Department of Health, Education, and

Welfare were classified at a higher level even though they

were doing the same work. See also United States v. Testan,

424 U.S. 392, 401 n.5, 403 (1976) (noting the availability of

mandamus to compel prospective reclassification). 

In 1978, however, Congress enacted the CSRA. The CSRA

establishes a three-tiered scheme for review of personnel

actions taken by federal agencies: 

(1) for major personnel actions specified in the statute

(“adverse actions”) [see 5 U.S.C. §§ 7501-7701], direct

judicial review after extensive prior administrative

proceedings; (2) for specified minor personnel actions

infected by particularly heinous motivations or

disregard of law (“prohibited personnel actions”), review

by the Office of Special Counsel [of the Merit Systems

Protection Board], with judicial scrutiny “limited at

most, to insuring compliance with the statutory

requirement that the OSC perform an adequate

inquiry,” [Cutts v. Fowler, 692 F.2d 138, 140 (D.C. Cir.

1982)]; and (3) for the specified minor personnel

actions not so infected, and for all other minor

personnel actions, review by neither the OSC nor the

courts. 

Carducci v. Regan, 714 F.2d 171, 175 (D.C. Cir. 1983).

Courts that have addressed the interplay between the

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Classification Act and the CSRA have concluded that

classifications running afoul of the Classification Act qualify

as “prohibited personnel actions” and therefore are subject

to the CSRA’s second tier of review. See Barnhart v. Devine,

771 F.2d 1515, 1523 & n.12 (D.C. Cir. 1985); Karamonos

v. Egger, 882 F.2d 447, 450 (9th Cir. 1989); Towers v.

Horner, 791 F.2d 1244, 1246-47 (5th Cir. 1986). 

We agree. The CSRA defines “prohibited personnel

action,” in part, as a personnel action where “the taking of

or failure to take such action violates any law, rule, or

regulation implementing, or directly concerning, the merit

system principles contained in section 2301 of this title.” 5

U.S.C. § 2302(b)(11). The merit system principles codified at

5 U.S.C. § 2301 include “[e]qual pay . . . for work of equal

value.” 5 U.S.C. § 2301(b)(3). Similarly, a purpose behind

the Classification Act is to promote “the principle of equal

pay for substantially equal work.” 5 U.S.C. § 5101(1)(A).

And the Act also requires that each position be placed in its

appropriate class, and each class in its appropriate grade.

5 U.S.C. § 5106. 

Moreover, an agency’s failure to implement a

reclassification—as appellants here allege—constitutes a

“failure to act” that violates the CSRA’s merit system

principles. See Perdeaux v. United States, 33 F. Supp. 2d

187, 190 (E.D.N.Y. 1999); see also 5 C.F.R. § 511.701(a)(2)

(“The personnel action must occur within a reasonable

period of time following the date of the position action.”).

Thus an employee contending a failure to implement his

classification must bring his complaint to the Office of

Special Counsel (“OSC”). The OSC must then “investigate

the allegation to the extent necessary to determine whether

there are reasonable grounds to believe that a prohibited

personnel practice has occurred, exists, or is to be taken.”

5 U.S.C. § 1214(a)(1)(A). 

The result of the CSRA’s review scheme is that it

eliminates review of classification decisions of an agency or

the OPM—including the failure to implement a

reclassification—by way of writ of mandamus to the agency.

That is so because the CSRA provides employees

dissatisfied with their classification with other adequate

means to attain their desired relief—review by the OSC.

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And insofar as suits for mandamus in the classification

context survive the CSRA, an employee may only seek a

writ of mandamus compelling the OSC to perform its

statutory duty to conduct an adequate inquiry. Barnhart,

771 F.2d at 1523-27. In other words, “by providing a new

avenue of review, the CSRA altered the point at which

mandamus potentially becomes available—that point at

which no alternative remedy is available—as well as the

entity against which mandamus may lie.” Id. at 1527.

Here, appellants brought their complaint to the OSC. The

OSC replied to appellants by explaining that “[t]he policy of

the Office of Special Counsel is to await final action on

such classification appeals by the agencies and the Office of

Personnel Management, prior to taking action on

complaints involving classification decisions.” App. 61, 63.

Because plaintiffs had not “exhausted the classification

appeal process,” the OSC declined to take further action at

that time. Appellants claim that such exhaustion would

have been futile. 

We express no opinion about the exhaustion issue or

about whether appellants may properly seek a writ of

mandamus compelling OSC to perform an adequate inquiry

before bringing their appeal to the OPM. At the very least,

however, appellants have sought mandamus against the

wrong entity. Appellants’ claim for mandamus lies (if it lies

at all) against the OSC. 

III.

For the reasons stated above, we will affirm the

Magistrate Judge’s order granting defendant summary

judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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