Carr v. United States

• Decision Date: 15 February 1972
• Docket Number: No. C-71-1348.,C-71-1348.
• Citation: 337 F. Supp. 1172
• Parties: Johnnie L. CARR et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — Northern District of California

337 F. Supp. 1172

Johnnie L. CARR et al., Plaintiffs, v. UNITED STATES of America et al., Defendants.

No. C-71-1348.

United States District Court, N. D. California.

February 15, 1972.

James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal., for defendants.

E. A. Dawley, Lawrence R. Mullen, Wendell T. Fitzgerald, Michael L. Woods, San Francisco, Cal., for plaintiffs.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ZIRPOLI, District Judge.

This is an action challenging a final decision of the Board of Appeals and Review of the Civil Service Commission upholding plaintiff's discharge as a classified government employee "for such cause as will promote the efficiency of the service." 5 U.S.C. § 7501(a). At the time of the incident which led to his discharge, plaintiff Johnnie Carr, a black World War II veteran and a civilian employee of the United States for 25 years, was employed as a stockman at the Naval Supply Center, Oakland, California. Plaintiff has invoked the jurisdiction of the court to review the Commission's decision, and to fashion effective relief, pursuant to 28 U.S.C. §§ 1343, 1346, 1361, 2201 and 5 U.S.C. § 702.¹

On November 18, 1969, at approximately 3 p. m., John Rainford, driving a truck owned by the J & R Trucking Company, was apprehended at the gate of the Naval Supply Center by a security guard who discovered 13 cases of government subsistence items in the bed of his truck. Subsequently, during the course of the government's investigation of the theft, Rainford named the plaintiff herein as his accomplice. On or about January 2, 1970, plaintiff was notified of his proposed removal for complicity in this theft of government property. The plaintiff replied to the charge on January 9, 1970. On January 28, 1970, he was notified that the charge against him had been sustained and that his removal would be effective February 3, 1970. Plaintiff filed an appeal with the Commanding Officer of the Naval Supply Center on February 5, 1970, and a hearing was held on March 16, 1970. On July 20, 1970, the Commanding Officer issued a decision sustaining plaintiff's removal. On July 22, 1970, plaintiff filed an appeal with the San Francisco Regional Office of the Civil Service Commission. After a hearing on September 22, 1970, the Appeals Examiner issued a decision sustaining plaintiff's removal. On March 8, 1971, the Board of Appeals and Review affirmed that decision.

Plaintiff filed this action seeking an injunction, reinstatement, back pay and damages. In his complaint, plaintiff charged that the decision to remove him was arbitrary, capricious and an abuse of discretion, unsupported by any reliable, probative and substantial evidence. Moreover, plaintiff alleged the existence of a conspiracy among the defendants to deprive plaintiff, and other black employees of the Naval Supply Center, of their accrued retirement benefits.² The parties have filed cross-motions for summary judgment.

Traditionally, judicial review of personnel cases has been limited to determining whether there was substantial compliance with applicable procedural requirements. In Benson v. United States, 421 F.2d 515, 517-518 (9th Cir. 1970), the court said:

"In discussing the role of the courts in reviewing the discharge of federal employees, we noted in Seebach v. Cullen, 338 F.2d 663, 664 (9th Cir. 1964):

`Judicial review of dismissal from federal employment, a matter of executive agency discretion, is limited to a determination of whether the required procedural steps have been substantially complied with. Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774....'

"Hargett v. Summerfield, 100 U.S. App.D.C. 85, 243 F.2d 29, 32 (1957) stated that preservation of agency autonomy in matters of discipline and removal has been the underlying policy which has resulted in the restricted role played by the courts in reviewing discharge procedures. Specifically the court in that case said:

`These cases and others citations omitted of similar import, decided both before and after the passage of the Administrative Procedure Act in 1946, make it clear that employee removal and discipline are almost entirely matters of executive agency discretion, and that judicial review of such actions is ordinarily available only to determine if there has been substantial compliance with the pertinent statutory procedures provided by Congress and no misconstruction of governing legislation. This has resulted in an unbroken line of authorities holding that, so long as there was substantial compliance with applicable procedures and statutes, the administrative determination was not reviewable as to the wisdom or good judgment of the department head in exercising his discretion.' (Citations omitted.)"

However, the cases also recognize that the courts' inquiry may encompass questions of arbitrariness, capriciousness, and malice. See Taylor v. United States Civil Service Commission, 374 F.2d 466 (9th Cir. 1967); Toohey v. Nitze, 429 F.2d 1332 (9th Cir. 1970). "Ordinarily the scope of judicial review of the action of the department in discharging an employee is limited to two main questions: (I) Were the procedural requirements of the statutes and regulations complied with; and (II) was the action of the department officials arbitrary or capricious or not supported by substantial evidence." Vigil v. Post Office Department, 406 F.2d 921, 924 (10th Cir. 1969), quoted with approval in Benson v. United States, supra, 421 F.2d at 517 n. 4. There appears to be relative unanimity of opinion among modern courts that this quotation — with the exception of the last six words — accurately states the scope of judicial review in employee discharge cases.

The courts diverge widely, however, in their opinions on the power of the courts to go further and determine whether the Commission's action is supported by substantial evidence. Compare Armstrong v. United States, 405 F.2d 1275, 1277, 186 Ct.Cl. 539, cert. denied 395 U.S. 934, 89 S.Ct. 1997, 23 L. Ed.2d 449 (1969) with Heffron v. United States, 405 F.2d 1307, 1310, 186 Ct. Cl. 474 (1969). The defendants take the position that the courts do not have such power; the plaintiff, needless to say, disagrees. The arguments and authorities in support of each position are ably marshalled in Charlton v. United States, 412 F.2d 390 (3d Cir. 1969). In Charlton, the majority took the view that the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 702, 706, were controlling and required the federal courts to determine "whether the agency's action was in accordance with procedures required by law and supported by `substantial evidence', or alternatively, capricious, arbitrary, an abuse of discretion, or otherwise not in accordance with law." Id. at 392. After acknowledging the orthodox limitations on the scope of judicial review, the majority stated:

"It must immediately be noted that cases more recently decided hold that courts after determining whether procedural requirements have been met must further determine, upon review of the administrative record, whether substantial evidence supports the federal agency's action in disciplining a federal employee." (citations omitted)

Judge Stahl, concurring in the result, balked at importing the substantial evidence test into employee discharge cases. Assuming arguendo that the Administrative Procedure Act applied, he argued that it did not even justify, much less compel, the majority's conclusion:

"In my view the proper scope of review in cases of this type is limited to ascertaining whether applicable procedural requirements have been met and whether the agency action was arbitrary, capricious or an abuse of discretion. Beyond this, I would not go. Certainly the agency record should be carefully examined, for agency action totally devoid of factual support would warrant, if not compel, a determination that the action was arbitrary or capricious. But where under the governing statute removal may only be `for such cause as will promote the efficiency of the service,' I believe it is neither advisable nor permissible for the courts to exercise the broad degree of scrutiny adopted by the majority." Id. at 400.

Since plaintiff in this case challenges the substantiality of the evidence supporting the Commission's decision, the court must resolve the question.

The Ninth Circuit has not confronted the issue directly, but it appears that it would align with the majority in Charlton v. United States, supra, in holding that the courts must determine whether the agency decision is supported by substantial evidence. Although there are earlier Ninth Circuit cases that suggest the courts do not apply a substantial evidence test, Seebach v. Cullen, 338 F.2d 663 (9th Cir. 1964); Brancadora v. Federal National Mortgage Ass'n, 344 F.2d 933 (9th Cir. 1965), the court departed from that view in Gray v. Macy, 358 F. 2d 742 (9th Cir. 1966), and Burke v. Carpenter, 387 F.2d 259 (9th Cir. 1967). Despite occasional reversions to the restricted scope of judicial review the court formulated in Seebach and Brancadora, see, e. g., Taylor v. United States Civil Service Comm'n, 374 F.2d 466, 469 (9th Cir. 1967); Mancilla v. United States, 382 F.2d 269, 270 (9th Cir. 1967), cert. denied 390 U.S. 982, 88 S.Ct. 1104, 19 L.Ed.2d 1280 (1968), the Ninth Circuit now appears to construe this line of cases to mean that the courts do apply a substantial evidence test. In Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970), the court said:

"The scope of judicial review is narrow. Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures, whether its factual determinations were supported by substantial evidence, and whether its action was arbitrary, capricious or an abuse of discretion. See Burke v. Carpenter, 387

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