LeVesque v. State of Me., No. 78-1351

• Citation: 587 F.2d 78
• Decision Date: 22 November 1978
• Docket Number: No. 78-1351
• Parties: Emilien LEVESQUE, Plaintiff-Appellant, v. STATE OF MAINE et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 78

587 F.2d 78

Emilien LEVESQUE, Plaintiff-Appellant, v. STATE OF MAINE et al., Defendants-Appellees.

No. 78-1351.

United States Court of Appeals First Circuit.

Argued Oct. 5, 1978.

Decided Nov. 22, 1978.

Sidney St. F. Thaxter, Portland, Maine, with whom Kermit V. Lipez, Curtis Thaxter Corey Lipez & Stevens, Robert E. Mittel and Sewall & Mittel, Portland, Maine, were on brief, for plaintiff, appellant.

Donald G. Alexander, Deputy Atty. Gen., Augusta, Maine, with whom S. Kirk Studstrup, Asst. Atty. Gen., Augusta, Maine, was on brief, for defendants, appellees.

Before ALDRICH, CAMPBELL, and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Plaintiff Emilien Levesque appeals the denial of his request for a temporary restraining order mandating his reinstatement as Commissioner of Manpower for the State of Maine. Since his complaint was framed in terms of a temporary restraining order, we determine at the outset whether the denial of his request is appealable.

Temporary restraining orders are normally not appealable. Massachusetts Air Pollution and Noise Abatement Committee v. Brinegar, 499 F.2d 125, 126 (1st Cir. 1974); 28 U.S.C. § 1292(a)(1). ¹ Exceptions to the general rule of nonappealability arise when the order in reality operates as a preliminary injunction, See Spencer Companies, Inc. v. Armonk Industries, Inc., 489 F.2d 704, 706 (1st Cir. 1973), or when the order is appealable as a final order under 28 U.S.C. § 1291.

To fall within the ambit of the first exception, the requirements we outlined in Massachusetts Air Pollution, supra, 499 F.2d at 126, must be met. We must find either that a full adversary hearing has been provided or that, in the absence of review, further interlocutory relief is unavailable.

Levesque was Commissioner of the Department of Manpower Affairs for the State of Maine from November 8, 1973, until June 9, 1978. A factual dispute exists as to whether Levesque was removed from his office by Maine Governor James B. Longley without cause, whether he was removed for cause, or whether Longley accepted Levesque's previously tendered resignation. The district court, without articulating a clear resolution of the dispute, nonetheless treated the question as one of removal rather than resignation. It did not resolve the issue of whether the removal was for cause or not.

The trial court denied the requested order reinstating Levesque to his position and denied the request for a pretermination hearing. The court, after analyzing the pertinent statutory and case law, concluded that Levesque did have a property interest in his position sufficient to invoke due process safeguards, but determined that those interests would be protected through a post-termination hearing. In finding Levesque entitled to due process safeguards, the court suggested that defendants begin the process of providing a post-termination hearing, the first step of which was to be completed by July 28, 1978, one month following the lower court's decision. This means, of course, that, in fashioning this order, relief broader than that normally available under a temporary restraining order whose duration is limited to ten days, Fed.R.Civ.P. 65(b), was envisioned by the court.

We think it apparent, given the context of this appeal, that plaintiff is effectively foreclosed from pursuing further interlocutory relief in the form of a preliminary injunction which would request the same remedy to which the court has already determined he is not entitled. Therefore, although both the request and the court order are couched in terms of a temporary restraining order, we think this is the unusual case where denial of a temporary restraining order is tantamount to denial of a preliminary injunction and, hence, appealable under 28 U.S.C. § 1292(a)(1).

We examine the question of whether the court abused its discretion or erred as a matter of law in refusing the injunctive relief requested by plaintiff guided by the strict standard of review available in such instances. Grimard v. Carlston, 567 F.2d 1171, 1173 (1st Cir. 1978); Hochstadt v. Worcester Foundation, Inc., 545 F.2d 222, 229 (1st Cir. 1976), Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 115 (1st Cir.), Cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968).

We confine our analysis to a determination of whether plaintiff met the burden required for obtaining injunctive relief: likelihood of prevailing on the merits; irreparable harm; promoting the public interest; no irreparable harm to defendants. In refusing to order Levesque's reinstatement pending a hearing, the district court found him not entitled to a pretermination hearing. It also found no danger of irreparable harm to plaintiff and the possibility of irreparable harm to the state should plaintiff be reinstated pending his hearing.

In finding plaintiff not entitled to a pretermination hearing, the district court found first that, while Levesque was a high ranking policy employee and thus, more typically subject to summary dismissal, See, e. g., Elrod v. Burns, 421 U.S. 347, 367-73, 95 S.Ct. 2673, 49 L.Ed.2d 547 (1975), Maine provided added protection to such employees. The court found that Levesque, under both statutory ² and case law ³ enjoyed a property interest in his continued employment and that he was entitled to certain procedural safeguards in the event of his being deprived of that interest. See generally Arnett v. Kennedy, 416 U.S. 134, 164-71, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Powell, J., concurring); Perry v. Sindermann, 408 U.S. 593, 601-03, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 576-78 (1972).

The district court, thereupon, in keeping with principles enunciated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed. 18 (1976), balanced plaintiff's interest in a pretermination hearing with the state's interest in not holding such a hearing prior to his dismissal. Cf. Arnett v. Kennedy, supra, 416 U.S. at 167-71, 94 S.Ct. 1633 ...