Polcover v. Secretary of Treasury

Decision Date04 April 1973
Docket NumberNo. 71-1920.,71-1920.
Citation155 US App. DC 338,477 F.2d 1223
PartiesIrving POLCOVER, Appellant, v. SECRETARY OF the TREASURY et al.
CourtU.S. Court of Appeals — District of Columbia Circuit


Edward L. Merrigan, Washington, D. C., for appellant.

Paul L. Friedman, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and James F. Rutherford, Asst. U. S. Attys., were on the brief, for appellee. Thomas A. Flannery, U. S. Atty. at the time the record was filed also entered an appearance for appellee.

Before BAZELON, Chief Judge, TAMM, Circuit Judge, and HARRISON WINTER,* Circuit Judge for the Fourth Circuit.

TAMM, Circuit Judge:

Appellant brought suit in the district court against the Secretary of the Treasury, et al., seeking a declaration of the illegality of his removal from federal employment, an injunction restoring him to his position, and a judgment for back pay due and owing him as computed under the Back Pay Act of 1966.1 On cross-motions for summary judgment the district court, without oral argument and without a statement of reasons, held for the appellee. Recognizing our limited scope of review, and giving due consideration to all the arguments advanced by the appellant in seeking reversal, we affirm the judgment of the district court.


Prior to a discussion of the facts and law in this case we desire to take note of the duplicative nature of judicial review achieved in employee adverse action litigation. This court pointed out some eight years ago in Dabney v. Freeman, 123 U.S.App.D.C. 166, 358 F.2d 533 (1965), that employee discharge cases, although cast in the mold of original actions in the district court for reinstatement and related relief, are disposed of on the basis of the administrative record and should be governed by the principles generally applicable to judicial review of administrative action. See Scott v. Macy, 131 U.S.App.D.C. 93, 402 F.2d 644, 647 n. 6 (1968). As such, this court has continually held them subject to specific scope of review limitations. Comparable with judicial review of the actions of other agencies, the base of this specific scope of review—that of review of final employee adverse action taken by the Civil Service Commission hereinafter "Commission"—has broadened over the past twenty years, from review limited to insuring statutory compliance, see, e. g., Boylan v. Quarles, 98 U.S.App.D.C. 337, 235 F.2d 834 (1956), to that requiring at least the exercise of discretion by the agency official, see Hargett v. Summerfield, 100 U.S.App. D.C. 85, 243 F.2d 29 (1957), cert. denied, 353 U.S. 970, 77 S.Ct. 1060, 1 L.Ed.2d 1137 (1957), to finally the more current "rational basis test," see Eustace v. Day, 114 U.S.App.D.C. 242, 314 F.2d 247 (1962). Regardless of whether the test of today is framed in the language of determining whether the Commission acted in an arbitrary or capricious manner, or whether substantial evidence in the record supports its determination, see Dabney, supra, 358 F.2d at 535, 537, the fact remains that the district court is engaged in limited judicial review, and that its determination is based upon the agency record submitted to it. No de novo evidentiary hearing is permitted.2See Dabney, supra, 358 F. 2d at 535.

Almost without exception the district court is presented with cross-motions for summary judgment3 and its decision is often rendered, as it was here, without a written statement of reasons.4 When subsequently appealed the court of appeals, limiting itself to the precise scope of review utilized by the district court, renders its decision. No specific deference is paid to the decision of the district court5 (such would be most difficult in any event in the instance of no district court opinion); rather this court reviews the record and determines anew if there has been procedural error,6 if there is substantial evidence to support the action,7 or if the Commission action is in some manner otherwise arbitrary or capricious.8 In other words, we conduct the identical review we are so often called upon to use in statutorily provided judicial review of other agency orders, e. g., F.C.C., N.L. R.B., F.T.C. The only difference is that in this instance our review follows identical review in the district court.

Duplication, delay, expense and despair for the employee-litigant are inherent in such a system. The interposition of the district court serves, it seems to us, no viable purpose. In the case sub judice the petition in the district court was filed by appellant on July 18, 1969, and the order granting appellee's summary judgment motion was entered on October 6, 1971—a span of nearly twenty-seven months. We wish not to allocate blame for the delay to either of the parties but to the system which fosters it. Such delay would be understandable if meaningful results were produced. Here we find none. The record before us is identical to that before the lower court, and even if a district court opinion were filed this court would not be required to afford it any special notice.

Perhaps one way to avoid the duplication would be to accord some deference to the district court's review of the record and its determinations. A parallel to such action could be drawn to the Supreme Court's occasional usage of a "hands off" policy regarding courts of appeals decisions in statutory agency review cases. See NLRB v. Pittsburgh Steamship Co., 340 U.S. 498, 502-503, 71 S.Ct. 453, 95 L.Ed. 479 (1951), and Universal Camera Corp. v. NLRB, 340 U.S. 474, 490-491, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We find, however, that for several reasons such a maneuver would not be appropriate. (1) The Supreme Court "rule" has developed most strongly in NLRB cases, where the Court has been influenced by the fact that "Congress has charged the Courts of Appeals and not this Court with the normal and primary responsibility for granting or denying enforcement of Labor Board orders." NLRB v. Pittsburgh Steamship Co., supra, 340 U.S. at 502, 71 S.Ct. at 456. No similar Congressional charge exists here. (2) The Supreme Court itself has experienced difficulty in the execution of such a "rule."9 See Gastelum-Quinones v. Kennedy, 374 U.S. 469, 83 S.Ct. 1819, 10 L.Ed.2d 1013 (1963). (3) A "rule" limiting our appellate review to a determination of whether the district court utilized the proper scope of review, or was clearly erroneous (by-passing questions of the difficulty of application) will most likely in application amount either to a rubber stamp— in which instance we will merely be shifting the needless delay from the district court to the court of appeals—or degenerate into the test we presently utilize. (4) Such review would be contrary to unwaivering precedent established in this circuit, and would treat review of Civil Service Commission action differently from that afforded other agencies. A better solution must be found.

Our displeasure with the review procedure currently utilized is not of recent vintage, nor is it original with this panel. Circuit Judge McGowan has on at least four previous occasions made footnote references to the problem. See Adams v. Laird, 136 U.S.App.D.C. 388, 420 F.2d 230, 234 n. 2 (1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1360, 25 L.Ed.2d 650 (1970); Goldwasser v. Brown, 135 U.S. App.D.C. 222, 417 F.2d 1169, 1171 n. 1 (1969), cert. denied, 397 U.S. 922, 90 S.Ct. 918, 25 L.Ed.2d 103 (1970); Scott v. Macy, 131 U.S.App.D.C. 93, 402 F.2d 644, 647 n. 6 (1968); Connelly v. Nitze, 130 U.S.App.D.C. 351, 401 F.2d 416, 417 n. 1 (1968).

There is no question that at the minimum a considered, knowledgeable study of the problem is necessary. Quite possibly reasons not now apparent will surface to demonstrate the value of the present procedure. We express no conviction to abandon the present procedure unless close study warrants such a move, and in the last analysis that move must be made by the legislative rather than judicial branch of government. Judge McGowan's suggestion in Adams v. Laird, supra, that the topic would be most appropriate for study in the first instance by the Judicial Review Committee of the Administrative Conference of the United States is reaffirmed by this panel. We note that the Conference, acting upon a recommendation of its Committee on Agency Organization and Personnel, has recently adopted Recommendation 72-8: Adverse Actions Against Federal Employees. The Recommendation calls for expansive changes at the agency level in employee adverse action procedures, changes meant both to provide additional protections to federal employees and to accelerate and simplify the entire process.10 The Recommendation stops short, however, of requesting a revision of the judicial review procedures. In view of this recent concise study of procedure at agency level, further study of the problem at the judicial review level would seem warranted.

The chapeau of a legislator is not one that we, as members of the judiciary, can or should have stashed away in our wardrobe. We may, however, express concern over matters directly affecting the prompt and efficient dispensation of justice. Finding that Judge McGowan's marginal references of the past have been less than marginally successful is generating study,11 we have elevated them to the text.


On November 30, 1964, appellant, a Grade GS-12 Internal Revenue Agent with eighteen years experience in the federal service and a Veterans Preference Act beneficiary, received a Notice of Proposed Adverse Action from his District Director. The Notice stated, in pertinent part:

It is proposed to both suspend you for not more than thirty days and remove you from the Service in order to promote the efficiency of the Revenue Service for the following reasons:
Charge I: Acceptance of a Bribe
Specification: On or about May 19, 1961, you accepted the sum of $1,000.00 from Mr. Albert M.

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