Barrett v. Smith

• Decision Date: 12 December 1975
• Docket Number: No. 75--1905,75--1905
• Citation: 530 F.2d 829
• Parties: Robert F. BARRETT, Plaintiff-Appellant, v. H. G. SMITH et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 829

530 F.2d 829

Robert F. BARRETT, Plaintiff-Appellant, v. H. G. SMITH et al., Defendants-Appellees.

No. 75--1905.

United States Court of Appeals Ninth Circuit.

Dec. 12, 1975.

Rehearing and Rehearing En Banc

Denied Feb. 9, 1976.

Certiorari Denied May 19, 1976.

See 96 S.Ct. 2179.

Robert K. Dorsey (argued), Las Vegas, Nev., for plaintiff-appellant.

John P. Fadgen (argued), Las Vegas, Nev., for defendants-appellees.

OPINION

Before BARNES and ELY, Circuit Judges, and PALMIERI, ^* District Judge.

PER CURIAM.

Plaintiff Barrett was employed as a policeman with the Boulder City, Nevada, Police Department since 1965. On December 30, 1974, he held the rank of Lieutenant. On that date, he was served with a letter by the Chief of Police (defendant H. G. Smith). This letter set forth a series of violations of Police Department rules and regulations, and informed Barrett that he was dismissed from the Boulder City Police Department. The letter was signed by Smith as Chief of Police, and approved by defendant Degernes as City Manager. At the same time Barrett was given a memorandum from Degernes stating that if Barrett wished to appeal the action recommended by the Police Chief and approved by Degernes, he must file his notice of appeal with the Boulder City Civil Service Commission within 10 days. Barrett filed his notice of appeal with the Civil Service Commission on December 31, 1974.

On January 6, 1975, Barrett was notified that his hearing before the Boulder City Civil Service Commission would take place on January 16, 1975. On January 13, 1975, Barrett filed a motion with the Civil Service Commission to set aside the dismissal for failure to comply with Civil Service Rules and Regulations relative to disciplinary actions and procedures. This motion was based on the fact that Barrett had not been afforded a hearing before either the Chief of Police or the City Manager prior to his dismissal. He sought to have the dismissal set aside and to be reinstated until the City followed the appropriate rules and regulations. The Commission, with defendants Blaine, Orr and Grassmeier as its members, heard arguments on this motion at the January 16 hearing. The Commission refused to set aside the dismissal and continued the matter until January 20, 1975, at the request of counsel for both sides.

On January 20, 1975, Barrett filed an action in the United States District Court for the District of Nevada alleging jurisdiction under 28 U.S.C. Section 1343 (Civil Rights Act) and 42 U.S.C. Sections 1983 (Civil Action for Deprivation of Rights) and 1985 (Conspiracy to Interfere with Civil Rights). In conjunction with his complaint, Barrett moved for a temporary restraining order, and a preliminary injunction. On the filing date, the Court entered a temporary restraining order restraining defendants from proceeding further and assuming jurisdiction to conduct the Civil Service Commission hearing on Barrett's appeal. The motion for a preliminary injunction was set down for hearing on January 29, 1975. Following that hearing, the motion for preliminary injunction was ordered to stand submitted following submission of final briefs. Counsel stipulated that the temporary restraining order would be continued until the decision on the preliminary injunction was rendered.

The District Court on April 7, 1975, entered its Memorandum and Order denying Robert F. Barrett's motion for Preliminary Injunction. Barrett thereupon filed a notice of appeal together with a Motion to Continue Preliminary Restraining Order Pending Determination of Appeal. Smith and Degernes, having no objection to the continuation of the temporary restraining order, filed no Points and Authorities in opposition to said motion and thereafter said temporary restraining order was continued, pending a determination by this Court on appeal.

We keep in mind that the appeal of Barrett is from the denial of the Lower Court's refusal to issue a Preliminary Injunction. The granting or withholding of a Preliminary Injunction rests in the sound discretion of the Trial Court, Meccano, Ltd. v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822 (1920), and among the factors to be considered are whether irreparable harm will result absent such stay and whether there is a likelihood that the moving party will prevail on the merits. County of Santa Barbara v. Hickel, 426 F.2d 164, 168 (9th Cir. 1970); King v. Saddleback Junior College District, 425 F.2d 426, 427 (9th Cir. 1970), cert. denied, 404 U.S. 979, 92 S.Ct. 342, 30 L.Ed.2d 294 (1971). The Lower Court, in denying Barrett's Motion for a Preliminary Injunction, stated on page 13 of its Memorandum and Order that Barrett had not established that there was a likelihood that he would prevail on the merits or that he would suffer irreparable harm absent the granting of injunctive relief, and that therefore he was not entitled to a preliminary injunction. (TR--224).

It is settled that an appeal from an order granting or refusing an injunction (28 U.S.C. § 1292(a)(1)) brings before the appellate court the entire order, not merely the propriety of injunctive relief, and that the appellate court may decide the merits of the case and order dismissal of the action. Orders granting or denying a preliminary injunction are appealable. C. Wright, Law of Federal Courts § 102, at 459 (2d ed. 1970); See Deckert v. Independence Shares Corp., 311 U.S. 282, 287, 61 S.Ct. 229, 85 L.Ed. 189 (1940).

During oral argument (and after it ¹) this Court was urged not to determine the appeal by merely determining the propriety of the District Court's refusal to issue a Preliminary Injunction. Appellant urged us to consider the merits of his case, and we will do so. Appellant asserts that a pretermination hearing is required; that he had none, and hence that he has not had due process. See Seitz v. Clark, 524 F.2d 876 (9th Cir. 1975).

Appellant in his Opening Brief quotes at length three portions of the Boulder City Charter: Sec. 28, Art. III City Manager: Powers and Duties, ² Sec. 69, Amendment VII Commission Rules and Regulations, ³ Sec. 112, Art. XI Removal of Officers and Employees, ⁴ and one of the Civil Services Rules, Rule XI Disciplinary Actions and Procedures. ⁵

Appellant then flatly states that 'the Civil Service Rules and Regulations require hearings prior to termination.' (Op.Br. 10). No reference whatsoever to any specific language in Rule XI is made by appellant to support his statement. Subdivision 4(A) obviously applies to personnel rated lower than plaintiff therein. Subdivision 4(B) provides for 'a written statement of facts and charges and summary of oral reviews' if the 'review reaches the City Manager.' Here it did. There was a written statement made by the Chief of Police. It contained a statement of facts and charges, as required, and was furnished promptly to the employee and the City Manager by the Department Head, the Chief of Police. There had been up to that time no oral reviews, and hence, no summary thereof could be supplied. The employee had the right to be represented by a person of his choice at any review hearing. Plaintiff was notified of that right on December 30, 1974, and exercised that right on January 6 and 16, 1975.

We then come to § 5 of Rule XI. Rather than granting a hearing prior to termination, as appellant asserts, this section reads:

'Within 10 days after a . . . dismissal by the City Manager, the employee affected by such action may appeal to the Commission by filing with the Commission a notice of appeal. . . .' (emphasis added)

Appellant next asserts:

'. . . that the ultimate discipline of dismissal from the city service could only be administered by the City Manager, that therefore there was no other superior outside of the Civil Service Commission to hear a review, and that therefore pretermination review was not affordable (all as maintained by defendants) is the purest sophistry.' (Op.Br. p. 11)

The charter specifically places upon the City Manager 'the power,' and he is required 'to . . . remove any officer and employee of the city except as otherwise provided by this charter. . . .' (§ 28, Art. III), subject to the Civil Service Commission Rules and Regulations (§ 69, Amend. VII) outlined post, Note 3). Subject to the same Rules and Regulations, 'the decision of the city manager . . . shall be final and there shall be no appeal therefrom to any other office or body.' (Sec. 112, Art. XI).

Appellant next asserts, '(t)he City Manager might have the power to hire or fire employees or officers directly who are not in the classified service, but not those covered by civil service.' No authority for such a statement is cited--except, First: plaintiff's conclusion that '(o)therwise the whole civil service system would be meaningless' (Op.Br. p. 11); and, Second: the procedure adopted by the City Charter 'would appear absurd' (Op.Br. p. 12); and Third: it is a 'forced construction' (Op.Br. p. 13); and Fourth: that the lower court's ruling 'renders such rules and regulations' invalid.

We totally disagree.

We next think it proper to note the trial court's statements as to appellant's position in the lower court:

'It is first important to note that Barrett has never contended that the procedures established by the Boulder City Civil Service Commission in its rules for hearings are inadequate insofar as due process is concerned. Rather, it is his contention that there was a failure to comply with these rules and regulations and that such failure amounts to a deprivation of due process. It is claimed that the above rules entitled him to a specification of the charges and a hearing, with counsel, before his supervisor, the Chief of Police. Following that hearing, Barrett claims that he was entitled to the review before the City Manager set forth in Section 4(B) of Rule XI. Following that, he claims that he would then be entitled to the appellate review by the Civil Service Commission. ...