The Right of Federal Employees to Sue Their Supervisars For Injuries Consequent Upon Constitutional Violations

• Author: by Lieutenant Commander Patrick W. Keliey
• Pages: 06

1. INTRODUCTION

   Charies Guiteau was an odd individual. Prior to July 1881, he had been a lawyer, an insurance salesman, and an evangelist, and had dabbled in politics. He had become determined to appointed to the American counsul to Paris. His qualifications, however, proved to be le= than adequate, and his repeated entreaties to then Secretary of State James G. Blaine and President James A. Garfield proved unavailing. So persistent were Guiteau's pleas, however, that Garfield barred him from the White House. This proved to be a fateful decision.

   As President Garfield and members of his cabinet set out the maming of July 2, 1881 for commencement exercises at Williams College, Guiteau approached, pulled a pistol, and fired twice at the President. Both bullets found their mark. The first inflicted only a superficial would, but the second lodged in the President's back. Garfieid lingered throughout the summer but died on September 19, 1881.' Although Guiteau's act was the product of an unstable mind that believed that he was "God's agent" for killing Gafiield,l the President's death was popularly "laid at the door of the spoils system "3

   supreme court

   IR Donoban The Amassinr 14-62 (19553'A Hoogenboom. Oullawmg the Sporli A History of the Civil Service Movement aH Kaufman, The Growth of the Federal Personnel System I" the Federal Govern-1865 1883, at 209 (19681ment Service 35 (1965)

   The aSSaSSination was the catalyst that resulted in the reform of the federal civil service.

   This tragic event accomplished overnight what the reformers had been stnving for two decades to do: it aroused the country against the spoils system Political appomtments and removals were denounced m press and pulpit, and, in the congressional elections of 1882, in the voting booths Congress had dawdled over legislation drafted by the reform movement. but when it recon-vened in the last months of 1882. it had been forewarned by the defeat of some congressmen ~n the fall elections. largely an the basis of their stands on civil sewire rew m n , that action was necessary. Hesitation ended. on January 16, 1883, President Chester A. Arthur signed into law the Civil Service .kt

   Thus, "Garfield dead proved more valuable to reformers than Gar-fieid a l ~ e . ' ' ~ and the policy inspired by his demise soon became law The Civil Service Act of 1883' "still provides the legal foundation far the modern citil service, and has had a continuing influence on the development of the public employment relationship."' This relationship has undergone many changes since Garfield's time, but the Civil Service Act in its successive forms have given it its definition and

   content. As will be seen, the extent of the Act's influence upon that relationship IS so penaswe that even potencial rights of action based on the Constitution of the United States are inextricably linked to and governed by it

   The Act's importance 1s also demonstrated by the number of employees It governs. It can be ascertained that, at the start of Presi-dent Washington's administration, there were about 360 employees on the federal payroll.P In Garfield's day, the number had grown to approximately 131,200.10 Today, there are well over two and ane-half million federal employees.'1 The federal public service has increased in size far more rapidly than the general population.

   '"Id a, 41

   'Id at 6

   As late as 1861, the year a1 the start of the Civil War, the total civil service consisted of 49.000 employees (less than two-tenths of one percent of the populatmn. . .), and It compnsed only 208.000 at the turn of the century (. still less than three-tenths of one percent). In the twentieth centuv, however. federal employment increased more rapidly--it had ieched 436,000 when World War I broke OUT; 515,000 in 1923; 572,000 in 1933; and 920,000 in 1939. when 11 constituted seven-tenths of one percent of the population of 130 million. Then the number of civil servants shot upwards under the impact of World War 11: by war's end in 1946, it stood at 3-3,4 million The figure declined with the cessation of combat, but government employment was never again to fall back to the pre-World War I1 levels."

   Just as the number of federal civil employees has expanded, so. too, has the percentage of those employees covered by the Civil Ser~ vice Act. In 1884. "The Act placed about 10 percent of the total number of positions in the competitive or classified senrice. Since that time several extensions and exclusmns have been made by executive order and act of Congress. Since 1919, at leut 70 percent. and since 1947 at least 80 percent, have generally been in the classified service ' ' I 3 By 1963. the figure had risen to 85 6 percent

   Although that figure may seem rather high, it has been estimated that as many as 96 of all federal c~vilian employees are governed to one degree or another by the Civil Senice Reform Act of 1978,16 the modern descendant of the act passed soon after Garfield's death.

   Given this peiiasive coverage and scope. an undemanding of the organization of the federal civil service 1s necessary ta the resolution of any federal employment issue Essentiallg, the original civil ser-vice laws were designed to decrease, to the extent poss~ble. the influence of politics upon federal employment practices and, simultaneously, to increase the efficiency of federal employees

   The bill has for its foundation the simple and single idea that the offices of the Government are trusts for the peo-ple; that the performance of the duties of those offices IS

   MILITARY LAW- REVIEW (VOl. 108

   to he in the inteest of the peopie, that there LS na excuse for the being of one office or the paying of one salary ex-cept that I t 1s in the highei! practicable degree necessar) for the wdfare of the people. that every superflumi5 offre-holder should be cut off tiia e\er> incompetent office-holder should he dismisied that the emplo) ment of two where one will wffice IS robbParge that they can wbmit to thepayment of 2 or 10 percent (to political iampaigni) are excessi\-? and ought to be dimmihrd . If II he true thar offIcPc WP trusts for the people. then it E also true that th? offices rhould be filled bv those who can perform and discharge the dutier in the best possible wa?

   While these COLIC~TIIS

   have remained paramount. additional factsrs hat e ansen

   Events highlighted some of the problenis of the Federal governmental Structure with respect LO employment practices. general argamcation and power? of agen~ C L ~ S

   and departments, and admimsrratiie procedures Goxernmentai FPCEC> and wrong-doings uf public officers and employees showed the need for more open gowrti-ment and higher standards of conduct for officials Periodic recession and inflation eridenced the neccss~ty of greater and more equitable acces~ to government employment and runtinual revisions af Federal job classifications. pay schedules and benefits.15

   Congresi' current respone to these concerns 1s embodied in Title 3 of the UniLed Stares Code,le wherein. "the laws relating to the organization of the Government of rhe United States and to Its civilian officers and employees. generally are rmised, codified and enacted Part Ill of Title El1 deals with "Employees.' Subpart AZ2 is concerned wth general organization and definitions, Subpart BZ3 with employment and retention matters. Subpart CZ4 with employee performance. Subpart DZ5 with pay and allowances: Suh-

   2 14

   part EZ8 with attendance and leave; Subpart Fa' with employee reiations, and, lastly, Subpart Gz8 with insurance and wnuties. Seetian 2101 defines the "civil service" as "all appointive positions in the executive, judicial, and legislative branches of the Government of the United States.'12Bexcept certain positions in the military Sew-ices, the Public Health Service, and the National Oceanic and Atmasphenc Admmstratmn. The 1878 revisiona0 added section ZlOZa,3' which created the "Senior Executive Service," which in turn 1s defined by section 3132(a)(2) as "any position in an agency which is in GS-16, 17. or 18 of the General Schedule or in lwei IV or V of the Ex-ecutive Schedule, or an equivalent position, which is not required to be filled by an appointment by the President by and with the advice and consent of the Senate. . ." and whose incumbent exercises management functions.32

   Further delineation 1s made in sections 21028s and 2103.3' The former defines the "competitive service" as "all civil ~er~ice post- tiom in the executive branch'' except specifically excepted positions, positions to which appointments are made with the advice and consent of the Senate. and positions in the Senior Executive Service 36 The latter defines the "excepted service"30 as "those civil service positions which are not in the competitive service."37 As noted previously, most federal employees fail into the "competitive service" category. The significance of the classification is found throughout the remainder of the Title and governs almost every aspect of the employment relationship For example, section 3304(b)38 provides: "An individual may be appointed in the competitive service only If he has passed an examination or is specifically

   5 4Ulla). 92 Stat 1164 I10781

   excepted from examination "31 Positions are divided for pay purposes into 18 grades of "difficulty and responsibdity"40 and "each agency shaii place each position under itsjurisdiction in its appropriate class and grade in conformance with standards published by the Office of Personnel Management . "41 Sections 7501 through 754341 deal with disciplinary matters, and will be discusspd in greater detail below. The law LS complex:

   Question: What has 21 feet and 85 boxes and makes you want to puli your hair out?

   Answer. A chart of the procedure for dismissing one Government clerk for being late or absent from work all the time.

   Looking like a diagram of the Circuitry for an Intercontinental bailistic missile, Its 21 feet (one foot for each month the process took) of...