Morgan v. Fletcher

• Decision Date: 27 August 1975
• Docket Number: No. 74-2566,74-2566
• Citation: 518 F.2d 236
• Parties: Dolta Jo MORGAN, Plaintiff-Appellee, v. James C. FLETCHER, Administrator, National Aeronautics and SpaceAdministration, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 236

518 F.2d 236

Dolta Jo MORGAN, Plaintiff-Appellee, v. James C. FLETCHER, Administrator, National Aeronautics and SpaceAdministration, et al., Defendants-Appellants.

No. 74-2566.

United States Court of Appeals, Fifth Circuit.

Aug. 27, 1975.

Edward B. McDonough, U. S. Atty., William L. Bowers, Jr., Asst. U. S. Atty., Houston, Tex., William Kanter, Harry R. Silver, Robert Greenspan, Dept. of Justice, Washington, D. C., for defendants-appellants.

David T. Lopez, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, Chief Judge, and WISDOM and COLEMAN, Circuit Judges.

COLEMAN, Circuit Judge.

The National Aeronautics and Space Administration (NASA) appeals a District Court order which enjoined, until she shall have had a full evidentiary hearing, the dismissal of employee Dolta Jo Morgan.

We reverse.

The parties agree that two questions are presented:

1. Whether in the light of Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) there was irreparable injury justifying injunctive relief prior to employee exhaustion of available administrative remedies;

2. Does the delay of a full evidentiary hearing until after employment termination (as provided by Section B 302 of the NASA Grievances and Adverse Actions Appeals Systems Manual ) violate the Lloyd-LaFollette Act, 5 U.S.C., § 7501(b)?

The facts are hotly disputed. Nevertheless, at this point we are not concerned with the ultimate propriety of Mrs. Morgan's discharge but only with the propriety of injunctive relief. In reviewing preliminary injunctions the merits of the controversy are not considered beyond that necessary to determine whether there has been an abuse of discretion, DiGiorgio v. Causey, 5 Cir., 1973, 488 F.2d 527.

Mrs. Dolta Jo Morgan is a secretary in the Health Services Division of NASA in Houston, Texas. She has been employed by NASA since 1965, gaining the status of a tenured career civil servant in 1968.

The record shows no evidence prior to the Spring of 1973 of any disciplinary action being taken against Mrs. Morgan. At that time she was verbally reprimanded. In August of 1973 she received a written reprimand for "Failure to Carry Out Orders and Work Assignments of Superior". In October she initiated a complaint of sex discrimination with the Equal Employment Opportunity Office. On November 7, one day after completion of her informal complaint with EEOC, she was suspended for ten days for "AWOL and Repeated Acts of Refusal to Carry Out Instructions". On November 14, Mrs. Morgan filed a formal complaint with EEOC, which completed its investigation on January 25, 1974. On January 18, 1974, she was given notice by NASA of its proposal to remove her within thirty days. Based on seven separate charges, the decision was forthcoming on February 13, 1974. Separation was set for February 22, 1974. At that time, Mrs. Morgan filed the current action in District Court and was granted an injunction prohibiting her removal until she is granted a full hearing by the agency.

The District Court found that irreparable harm would befall Mrs. Morgan if she was discharged prior to a full hearing. This was based on two facts: first, Mrs. Morgan's salary represents 45% of her family's income, a loss of which would probably lead to foreclosure of her home; second, the loss of medical insurance benefits would irreparably injure Mrs. Morgan because of her current overwrought condition.

The District Court also found that Mrs. Morgan was denied due process of law because NASA regulations allow only a post-termination hearing. The Court noted that the Lloyd-LaFollette Act, 5 U.S.C., § 7501(b), provides that in the removal of an employee a "hearing is not required but may be provided in the discretion of the individual directing the removal . . . ." ¹ However, NASA regulations provide that "(a)n employee will be granted only one hearing and it will be held after the original decision to take adverse action". ² The District Court held that the controlling NASA regulation was in conflict with 5 U.S.C § 7501(b) because it precluded the exercise of discretion by the removing officer in granting a pretermination hearing. The lower court felt this apparent conflict had the effect of depriving Mrs. Morgan of her constitutional right to due process of law.

The function of a preliminary injunction is merely to preserve the status quo until the merits of a case can be adjudicated, American Radio Association v. Mobile Steamship Association, Inc., 5 Cir., 1973, 483 F.2d 1; Exhibitors Poster Exchange v. National Screen Service Corporation, 5 Cir., 1971, 441 F.2d 560. The universally accepted standard for appellate test of an injunction is whether there was an abuse of discretion in granting or denying it, Brown v. Chote, 411 U.S. 452, 457, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973); Johnson v. Radford, 5 Cir., 1971, 449 F.2d 115; Conservation Council v. Costanzo, 4 Cir., 1974, 505 F.2d 498, 502; 7 Moore's Federal Practice § 65.04 (2d ed. 1974). The discretion of the District Court, however, is not completely unrestrained; it must be exercised with regard to what this Court has labeled "the four prerequisites for the extraordinary relief of preliminary injunction", Allison v. Froehlke, 5 Cir., 1972, 470 F.2d 1123, 1126; Canal Authority v. Callaway, 5 Cir., 1974, 489 F.2d 567. The four prerequisites are: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest, Canal Authority v. Callaway, supra; Blackshear Residents Organization v. Romney, 5 Cir., 1973, 472 F.2d 1197; DiGiorgio v. Causey, supra.

The District Court did find specifically that it was likely that the plaintiff would prevail on the merits and that a denial of the injunction would cause irreparable damage to the plaintiff.

Concepts such as irreparable injury are incapable of precise definition and, by their nature, depend on the circumstances surrounding each case. Some considerations relevant to irreparable injury have been settled, however, and in a recent case quite similar to the case at bar, the Supreme Court discussed these considerations. In Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), a probationary ³ federal employee filed an action in District Court seeking to temporarily enjoin her dismissal pending pursuit of administrative remedies. The District Court granted an injunction until the agency involved testified about the reasons for respondent's dismissal. The D. C. Court of Appeals affirmed. ⁴ The Supreme Court reversed, holding that a mere loss of income or damaged reputation would "fall far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case". ⁵ The Supreme Court recognized that there could be cases which were such a substantial departure from normal situations that a district court would be justified in finding irreparable injury and granting injunctive relief. The Court, however, continued by saying:

"Such extraordinary cases are hard to define in advance of their occurrence. We have held that an insufficiency of savings or difficulties in immediately obtaining other employment external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself will not support a finding of irreparable injury, however severely they may affect a particular individual." ⁶

Under the authority of Sampson, it would seem clear that the District Court's partial predication of irreparable injury on the loss of 45% of the family income is erroneous. In Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958), quoted with approval by the Supreme Court in Sampson, ⁷ the issue of temporary loss of income was spoken to as follows:

"The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weights heavily against a claim of irreparable harm." ⁸

Here, as in Sampson, Mrs. Morgan will be entitled to the benefits of the Back Pay Act ⁹ which will provide her with full back pay should her discharge later prove wrongful.

The trial court also grounded its finding of irreparable injury on the fact that Mrs. Morgan would lose her medical insurance benefits. She was found to be in an "overwrought condition" because of the discharge and it was apparently extrapolated that she would require the use of these benefits in the near future. This, we think, was conjectural only and will not suffice as support for a finding of irreparable injury. ¹⁰

The District Court was cognizant of Sampson, supra, but nevertheless found that the present case was an extraordinary situation wherein the plaintiff was entitled to equitable relief. We are constrained to disagree. ¹¹

Does the NASA requirement that all discharged employees be granted a full evidentiary hearing only after their termination violate the Lloyd-LaFollette Act and deny the employees due process of law?

Section B 302, NASA Grievances and Adverse Actions Appeals Systems Manual provides that "(a)n employee will be granted only one hearing and it will be held after the original decision to take adverse action". The Lloyd-LaFollette Act ¹² provides that a "hearing is not required but may be provided in the discretion of the individual directing the removal . . . ." The District Court...