McEachern v. United States

• Decision Date: 07 January 1963
• Docket Number: Civ. A. No. 4140.
• Citation: 212 F. Supp. 706
• Parties: Clement L. McEACHERN, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Carolina

212 F. Supp. 706

Clement L. McEACHERN, Plaintiff, v. The UNITED STATES of America, Defendant.

Civ. A. No. 4140.

United States District Court W. D. South Carolina, Greenville Division.

January 7, 1963.

COPYRIGHT MATERIAL OMITTED

Charles C. Moore, Spartanburg, S. C., for plaintiff.

John C. Williams, U. S. Atty., Charles Porter, Asst. U. S. Atty., Greenville, S. C., for defendant.

WYCHE, District Judge.

The above case is before me upon the motion of the defendant to dismiss upon the following grounds: 1. That this Court has no jurisdiction to review the decision of the Civil Service Commission in this case; 2. The individual members of the Civil Service Commission are indispensable parties to this action but have not been sued; 3. The Commissioner of Social Security, as the removing authority, is an indispensable party who has not been sued; 4. Plaintiff seeks affirmative relief in the nature of mandamus which is not a proper remedy against the United States since Congress has not consented to waive sovereign immunity against mandatory or injunctive relief; 5. Suits against the United States are proper only where Congress has consented to waive sovereign immunity. Congress has not consented to such a waiver with passage of the Tucker Act and the Tort Claims Act. Since both of these statutes provide only for money damages, plaintiff's action seeking "to review and reverse the decision of the United States Civil Service Commission" is an unconsented suit against the United States; 6. The United States has not been served with process as is required by Rule 4(d) (4) F.R.Civ.P. in that a copy of the summons and complaint have not been sent to the Attorney General by registered mail.

Plaintiff was appointed on July 25, 1958, Hearing Examiner for the Social Security Administration, Department of Health, Education and Welfare, under the provisions of Section 11 of the Administrative Procedure Act, 60 Stat. 244, 5 U.S.C. § 1010.

On October 20, 1961, the Social Security Administration commenced a proceeding against the plaintiff seeking his removal from the office of Hearing Examiner by filing a statement of charges against him with the Civil Service Commission and served a statement of the charges on the plaintiff, asking the Civil Service Commission to determine whether the Social Security Administration had shown good cause to remove the plaintiff as Hearing Examiner in the Social Security Administration. The statutory basis for the proceeding against the plaintiff is Section 11 of the Administrative Procedure Act, 60 Stat. 244, 5 U.S.C. § 1010, the pertinent part of which is as follows: "* * * Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission * * * after opportunity for hearing and upon the record thereof. * * *"

The general charge against the plaintiff is as follows: "Your failure to meet your financial obligations and your financial irresponsibility is in direct violation of the policy of the Department as set forth in Personnel Guide 2 of Chapter C-2 of the Department's personnel manual. Your conduct has been such as to bring discredit on the Office of Hearings and Appeals, the Social Security Administration and the Department of Health, Education, and Welfare, and on the basis of the facts stated below warrants your removal from the position of hearing examiner with the Social Security Administration."

Personnel Guide 2, Chapter C-2 of the Department's Personnel Manual, states: that it "becomes a matter of concern to the Department when complaints are received from (an employee's) creditors, when it appears that financial difficulties are impairing his efficiency on the job, or when, by reason of his irresponsibility, the attitude of the general public toward the Department is adversely affected."

The basis of the facts in the general charge was stated in eight separate specifications.

On March 19, 1962, one of the Commissioners in Civil Service Commission held a hearing on the general charge and specifications. On June 1, 1962, the said Commissioner filed and served on the parties his Recommended Decision. On June 16, 1962, the Civil Service Commission concluded that "(1) On the record before us the respondent's neglect of the financial obligations described in Charges I, II, III, and IV, was unjustified and of serious character. (2) There is no evidence of conscientious, sustained effort on the respondent's part to pay his debts through small, periodic payments. (3) Evidence of the several complaints to the Agency respecting the accounts demonstrates, without separate proof thereof, that these matters have brought discredit upon the Agency and the Department, and (4) The respondent has violated the policy of the Department respecting employee indebtedness."

Whereupon the Commission ordered the removal of plaintiff from the office of Hearing Examiner of the Social Security Administration. This decision and order constitute final agency action.

The plaintiff having exhausted his administrative remedies now appeals to this Court for relief by filing this action against the United States seeking a review and reversal of the decision and the Order of the Civil Service Commission and his reinstatement to the office of Hearing Examiner of the Social Security Administration.

Plaintiff says in his brief that his action is one "To review, judicially, the action of an agency of the United States" pursuant to Section 10 of the Administrative Procedure Act.

Section 1009 and 1009(a), 5 U.S.C.A., provide, as follows: "Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion. (a) 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."

It is true that Section 1009(a) states that "Any person suffering legal wrong because of any agency action, * * * shall be entitled to judicial review thereof", however, neither this provision nor any other clause of Section 10 extends the jurisdiction of the federal courts to cases not otherwise within their jurisdiction. Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, 932-933, certiorari denied 1955, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780; Aktiebolaget Bofors v. United States, 1951, 90 U.S.App.D.C. 92, 194 F.2d 145; Almour v. Pace, 1951, 90 U.S.App.D.C. 63, 193 F.2d 699; Ove Gustavsson Contracting Company v. Floete, 278 F.2d 912 (C.A.2, 1960). The purpose of Section 10 is to define the procedures and manner of judicial review of agency action, rather than to confer jurisdiction upon the federal courts. Moreover, the Administrative Procedure Act provides "Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission * * * after opportunity for hearing and upon the record thereof." 5 U.S.C.A. § 1010.

The courts have no power to review the action of an agency of the executive branch of the Government in separating one of its employees from the service, provided the procedural requirements of the law have been complied with by the executive agency. If the procedural limitations have been transgressed, for example, if a Government employee with Civil Service status is removed without charges or without an opportunity to answer charges in violation of the Civil Service Act, 5 U.S.C.A. § 632 et seq., the Courts may interfere. If, however, the procedural requirements are observed, then the Court has no power to review the decision of the executive agency on the merits, even if the Court deems the decision to be erroneous. Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774; Eberlein v. United States, 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140; United States ex rel. Taylor v. Taft, 24 App.D.C. 95; Levine v. Farley, 70 App.D.C. 381, 107 F.2d 186; Hammond v. Hull, 76 U.S.App.D.C. 301, 131 F.2d 23; Golding v. United States, 78 Ct.Cl. 682; Asher v. Forrestal, 71 F.Supp. 470, (D.C.D.C.,1947).

It is well established that the courts will not interfere with the management of the executive branch of the Government. Decatur v. Paulding, 1840, 14 Pet. 497, 40 U.S. 497, 10 L.Ed. 559; Keim v. United States, 1900, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774; Powell v. Brannan, 1952, 91 U.S.App.D.C. 16, 196 F.2d 871; Levy v. Woods, 1948, 84 U.S.App.D.C. 138, 171 F.2d 145; Friedman v. Schwellenbach, 1946, 81 U.S.App. D.C. 365, 159 F.2d 22, certiorari denied, 1947, 330 U.S. 838, 67 S.Ct. 979, 91 L.Ed. 1285; Hammond v. Hull, 1942, 76 U.S. App.D.C. 301, 131 F.2d 23, certiorari denied, 1943, 318 U.S. 777, 63 S.Ct. 830, 87 L.Ed. 1145; Levine v. Farley, 1939, 70 App.D.C. 381, 107 F.2d 186, certiorari denied, 1940, 308 U.S. 622, 60 S.Ct. 377, 84 L.Ed. 519; Bailey v. Richardson, 1950, 86 U.S.App.D.C. 248, 182 F.2d 46, affirmed, 1951, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. The Administrative Procedure Act specifically gives the Civil Service Commission authority to promulgate rules and regulations. The administrative determination by the employing agency of what constitutes cause for discharge will not be judicially reviewed. Where action is taken in removing from office an employee in the classified civil service and the action is in accordance with the requirements of the statute relating thereto, a court of law has no jurisdiction to inquire into the guilt or innocence of the employee as to the charges upon which he was removed. Carter v. Forrestal, 85 U.S.App.D.C. 53, 175 F.2d 364 (C.A.D.C.,1949); Levine v. Farley, 1939, 70 App.D.C. 381, 107 F.2d 186, certiorari denied 1940, 308 U.S. 622, 60 S.Ct. 377, 84 L.Ed. 519.

The power of appointment to public office carries with it the right of removal. United States ex rel. Taylor v. Taft, 24 App.D.C. 95; Longfellow v. Gudger, 57...