American Federation of Government Employees v. Acree

• Decision Date: 21 February 1973
• Docket Number: No. 72-1032.,72-1032.
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES et al., Appellants, v. Vernon D. ACREE, Commissioner of Customs, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

475 F.2d 1289 (1973)

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES et al., Appellants, v. Vernon D. ACREE, Commissioner of Customs, et al., Appellees.

No. 72-1032.

United States Court of Appeals, District of Columbia Circuit.

Argued January 16, 1973.

Decided February 21, 1973.

Neal Fine, Washington, D. C., with whom James Neustadt and Raymond J. Malloy, Washington, D. C., were on the brief, for appellants.

Robert E. L. Eaton, Jr., Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry and Nathan Dodell, Asst. U. S. Attys., were on the brief, for appellees.

Before TUTTLE^*, Senior Circuit Judge, and WRIGHT and MacKINNON, Circuit Judges.

PER CURIAM:

This case involves a constitutional challenge to 5 U.S.C. § 7501 (1970) which prescribes the procedure by which members of the competitive civil service may be removed from their positions or suspended without pay. The statute provides in pertinent part:

(a) An individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.

(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to—

(1) notice of the action sought and of any charges preferred against him;

(2) a copy of the charges;

(3) a reasonable time for filing a written answer to the charges, with affidavits; and

(4) a written decision on the answer at the earliest practicable date.

Examination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for and the order of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and, on request, shall be furnished to the individual affected and to the Civil Service Commission.

The gist of appellants' complaint is that the statute facially conflicts with the due process clause of the Fifth Amendment by permitting Government agencies to refuse employees subject to discipline a hearing where they may confront and cross-examine witnesses against them and present witnesses on their own behalf. Appellants also challenge, for the same reason, the validity of Civil Service Commission regulations relating to suspension of employees for less than 30 days. 5 C.F.R. § 752.301-304 (1972). Finally, appellants challenge the validity of Bureau of Customs disciplinary procedures in this case on the same ground.

Two Customs inspectors stationed in New York, appellants Patrick J. Brennan and Joseph N. Coyne, were questioned in April 1966 by Customs agents regarding their alleged acceptance of gratuities from crewmen aboard the S.S. UNITED STATES. In June 1967 Brennan was notified that a proposal was pending to suspend him without pay for five working days and Coyne was notified of a proposed suspension for eight days. Each was given an opportunity to respond in writing to the written charges against him and each was given an opportunity to make an oral reply through counsel to the charges. In March 1968 the Regional Commissioner of Customs handed down his decision: three days' suspension for each man. An appeal to the Commissioner of Customs was taken and the suspensions were affirmed. Neither Brennan nor Coyne availed himself of the opportunity to appeal the Customs Bureau decision to the three-tier appellate process of the Civil Service Commission. See 5 C.F.R. § 752.304 (1972). After serving their suspensions, both men returned to active duty.

In January 1970 the disciplined inspectors were notified of the creation of a new position which would give them, if they were eligible for the position, enhanced civil service status and higher salary. Each applied, but was informed he was ineligible because of the presence of disciplinary action on his record during the preceding two years. Joined by the American Federation of Government Employees, which represents civilian employees of the federal government obviously affected by the disciplinary procedures at issue, they filed suit in the District Court here, seeking a declaration that the statute and regulations described above are unconstitutional, an injunction against their future enforcement, and, with respect to Brennan and Coyne, expungement of the earlier suspensions from their records and an order requiring that their applications for promotion be immediately processed.

Initially, the District Court denied appellants' motion for a three-judge court on the ground that the constitutional question presented was insubstantial. This court then denied a writ of mandamus to overturn the District Court's ruling. Although it indicated that appellants' constitutional claim was neither necessarily frivolous nor foreclosed by previous decisions, this court held that appellants were seeking essentially equitable rather than injunctive relief and that a three-judge court was not warranted.¹ Back in the District Court, the Government's motion to dismiss was granted on the ground that appellants had failed to exhaust their administrative remedies by failing to appeal the adverse decision of the Bureau of Customs to the Civil Service Commission as the regulations permitted. See 5 C.F.R. § 752.304. We reverse.

Ordinarily, the exhaustion doctrine requires parties not merely to initiate administrative proceedings which may grant them relief and thus forestall the need for judicial intervention, but also to pursue such proceedings to their conclusion. See Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947). But there are cases where the customary rationales for the exhaustion of administrative remedies doctrine—avoidance of unnecessary judicial intervention and the need for full, unhampered exercise of agency expertise on a well developed factual record of its own making, see, e. g., McKart v. United States, 395 U.S. 185, 193-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969)—do not apply and the doctrine's application thus becomes pointless. In some cases the doctrine is no more than "an exercise in futility," see Lodge 1858, American Federation of Government Employees v. Paine, 141 U.S.App.D.C. 152, 166, 436 F.2d 882, 896 (1970), particularly where it is clear beyond doubt that the relevant administrative agency will not grant the relief in question. See Montana National Bank of Billings v. Yellowstone County, 276 U.S. 499, 505, 48 S.Ct 331, 72 L.Ed. 673 (1928). In such cases, nothing is lost by circumventing an open, but assuredly ineffectual, avenue of administrative appeal and moving to the courts. We believe this is such a case.²

Here there was no chance that appellate review by the Civil Service Commission would have reversed the Bureau of Customs order on the merits, thus obviating the need for a court to grant Coyne and Brennan the expungement remedy they now seek. The applicable provision of the Civil Service Commission's regulations makes it clear that the scope of review is exceedingly limited: in cases involving suspensions of less than 30 days where there is no allegation of certain kinds of illicit discrimination not relevant here, the Commission will only review "the procedures used in a suspension under this subpart." 5 C.F.R. § 752.304(b).

Of course, even this circumscribed review might have given the Customs inspectors the relief they sought were it plausible to assume that the...