Zirin v. McGinnes, 12812.

• Decision Date: 01 August 1960
• Docket Number: No. 12812.,12812.
• Citation: 282 F.2d 113
• Parties: Eleanor ZIRIN, Appellant, v. E. A. McGINNES, District Director of Internal Revenue.
• Court: U.S. Court of Appeals — Third Circuit

282 F.2d 113 (1960)

Eleanor ZIRIN, Appellant, v. E. A. McGINNES, District Director of Internal Revenue.

No. 12812.

United States Court of Appeals Third Circuit.

Argued April 9, 1959.

Reargued January 4, 1960.

Reargued June 20, 1960.

Decided August 1, 1960.

Leonard Orloff, Philadelphia, Pa., for appellant.

Alan S. Rosenthal, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Walter E. Alessandroni, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Amram, Hahn & Sundlun, Washington, D. C., submitted brief as amici curiae.

Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE and FORMAN, Circuit Judges.

Reargued en Banc June 20, 1960.

STALEY, Circuit Judge

We granted reargument in this case inasmuch as the government presented new and significant material in its petition for rehearing which affects the outcome of this controversy.¹

The principal question raised on this appeal is whether the District Director of Internal Revenue had authority to discharge an employee of the department.

Appellant, Eleanor Zirin, was dismissed from government employ by the District Director, Philadelphia, Pennsylvania, (appellee) by letter of November 30, 1955, separation to be effective at the close of business December 9, 1955. Appellant was originally appointed to the position of clerk-typist on February 16, 1942, and at the time of her discharge was classified as GS-5, Income Window Teller. On July 5, 1955, she received a letter from her immediate superior indicating that her services were unsatisfactory and that unless corrected within ninety days she would be given an unsatisfactory rating which could result in disciplinary action. The following day appellant acknowledged acceptance of this ninety-day warning letter.

On November 2, 1955, appellant received a subsequent communication from the Acting District Director advising her that her performance rating was unsatisfactory, specifying particulars, and indicating that she was to be separated in not less than thirty days. Within a week appellant answered the charges set forth in the November 2nd letter. Thereafter, on November 30, 1955, appellee notified appellant that her separation was to be effective December 9, 1955, and that she had a right to appeal within ten days of receipt of the letter. Accordingly, on December 5, 1955, she appealed to the Performance Rating Board of Review which held extensive hearings on April 12 and 13, 1956. That Board sustained the unsatisfactory rating. Subsequently, appellant appealed her dismissal, without success, to the Regional Commissioner of Internal Revenue, Philadelphia, and the Commissioner of Internal Revenue, Washington.

On October 29, 1956, she filed a complaint in the United States District Court for the Eastern District of Pennsylvania, which was amended on April 30, 1957. The appellee filed a motion for summary judgment, and after argument the court by order dated December 31, 1957, stayed all proceedings pending further administrative appeals. Appeals to the United States Civil Service Commission and the Board of Appeals and Review, United States Civil Service Commission, followed and were likewise denied. Thereafter, the case came on for hearing in the district court upon appellee's motion for summary judgment. The motion was ultimately granted by order dated October 30, 1958.

At the threshhold the government contends that the relief sought by appellant is beyond the power of the district court to grant. It is argued that since appellant's suit contemplates affirmative action, in the nature of a mandatory injunction, it is in effect a suit for mandamus and as such cannot be entertained by the district court.

This analysis tends to over-simplify what is an admittedly difficult area of the law. It is true that the complaint is unartfully drawn, but we are not bound by technical rules of pleading and are required to inquire into what relief is actually sought. If the relief sought is a court order controlling executive officers of the government with respect to the exercise of powers vested in them by statute, it could not be granted because the government has not consented to the suit, has not been made a party, and also because the district court is without power to grant a writ of mandamus or a mandatory injunction to like effect. Updegraff v. Talbott, 4 Cir., 1955, 221 F.2d 342. However, such is not this case. Here the appellee is alleged to have committed an ultra vires act, and an injunction may be properly framed to substantially accomplish what the appellant desires, i. e., recognition that she was never legally separated. Noble v. Union River Logging R. Co., 1893, 147 U.S. 165, 13 S.Ct. 271, 37 L.Ed. 123; Board of Liquidation v. McComb, 1875, 92 U.S. 531, 23 L.Ed. 623. Nor need such an order go as far as that issued in Wilson v. Bowers, D.C.S.D.N.Y.1924, 14 F.2d 976, 977. Judge Augustus Hand indicated "there probably is a distinction * * * between an application for a mandamus requiring an official in general to take certain action and an injunction restraining his refusal upon some particular ground which he sets up as a consideration legally controlling * * *." Also see Perkins v. Elg, 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320; Gibson Howell Co. v. Helvering, 3 Cir., 1935, 80 F.2d 592; Swanson Chemical Corp. v. Doran, D.C.E.D.Pa.1929, 41 F. 2d 784; Casper v. Doran, D.C.E.D.Pa. 1929, 30 F.2d 400, affirmed 3 Cir., 1930, 41 F.2d 994; and Carnioid, Inc. v. Blair, D.C.S.D.N.Y.1926, 15 F.2d 56. In the instant case the appellant may be entitled to an injunction to restrain the appellee from continuing to act in pursuance of the illegal separation. The law is settled that if a federal officer does or attempts to do acts which are in excess of his authority or under authority not validly conferred, equity has jurisdiction to restrain him. State of Colorado v. Toll, 1925, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927; American School of Magnetic Healing v. McAnnulty, 1902, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90; and Harper v. Jones, 10 Cir., 195 F.2d 705, certiorari denied 1952, 344 U.S. 821, 73 S.Ct. 19, 97 L.Ed. 639.

We need not concern ourselves unduly at this time with the question of whether the Secretary of the Treasury or Commissioner of Internal Revenue were indispensable parties. In Williams v. Fanning, 1947, 332 U.S. 490, 494, 68 S.Ct. 188, 189, 92 L.Ed. 95, the test as to whether a superior official can be dispensed with as a party was stated to be whether "the decree which is entered will effectively grant the relief desired by expending itself on the subordinate official who is before the court." Accord, Hynes v. Grimes Packing Co., 1949, 337 U.S. 86, 69 S.Ct. 968, 93 L.Ed. 1231; State of Colorado v. Toll, 1925, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927; Jeffries v. Olesen, D.C.S.D.Cal.1954, 121 F. Supp. 463. Once the appellee has been enjoined from continuing his action pursuant to an illegal separation, appellant will have received all the relief requested.

If we conclude that the dismissal of employees was beyond the power of the District Director here involved, the extensive hearing and administrative appeals that followed could have no curative effect. They were meaningless and as much a nullity as the separation itself.

Appellant's main contention is that her separation or dismissal was unlawful inasmuch as the appellee lacked the authority to separate or dismiss her. The government takes issue with this contention and asserts that the District Director had ample authority to discharge the appellant.

Our consideration of the problem of authority requires a study of the Treasury Reorganization Plan and the various delegations thereunder. Treasury Reorganization Plan No. 26 of 1950, 64 Stat. 1280, 5 U.S.C.A. following section 1332-15 note² transferred to the Secretary of the Treasury the function of separating or dismissing an employee of the Internal Revenue Service, one of the departments of the Treasury. The narrow issue in the case is, therefore, the extent to which that power was delegated to subordinate officials and ultimately to the district director.

The district court relied upon Treasury Department Order No. 150-27, June 26, 1953. In pertinent part that order delegates to the Commissioner of Internal Revenue authority "to approve all personnel actions effecting appointments, reinstatements, promotions and transfers to positions in the Bureau of Internal Revenue except the following: Deputy Commissioner, Assistant Commissioner."³ Although this order admittedly does not specifically delegate the authority to dismiss, the government urged and the district court concluded that the power was delegated by implication. The regulation is clear and unambiguous, and any extension of its terms by "implication" would appear to be wholly unwarranted. The enumeration of specific powers to be delegated inexorably leads to the conclusion that it was intended that all other powers be excluded. Iselin v. United States, 1926, 270 U.S. 245, 46 S.Ct. 248, 70 L.Ed. 566. We hold, therefore, that Treasury Department Order No. 150-27 and the regulations issued thereunder do not delegate to the District Director the authority to dismiss the appellant.

In its petition for reargument the government did not question the above interpretation of Treasury Department Order No. 150-27, but rather brought to the court's attention another series of delegations which is alleged to provide authority for the contested action of the District Director.

As we have previously noted, the Treasury Reorganization Plan, effective July 31, 1950, transferred dismissal authority to the Secretary of the Treasury. Section 2 of the Act also authorized redelegations of authority by the Secretary to subordinate officials of the department. By Treasury Department Order No. 120, dated July 31, 1950, the Secretary directed that officers of the Treasury Department "* * * continue to perform...