Murray v. Kunzig

• Decision Date: 29 February 1972
• Docket Number: No. 71-1586.,71-1586.
• Citation: 149 US App. DC 256,462 F.2d 871
• Parties: Jeanne M. MURRAY v. Robert L. KUNZIG, Administrator, General Services, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

149 US App. DC 256, 462 F.2d 871 (1972)

Jeanne M. MURRAY v. Robert L. KUNZIG, Administrator, General Services, et al., Appellants.

No. 71-1586.

United States Court of Appeals, District of Columbia Circuit.

Argued December 17, 1971.

Decided February 29, 1972.

Rehearing Denied April 27, 1972.

Mr. Raymond D. Battocchi, Atty., Department of Justice, with whom Mr. L. Patrick Gray, III, Asst. Atty. Gen., Thomas A. Flannery, U.S. Atty., at the time the brief was filed, and Raymond H. Fleischer, Atty., Department of Justice, were on the brief, for appellants. Messrs. Morton Hollander, Atty., Department of Justice, and John A. Terry, Asst. U.S. Atty., also entered appearances for appellants.

Mr. Thomas J. McGrew, Washington, D.C., with whom Mr. John T. Rigby, Washington, D.C., was on the brief, for appellee.

Before ROBINSON, ROBB and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

On 20 May 1971 Mrs. Jeanne M. Murray, the appellee, received written notice from one W. H. Sanders, Acting Commissioner, Public Buildings Service, General Services Administration, that her employment with that agency was being terminated effective 29 May 1971. Mrs. Murray had been working as a program analyst for the Public Buildings Service since 5 January 1971, and at the time she received this notice of termination her probationary period of employment in that position had not yet expired.¹

Under the applicable Federal Regulations, a probationary employee such as Mrs. Murray may be terminated either as a result of (1) conduct during the probationary period, or (2) reasons based in whole or in part on conditions arising before the employment in question.² When a probationary employee is terminated for conduct during his probationary period, the agency is simply required to give him written notice of the effective date of his separation and "the agency's conclusions as to the inadequacies of his performance or conduct," but when the termination is based in whole or in part on conditions arising before the employment in question, the employee must be given advance written notice detailing the reasons for the proposed termination, an opportunity to file a written answer to the notice, and an opportunity to furnish affidavits in support of such answer. Further, the agency is required to take such answer and affidavits into account in reaching its final decision on termination.

Probationary employees are given the right to appeal terminations to the Civil Service Commission when the employee alleges that the termination has not complied with the applicable federal law and regulations.³

The termination notice that Mrs. Murray received on 20 May 1971 was in the form required for a termination based on conduct during the probationary period, and gave as the reason that she had "shown complete unwillingness to follow office procedure and to accept direction from her supervisors."⁴ Shortly before the effective date of termination Mrs. Murray's attorneys contacted a personnel official at GSA and suggested (on the basis of information that they had acquired through investigation) that her termination may have been based on conduct which occurred prior to her GSA employment, and the lawyers reminded the official that in that event Mrs. Murray would be entitled to additional procedural rights, which she had so far not been offered. After Mrs. Murray's counsel was informed by the GSA that she would not be afforded these additional procedures, Mrs. Murray filed a timely appeal of her discharge, alleging that the discharge was invalid because, inter alia, it was based in part on conduct occurring prior to her employment with the GSA, and she should have been afforded the additional rights appurtenant to such a discharge.

It is important to note that the Civil Service Commission has no power to order a stay of such a discharge. Confronted with this situation, Mrs. Murray brought this action in the District Court seeking a declaration that her discharge was invalid, and an injunction restraining her termination. With her complaint she filed a motion for a temporary restraining order (T.R.O.), which was issued on 28 May 1971, prohibiting the GSA from terminating her employment "until the determination of plaintiff's application for an injunction and other relief."⁵ On 3 June 1971 Mrs. Murray filed a motion for a preliminary injunction, and on that same day Government counsel filed a motion to dismiss. On 4 June 1971 the District Court held a hearing on the motion for a preliminary injunction.

At that hearing the Government counsel argued that the District Court lacked jurisdiction to enjoin the termination (or any other jurisdiction in the matter) until Mrs. Murray had exhausted her remedies before the Civil Service Commission. Mrs. Murray's counsel drew a distinction between the type of interlocutory relief that she was seeking on her motion (which relief was requested only until the Civil Service Commission had acted on her appeal), and an actual adjudication on the merits of the contention that her discharge was improper.⁶ The District Court determined that a crucial issue in the proceeding was the veracity of the assertion that Mr. Sanders, who apparently made the decision on termination, had based his decision only on her conduct during her probationary period.⁷ Government counsel offered to produce Mr. Sanders' affidavit to that effect, but Judge Gasch concluded that he wanted to hear Mr. Sanders in person, and that the stay would be continued until Mr. Sanders appeared to testify.⁸

Thus a new stay was issued on 4 June 1971, continuing the T.R.O. of 28 May 1971, "pending the appearance before this Court of Mr. W. H. Sanders, Acting Commissioner, Public Buildings Service, . . . because, unless Defendants are restrained from terminating Plaintiff's employment, Plaintiff may suffer immediate and irreparable injury, loss and damage before the Civil Service Commission can consider Plaintiff's claim. . . ."⁹

By the terms of the two stays it was apparent that they would no longer be in effect after a "final hearing on the merits by the Civil Service Commission,"¹⁰ but in order to avoid mooting the issue of the legality of the stays and the District Court's insistence on hearing Mr. Sanders, the Civil Service Commission has not passed on Mrs. Murray's appeal, and will not until after the case at bar has been decided by this Court. The stay of 4 June 1971 is still in effect, the Government has declined to produce Mr. Sanders to testify, and we are informed that Mrs. Murray is still working at the Public Buildings Service.

On this appeal the Government challenges the validity of the stays by urging that (1) the District Court lacked jurisdiction to enjoin the discharge of a probationary employee whose appeal challenging the discharge was pending before the Civil Service Commission, and (2) that the District Court improperly restrained the discharge of a probationary employee until the acting head of the agency in which the employee worked presented testimony in the District Court concerning the reasons for the discharge. We find both of the Government's contentions to be without merit, and we thus affirm the order of the District Court.

I. The District Court's Jurisdiction to Enjoin the Discharge

It is important to specify exactly what legal issue confronts us. We are here concerned with the propriety of the court's granting interim injunctive relief pending an administrative determination on the merits, when there is no statutory provision specifically authorizing such relief.¹¹ In the past this issue has been confused with the related, but quite distinct, issue of the necessity for the exhaustion of administrative remedies before an adjudication on the merits may be obtained in a court.¹² This error stems from the failure to recognize that what is sought in actions such as the case at bar is not a determination on the merits that will be binding upon the administrative agency before that agency has had its chance to complete its procedures for such a determination, but is simply an interim form of relief to prevent irreparable damage to the parties or to the public interest while the final outcome of the administrative determination is uncertain. Such interim relief is not the interference with agency actions which the exhaustion of remedies doctrine seeks to prevent, but instead often serves as an aid to the administrative process, since by preserving the status quo it ensures that the final administrative determination will not be undermined or rendered ineffective by hasty or incorrect procedures at an earlier stage.¹³

This error, this confusion of the two distinct issues of exhaustion of remedies and granting of interim relief, has apparently been made by the Government here. Thus, the cases on which the Government principally relies for its contention that the enjoining of the discharge was improper are all cases which deal with the improperity of a court's rendering a finding on the merits before administrative remedies have been exhausted.¹⁴ None of these four cases addresses the problem of the propriety of injunctive relief to stay a discharge which is not yet effective at the time the relief is sought from the courts. Furthermore, other cases cited by the Government recognize that in some situations interlocutory relief, such as is sought here, may be granted, although the particular facts of those cases did not call for such relief.¹⁵

Having thus spelled out the precise legal issue with which we are concerned, and the Government's confusion with respect to it, we now determine whether in this instance the District Court had jurisdiction to grant the interim relief sought.

Perhaps the best guidance is provided by the opinion of Justice Frankfurter, speaking for the Court in Scripps-Howard Radio v. F.C.C. (1942).¹⁶ That case arose on certificate from this court, and held that even where there was no specific statutory grant of...