Hargett v. Summerfield, 13169.

• Decision Date: 21 March 1957
• Docket Number: No. 13169.,13169.
• Citation: 100 US App. DC 85,243 F.2d 29
• Parties: Newell M. HARGETT, Appellant, v. Arthur E. SUMMERFIELD et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 US App. DC 85, 243 F.2d 29 (1957)

Newell M. HARGETT, Appellant, v. Arthur E. SUMMERFIELD et al., Appellees.

No. 13169.

United States Court of Appeals District of Columbia Circuit.

Argued December 5, 1956.

Decided March 21, 1957.

Mr. John R. Foley, Washington, D. C., for appellant.

Mr. Milton Eisenberg, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll, Asst. U. S. Atty., and Robert L. Toomey, Asst. U. S. Atty., at the time brief was filed, were on the brief, for appellees. Mr. Leo A. Rover, U. S. Atty., at the time record was filed, and Mr. Frank H. Strickler, Asst. U. S. Atty. at the time record was filed, also entered appearances for appellees.

Before FAHY, WASHINGTON and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

Appellant filed suit in the United States District Court asking that appellees be enjoined from removing him from his position as postmaster of the first class at Maysville, Kentucky, and that the removal action and decision against him be declared unlawful and void.

Letters of charges were filed by the Post Office Department against appellant, who is a Veterans' Preference eligible. To these charges he made a timely reply and, thereafter, he was ordered removed from his position. He appealed to the Sixth Regional Office of the Civil Service Commission, which, after hearing, affirmed the action of the Post Office Department. On further appeal to the Civil Service Commission, the decision of the regional office was affirmed. This civil action was then filed and, on motion of appellees, summary judgment was entered in their favor.

In this court appellant raises two points: First, he says that only the President can remove a postmaster of the first class appointed by the President and confirmed by the Senate, and that, since the President has not participated in or ratified his removal, such action was therefore void. Secondly, he contends that the judicial review provisions of the Administrative Procedure Act¹ permit the courts to review administrative determinations in employee removal proceedings on the substantive merits.

As to the first contention: it is true that postmasters of the first class are appointed by the President. Previously it was provided by statutes that postmasters of the first, second and third classes were to be appointed by the President and were to hold office for four years, unless sooner removed or suspended by the President. The present statute, 39 U.S.C.A. § 31a, provides that postmasters of the first, second and third classes are to be appointed in the classified service, without term, by the President, by and with the advice and consent of the Senate. It was provided also that the Veterans' Preference Act, 5 U.S.C.A. § 851-869, should apply to such appointments. Therefore appellant is removable in accordance with the same procedures as any other classified civil service employee and Veterans' Preference eligible. The record is clear that appellant was accorded all of the procedural protection provided by the applicable statutes.

While it may technically be true that only the President has power to remove a postmaster, since the power to remove is incident to the power to appoint, Burnap v. United States, 1919, 252 U.S. 512, 519, 40 S.Ct. 374, 64 L.Ed. 692, the act of the Postmaster General here will be presumed to be the act of the President. United States v. Farden, 1878, 9 Otto 10, 19, 99 U.S. 10, 19, 25 L.Ed. 267; The Confiscation Cases, 1873, 20 Wall. 92, 109, 87 U.S. 92, 109, 22 L.Ed. 320. The decision in Myers v. United States, 1926, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, principally relied upon by appellant, affords him no support. In that case the President removed the postmaster. The Court sustained his right to do so without the advice and consent of the Senate to the removal.

We turn now to appellant's second contention, namely, with regard to the alleged effect of the judicial review provisions of the Administrative Procedure Act in civil service cases. That Act provides:

"Except so far as * * * agency action is by law committed to agency discretion * * * any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof." 5 U.S.C.A. § 1009(a).

The question, whether removal of executive agency employees is a matter "by law committed to agency discretion", must therefore be considered at the outset.

The Supreme Court,...