McCartin v. Norton

• Decision Date: 22 April 1982
• Docket Number: No. 79-4155,79-4155
• Citation: 674 F.2d 1317
• Parties: George P. McCARTIN, Appellant v. Eleanor Holmes NORTON, Chairperson, U. S. Equal Employment Opportunity Commission; and Edward Mercado, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1317

674 F.2d 1317

George P. McCARTIN, Appellant v. Eleanor Holmes NORTON, Chairperson, U. S. Equal Employment

Opportunity Commission; and Edward Mercado, Appellees.

No. 79-4155.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 10, 1980.

Decided April 22, 1982.

George P. McCartin, Berkeley, Cal., for appellant.

Philip B. Sklover, E.E.O.C., Washington, D. C., for appellees.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE and CANBY, Circuit Judges and QUACKENBUSH, ^* district judge.

QUACKENBUSH, District Judge.

McCartin brought this action against the Equal Employment Opportunity Commission (EEOC), its chairperson, its New York regional director, and former Senator Edward W. Brooke. McCartin sought injunctive relief and damages on the ground that he was denied promotion to deputy director of the Boston office of the EEOC. He alleged that his qualifications for the position were superior to those of the person appointed, and that the appointee was hired only because of a recommendation by Senator Brooke. The EEOC chairperson, the regional director, the person appointed, and Senator Brooke were all Republicans. McCartin was not. McCartin further alleged that the denial of the promotion forced him to pursue other career opportunities outside of the federal government.

McCartin relies upon a statute and regulation that limit the discretion of officials who make appointment decisions in the civil service. The statute provides:

An individual concerned in examining an applicant for or appointing him in the competitive service may not receive or consider a recommendation of the applicant by a Senator or Representative, except as to the character or residence of the applicant.

5 U.S.C. § 3303 (1976). The regulation states:

No discrimination shall be exercised, threatened or promised by any person in the executive branch of the federal government against or in favor of any employee in the competitive service, or any eligible or applicant position in the competitive service because of race, political affiliation, or religious beliefs except as may be authorized or required by law.

5 C.F.R. § 4.2.

McCartin filed a timely complaint with the EEOC, alleging denial of promotion because of political influence. In his complaint in this case, McCartin alleges that after an investigation the EEOC concluded that the matter be resolved favorably to him in accordance with his settlement proposal. He further alleges that the EEOC failed to implement this settlement proposal and approximately seven months later commenced a new investigation. The EEOC then informed McCartin that the issue of political influence would not be reinvestigated. McCartin appealed this decision to the United States Civil Service Commission which affirmed the decision of the EEOC.

McCartin then brought this action in the district court seeking reinstatement to a position commensurate with his ability, education and experience. He also sought back pay and punitive damages. The district court first dismissed Senator Brooke as a defendant on the grounds of improper venue. That ruling is not contested here. The district court then dismissed McCartin's complaint against all other defendants for failure to state a claim, under Fed.R.Civ.P. 12(b)(6), and dismissed the action. This appeal followed.

I.

Insofar as McCartin's complaint attempts to allege an independent cause of action against the defendants for denial of his promotion, it fails to state a claim. McCartin appears to rely on the Administrative Procedure Act, 5 U.S.C. § 702 (1976), to furnish him with the requisite cause of action. That reliance is misplaced. While the Act does waive the sovereign immunity of the United States for purposes of nonmonetary relief, it does not of itself create the substantive right upon which a claim for retroactive relief can be based. Hill v. United States, 571 F.2d 1098, 1102-03 (9th Cir. 1978). We do not read either 5 U.S.C. § 3303 or 5 C.F.R. § 4.2, both quoted above, as conferring upon McCartin an independent right to the advanced status he seeks or to damages for its denial in the past. See Hill, supra, at 1103.

II.

On appeal, McCartin appears to contend that he is entitled to obtain judicial review of the agency action by which he is aggrieved. On this abstract proposition, he is correct. While the Administrative Procedure Act does not confer jurisdiction on the federal courts to review agency action, it is now clear that 28 U.S.C. § 1331(a) (1976) does. Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977); Glacier Park Foundation v. Watt, 663 F.2d 882, 885-86 (9th Cir. 1981). This court has consequently reviewed the discharge of a federal employee pursuant to § 1331(a). Albert v. Chafee, 571 F.2d 1063, 1064 n.1 (9th Cir. 1977).

The Administrative Procedure Act does provide that judicial review of agency action may be precluded where a statute forecloses it, 5 U.S.C. § 701(a)(1) (1976), or where the agency action is committed by law to agency discretion, 5 U.S.C. § 701(a)(2) (1976). The appellees have pointed to no statute that precludes judicial review of the personnel decision involved in this case. Traditionally, however, personnel decisions have been regarded as committed to the discretion of the executive branch. See United States v. Testan, 424 U.S. 392, 406, 96 S.Ct. 948, 957, 47 L.Ed.2d 114 (1976). Nevertheless, that fact has not prevented judicial review to determine whether that discretion has been abused or exceeded by a decision that is arbitrary, capricious or contrary to statutory or regulatory provisions. Alsbury v. United States Postal Service, 530 F.2d 852, 854 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Dennis v. Blount, 497 F.2d 1305, 1309 n.4 (9th Cir. 1974); Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed.2d 633 (1971); Burke v. Carpenter, 387 F.2d 259, 259 (9th Cir. 1967), cert. denied, 391 U.S. 903, 88 S.Ct. 1651, 20 L.Ed.2d 417 (1968); see Frommhagen v. Klein, 456 F.2d 1391, 1393 (9th Cir. 1972); Taylor v. United States Civil Service Commission, 374 F.2d 466, 469 (9th Cir. 1967).

We see no reason why personnel decisions involving promotions should be wholly exempt from judicial review particularly where the allegation is that the agency failed to afford the complainant the process due him. This court has held that a denial of promotion may be reviewed, stating that "if there is a patent abuse of ... discretion, a court will review the action taken, notwithstanding the language of section 701(a)(2)." Reece v. United States, 455 F.2d 240, 242 (9th Cir. 1972); see also Dilley v. Alexander, 603 F.2d 914 (D.C.Cir.1979); Vandermolen v. Stetson, 571 F.2d 617 (D.C.Cir.1977); McKenzie v. Calloway, 456 F.Supp. 590 (E.D.Mich.1978), aff'd, 625 F.2d 754 (6th Cir. 1980). Guy v. United States, 608 F.2d 867 (Ct.Cl.1979). And while there must be a "strong showing" of such "abuse" for the plaintiff to prevail, Reece, supra, 455 F.2d at 242, actions which are inconsistent with agency policy, as established by statute or regulation, can qualify as abuses of discretion. See Nelson v. Andrus, 591 F.2d 1265 (9th Cir. 1978). While 5 C.F.R. § 771.302(b) (3) (1974) provided that "nonselection for promotion from a group of properly ranked and certified candidates" was exempt from the grievance procedures of the Civil Service Commission, McCartin has claimed that the agencies excluded consideration of the political influence issue. McCartin was entitled to attempt to establish that the list of candidates which included the alleged political appointee was not a "group of properly ranked and certified candidates" by reason of the violation of 5 U.S.C. § 3303. Such failure by the agencies to consider the political issue, if established, would be arbitrary and capricious action since it would have denied McCartin the process due him. Committee for Full Employment v. Blumenthal, 606 F.2d 1062, 1065 (D.C.Cir.1979). We therefore think that McCartin's complaint, properly amended, could reflect facts that would entitle him to judicial review of agency action, subject to the narrow scope just discussed.

The difficulty with McCartin's position is that his complaint was not cast in terms seeking judicial review of particular agency action, or inaction, but was instead shaped to assert an independent claim for redress of injuries alleged to follow from his non-promotion. This fact should not, however, put McCartin permanently out of court. It was not clear from the complaint which agency action was to be reviewed and on what record. We conclude, however, that McCartin ought to have been given the opportunity he sought to amend his complaint to seek judicial review. Amendment is to be liberally granted where from the underlying facts or circumstances, the plaintiff may be able to state a claim. We therefore conclude that it was an abuse of discretion to deny McCartin an opportunity to amend. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Wyshak v. City National Bank, 607 F.2d 824, 826-27 (9th Cir. 1979); Fed.R.Civ.P. § 15(a).

III.

McCartin also alleged, and contends here, that the decision not to promote him for political reasons violated the fifth amendment. He has not, however, alleged any property interest in his claimed promotion. He has accordingly not stated a fifth amendment claim. ¹ See Board of Regents v. Roth, 408 U.S. 564, 579, 92 S.Ct. 2701, 2710, 33 L.Ed.2d 548 (1972).

IV.

A thorough review of the record and the briefs submitted in this court establishes that McCartin has at no time claimed that he was denied promotion by reason of his exercise of first amendment rights, nor did he invoke the first amendment anywhere in his complaint. His only claim is that he was not promoted by reason of unlawful political interference in...