Fagan v. Schroeder

• Decision Date: 09 December 1960
• Docket Number: No. 12945.,12945.
• Citation: 284 F.2d 666
• Parties: Owen L. FAGAN, Plaintiff-Appellee, v. Carl A. SCHROEDER, Postmaster, Chicago, Illinois, and Robert R. Justus, Chicago Regional Director of the Post Office Department, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

284 F.2d 666 (1960)

Owen L. FAGAN, Plaintiff-Appellee, v. Carl A. SCHROEDER, Postmaster, Chicago, Illinois, and Robert R. Justus, Chicago Regional Director of the Post Office Department, Defendants-Appellants.

No. 12945.

United States Court of Appeals Seventh Circuit.

December 9, 1960.

Robert Tieken, U. S. Atty., Chicago, Ill., George Cochran Doub, Asst. Atty. Gen., Morton Hollander, Chief, Appellate Section, Donald H. Green, Attorney, Department of Justice, Washington, D. C., for appellant.

Anna R. Lavin, Chicago, Ill., for appellee.

Before SCHNACKENBERG and CASTLE, Circuit Judges, and GRUBB, District Judge.

GRUBB, District Judge.

Plaintiff-appellee, Owen L. Fagan, was an employee of the United States Post Office Department in Chicago, Illinois, at the commencement of this action under the Administrative Procedure Act, Title 5 U.S.C.A. § 1009, for review of a final order of the Post Office Department demoting him from the position as an Inspection Engineer, PFS-10, Level 4, supervisory position, to that of a PFS-6, nonsupervisory position. The decision in question was rendered by the Postmaster General, Arthur E. Summerfield, On July 24, 1957, on the appeal of Fagan for review of administrative agency disciplinary action against him, allegedly in violation of the Postal Regulations.

The relief requested by Fagan is that the court review the administrative proceedings, set aside the findings and decision had therein, and order the restoration of Fagan to his former position. The defendants-appellants denied the claimed unlawfulness of the administrative proceedings and asserted the special affirmative defenses that the Postmaster General is an indispensable party to the action and that the Postmaster General is not subject to suit within the jurisdiction.

In ruling on these separate affirmative defenses, the district court held that the Postmaster General was not an indispensable party because the relief sought — the restoration of Fagan to his former position — would not require him to take action by exercising a power lodged in him, and because the requested decree would expend itself upon the subordinate officials before the court. The court further held that an action for declaratory judgment would provide a proper remedy to secure review of proceedings before the administrative agency and wherein to declare Fagan's right to the requested relief.

On cross motions for summary judgment, the court entered an order granting summary judgment for the plaintiff and as against the defendants. Based on its findings of fact, the district court concluded that the Postmaster General was not an indispensable party to the action; that the orders of the Post Office Department of November 29, 1956 and July 24, 1957, respectively removing and demoting Fagan, were illegal, improper, void, and of no effect; and that Fagan was entitled to reinstatement and restoration to his former position together with all benefits and emoluments associated with and attendant upon such position. Judgment was entered accordingly.

Pending the appeal from the judgment, Fagan was separated from the Postal Service for cause unrelated to the charges upon which the challenged proceedings were based.

The issues on the appeal are (1) whether the district court has jurisdiction to review the proceedings leading to Fagan's demotion and to declare his rights to reinstatement and restoration; and (2) whether the Postmaster General is an indispensable party to this action. In addition, Fagan has moved the court of appeals to dismiss the appeal on the ground of an improper party appellant and for failure of appellants to comply with Rule 16(b) of this court, 28 U.S. C.A., respecting the contents of their appendix. Appellants have filed a cross motion to vacate the judgment below and to remand the case with instructions to dismiss the complaint on the ground of mootness in view of Fagan's separation from the Postal Service.

Judicial review of administrative proceedings respecting agency employee disciplinary action under the Administrative Procedure Act is limited to the question whether there has been substantial compliance with applicable procedures and statutes. Administrative Procedure Act, Title 5 U.S.C.A. § 1009 (e), Scope of review; Hargett v. Summerfield, 1957, 100 U.S.App.D.C. 85, 243 F.2d 29, certiorari denied 353 U.S. 970, 77 S.Ct. 1060, 1 L.Ed.2d 1137; Hofflund v. Seaton, 1959, 105 U.S.App.D.C. 171, 265 F.2d 363, certiorari denied 361 U.S. 837, 80 S.Ct. 55, 4 L.Ed.2d 77; Whiting v. Campbell, 5 Cir., 1960, 275 F.2d 905.

Relief available in an action to secure review of administrative proceedings of agency employee disciplinary action is the setting aside of an invalid administrative decision. Where jurisdiction is based on the Administrative Procedure Act, the court has no authority to enter a decree ordering the reinstatement and restoration of the employee, or to declare the rights of the employee to such relief. Fagan's request for an order of reinstatement and restoration is in the nature of an original action for a writ of mandamus directed against an official of the executive department. The district courts, excepting those for the District of Columbia, do not have jurisdiction to entertain a writ of mandamus. Alley v. Craig, D.C. S.D.Me.1951, 97 F.Supp. 576; Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622; Zirin v. McGinnes, 3 Cir., 1960, 282 F.2d 113. The Declaratory Judgment Act, as to which the court below concluded that it provided a proper remedy for the declaration of Fagan's rights, does not create independent jurisdiction in mandamus. See Title 28 U.S.C.A. § 2201. The remedy created by that statute is limited to controversies of which the federal courts have jurisdiction. Doehler Metal Furniture Co., Inc. v. Warren, 1942, 76 U.S.App.D.C. 60, 129 F.2d 43, certiorari denied 317 U.S. 663, 63 S.Ct. 64, 87 L.Ed. 533; Jolles Foundation, Inc. v. Moysey, 2 Cir., 1957, 250 F.2d 166.

Fagan challenges and seeks to have set aside the following order issued July 24, 1957:

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