Carlin v. McKean

• Decision Date: 17 July 1987
• Docket Number: No. 86-5510,86-5510
• Citation: 823 F.2d 620,262 U.S.App.D.C. 212
• Parties: Paul N. CARLIN, Appellant, v. John R. McKEAN, individually and as a member of the Board of Governors of the U.S. Postal Service, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 620

823 F.2d 620

262 U.S.App.D.C. 212

Paul N. CARLIN, Appellant, v. John R. McKEAN, individually and as a member of the Board of Governors of the U.S. Postal Service, et al.

No. 86-5510.

United States Court of Appeals District of Columbia Circuit.

Argued May 19, 1987.

Decided July 17, 1987.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-01811).

Robert A. Saltzstein, with whom Joseph J. Saunders and Stephen Feldman, Washington, D.C., were on the brief, for appellant.

John Oliver Birch, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, Deborah A. Robinson, and R. Craig Lawrence, Asst. U.S. Attys., and Louis A. Cox, Gen. Counsel, U.S. Postal Service, Washington, D.C., were on the brief, for appellee.

Before BORK and STARR, Circuit Judges, and EDWARD D. RE, ^* Chief Judge, United States Court of International Trade.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

On January 1, 1985, Paul N. Carlin became the 66th Postmaster General of the United States. Just over a year later, Carlin was removed from that position. Believing that his dismissal was the product of a fraudulent and corrupt scheme, he filed this suit in district court, seeking a declaratory judgment and injunctive relief that would include his reinstatement as Postmaster General. The district court held that the case was not justiciable and dismissed the complaint. We affirm.

I.

A.

Historically, the office of Postmaster General has been a Cabinet post, and holders of the post were appointed and removed directly by the President. In 1970, however, Congress reorganized the Postal Service so that it would operate more along the lines of a private company. See Postal Reorganization Act of 1970, Pub.L. No. 91-375, 84 Stat. 719 (codified as amended at 39 U.S.C. Secs. 101-5605 (1982)). The Act created a Board of Governors, composed of eleven members, to "exercise the power of the Postal Service." 39 U.S.C. Sec. 202(a) (1982). Nine of the members are simply "Governors," who are appointed by the President subject to the advice and consent of the Senate. The other two members of the Board are the Postmaster General and the Deputy Postmaster General. See id. Sec. 202(c) & (d). Though members of the Board, these two officials are not Governors.

The Postmaster General is the "chief executive officer" of the Postal Service, 39 U.S.C. Sec. 203 (1982), but is no longer appointed and removed directly by the President. Instead Congress provided that

[t]he Governors shall appoint and shall have the power to remove the Postmaster General.... His pay and term of service shall be fixed by the Governors.

Id. Sec. 202(c). The statute says nothing about when and why the Postmaster may be removed from office, but it does say how: "in the appointment or removal of the Postmaster General ... a favorable vote of an absolute majority of the Governors in office shall be required." Id. Sec. 205(c)(1). ¹

B.

On January 6, 1986, the date that Carlin was dismissed, there were eight Governors actually in service. Six Governors voted unanimously to dismiss Carlin. One was absent from the meeting, and one abstained. Carlin's complaint alleges that at least two of the Governors voted to remove him because he was an obstacle to their corrupt scheme to influence the award of Postal Service contracts to particular parties in exchange for illegal kickbacks. These actions alleged are said to constitute violations of the Act and the regulations issued under it. ² He claims also, and more generally, that his removal was illegal because it was the product of fraud, or at least was ancillary to related fraudulent conduct.

The district court dismissed these claims as not justiciable. The court found that Congress granted the Governors "unfettered authority to remove the Postmaster General on the basis of any or no information and for a good reason, bad reason or no reason at all." Carlin v. McKean, No. 86-1611, mem. op. at 10 (D.D.C. July 18, 1986). The postal statutes therefore offered no substantive guidelines that a court could apply to evaluate the legality of the Governors' decision to remove Carlin, and no such standards had been established in the agency's own rules. Finally, the court found that it had no authority to order "the extraordinary relief" of Carlin's reinstatement. Id. at 16.

II.

This appeal does not present the merits of Carlin's claims but simply the question of the district court's jurisdiction to entertain the suit. Despite Congress' extensive reorganization of the Postal Service in the 1970 Act, to permit the Service to operate in a more "business-like" fashion, the Service clearly remains a government agency--"an independent establishment of the executive branch of the Government of the United States." 39 U.S.C. Sec. 201 (1982); see also id. Sec. 409; Franchise Tax Bd. v. United States Postal Serv., 467 U.S. 512, 104 S.Ct. 2549, 81 L.Ed.2d 446 (1984); Beneficial Fin. Co. of N.Y. v. Dallas, 571 F.2d 125 (2d Cir.1978). The actions of government agencies are normally presumed to be subject to judicial review unless Congress has precluded review or a court would have no law to apply to test the legality of the agency's actions. See, e.g., Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Block v. Community Nutrition Inst., 467 U.S. 340, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). This presumption derives from a reading of section 10(a) of the Administrative Procedure Act, 5 U.S.C. Sec. 701(a) (1982). Apart from two very limited exceptions, however, the APA is not applicable "to the exercise of the powers of the Postal Service." 39 U.S.C. Sec. 410(a) (1982); see also id. Sec. 410(b)(1).

It has often been stated that the presumption of reviewability was a firmly rooted principle of administrative law even before the APA was enacted. See, e.g., Chaney, 470 U.S. at 832, 105 S.Ct. at 1656; Doe v. Casey, 796 F.2d 1508, 1514 (D.C.Cir.1986), cert. granted, --- U.S. ----, 107 S.Ct. 3182, 96 L.Ed.2d 671 (1987). That does not mean, however, that courts should continue to indulge a presumption of reviewability under the old administrative law principles when Congress has explicitly exempted an agency from the APA's coverage. In any event, we need not decide that issue here, for we are quite certain that Congress intended affirmatively to preclude judicial review of the Governors' decisions to appoint and remove the Postmaster General. See 5 U.S.C. Sec. 701(a)(1) (1982). The Supreme Court has stated that Congress' intent to foreclose review must be shown by "clear and convincing evidence," Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967), or at least must be " 'fairly discernible in the statutory scheme.' " See Community Nutrition Inst., 467 U.S. at 351, 104 S.Ct. at 2456 (quoting Data Processing Serv. v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 832, 25 L.Ed.2d 184 (1970)). Congress need not say flatly that review is precluded; an examination of several factors may be sufficient to convince the courts that Congress intended that. See, e.g., Community Nutrition Inst.; Southern Ry. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979); Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506 (1977).

The statutory language here is quite explicit. The Governors are granted full power to appoint and to remove the Postmaster General. 39 U.S.C. Sec. 202(c) (1982). No qualifications whatever are attached to their exercise of these powers. In the next sentence, Congress reiterated that the Postmaster General's "term of service shall be fixed by the Governors." Id. This language unmistakably vests the Governors with complete authority over the Postmaster's tenure and is ample indication that Congress intended to preclude judicial review of their decisions to appoint or remove any person in that post.

The structure of the statute constitutes further strong evidence of Congress' intent. At the same time that Congress placed the removal and the tenure of the Postmaster entirely in the power of the Governors, it provided in the same section that the Governors themselves "may be removed only for cause," 39 U.S.C. Sec. 202(a) (1982), and that the Governors would serve for fixed terms of nine years. Id. Sec. 202(b). A similar distinction with respect to removal and tenure is established between "executives" of the Postal Service (and the Postmaster is the "chief executive officer" of the Service, see id. Sec. 203) and other officers and employees. Only the latter are to be in the "postal career service," which is a part of the civil service, and are assured "full protection of their employment rights by guaranteeing them an opportunity for a fair hearing on adverse actions." Id. Sec. 1001(b). By contrast, "executives" may be removed "at [the Postal Service's] discretion and at any time." Id. Sec. 1001(c). In addition, while officers and employees receive the coverage of chapter 75 of title 5 of the U.S.Code, see 39 U.S.C. Sec. 1005(a)(1) (1982), which makes them removable only for cause and in accordance with numerous protective procedures, those same protections do not extend to the Postmaster General and other executives. Id. Sec. 1005(a)(3).

All of this evidence is in harmony with the traditional understanding that decisions to remove government officials like the Postmaster General, who are not civil servants, are not reviewable in the courts. Appellee has referred us to the Supreme Court's decision in In re Hennen, 38 U.S. (13 Pet.) 230, 10 L.Ed. 138 (1839), perhaps a venerable precedent, but one which retains its vitality. There the Court refused to interfere with a district judge's action in discharging a court clerk because the judge wished to hire someone else instead. The Court rested on the proposition that when the law does not fix a tenure of office or require any...