McKenzie v. Calloway

• Decision Date: 19 June 1978
• Docket Number: Civ. A. No. 4-71776.
• Citation: 456 F. Supp. 590
• Parties: Ann M. McKENZIE, Plaintiff, v. Howard H. CALLOWAY et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

456 F. Supp. 590

Ann M. McKENZIE, Plaintiff, v. Howard H. CALLOWAY et al., Defendants.

Civ. A. No. 4-71776.

United States District Court, E. D. Michigan, S. D.

April 27, 1978.

On Motions for Summary Judgment June 19, 1978.

COPYRIGHT MATERIAL OMITTED

Fred W. Gerow, Southfield, Mich., for plaintiff.

L. Michael Wicks, Asst. U. S. Atty., Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER REGARDING THE COURT'S SCOPE OF REVIEW

PHILIP PRATT, District Judge.

Plaintiff was employed as a Secretary-Steno, Grade GS-6, at the U.S. Army Tank Automotive Command in Warren, Michigan in 1972. Because of personnel reductions plaintiff was reassigned as a GS-6 Secretary to the Research Development and Engineering Directorate of the Combat Vehicle Systems Development Office in June, 1972. The functions of the Directorate were effectively transferred to the XM 815 Tank System in July, 1972. When the new project manager, General Robert J. Baer, assumed his duties provisionally in late July, plaintiff began to serve as his Secretary.

As part of his start-up procedures, General Baer requested two secretaries. Pursuant to applicable regulations, the Army approved this request. Although General Baer had requested GS-7 and GS-8 secretaries, one was approved at the GS-6 level and the other at the level of GS-7. Plaintiff was the only individual serving as a Secretary to General Baer from late July, 1972 until June, 1973 when Mrs. Mildred Cameron, a black woman, was appointed to fill the GS-7 position. Plaintiff was aggrieved by this appointment since she had assumed for many months that she was entitled to occupy the GS-7 secretarial position in the office. Upon learning of this new assignment plaintiff filed an administrative complaint. She also began proceedings before the Army's Equal Employment section alleging racial and sexual discrimination. After all her administrative appeals were denied, plaintiff brought suit in this Court alleging that the Army's failure to promote her to the GS-7 position in General Baer's office was improper under both traditional precepts of administrative law and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.¹

Plaintiff's complaint is cast in three counts. Count I alleges that the defendants' failure to promote her to the GS-7 position amounted to an unlawful deprivation of property without due process of law. Specifically the plaintiff claims that the Army's decision was not supported by substantial evidence, was arbitrary and that the administrative hearings were defective because of a lack of an impartial decision-maker and a fair and competent investigation. In Count II plaintiff claims that the Army is estopped from denying her the promotion which she seeks because of its failure to follow its own regulations. Count III of the complaint alleges that plaintiff was the victim of unlawful "reverse discrimination". The complaint seeks injunctive and declaratory relief, damages and attorneys' fees.

The defendants have filed an extensive motion to dismiss or, in the alternative, for summary judgment. Plaintiff has responded by opposing the government's motion and moving on her own behalf for summary judgment. In reviewing the pleadings it became obvious to the Court that before it could address the merits of either party's position it must first determine both its jurisdiction and the proper scope of review to apply to Counts I and II.² To assist in that regard the Court has asked the parties to submit supplemental briefs limited to those questions.

The government has conceded the propriety of the Court's jurisdiction. There remains for decision, however, the scope of review issue. The government maintains that the Court is limited to reviewing the administrative record to determine whether there has been a procedural error or some arbitrary determination. The plaintiff contends that the Court is required to treat the matter de novo and find the facts afresh. Once this issue is resolved, the litigation may move forward in a more orderly fashion. The question is of critical importance because, as an examination of the pleadings show, the parties have substantial differences of opinion as to what the relevant facts are. Since the parties have waived oral argument the matter is ripe for determination based on the original and supplemental briefs that have been filed.

A careful reading of Counts I and II of the complaint shows that they seek a review of the propriety of certain administrative actions. Plaintiff did not receive a promotion which she believes the defendants were obligated to confer upon her under the relevant regulations. She asks the Court to set aside this erroneous action and order corrective measures. In the overwhelming majority of administrative law cases, a court is limited in its review of agency determinations to an examination of the administrative record. Where the governing law was correctly interpreted, the proper procedures were complied with, and the agency decision was supported by substantial evidence and was not arbitrary or capricious, a court will not set aside administrative action even where it may have decided the factual issues differently. E. g., Polcover v. Secretary of the Treasury, 155 U.S.App.D.C. 338, 477 F.2d 1223 (1973), cert. denied 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973); Halsey v. Nitze, 390 F.2d 142 (3rd Cir. 1968), cert. denied 392 U.S. 939, 88 S.Ct. 2316, 20 L.Ed.2d 1399 (1968); Fass v. Ruegg, 379 F.2d 216 (6th Cir. 1967). Jammer v. U. S., 438 F.Supp. 1087 (E.D.Mo.1977).³ The foregoing cases make clear that in the course of such review a district court may not undertake a de novo review of the administrative decision. The Court is strictly limited to a review of the administrative record.

The most recent explication of these principles is found in Doe v. Hampton, 184 U.S.App.D.C. 273, 566 F.2d 265 (1977), a case relied upon by the plaintiff. There a clerk-typist was dismissed from her civil service job because of alleged mental instability. The plaintiff there challenged the validity of the dismissal and the District of Columbia Court of Appeals ordered a remand of the case for further administrative factfinding. In the course of its opinion the court spoke directly to the issue presented here:

". . . it is reasonably well-settled that, whatever its exact scope, judicial review in the federal courts is necessarily limited. Federal judges do not sit as ombudsmen for government employment relations, nor do we indulge the conceit of substituting our own judgment ad libitum for that of the agency. Rather, we concern ourselves in the personnel business only insofar as necessary to assure that the action challenged (1) is not arbitrary or capricious; (2) was reached in conformity with relevant procedural requirements; and (3) was not otherwise unconstitutional.

"Our review, as that of the district court before us, is limited to scrutinizing the administrative record accreted as the adverse action proceeds along its tortuous course up through the various levels of appeal. No de novo hearing is held." Id. at 279, 566 F.2d at 271-2.

The plaintiff argues that this limited standard of review is inappropriate in view of the Administrative Procedures Act. In pertinent part the Act provides that:

"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall —

(1) compel agency action unlawfully held or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings and conclusions found to be —

(A) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) contrary to constitutional rights, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority or limitation, or short of statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court."

5 U.S.C. § 706.

Plaintiff argues that the provisions of 5 U.S.C. § 706(2)(E) and (F) compel the Court to hear this matter de novo.

This argument is unavailing. In the first instance, it is clear that § 706(2)(E) does not call for de novo review. Rather it calls for a traditional, limited review of the administrative record. The plain language of subsection 2(E) refers to cases "reviewed on the record of an agency hearing." Secondly, § 706(2)(F) is not itself authority for taking testimony de novo. Subsection 2(F) instructs the Court that it must set aside agency action unwarranted by the facts only "to the extent the facts are subject to trial de novo . . ." Clearly enough this language presupposes that there be some independent statutory authority authorizing a de novo hearing before subsection 2(F) can be brought to bear. This conclusion is buttressed by the fact that subsections (E) and (F) are narrower in scope than subsections (A)-(D). Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Citizens to Preserve Overton Park is not, as plaintiff contends, precedent for holding de novo hearings in cases of the type at bar. Citizens to Preserve Overton Park involved a quasi-legislative determination by the Secretary of Transportation that was alleged to have been made in violation of statutory requirements for parkland preservation in federal highway construction. The Supreme Court remanded the case to the district court so that it could consider the full administrative record that was before the Secretary of Transportation at the time he made his...