Hammond v. Hull

• Citation: 76 US App. DC 301,131 F.2d 23
• Decision Date: 12 October 1942
• Docket Number: No. 7871.,7871.
• Parties: HAMMOND v. HULL et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

76 US App. DC 301, 131 F.2d 23 (1942)

HAMMOND v. HULL et al.

No. 7871.

United States Court of Appeals for the District of Columbia.

Decided October 12, 1942.

Mr. George W. Dalzell, of Washington, D. C., for appellant.

Mr. John L. Laskey, Assistant United States Attorney, with whom Mr. Edward M. Curran, United States Attorney, both of Washington, D. C., was on the brief, for appellees.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

MILLER, Associate Justice.

Appellant became a Foreign Service Officer of the United States on or about March 22, 1939. He served as Vice-Consul in Vienna from April 3, 1939 to October 31, 1939; as Vice-Consul in Leipzig, from November 1, 1939 to February 21, 1940; he was then transferred to the Foreign Service Officers' Training School at the Department of State in Washington, D. C., from which he was graduated in June, 1940. From June, 1940 until December 27, 1940, he was assigned to duty in the Division of Cultural Relations of the Department of State. From December 27, 1940 until the filing of his complaint in the present case, appellant was on leave of absence. Under date of March 7, 1941, he was officially notified that he had been given an efficiency rating of unsatisfactory. In a letter of the same date, he was assigned as Vice-Consul at Montreal and instructed to proceed to that post upon the expiration of his leave of absence. He was also notified that after a reasonable period of service at his new post, his rating would be further considered. On March 14, 1941, appellant acknowledged receipt of the foregoing notification of rating. In the same letter he served notice upon appellee Shaw "that the purported rating of me as `unsatisfactory' is strictly illegal." In a letter dated March 16, 1941, appellant notified appellee Hull that unless he was informed not later than 1:00 P.M. on March 18, 1941 "whether the Department desires an amicable adjustment without litigation, * * *" he would instruct his attorneys to institute an action. On March 18, 1941, before the expiration of his leave, appellant filed his complaint in the present case; seeking mandatory¹ and injunctive relief, and a judgment declaring appellant's rights, together with a motion for temporary restraining order. On March 24, 1941, appellees moved to strike the complaint and to dismiss it. On March 29, 1941, the District Court found that appellant's complaint was redundant and prolix and, hence, might properly be stricken, but it avoided basing its decision on that ground and, instead, granted the motion to dismiss on two grounds, first, because the suit was prematurely brought and, second, because the complaint failed to state a cause of action for the relief prayed by appellant. Judgment dismissing the complaint and denying appellant's motion for temporary restraining order was filed on March 31, 1941. This appeal followed.

The remedy which, before adoption of the new Rules of Civil Procedure, was known as mandamus, is available under the new rules² and is governed by the same principles as formerly governed its administration.³ Those principles may be briefly summarized as follows: (1) The writ should be used only when the duty of the officer to act is clearly established and plainly defined and the obligation to act is peremptory.⁴ (2) The presumption of validity attends official action, and the burden of proof to the contrary is upon one who challenges the action.⁵ (3) Courts have no general supervisory powers over the executive branches or over their officers,⁶ which may be invoked by writ of mandamus. Interference of the courts with the performance of the ordinary duties of the executive departments of the government would be productive of nothing but mischief.⁷ (4) When the performance of official duty requires an interpretation of the law which governs that performance, the interpretation placed by the officer upon the law will not be interfered with, certainly, unless it is clearly wrong and the official action arbitrary and capricious.⁸ (5) For it is only in clear cases of illegality of action that courts will intervene to displace the judgments of administrative officers or bodies.⁹ (6) Generally speaking, when an administrative remedy is available it must first be exhausted before judicial relief can be obtained,¹⁰ by writ of mandamus or otherwise.

The judgment of the District Court dismissing appellant's complaint must be affirmed unless the action of appellees was clearly a violation of some provision of law, or unless they failed to observe and carry out the procedure provided by law.¹¹ The pertinent sections of the statute are found in Title 22 of the United States Code; particularly Sections 23f, g, h, i.^11a In Section 23h it is provided that: "* * * Not later than November 1, at least every two years, the Division of Foreign Service Personnel shall, under the supervision of the Assistant Secretary of State, prepare a list in which all Foreign Service officers shall be graded in accordance with their relative efficiency and value to the service. In this list officers shall be graded as excellent, very good, satisfactory, or unsatisfactory, with such further subclassification as may be found necessary."

Appellant relies upon the following sentence, which appears in Section 23h: "* * * No charges against an officer that would adversely affect his efficiency rating or his value to the service, if true, shall be taken into consideration in determining his efficiency rating except after the officer shall have had opportunity to reply thereto." Assuming that charges had been made against appellant, still, his complaint and exhibits demonstrate not only that an opportunity was given him to reply, but that he did reply. In his complaint appellant alleged: "9. Immediately after this interview of October 31, 1940 with the said Berle plaintiff under the direction of counsel and friends proceeded to collate such ex parte proof as was available to him to show the falsity and viciousness of these two alleged stories and appended this material and the affidavits in support thereof to an affidavit of his own verified November 14, 1940 and transmitted the same forthwith to the Division of Foreign Service Personnel as he had been requested on November 8, 1940 so to do by the defendant Shaw. Said affidavits to which plaintiff refers are all contained in Exhibit A already referred to in paragraph 8 hereof, which Exhibit A demonstrates fully the falsity of the two stories related to plaintiff by the said Berle." Exhibit A, to which reference is made, includes (1) the following letter, dated November 14, 1940, from appellant to appellee Shaw: "Dear Mr. Shaw: Enclosed herewith is a copy of an affidavit which I have executed in reply to certain charges against me which I understand are under consideration by the Division of Foreign Service Personnel. Originals of certain other affidavits are attached to my enclosed affidavit, which may be necessary for my further use in this matter. If such further use should ever be necessary, I reserve the right to call for the originals of these affidavits. Very sincerely yours, Ogden H. Hammond, Jr." Italics supplied; (2) an affidavit executed by appellant which occupies eleven pages in the record; (3) an affidavit executed by Lilly Stein; (4) an affidavit executed by Grace Vanderbilt Stevens; (5) an affidavit executed by Adelaide Whitehouse; (6) a letter from appellant to appellee Berle, reading as follows: "Dear Mr. Berle — I have rarely been so touched as by your kindness in handling this nasty mess. The fact that I have taken up so much of your time and that you have been worried about this matter since February is something that I shall not lightly forgive myself for — that any irresponsible behavior of mine should occupy your mind in times like these gives me the only guilty feeling I have in this entire matter. I have only asked for time in this affair in order to be perfectly composed and to finish this slur on something beyond my career. Again I shall never forget this and only hope that in some way, however small, some day I shall be able to repay it. Sincerely, Ogden H. Hammond, Jr."

Appellees' position is that appellant's rating of unsatisfactory was the result of a review of his service record and not of charges. The District Court found that: "No charge was filed by or before the Board of Foreign Service Personnel against the plaintiff that adversely affected his efficiency rating or his value in the service or otherwise." This finding is amply supported by appellant's Exhibit G, which was attached to his complaint, a letter dated March 7, 1941, from appellee Shaw to appellant which reads in part as follows: "It has been determined from a review of your record as a foreign service officer that your efficiency rating is unsatisfactory * * *." Italics supplied

Appellees concede that an efficiency rating of unsatisfactory based on charges against a foreign service officer could only be made after the officer had been accorded a hearing on the charges. They probably concede too much. The statute provides merely that "the officer shall have had opportunity to reply thereto." Italics supplied Opportunity to reply does not necessarily contemplate a hearing.¹² The spirit and purpose of the particular law here involved would seem to require that at this stage of administrative proceedings a hearing, in the sense contended for by appellant, was not intended.¹³ This conclusion is strengthened by the provisions of Section 23i, in which the following language appears: "Whenever 1 it is determined that the efficiency rating of an officer is unsatisfactory, thereby meaning below the standard required for the service, 2 and such determination has been confirmed by the Secretary of State, 3 the officer shall be notified thereof, 4 and if, after a reasonable period to be determined by the circumstances in each particular case, 5 the...