Hilton v. Sullivan/Concurrence Rutledge

by Wiley Blount Rutledge

United States Supreme Court

334 U.S. 323

Hilton  v.  Sullivan

 Argued: April 21, 1948. --- Decided: June 1, 1948

Mr. Justice RUTLEDGE, concurring.

I concur in the result. But I do so without expressing opinion concerning the validity of Subgroup A-1 Plus of the Regulations. That classification, as I understand it and the Court's construction of it, gives preference for retention for one year in governmental work to veterans of World War II over all others, including veterans of World War I, regardless of efficiency and length of service whether of the restored veteran or of his competitors. It may be that upon the sum of the legislation Congress intended to give so broad a priority to returning members of the military services. But if so, it is the one instance in which both efficiency and length of service have been absolutely disregarded. And it is at least possible, I think, to read the complex series of statutes bearing on the problem as not having been intended to go so far.

But I do not reach that question, because Subgroup A-1 does take account of efficiency. It gives preference to veterans unless their efficiency rating is less than 'good.' No specific mention of length of service is made. But while a classification which ignores all considerations both of efficiency and of length of service might be found unauthorized under the statutory scheme, ^[1] one which takes due account of efficiency, which is not wholly unrelated to length of service, well might be sustained. And in that event the Commission's judgment that veterans with efficiency ratings of 'good' or better should be preferred to all others could hardly be called arbitrary or in excess of the authority conferred. ^[2]

It is true that when petitioner was separated from service there were some 61 veterans classified A-1 Plus, without efficiency ratings and in priority to himself. ^[3] But we are informed, and it is not disputed, ^[4] that 60 of these men now have received efficiency ratings of 'good,' and therefore fall into Group A-1 in any event. The other of the 61 has resigned. Hence we are told, and this also is not disputed, that any order of the District Court purporting to require petitioner's restoration would mean that he is entitled to displace one of those veterans.

Since in my view Regulation A-1 is valid, regardless of whether A-1 Plus should stand, and since on the facts now before us Regulation A-1 is sufficient to exclude petitioner from restoration at this time, I do not think he has made a sufficient showing to call forth the exercise of our discretionary power in this proceeding to require the Commission to reformulate the Regulations. Upon the showing made the case is not one appropriate, in my judgment, for application of the discretionary remedy of a declaratory judgment.

Notes

1. Depending upon whether § 8 of the Selective Training and Service Act of 1940, 54 Stat. 890, 50 U.S.C.App. § 301, et seq., 50 U.S.C.A.Appendix, § 301 et seq., requiring restr ation to employment and forbidding discharge without cause for one year, has been qualified by the later enactment of § 12 of the Veterans' Preference Act, 58 Stat. 390, 5 U.S.C., Supp.1946, § 861, 5 U.S.C.A. § 861, quoted in the Court's opinion, particularly the second proviso. See note, 2.
2. The second proviso, cf. note 1, specifies that preference employees (i.e., veterans) with efficiency ratings of 'good' or better shall be retained in preference to 'all other competing employees,' a designation certainly of the most comprehensive scope. The very terms of the section appear thus to place much greater stress upon efficiency ratings than upon length of service.
3. The practice in relation to these positions has been to withhold efficiency ratings, in this case, for a period of six months, and then to award them on the basis of actual performance.
4. Ordinarily, of course, rights are to be determined as of the time the interests involved are adversely affected. But it would seem hardly consistent with the legislative scheme that employees with deferred status could defeat the use of a reasonable period to determine the veteran's efficiency rating by actual performance. In any event, the discretionary declaratory judgment remedy should not be applied to oust preference employees entitled to priority over others, even though their status as preference employees is established after trial but before final disposition of the cause of appellate review.