Petterway v. Veterans Administration Hospital Supplemental Brief for Appellee

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 73-1772

BOB S. PETTERWAY 
Plaintiff-Appellant

v.

THE VETERANS ADMINISTRATION HOSPITAL, ET AL 
Defendants-Appellees

Appeal from the United States District Court 
for the Southern District of Texas

SUPPLEMENTAL BRIEF FOR APPELLEE

ANTHONY J. P. FARRIS 
United States Attorney
WILLIAM L. BOWERS, JR.
CHARLES B. WOLFE 
JAMES R. GOUGH 
ROBERT DARDEN
Assistant United States Attorneys 

P. O. Box 61129 
Houston, Texas 77061



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 73-1772

BOB S. PETTERWAY 
Plaintiff-Appellant

v.

THE VETERANS ADMINISTRATION HOSPITAL, ET AL 
Defendants-Appellees

Appeal from the United States District Court 
for the Southern District of Texas

SUPPLEMENTAL BRIEF FOR APPELLEE

ANTHONY J. P. FARRIS 
United States Attorney
WILLIAM L. BOWERS, JR.
CHARLES B. WOLFE 
JAMES R. GOUGH 
ROBERT DARDEN
Assistant United States Attorneys 

P. 0. Box 61129 
Houston, Texas 77061



In response to the supplemental brief of the appellant, 
filed after oral argument by leave of court, the appellee 
submits the following:

I.
in Chiriaco v. United States, 339 F.2d 588 (CA5, 1964) 

the Court limited judicial review to cases of removal or 
discipline. In the case at bar, appellant was not promoted 
from WB-10 to a WB-11 because he was not qualified to do 
the job. In Lee v. Blount, 345 F. Supp 585, the Court 
held that promotion or non-promotion within Government 
service as a general rule involves supervisory descretion 
and is not appropriate for judicial review.

The record reflects that appellant was one of three 
persons who did not qualify for this promotion based upon 
the job description.

The description required that the employee have 
experience in insulating as a private contractor. Appellant 
did not meet that prerequisite. Instead of attacking the 
requirement, Petterway claims racial discrimination, which 
claim is without merit since it appears that a white employee 
who did not meet that requirement, was likewise not promoted 
to this same job.

To grant relief in this case, this Court would be forced 
to change the job description. However, no objection was 
raised below about that description. It would be improper to 
raise it on appeal for the first time.



II. & III.

In general, the case authority shows that promotion of 
civil service employees within a governmental department is 
\a matter of supervisory descretion and not ordinarily subject 
to judicial review. Reece v. United States, 455 F2 240

/
I (CA 9, 1972); See Tierney v. United States, 168 S. Ct. cl. 77; 
Gnotta v. United States, 415 F2, 1271, cert denied 397 U.S.
934 .

In hacklcy v. Johnson, 360 F Supp 1247 (D.C. DC 1973) 
the Court held that an automatic trial de novo would not 
further the laudable purpose of the Act. Moreover, it was 
-further stated "there is a need to establish an especially 
high standard of review in government employment prohibited 
by the Civil Rights Act of 1972, but an interpretation that 
embraces an automatic requirement of trial de novo in all 
instances, with all its inherent uncertainties and substantial 
delays will defeat rather than advance the Act's objectives" 
pp 1252.

In the case at bar, the record is devoid of discrimination 
The supervisors rated the appellant high in performance on 
the jobs that he could do. The Appellant failed to produce 
evidence that he had worked on jobs as a private contractor 
in which insulating was required. The work orders reflected 
that Petterway had assisted mechanics as a helper only 1.4 
manhours, compared to 58.5 actual manhours for all mechanics. 
In fact, Petterway spent over 50% of his time on pneumatic

controls.



The memorandum and order in the case at bar is supported
by the record, in that the Court lacks jurisdiction since 
sovereign immunity had not been waived. See Penn v. Schlesinger
_____ F2 _________  (72-3684 Dec 18, 1973). •

In Penn v. Schlesinger, supra, this Court held that only 
officials who have committed ultra vires acts are outside the 
reach of sovereighn immunity, since such acts are not in 
lav; deemed acts of the sovereign.

The decision below should be affirmed.
Respectfully submitted,
ANTHONY J. P. FARRIS
United States Attorney

WILLIAM L. BOWERS, JR.
CHARLES B. WOLFE
JAMES R. GOUGH
ROBERT DARDEN
Assistant United States Attorney

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