Walker v. Washington

• Decision Date: 30 June 1980
• Docket Number: No. 79-2411,79-2411
• Citation: 627 F.2d 541,201 U.S. App. D.C. 82
• Parties: James WALKER, Appellant, v. Walter E. WASHINGTON, Mayor District of Columbia, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 541

627 F.2d 541

201 U.S.App.D.C. 82

James WALKER, Appellant, v. Walter E. WASHINGTON, Mayor District of Columbia, et al.

No. 79-2411.

United States Court of Appeals, District of Columbia Circuit.

June 30, 1980.

Rehearing Denied July 16, 1980.

Richard W. Barton, Deputy Corp. Counsel and Edward E. Schwab, Asst. Corp. Counsel, Washington, D. C., were on the motion of appellees for summary affirmance. Judith W. Rogers, Washington, D. C., Atty., entered an appearance for appellee.

James Walker, pro se, filed a response to appellees' motion for summary affirmance.

Before MacKINNON and ROBB, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

This case which comes before the motions panel of the Court involves an appeal of a District Court order of summary judgment for appellees, in James Walker's suit challenging his dismissal from the District of Columbia Department of Human Resources. Following two prior similar violations of working requirements, for which he was suspended for short periods, Walker was finally dismissed from his employment for his third violation which consisted of (1) insubordination, refusal to comply with supervisor; (2) neglect of duty, negligence in performing official duties; and (3) impeding government efficiency and economy. His violations consisted of deliberately refusing to fill out and sign "program activity records", which are time sheets of the District of Columbia Department of Human Resources from which information is drawn and submitted to the United States Department of Health, Education and Welfare for purposes of federal reimbursement. Appellees move this Court for summary affirmance. The appellant responded only after the Court issued an order to show cause. The facts and legal arguments are adequately presented in the briefs and records, and oral argument would not significantly aid the Court. We grant appellee's motion.

I

James Walker occupied the position of statistical assistant in the Office of Planning and Evaluation, Research and Statistics Division, Department of Human Resources. On December 22, 1977, he was dismissed for insubordination, neglect of duty, and impeding government efficiency and economy.

Part of Walker's job as an employee of the Research and Statistics Division was to complete time reports forms called "program activity records," which require the employee to report the time spent in each of several different activities. Each Research and Statistics employee was required to complete activity records for intermittent two-week periods in 1976 and 1977 (Nov.-Dec. 1976; Jan.-Feb. 1977; April 1977; Aug. 1977). These reports formed part of a time study used to allocate administrative costs to operating programs toward which the federal government paid varying percentages. The time study was approved by the Department of Health, Education and Welfare, and information from the reports formed part of the data submitted to HEW as a prerequisite to receiving federal matching funds.

On three separate occasions, Walker refused to comply with the report requirement. The first occasion involved the period of Nov. 22-26 and Nov. 29-Dec. 3, 1976. After Walker refused to complete the program activity record and failed to articulate reasons for his refusal, he received a suspension for five days. In early 1977, Walker again refused to fill out the required records, even after he received specific warnings to complete the reports for Jan. 24-28 and Jan. 31-Feb. 4. For this infraction, he was suspended for fifteen days, between May 16 and 30, 1977. Prior to both suspensions, Walker had the opportunity to answer the charges against him.

Again in August 1977, Research and Statistics employees were required to submit program activity records, and again (for the third time) Walker refused, despite strongly worded demands. In October, the Acting Chief of the division proposed Walker's removal. Walker replied in writing and orally; thereafter, the Associate Director of Planning and Evaluation concurred in the notice of dismissal. Accordingly, Walker was dismissed from the Department of Human Resources. Both the dismissal and the two previous suspensions were consistent with the Table of Penalties Guide for the Department of Human Resources. (Administrative Record, Part I, at 27-29.)

Walker immediately appealed the dismissal ¹ to the Federal Employee Appeals Authority (FEAA), now the Office of Appeals Operations, Merit Systems Protection Board. The FEAA decision, issued on August 9, 1978 after a hearing, affirmed the agency action of dismissal. That decision exhausted the administrative remedies that precede resort to suit. ² Walker then brought the instant suit in the District Court, challenging the dismissal.

In District Court, Walker asked that his dismissal be declared null and void, and that he be reinstated with compensation for lost pay, or retired with an annuity. His complaint focused on the alleged constitutional violations created by the requirement that he complete the program activity records. ³ After a review of the administrative record, the court concluded that Walker's dismissal had been proper. Accordingly, the court granted summary judgment for the defendants.

Walker appealed to this Court from the District Court's grant of summary judgment, and Appellees have moved for summary affirmance of said judgment.

II

The decisions of this Court establish that the scope of review in employee discharge cases, such as we have here, is limited. Such cases, although framed as original district court actions for reinstatement and related relief, are decided on the basis of the administrative record and governed by principles applicable to judicial review of administrative action. Polcover v. Secretary of the Treasury, 477 F.2d 1223 (D.C.Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973). Discretion lies in the hands of the agencies involved, and the Court will not substitute its own judgment for that of the agencies. "Review is thus limited to whether the agency denied the employee his appropriate procedural rights and whether the decision to remove the employee was arbitrary and capricious." Gueory v. Hampton, 510 F.2d 1222, 1225 (D.C.Cir.1974).

Moreover, no special deference is paid to the decision of the District Court. Instead, this Court is to review the record and determine anew if the agency committed procedural or substantive error, or if the agency action was arbitrary or capricious. ⁴ Polcover, 477 F.2d at 1226-27. Because appellees now ask for summary affirmance of the judgment of the District Court, however, it is necessary to address briefly one threshold issue considered by the District Court.

Jurisdiction is that threshold issue. Defendants do not argue that the D.C. officials are immune from suit. ⁵ They allege, however, that Walker had not properly invoked the jurisdiction of the District Court, and on court order defendants submitted a memorandum on jurisdiction. The court subsequently concluded that it had jurisdiction, conferred by 5 U.S.C. § 702. Two problems exist with this source of jurisdiction. The first is that, although the suit required a review of the FEAA decision, the suit itself was against officials of the District of Columbia, in their official capacity. Suits against officials are in actuality suits against the employing government, cf. Zapata v. Smith, 437 F.2d 1024, 1025 (5th Cir. 1971) (U. S. government employer). The government involved here, however, is the District of Columbia, and section 701(b)(1)(D) prescribes specifically that the government of the District of Columbia is not an "agency" subject to review under section 702.

Secondly, even if the suit can be construed as asking review of the action of the FEAA rather than against officials of the District of Columbia, section 702, without another supporting statute, is insufficient to confer jurisdiction. At one time, this circuit had concluded that section 702 provided an independent source of jurisdiction that empowered the district courts to review agency action. Pickus v. United States Board of Parole, 507 F.2d 1107, 1109 (D.C.Cir.1974). Now, however, the Supreme Court has made it clear that section 702 is not an independent jurisdictional provision. Califano v. Sanders, 430 U.S. 99, 104-07, 97 S.Ct. 980, 983-985, 51 L.Ed.2d 192 (1977). Thus, were jurisdiction to be founded only on section 702, the suit would fail.

In his complaint Walker based jurisdiction on several provisions, most of which are clearly inapposite. Among the provisions, however, was 28 U.S.C. § 1331. In the memorandum on jurisdiction in the district court, defendants acknowledged that Walker had based his suit on violations, evidently alleged in good faith, arising under the Constitution. They argued, however, that the complaint does not contain an averment as to the amount involved. ⁶ Walker's jurisdictional statement cites only the statutory sections on which he bases jurisdiction, and does not allege that the amount in controversy exceed $10,000. Nevertheless, it is clear from the face of the complaint that Walker's claim involves more than $10,000: he demands more than $16,000 in lost wages or $40,000 in retirement benefits. Although this amount does not appear with Walker's reference to section 1331, an amount alleged in an ad damnum clause generally supports the jurisdictional amount requirement. E. g., Wade v. Rogala, 270 F.2d 280 (3d Cir. 1959). Especially in light of Walker's pro se status, we conclude that his complaint satisfied the requirements for federal question jurisdiction.

III

Having concluded that the District Court properly assumed jurisdiction of this case, we reach the merits of the summary affirmance motion. We note that a party who seeks summary disposition of an appeal must demonstrate that the merits of his claim are so clear as to justify expedited action. United States v. Allen, 408 F.2d 1287, 1288 (D.C.Cir.1969). We believe that...