Gilley v. U.S.

• Decision Date: 27 May 1981
• Docket Number: No. 80-1072,80-1072
• Citation: 649 F.2d 449
• Parties: Jerry Alan GILLEY, Plaintiff-Appellee, v. UNITED STATES of America, Acting by and through Norman A. Carlson, Director, Federal Prison Systems, Department of Justice, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 449

649 F.2d 449

Jerry Alan GILLEY, Plaintiff-Appellee, v. UNITED STATES of America, Acting by and through Norman A.

Carlson, Director, Federal Prison Systems,

Department of Justice, Defendant-Appellant.

No. 80-1072.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 11, 1981.

Decided May 27, 1981.

W. J. Michael Cody, U. S. Atty., Joe A. Dycus, Asst. U. S. Atty., Memphis, Tenn., William Kanter and Howard S. Scher, Appellate Staff, Civ. Div., Depart. of Justice, Washington, D. C., for defendant-appellant.

Mitchell J. Notis, Washington, D. C., for plaintiff-appellee.

Before LIVELY and KEITH, Circuit Judges; and BOYLE, ^* District Judge.

LIVELY, Circuit Judge.

In this case the government appeals from an order granting a preliminary injunction which prohibits the transfer of a tenured federal employee to a new duty station.

I.

The plaintiff was a Correctional Supervisor at the Federal Correctional Institution (FCI) in Memphis, Tennessee with more than eleven years of service with the Bureau of Prisons. The plaintiff was involved in an incident in which he went to the aid of another staff member who was being assaulted by an inmate. Following an investigation the warden of FCI Memphis advised the plaintiff that he proposed disciplinary action because the plaintiff had used excessive force in subduing the inmate and had failed to preserve evidence. Finding that plaintiff's credibility and effectiveness as a supervisor had been destroyed, the warden concluded that demotion and reassignment would be warranted.

Though he was advised in writing of his right to respond, the plaintiff did not do so. Thereafter the recommendation of the warden was accepted by the Bureau and plaintiff was demoted and reassigned to the United States Penitentiary at Leavenworth, Kansas. The plaintiff filed an appeal with the Merit Systems Protection Board (MSPB) pursuant to 5 U.S.C. § 7701 et seq. Plaintiff's attorney sought a stay of the reassignment order from the Director of the Bureau of Prisons and from the Special Counsel to the MSPB. When both of these requests were denied the plaintiff sought, and was granted a temporary restraining order in the district court. This order enjoined the involuntary transfer of Gilley to Leavenworth.

The plaintiff then filed a complaint seeking preliminary and permanent injunctions on the same grounds relied upon for the temporary restraining order. The defendant moved for dissolution of the restraining order and the district court ordered a hearing on this motion and the plaintiff's application for a preliminary injunction. At the conclusion of the hearing the district court ruled from the bench, denying the motion to dissolve the restraining order and granting a preliminary injunction. An order was then entered which enjoined the defendant from requiring the plaintiff "to remove himself to a duty station outside Memphis, Tennessee, while his present appeal is pending before the Merit Systems Protection Board" and from requiring plaintiff to use accumulated leave or assume a leave status without pay while the injunction remained in effect. The government appealed from this order and from a subsequent order of the district court denying its motion to dissolve the preliminary injunction.

II.

In support of his claim of irreparable harm the plaintiff testified that his wife needed to continue treatment with a Memphis physician who had recently delivered their child by Caesarian section. He testified that he had purchased a home in Memphis with an 81/2 per cent mortgage and that the interest rate on any home he might purchase in Leavenworth would be higher. Gilley also stated that he believed it was necessary for him to remain an employee of the Bureau in order to pursue his appeal. He emphasized the necessity for close contact with his Memphis attorney during the course of his appeal to the MSPB and the unreimbursable expenses which would be involved in maintaining this contact if he should be transferred. Though he stated he would probably resign and live in Memphis if his appeal were unsuccessful, the plaintiff testified that if he moved to Leavenworth and later resigned he would suffer financial losses consisting of the cost of moving both ways and of maintaining two homes during the pendency of his appeal. His basic claim was that he was entitled to a hearing on his appeal to the MSPB before he was required to move to any other federal institution. On cross-examination he agreed that transfers are a regular part of life for Bureau employees, but maintained they are usually for promotion. He also conceded that his wife had been released for travel by the time of the hearing, but testified it would be desirable for her to be attended by the same Memphis physician if they should decide to have another child.

The district court found that it was necessary for the plaintiff to remain an employee of the Bureau in order to perfect his appeal and that if he is transferred he will be at a "serious disadvantage" in preparing for the appeal. The court found that the entire action of the Bureau, including the reassignment, was punitive since transfers seldom accompany demotions. No irreparable injury was found in the disruption of the plaintiff's family life and community ties, in the separation of Mrs. Gilley from her physician or in the loss of a favorable mortgage interest rate. However, the court found irreparable injury in the effect the punitive transfer would have of "depriving" the plaintiff of his right to perfect an appeal. "So, I find that if he was transferred it would be a violation of his due process rights." The district court also found that the threatened injury to the plaintiff outweighed that to the defendant and that the public interest would not be disserved by issuing an injunction. It found that Gilley was likely to succeed on the merits. The court specifically rejected the defendant's argument that an injunction was improper because the plaintiff had failed to exhaust his administrative remedies.

III.

On appeal the government contends that the district court was without authority to enjoin plaintiff's transfer because the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq. (1976 ed., Supp. III), contains the exclusive procedure for obtaining judicial review of federal personnel actions. The statutory scheme of the Act provides for judicial review of final personnel actions in the Court of Claims or the appropriate court of appeals. 5 U.S.C. § 7703. This judicial review, however, follows the completion of administrative procedures, culminating in a review of the action by the MSPB. Id. The Act also contains a provision by which the Special Counsel to the MSPB may seek a stay of any personnel action for 15 days upon a determination of reasonable grounds to believe the action was taken as a result of "a prohibited personnel practice." 5 U.S.C. § 1208. The government argues that this grant of authority to the Special Counsel provides the only means of maintaining the status quo pending appeal from a federal personnel action, and that its effect is to deprive district courts of any power to intervene. We disagree.

Though the Reform Act of 1978 represented a comprehensive overhaul of the federal civil service system, we find no indication within the statutory language, or the legislative history, of an intent to deprive district courts of their traditional equitable powers. The plaintiff did not seek review of the refusal of the Special Counsel to seek a temporary stay on his behalf. The authority of the Special Counsel in this regard is purely discretionary and there is no statutory provision for review of the exercise of this discretion. What the plaintiff sought and received from the district court was traditional equitable relief in the form of an injunction to prevent immediate irreparable injury which he claimed he would suffer if the transfer order were carried out prior to completion of administrative review of the action of the Bureau. This was an entirely different degree of judicial protection than that provided by the Act. The two avenues of relief are not mutually exclusive.

In the absence of a clear showing of congressional intent to do so, courts will not infer that the enactment of a particular statute containing provisions for judicial review has the effect of withdrawing from the courts their traditional equitable powers. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). This rule is related to the more general "doctrine disfavoring repeals by implication " TVA v. Hill, 437 U.S. 153, 190, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978); Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974). We find no support for the argument that Congress intended to deprive district courts of their traditional power to prevent irreparable harm by providing for judicial review in another forum of final personnel actions and for limited temporary stays of administrative orders at the behest of an officer of the executive branch. Such a limitation on a long recognized power of the district courts could be found only in explicit language not present in the Reform Act.

Though the district court granted a preliminary injunction, it referred to the four criteria required for issuance of a stay. See Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir. 1958). Such stays are ordinarily granted by a court which has jurisdiction to review the orders of the court or administrative agency whose actions it is asked to stay; that is, such stays are granted by a reviewing court in order to maintain the status quo pending its own review of the actions in question. Rule 8, Fed.R.App.P.; Scripps-Howard Radio v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); Virginia Petroleum Jobbers Association, supra. Since the district court has no jurisdiction to review...