Seebach v. Cullen

• Decision Date: 01 November 1963
• Docket Number: No. 41406.,41406.
• Citation: 224 F. Supp. 15
• Court: U.S. District Court — Northern District of California
• Parties: Mary E. SEEBACH, Plaintiff, v. Joseph M. CULLEN, District Director, Bureau of Internal Revenue, San Francisco, et al., Defendants.

224 F. Supp. 15

Mary E. SEEBACH, Plaintiff, v. Joseph M. CULLEN, District Director, Bureau of Internal Revenue, San Francisco, et al., Defendants.

No. 41406.

United States District Court N. D. California, S. D.

November 1, 1963.

Oliphant, Hopper & Stribling, Oakland, Cal., for plaintiff.

Cecil F. Poole, U. S. Atty., San Francisco, Cal., for defendants.

SWEIGERT, District Judge.

The case is before the Court on a motion for summary judgment by defendant Cullen, District Director, Bureau of Internal Revenue, San Francisco, California; defendant Macy, Chairman of the United States Civil Service Commission; and defendant Lawton, a member of said Commission.

Plaintiff's complaint, invoking jurisdiction under 28 U.S.C. Sec. 1361, alleges in substance that plaintiff, who resides in this judicial district and who had been a civil service employee of the Bureau of Internal Revenue Service since 1935, was wrongfully discharged from her position.

The following facts are uncontroverted:

On October 7, 1960, defendant Cullen informed plaintiff by a letter that her performance rating was being withheld due to the existence of some questions concerning her work performance. Cullen directed plaintiff to report to the United States Public Health Service for an examination. As a result of that examination, plaintiff was placed on sick leave on October 18, 1960. On November 9, 1960, the Bureau filed an application for disability retirement on plaintiff's behalf. After two appeals and a reexamination of plaintiff, the Board of Appeals and Review of the Civil Service Commission on January 5, 1962, denied the agency application for disability retirement.

During this period, plaintiff's annual and sick leave was exhausted. As of June 19, 1961, the Bureau placed plaintiff on leave-without-pay status, pending the final decision on the disability retirement application, then pending before the Board. Plaintiff's appeal of this action was denied on November 30, 1962.

After the Board's denial of the agency's application for disability retirement for plaintiff, plaintiff returned to duty on February 19, 1962. On the same day, defendant Cullen notified plaintiff by letter of her proposed removal on charges of inefficiency in the handling of assigned tax cases and emotional instability. On May 11, 1962, plaintiff was removed from Federal service and on May 15, 1962, plaintiff appealed the removal to the San Francisco Region of the Civil Service Commission. After an adverse decision from the San Francisco Region, plaintiff appealed to the Board of Appeals and Review, which again affirmed the action.

Plaintiff, in opposing defendant's motion for summary judgment, contends that there are genuine issues of material facts with respect to the following issues:

(1) Whether defendant Cullen and others entered into a conspiracy to have plaintiff either retired or discharged as a governmental employee;

(2) Whether defendant Cullen illegally and without just cause placed plaintiff on sick and annual leave;

(3) Whether any alleged misconduct which took place when plaintiff received "good" or better, or "satisfactory" efficiency ratings, could be made the basis of any charge against plaintiff;

(4) Whether any of the alleged instances of misconduct charged against plaintiff by the letter of February 19, 1962, were specific and in detail as required by 5 U.S.C. § 652;

(5) Whether defendant Cullen in the written notice dismissing plaintiff from her position made the findings required by 5 U.S.C. § 652;

(6) Whether plaintiff ever received any notification as required by law of inefficiency in her work and whether she ever received a 90-day warning letter requiring her to improve her work, as required by law;

(7) Whether defendant Cullen acted arbitrarily and capriciously in dismissing plaintiff from her Government position.

JURISDICTION OF THE COURT

Under 28 U.S.C. § 1361, enacted October 5, 1962, the District Court has original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Such a suit may be brought in the judicial district in which the plaintiff resides. 28 U.S.C. § 1391 (e).

Title 28 U.S.C. § 1361 was enacted in order to make it possible to sue government officials and agencies in actions which previously could only have been brought in the United States District Court for the District of Columbia. Although the purpose of the statute is to confer jurisdiction on district courts to compel a Government official or agency to perform a duty owed to the plaintiff or to make a decision, the statute does not confer jurisdiction to direct or influence the exercise of discretion of the officer or agency in the making of a decision. The statute neither creates new liabilities nor new causes of action against the United States Government, nor does it give access to the District Courts for an action which previously could not have been brought against a Federal official in the United States District Court for the District of Columbia. Senate Report No. 1992, 2 U.S.Code Cong. & Adm. News, pp. 2784-2787 (87th Cong., 2d Sess., 1962).

The rule in cases of employee removal, which are almost entirely matters of executive agency discretion, both prior to and following the enactment of Sec. 1361, is that judicial review is limited to a determination of whether there has been a substantial compliance with the pertinent statutory procedures and no misconstruction of governing legislation. So long as there is substantial compliance with applicable procedures and statutes, the administrative determination is not reviewable as to the wisdom or good...