Sampson v. Murray

Mr. Justice Douglas,

dissenting.

I think with all respect that while the narrow isolated issue involved in this litigation is exposed in the opinion of the Court the nature of the problem is not.

Respondent, a probationary employee, claims that her discharge was not based exclusively on her work as a probationary employee. If it were based on her work as a probationary employee, the procedure is quite summary and her right of appeal to the Civil Service Commission is limited to only a few grounds such as discrimination based on race, color, religion, sex, or national origin, 5 CFR § 315.806 . But her claim is that her discharge was based, at least in part, on conduct prior to her federal employment. In case that prior conduct is the basis of the discharge, the employee is entitled to advance notice of proposed termination, an oppor *93 tunity to respond in writing with supporting affidavits, and notice of any adverse decisions on or prior to the effective date of the termination, 5 CFR § 315.805 .

The Congress in 1966 provided that all wrongfully discharged federal employees, including probationary employees are entitled to backpay, 5 U. S. C. § 5596 , and the Court concludes that that is the employee’s exclusive remedy.

But where an agency has terminated employment and the employee appeals to the Civil Service Commission, the Commission has no power to issue a stay of the agency’s action. This is, therefore, not a case where the employee has gone to the courts for relief which the Commission could have granted but refused to do so. Nor is respondent challenging the Civil Service law; nor is she asking for a ruling on the merits of her claim; nor did the District Court, whose judgment was affirmed by the Court of Appeals, act in derogation of the administrative process. Rather, it protected that process by staying the discharge until the Commission had ruled on the appeal.

The power to issue a stay is inherent in judicial power and as indicated by the Court rests on the exercise of an informed discretion on a showing of irreparable injury to the applicant or to the public interest, Scripps-Howard Radio v. FCC, 316 U. S. 4, 14 . That doctrine is not limited, as the Department of Justice suggests, to issuance of stays by a court only after an appeal has been taken. We held in FTC v. Dean Foods Co., 384 U. S. 597, 603-604 , that the All Writs Act, 28 U. S. C. § 1651 , which empowers federal courts to “ ‘issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,’ ” extends to “potential jurisdiction of the appellate court where an *94 appeal is not then pending but may be later perfected.” The District Court has at least a limited review of the Commission, Norton v. Macy, 135 U. S. App. D. C. 214, 217, 417 F. 2d 1161, 1164 ; Dozier v. United States, 473 F. 2d 866 . Hence the All Writs Act justified its power to grant a stay.

We have, therefore, a case where a stay supplements and does not curtail administrative power, the Commission having no authority to grant that relief. The District Court power preserves the status quo, does not pass on the merits of the controversy, and limits its stay to the date when the merits of the discharge are adjudicated by the Commission. I agree with the Court that that order was appealable.

A point is made that respondent has not shown irreparable injury. That misstates the issue. The Dis-tric Court issued a stay pending a hearing on whether a temporary injunction should issue. The hearing, if held, would encompass two issues: (1) whether the grounds for respondent's discharge antedated her present employment (see 149 U. S. App. D. C. 256, 269, 462 F. 2d 871, 884 ) and were not restricted to her record as a probationary employee; 1 and (2) whether she would suffer irreparable injury. As stated by the Court of Appeals, respondent “may show . . . irreparable damage, if the hearing before Judge Gasch is allowed to proceed to a decision.” Id., at 269, 462 F. 2d, at 884 . The stay was issued by the District Court only because the federal *95 agency involved refused to produce as a witness the officer who had decided to discharge respondent. Both the District Court and the Court of Appeals were alert to the necessity to show irreparable injury before an injunction issues.

On that issue there is more than meets the eye.

Employability is the greatest asset most people have. Once there is a discharge from a prestigious federal agency, dismissal may be a badge that bars the employee from other federal employment. The shadow of that discharge is cast over the area where private employment may be available. And the harm is not eliminated by the possibility of reinstatement, for in many cases the ultimate absolution never catches up with the stigma of the accusation. Thus the court in Schwartz v. Covington, 341 F. 2d 537, 538 , issued a stay upon a finding of irreparable injury where a serviceman was to be discharged for alleged homosexual activity: “[Ajppellee has shown that he will suffer irreparable damage if the stay is not granted. Irrespective of the government’s recent assurance that the appellee would be reinstated if he prevails upon review of his discharge, the injury and the stigma attached to an undesirable discharge are clear.” Unlike a layoff or discharge due to fortuitous circumstances such as the so-called energy crisis, a discharge on the basis of an employee’s lifetime record or on the basis of captious or discriminatory attitudes of a superior may be a cross to carry the rest of an employee’s life. And we cannot denigrate the importance of one’s social standing or the status of social stigma as legally recognized harm. In Ah Kow v. Nuan, 5 Sawy. 552 , the Circuit Court, speaking through Mr. Justice Field, held that a Chinese prisoner could recover damages from the sheriff who cut off his queue, the injury causing great mental anguish, disgrace *96 in the eyes of friends and relatives, and ostracism from association with members of his own race.

There is no frontier where the employee may go to get a new start. We live today in a society that is closely monitored. All of our important acts, our setbacks, the accusations made against us go into data banks and are instantly retrievable by the computer. 2 An arrest goes into the data bank even though it turns out to be unconstitutional or based on mistaken identity. There is no federal procedure for erasing arrests. While they arise in 50 States as well as in the federal area, only a few States have procedures for erasing them ; and that entails a long and laborious procedure. 3 More *97 over, this generation grew up in the age where millions of people were screened for “loyalty” and “security”; and many were discharged from the federal service; many resigned rather than face the ordeal of the “witch hunt” that was laid upon them. Discharge from the federal service or resignation under fire became telltale signs of undesirability. Therefore, the case of irreparable injury for an unexplained discharge from federal employment may be plain enough on a hearing.

The District Court and the Court of Appeals were well within the limits of the law in granting a stay so that the issue of irreparable injury might be determined. It hardly comports with any standard for the expenditure of judicial energies to spend our time trying to find error in the exercise of the lower court’s discretion to protect federal employees by giving them at least a chance to prove irreparable injury.

With dossiers being compiled by commercial credit bureaus, state and local law enforcement agencies, the CIA, the FBI, the IRS, the Armed Services, and the Census Bureau, we live in an Orwellian age in which the computer has become “the heart of a surveillance system that will turn society into a transparent world.” Miller, Computers, Data Banks and Individual Privacy: An Overview, 4 Col. Human Rights L. Rev. 1, 2 (1972). Although the subject of congressional concern, the problem is one which has thus far avoided legislative correction. See Federal Data Banks, Computers and the Bill of Rights, Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 92d Cong., 1st Sess. (1971). See also A. Miller, The Assault on Privacy (1971).

Illinois provides that photographs, fingerprints, etc., be returned to unconvicted arrestees upon acquittal or release and further provides that the arrestee may petition a local court to have the record expunged by the arresting authorities. There is, however, no method for retrieving records which have been distributed to other law enforcement authorities or to private individuals. Ill. Rev. Stat., c. 38, § 206-5 (1973). Connecticut has a statute with similar shortcomings. Conn. Gen. Stat. Ann. § 54-90 (Supp. 1971); see Satter & Kalom, False Arrest: Compensation and Deterrence, 43 Conn. B. J. 598, 612-613. New York’s former Penal Law provided that all fingerprints, photographs, etc., of those acquitted of criminal charges had to be returned to the individual if no other criminal proceedings were pending against the individual and he had no prior convictions. N. Y. Penal Law §516 (1909).