Respondents Brief — Llerena v. United States

IN THE N

Supreme Court of the United States

. Ocroser Term, 1973

Arruur F, Sampson, ApMunisTRaToR, GENERAL SERVICES

ApMinistTRaTION, et al.,

Petitioners,

T=

Jeanne M. Murray.

w

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT

-

James A. DoBKIN ~

Tomas J. McGrew

1229 Nineteenth Street, N.W.

Washington, D. @& 20036

Attorneys for Respondent,

Jeanne M. Murray

Of Counsel:

Arnotp & Porter

1229 Nineteenth Street, N.W.

Washington, D. C. 20036

——————eeE———eeEE——eee————eee—eee

~>

Question Presented

Statement

Summary of Argument

ARGUMENT:

I. As the Court of Appeals emphasized, this case

involves neither a determination on the merits

nor an adverse construction of civil service law,

and the precedents cited by petitioner regard-

ing judicial deference toward civil service de-

termination are, therefore, irrelevant —__.

Il. As the Court of Appeals also emphasized, this

ease does not turn on either the question of

irreparable injury or the validity of respon-

dent’s underlying claim

III. Petitioner’s principal contention—that no court

can ever enjoin a civil service discharge to pre-

serve its jurisdiction—is incorrect

. There is nothing in the “administrative scheme”

which precludes such use of the All Writs Act

. While not necessarily requiring the jurisdic-

tion at issue in this case, both the Administra-

tive Procedure Act and the 1972 Amendments -

to Title VII of the 1964 Civil Rights Act are

consistent with, and may at times be de; endent

on, such interim injunctive relief

ll

18

VI. While this case will undoubtedly be applied

sparingly because of the stringent requirements

of injunctive relief, the underlying jurisdic-

tional question at issue here is of critical im-

portance

ConcLuUSsION

CrraTions

Cases:

American Federation of Government Employees v.

Fletcher, D.D.C. No. C.A. 1238-72

American Federation of Government Employees

v. Resor, 442 F.2d 993 (3rd Cir. 1971) —.-.._..

Arrow Transp. Co. vy. Southern R. Co., 372 U.S.

658 (1963)

Beacon Theatres v. Westover, 359 U.S. 500 (1959)

Board ef Governors, etc. v. Transamerica Corp.,

M ' 184 F.2d 311 (9th Cir. 1950), cert. denied, 340

U.S. 883 (1950)

Cafeteria € Restaurant Workers Union v. McElroy,

367 U.S. 886 (1961)

Chandler v. Judicial Council, 398 U.S. 74 (1970) ..

Charlton v. United States, 412 F.2d 390 (3rd Cir.

1969)

Crown Zellerbach Corp. v. Wirtz, 281 F. Supp. 337

(D.D.C. 1968)

Drew v. Liberty Mutual Insurance Co., CCH Emp.

PAGE

10

13

12

Prac. Guide { 8652 (5th Cir. June 4, 1973) ..13, 25, 26

iii

PAGE

Elliott v. Rich, 24 N.M. 52, 172 Pac. 194 (1918) .. 12

Ex Parte United States, 287 U.S. 241 (1932) —....

Federal Power Commission v. Metropolitan Edison

Co., 304 U.S. 375 (1938) : 23, 24

F.T.C. v. Dean Foods, 384 U.S. 597 (1966) .6, 12, 13, 15,

16, 18, 20, 23, 24

gee Finletter, 108 F. Supp. 327 (D-.D.C.

13

1952

Isbrandtsen Co. v. United S'tates, 81 F. Supp. 544

(S.D.N.Y. 1948), appeal dismissed, 336 U.S. 941

(1949)

Jacob v. Burke, 296 A.2d 456 (1972)

Kirk v. Kleindienst, D.D.C. No. C.A. 1397-72 .......

Kirk v. Kleindienst, C.A. D.C. No. 72-1704, May

24, 1973

Lodge 1858, Am. Fed. of Gov. Emp. v. Paine, 436

F.2d 882 (D.C. Cir. 1970) ‘

McClellan v. Garland, 217 U.S. 268 (1910) 16

Nelson v. Miller, 373 F.2d 474 (3rd Cir. 1967),

cert. denied, 387 U.S. 924 (1967) 14,15

Northern Pacific Co. v. Soderburg, 86 F. 49 (C.C.

N.D. Wash. 1898) 12

Ogden vy, Zuckert, 298 F.2d 312 (D.C. Cir. 1961) . 14

Olive Land & Development Co. v. Olmstead, 103 F.

568 (C.C. S.D. Cal. 1900)

PAGE

Pennsylvania v. The Wheeling € Belmont Bridge

Co., 13 How. 518 (1851) 23

PennsylvaniaMotor Truck Ass’n v. Port of Phila-

delphia Marine Terminal Ass'n, 183 F. Supp.

910 (E.D. Pa. 1960) 12

Public Utilities Commission v. Capital Transit Co.,

214 F.2d 242 (D.C. Cir. 1954) 12-13

Reeber v. Rossell, 91 F. Supp. 108 (S.D.N-Y.

1950) 6, 12, 13, 14

Roche v. Evaporated Milk Ass’n, 319 U.S. 21

(1943) 16, 23

Scarpa v. Smith, 294 F. Supp. 13 (S.D.N.Y. 1968) 18

Schwartz v. Covington, 341 F.2d 537 (9th Cir.

1965) 6, 12, 13, 14

Scripps-Howard Radio, Inc. v. F.C.C., 316 U.S. 4

(1942) 13, 18, 20

Settle v. Brown, 345 F. Supp. 405 (S.D. Tex.

1972) 27

Smith v. Resor, 406 F.2d 141 (2d Cir. 1969) .... 12

Sohm v. Fowler, 365 F.2d 915 (D.C. Cir. 1966) 14

Toledo Scale Co. v. Computing Scale Co., 261 U.S.

399 (1923) 17

Virginia Petroleum Jobbers Assn. v. F.P.C., 259

F.2d 921 (D.C. Cir. 1958) 17,18

West India Fruit & Steamship Co. v. Seatrain

Lines, Inc., 170 F.2d 775 (2d Cir. 1948) —.. 12

[in M lela Be

Statutes and Regulations:

5 U.S.C. § 702 16

5 U.S.C. § 705 7, 23

5 U.S.C. § 5596 19, 25

5 U.S.C. $7151 25

15 U.S.C. $21(e) 16

15 U.S.C. § 634(b) (1) 19

28 U.S.C. $1341 19

28 U.S.C. § 1342 19

28 U.S.C. § 1651(a) 6, 13

28 U.S.C. § 2281 19

28 U.S.C. § 2282 19

28 U.S.C. § 2283 19

42 U.S.C. § 2000e-5(g) (1964) 25

42 U.S.C. § 2000e-16 7, 24

42 U.S.C. § 2000e-16(d) 24

62 Stat. 354 (1948) 14

5 C.F.R. 315.805 : - 2, 25

5 C.F.R. 315.806 25

Rule:

Rule 43(e), F. R. Civ. P. 4

Miscellaneous :

39 Comp. Gen. 639 (March 14, 1960) 14

Hearing on H.R. 1647 before the Subcommittee on

Civil Service of the Senate Committee on Post

Office and Civil Service, 89th Cong., 2d Sess.

(1966)

Hearing on H.R. 10685 before the

tee on Post Office and Civil Service, 87th Co: ©” 99

2d Sess. (1962) — -

H. Rep. No. 32, 89th Cong., Ist Sess. ~~ 20

12

H. Rep. No. 1436, 80th Cong., 2d Sess. ale

Human Relations Commissions (note), 74 Y™°

LJ. 1171 (1965) —_

Comthent, Interim Injunctive Relief Pending yl

ministrative Determination, 49 Col. L. Rev. 1

eahnincl, we

= Ac-

L. Jaffe, Judicial Control of Administrative . 12

tion (1965) —-9,

Johnson & Stoll, Judicial Review of Federal 2”

ployee Dismissals and Other Adverse Actic?™

57 Corn. L. Rev. 178 (1971) — 16

S. Rep. No. 414, 80th Cong., Ist Sess. 20

U.S. Code, Cong. & Adm. News (1966) ~~ 14

In THE

Supreme Court of the United States

Ocroser Tzrm, 1973

No. 72-403

Agtuur F. Sampson, ApMuyisTraTor, GENERAL SERVICES

ApMrnistration, et al.,

Petitioners,

—V.—

JEANNE M. Murray.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT

Question Presented

Whether, in an appropriate case, a federal district court

has jurisdiction to grant interlocutory relief pending an

adjudication by the Civil Service Commission.

Statement

At the close of business on Thursday, May 20, 1971, Re-

spondent, Mrs. Jeanne M. Murray was handed a letter

from Mr. W. H. Sanders, then Acting Commissioner of the

Public Buildings Service, stating that her employment as a

probationary program analyst with the General Services

Administration (“GSA”) would be terminated the follow-

ing Friday for failure to follow office procedures and to

accept direction. Mrs. Murray had been given no prior

notice, formal or informal, of any charges against her, nor

any opportunity to rebut them. Her job performance had,

in fact, been rated as satisfactory only the previous month.’

The following Tuesday, Mrs. Murray’s counsel met with

a GSA personnél officer, Mr. Stan Maher, to discuss her

termination. They requested specifics on the charges

against her and an opportunity to reply. Mr. Maher showed

counsel portions of a memorandum setting forth the basis

for Mrs. Murray’s termination and took the request for a

hearing under advisement.*

The memorandum set out the basis for the allegations

set forth in Mr. Sanders’ letter and referred at length to

Mrs. Murray’s alleged parallel conduct while employed at

the Defense Intelligence Agency (“DIA”). Mrs. Murray

had good reason to believe that her record at DIA was

excellent.’ That afternoon, Mrs. Murray’s counsel sent a

letter to Mr. Maher calling his attention to 5 C.F.R. 315.805,

which prohibits the termination of a probationary employee

“based in whole or in part” on prior conduct, without bene-

fit of a statement of charges and “bona fide consideration”

of her reply.*

The afternoon before her termination was to occur, the

GSA informed Mrs. Murray’s counsel that she would not

* App., pp. 25-26.

* Id. at 27.

* Id. at 7-8.

*S. App.

* App. at 6, 7 4.

* Id. at 10-11.

3

be given a hearing and could not have a copy of the adverse

memorandum. Counsel immediately telephoned the Civil

Service Commission to determine whether Mrs. Murray’s

appeal could be expedited in view of her imminent termi-

nation. They were informed that the Commission’s case

load would not permit such a procedure.’

The following morning, Mrs. Murray formally appealed

to the Commission. Simultaneously, she brought suit in

district court seeking a stay of her discharge pending the

Commission’s decision. The court, Judge Gasch presiding,

issued a temporary restraining order until a hearing could

be held on her motion for a preliminary injunction.’

At the hearing on Mrs. Murray’s motion for a prelimi-

nary injunction, counsel for the government offered to pro-

duce Mr. Sanders’ affidavit that, in making the decision

to terminate Mrs. Murray, he had not considered the allega-

tions regarding her service at DIA in whole or in part.”

Judge Gasch, finding the proffered evidence unlikely on its

face, insisted on Mr. Sanders’ live testimony on this point.”

Thereupon, the hearing was adjourned until Mr. Sanders

would appear and the TRO was continued until the hearing

could be completed. Judge Gasch was later advised that

the government refused to produce Mr. Sanders.” For this

reason, the hearing on the preliminary injunction was never

completed.

* Id. at/8.

* Id. at 19-24.

* Id. at 33.

1° Td. at 38.

Jd. at 41-42.

12 Td. at 43.

a Brief on Petition for Writ of Certiorari, App. F.,

p.

4

The government appealed, contending that the court

lacked jurisdiction to enjoin the discharge and that the

court erred in requiring Mr. Sanders’ evidence to be pre-

sented in the form of live testimony.

At oral argument before the court of appeals, the gov-

ernment advised the court that the Civil Service Commis-

sion had been instructed to withhold processing of Mrs.

Murray’s appeal in order to avoid mooting this case.

The court of appeals affirmed the district court’s decision

that it had jurisdiction to enjoin Mrs. Murray’s discharge

pending review by the Commission.“ Noting that its juris-

dictional holding was limited to “the propriety of the [Dis-

trict] Court’s granting interim injunctive relief pending an

administrative determination on the merits,” 462 F.2d 871,

874, thé court of appeals stressed that, since the hearing

was never completed, neither the validity of the dismissal

nor the question of irreparable harm had been litigated in

the district court. The court of appeals then stated:

“Without intimating in any manner which way [these

- issues] should be decided, it is probable that only in a

small percentage of cases would the complaining em-

ployee be able to establish the grounds for a temporary

injunction—assuming that executive agencies conscien -

tiously follow their own rules of due process. But here

the complaining employee alleges that the agency has

violated its own rules, has not accorded her the re-

quired hearing, and is in the process of discharging

her unlawfully. She does not ask the trial court to rule

on the merits of her discharge; the agency may have

ample grounds, but it must follow procedural due proc-

“The court of appeals also approved of Judge Gasch’s right,

under Rule 43(e), F. R. Civ. P., to require oral testimony from

Mr. Sanders in lieu of the proffered affidavit. 462 F.2d 871, 878.79.

The court was apparently unanimous on this aspect of the case,

and petitioner has abandoned the issue before this Court.

ess to establish them. To hold that the District Court

has no jurisdiction on the basis of these allegations

to grant the temporary relief requested, would be tanta-

mount to holding that the District Court never would

have jurisdiction.” Id. at 879-80.

Summary of Argument

The procedural posture of this case is somewhat unusual.

The record of the hearing on Mrs. Murray’s motion for a

Temporary Restraining Order, issued on June 4, 1971, is

not before the Court; nor did the government seek appellate

review of that Order. The Temporary Restraining Order

was continued until a hearing on Mrs. Murray’s motion for

Preliminary Injunction could be completed. That hearing

was never completed because the government refused to

produce Mr. Sanders for live testimony. The government

has abandoned before this Court any claim that it was

entitled to withhold Mr. Sanders’ testimony.

In sum, the government aborted the hearing below before

it could be completed. As a result, Mrs. Murray was never

afforded an opportunity to face—or Judge Gasch to pass on

—the question of whether the threatened injury to her is

sufficiently unique to merit the extraordinary relief sought.

The court of appeals repeatedly stated that Mrs. Murray

will have to meet this burden when the hearing resumes.

Under these circumstances, the government’s cavalier

characterization of tlis case as “routine” is premature on

the present record. If it should appear at the hearing that

Mrs. Murray’s case is truly routine, Judge Gasch will rule

accordingly. At issue here is whether any possible showing

on her part could justify the relief sought.

1. As the court of appeals held, this case does not involve

the doctrine of exhaustion of administrative remedies. That

BR en aire RAEN Oat NE RTND BRLTENEROE ME OMENS DHE

doctrine, as petitioner now concedes, acts to preserve the

agency’s right to make a final determination on the merits

and does not prevent the issuance of injunctive relief which

merely preserves the status quo pending administrative

appeal. Petitioner’s general exposition on the limited role

of the courts in civil service appeals is, therefore, ir-

relevant.

2. Nor does this case involve the related issues of irrep-

arable harm or the underlying merits of respondent’s

claim. Petitioner’s refusal to proceed with the hearing

leaves these questions to the trial court.

3. Petitioner’s fundamental contention—that no federal

court can ever enjoin a civil service discharge in order to

preserve its ultimate jurisdiction—is invalid. The federal

courts have repeatedly invoked their traditional equity

powers, as embodied in the All Writs Act, 28 U.S.C. 1651(a),

to preserve the status quo pending administrative appeal.

This practice was endorsed by this Court in F.T.C. v. Dean

Foods, 384 U.S. 597 (1966). There are, in fact, at least two

cases in which injunctions were issued against the discharge

of a federal employee. Schwartz v. Covington, 341 F.2d 537

(9th Cir. 1965); Reeber.v. Rossell, 91 F. Supp. 108 (S.D.

N.Y. 1950). |

4. There is nothing in the “administrative scheme” of the

civil service laws to preclude such use of the All Writs Act.

In issuing the injunction in this case, the courts below were

not challenging any part of the civil service law; rather,

they were attempting to preserve the status quo, so that the

Civil Service Commission might effectively uphold a specific

procedural requirement of that law.

7

Moreover, .in view of the-repeated statements of this and

other courts that the All Writs Act cannot be curtailed

by mere implication, the narrow legislative histories of the

Back Pay Acts of 1948 and 1966 cannot be said to pre-

clude the type of relief granted in this case. There is, in

fact, clear evidence that Congress never intended those

Acts to preclude other forms of relief.

5. Petitioner’s reliance on the Attorney General’s 1948

view that Section 10(d) of the Administrative Procedure

Act, 5 U.S.C. § 705, does not, in and of itself, vest courts

with injunctive power until.an appeal is pending may well

be misplaced. But even assuming, arguendo, that that inter-

pretation is correct, the injunctive power of courts review-

ing administrative decisions as provided by Section 10(d)

_is certainly consistent with, and at times may be dependent

upon, prior interim relief as granted 1 in this case under the

All Writs Act.

Such interim relief is also consistent with the 1972 ex-

tension of Title VII of the 1964 Civil Rights Act to federal

employees. 42 U.S.C. § 2000e-16. Indeed, if one accepts peti-

tioner’s theory that no federal court can ever grant inter-

locutory relief in a federal employee discharge case, he is

forced to the conclusion that, despite the clear intent of the

recent amendment to Title VII, federal employees have

fewer rights under that Act than private employees.

J

6. Given the stringent requirements for any injunctive

relief, the remedy at issue here will probably be invoked

very sparingly. However, the fundamental jurisdictional

question in this case is of critical importance for the gen-

eral administration of the civil service laws and for the

jurisdictional integrity of the federal courts.

ARGUMENT

L _

As the Court of Appeals emphasized, this case involves

neither a determination on the merits nor an adverse

construction of civil service law, and the precedents cited

by petitioner regarding judicial deference toward civil

service determination are, therefore, irrelevant.

Though petitioner at last agrees that, “this case does

not present an exhaustion question in the traditional con-

_ text of deferring judicial consideration of a matter to be

decided by an administrative agency” (Petitioner’s Brief,

p. 19), it continues to argue that the judiciary has limited

jurisdiction over civil service determinations which may

not be invoked until the employee has exhausted his ad-

ministrative appeals. Petitioner’s Brief, pp. 10-13, 17,

18-20. While these general observations are correct, it is

equally clear, as the court of appeals held, that such con-

siderations are not relevant where the employee is seeking

not a determination on the merits but only a temporary

stay pending administrative and judicial review. As the

court stated:

“It is important to specify exactly what legal issue

confronts us. We are here concerned with the propriety

of the court’s granting interim injunctive relief pend-

ing an administrative determination on the merits, .

when there is no statutory provision specifically au-

thorizing such relief. In the past this issue has been

confused with the related, but quite distinct, issue of the

necessity for the exhaustion of administrative remedies

before an adjudication on the merits may be obtained

in a court. This error stems from the failure to recog-

9

nize that what is sought in actions such as the case at

bar is not a determination on the merits that will be

binding upon the administrative agency before that

agency has had its chance to complete its procedures

for such a determination, but is simply an interim

form of relief to prevent irreparable damage to the

parties or to the public interest while the final out-

come of the administrative determination is uncertain.

Such interim relief is not the interference with agency

actions which the exhaustion of remedies doctrine seeks

to prevent, but instead often serves as an aid to the

administrative process, since by preserving the status

quo it ensures that the final administrative determina-

tion will not be undermined or rendered ineffective by

by hasty or incorrect procedures at an earlier stage.”

462 F.2d 871, 874-75 (Emphasis supplied).

For a further discussion of this distinction, see L. Jaffe,

Judicial Control of Administrative Action 669-71 (1965);

Comment, Interim Injunctive Relief Pending Administra-

tive Determination, 49 Col. L. Rev. 1124, 1127-28 (1949).

However, while it is clear that the exhaustion doctrine

is not applicable in this case, petitioner’s argument by

analogy (Petitioner’s Brief, p. 20) does merit some con-

sideration. First, it must be remembered that the court

of appeals found that Mrs. Murray has conscientiously pur-

sued her administrative appeal. 462 F.2d 871, 873. In this

regard, the court stressed that the Civil Service Commis-

sion had no power to stay her discharge. Jd. This is not,

therefore, a case where an employee has gone to the courts

for relief which the agency could have granted but refused

to do so. Respondent pursued her administrative remedies

as fast and as far as she could; and she will continue to do

so under a temporary court order that merely preserves

the status quo pending her administrative appeal.

10

Similarly, it was the government, arid not Mrs. Murray,

who created whatever delay has ensued in this case. In-

deed, Judge Gasch did not even issue his opinion until he

was informed that the government kad no intention of

either producing the one witness who could clarify the rea-

sons for the discharge or granting Mrs. Murray her rights

under the civil service regulations. Given such a record,

it seems rather incongruous for petitioner to suggest that

an affirmance in this case will necessarily prolong civil

service determinations.

Finally, it should be noted that the very precedent cited

by petitioner to support its exhaustion theory, states that,

“To be sure, as with most general rules of decision, there

are exceptions. Thus, if the prescribed administrative

procedure is clearly shown to be inadequate to prevent

irreparable injury, or when there is a clear and unam-

biguous statutory violation, then a court need not defer

decision until the conclusion of the administrative in-

quiry. Aircraft é Diesel Corp. v. Hirsch, 331 U.S. 752

at 773, 67 S. Ct. 1493; Fitzpatrick v. Snyder, 220 F.2d

522, 525 (Ist Cir. 1955), cert. dented 349 U.S. 946, 75

S. Ct. 875, 99 L. Ed. 1272; Wettre v. Hague, 168 F.2d

825 (1st Cir. 1952). Shargel v. Hollis, 120 F. Supp. 814

(S.D.N.Y. 1954); Reeber v. Rossell, 91 F. Supp. 108

(S.D.N.Y. 1950).”

American Federation of Government Employees v. Resor,

442 F.2d 993, 994-95 (3rd Cir. 1971).

It seems strange to argue that where irreparable injury

is likely a court may ignore the administrative process en-

tirely and decide the case immediately, but that it may not

—when faced with the same probability of irreparable harm

—take the less intrusive action of preserving the status quo

pending an administrative hearing on the merits. Thus, as

1l

a matter of law, policy and logical consistency, the ex-

haustion doctrine in no way bars judicial preservation of

the status quo pending an administrative appeal.

Il.

As the Court of Appeals also emphasized, this case does

not turn on either the question of irreparable injury or

the validity of respondent’s underlying claim.

The government’s refusal to produce Mr. Sanders pre-

cludes it from raising the related issues of irreparable

harm or the underlying merits of respondent’s claim. As

the court of appeals emphasized, these questions remain for

the trial court to determine. 462 F.2d 871, 877-78, 879-80.

By refusing to proceed with the hearing, the government

has conceded the likelihood of both ultimate success on the

merits and irreparable harm.** Such questions are not,

therefére, before this Court. The only question here is the

jurisdiction of the federal courts to enjoin a civil service

discharge, assuming that the employee has shown he is

likely to prevail on the merits and to suffer irreparable

injury. .

18 Respondent has, however, consistently offered to show unique

circumstances proving irreparable harm. Reply Brief for Jeanne

M. Murray, p. 7. n.4.

12

Petitioner’s principal contention—that no court can

ever enjoin a civil service discharge to preserve its juris-

diction—is incorrect.

Courts of equity have granted injunctive relief maintain-

ing the status quo pending agency determinations since the

inception of the modern administrative process. In early

cases, involving administrative determinations of land

titles, injunctions were uniformly issued to restrain waste

pending the agency’s decision."* With the growth and de-

velopment of the administrative process, injunctive relief

has been granted in a variety of contexts at the instance of

both aggrieved individuals” and the agencies themselves."

© Olive Land & Development Co. v. Olmstead, 103 F. 568 (C. C.

S.D. Cal. 1900) ; Northern Pacific Co. v. Soderburg, 86 F. 49 (C. C.

N.D. Wash. 1898) ; Elliott v. Rich, 24 N.M. 5%, 172 P. 194 (1918).

“Smith v. Resor, 406 F.2d 141 (2d Cir. 1969) [Induction of

army reservist stayed pending military review proceedings] ;

Schwartz v. Covington, 341 F.2d 537 (9th Cir. 1965) [Soldier's

discharge enjoined pending action by Discharge Review Board] ;

West India Fruit & Steamship Co. v. Seatrain Lines, Inc., 170

F.2d 775 (2d Cir. 1948) [Rate reduction enjoined pending decision

by Maritime Commission] ; Crown Zellerbach Corp. v. Wirtz, 281

F. Supp. 337 (D.D.C. 1968) [Secretary of Labor enjoined from

barring manufacturer from government contracts pending an ad-

ministrative hearing on employment discrimination charges] ;

Pennsylvania Motor Truck Ass’n. v. Port of Philadelphia Marine

Terminal Assn., 183 F. Supp. 910 (E.D. Pa. 1960) [Pier operator's

truck. loading practice enjoined pending decision by Maritime

Board); Reeber v. Rossell, 91 F. Supp. 108 (S.D.N.Y. 1950)

[Discharge of federal employee enjoined pending review by Civil

Service Commission] ; Isbrandtsen Co. v. United States, 81 F. Supp.

544 (S.D.N.Y. 1948), appeal dismissed, 336 U.S. 941 (1949) [Im-

plementation of rate agreements enjoined pending review by Mari-

time Commission]; see generally, Comment, Interim Injunctive

Relief Pending Administration Determination, 49 Colum. L. Rev.

1124 (1949) ; Note, Human Relations Commissions, 74 Yale L. J.

1171, 1199 n.141 (1965) ; L. Jaffe, Judicial Control of Administra-

tive Action, pp. 662-86 (1965).

** F.T.C. v. Dean Foods Co., 384 U.S. 597 (1966) [Merger en-

joined pending FTC decision]; Public Utilities Commission v.

Oo

13

In F.T.C. v. Dean Foods, 384 U.S. 597 (1966), this Court

explicitly upheld this practice of preserving the status quo

pending administrative review.”* Rejecting arguments that

Congress had implicitly curtailed the court’s traditional

equitable powers embodied in the All Writs Act (28 U.S.C.

§ 1651(a)), this Court held that without some explicit con-

gressional enactment to the contrary, the courts retain their

authority to issue appropriate injunctions to preserve the

jurisdiction of both the administrative agencies and the

courts of review. Jd. at p. 608.

Such authority has, in fact, been invoked at least twice

before to stay the discharge of a federal employee.

Schwartz v. Covington, 341 F.2d 537 (9th Cir. 1965) ; Reeber

v. Rossell, 91 F. Supp. 108 (S.D.N.Y. 1950) (Kaufman, J.),

Cf. Group v. Finletter, 108 F. Supp. 327 (D.D.C. 1952)

(enjoining the demotion of a federal employee pending both

administrative and judicial review). And only recently,

the Fifth Circuit held that the courts can grant such in-

junctive relief in the related context of a private employee

appealing a discharge to the Equal Employment Oppor-

tunities Commission. Drew v. Liberty Mutual Insurance

Co., CCH Emp. Prac, Guide { 8652 (5th Cir. June 4, 1973).

Petitioner ignores Reeber completely. This is particu-

larly unfortunate in view of the government’s contention

that sixteen years after Reeber, Congress—without any —

Capital Transit Co., 214 F.2d 242 (D.C. Cir. 1954) [Rate increase

enjoined pending decision by P.U.C.]; Board of Governors, etc. v.

Transamerica Corp., 184 F.2d 311 (9th Cir. 1950), cert. den. 340

U.S. 883 (1950) [Bank merger enjoined to preserve jurisdiction

of the Federal Reserve Board].

** See also, Arrow Transp. Co. v. Southern R. Co., 372 U.S. 658,

671 n.22 (1963) ; Scripps-Howard Radio, Inc. v. F.C.C., 316 U.S.

4 (1942).

14

mention of it or any other treatment of this issue—elimi-

nated the courts’ injunctive powers in civil service cases.”

Petitioner attempts. to avoid Schwartz by arguing that

a different circuit has held that the agency involved—the

Army Board for Correction of Military Records—is not

part of the administrative process. Petitioner’s Brief, p. 25

n.8; Ogden v. Zuckert, 298 F.2d 312 (D.C. Cir. 1961). But

see, Sohm v. Fowler, 365 F.2d 915 (D.C. Cir. 1966) (limit-

ing Ogden); Nelson v. Miller, 373 F.2d 474, 479-81 (3rd

Cir. 1967), cert. denied 387 U.S. 924 (1967) [stating that

Schwartz was correct in holding that a court could enjoin

a discharge under certain circumstances prior to review by

the military boards, but that despite Ogden, even a court

granting interim relief should-give the military boards the

first chance to pass on the merits of the dispute].

However, as the court of appeals held, such a distinction

is merely another attempt to inject the inapplicable ex-

haustion doctrine into this case:

“. . . Whatever the correctness of the Ogden court

majority (see the closely reasoned dissent by the then

In his dissent, Judge Robb attempted to distinguish Reeber

on the grounds that the Back Pay Act of 1948 would not have

applied to the plaintiffs in that case, 462 F.2d 871, 882 n.1. In

view of the fact that the plaintiffs in Reeber were disabled veterans

(91 F. Supp. 108, 110), Judge Robb’s conclusion that the Act

would not apply seems highly questionable. See 62 Stat. 354

(1948) ; 39 Comp. Gen. 639, 641 (March 14, 1960); U.8. Code,

Cong. & Adm. News (1966), p. 2098 (reprinting the Senate Report

on 1966 Back Pay Act which states that the 1948 Act, in conjunc-

tion with the Veteran’s Preference Act of 1944 authorized back

pay awards to veterans separated in reductions in force).

However, even assuming arguendo that the Act did not apply

to the plaintiffs in Reeber, the availability of such relief goes only

to the question of irreparable harm and not to the courts’ basic

jurisdiction to grant injunctive relief. In this regard, it is instruc-

tive to note that Judge Kaufman—vwriting only two years after

the 1948 Act—never mentioned the possibility that the Act deprived

him of jurisdiction.

15

Judge Burger), the holding in that case has no appli-

cation to our reliance on Schwartz.

The Ninth Circuit was concerned in Schwartz solely

with the question of the propriety of granting interim

relief. The opinion did not pass either on the merits

or on the application or nonapplication of the doctrine

of exhaustion of administrative remedies; it assumed

that the doctrine did apply, and simply granted interim

relief pending the final administrative determination.

In Ogden, on the other hand, this court held that the

exhaustion doctrine did not apply, because the matter

had achieved sufficient administrative finality ... .

In other words, in Ogden, unlike Schwartz, the ques-

‘ion was the application or nonapplication of the doc-

trine of the exhaustion of administrative remedies. _

Murray v. Kunzig is a case like Schwartz v. Coving-

ton. We are not concerned with the application or non-

application of the doctrine of exhaustion of administra-

tive remedies, but simply with the propriety of the Dis-

trict Court’s exercise of its traditional equity powers

to grant interim relief.” 462 F.2d 871, 885. (Emphasis

in original.) Accord: Nelson vy. Miller, 373 F.2d 474,

479-81 (3rd Cir. 1967), cert. den. 387 U.S. 924 (1967).

Indeed, as the court of appeals found, public employee

discharges may well force the courts to act in order to pre-

serve their jurisdiction. They must first insure that the

employee will be able to invoke the primary jurisdiction

of the Civil Service Commission. Preserving the effective-

ness of such initial administrative review was, of course,

the basis of this Court’s opinion in Dean Foods. 384 U.S.

597, 603-605 (1966).

The government seeks to distinguish Dean Foods on the

theory that it “reaffirmed the courts of appeals’ power

under the All Writs Act to issue injunctions ‘in aid of their

respective jurisdictions.’” (Pet. Br., at 28) The Act

16

is by no means confined to courts of appeals. Rather, it

happened that a court of appeals is the initial judicial forum

for review of actions by the Federal Trade Commission.

15 U.S.C. §21(c). In this case, initial judicial review is

clearly committed to the district courts.

The type of injunction at issue here preserves the poten-

tial jurisdiction of any court which has authority to review

the administrative determination. This Court has re-

peatedly held that such relief may be granted prior to

judicial appeal. F.7.C. v. Dean Foods, 384 U.S. 597, 603-04

(1966) ; Roche v. Evaporated Milk Ass’n., 319 U.S. 21, 25

(1943); Ex Parte United States, 287 U.S. 241, 246 (1932) ;

McClellan v. Carland, 217 U.S. 268, 280 (1910). And as

petitioner concedes, it is now beyond question that the

federal courts do have ultimate jurisdiction over civil ser-

vice appeals. Petitioner’s Brief, p. 17. See also, 5 U.S.C.

§ 702; Lodge 1858, Am. Fed. of Gov, Emp. v. Paine, 436

F.2d 882, 893, n.69 (D.C. Cir. 1970); Charlton v. United

States, 412 F.2d 390, 394 (3rd Cir. 1969) ; Johnson & Stoll,

Judicial Review of Federal Employee Dismissals and Other

Adverse Actions, 57 Corn. L. Rev. 178 (1971).

Finally, while it must be remembered that neither the

question of irreparable injury nor of the necessity for an

injunction to preserve jurisdiction” are before this Court,

it should be noted that the same Back Pay Act emphasized

by petitioner suggests a further reason why the courts may

2 In its brief, petitoner now contends that the district court

erred in finding that an injunction was necessary to preserve its

jurisdiction, and that therefore the injunction was not authorized

by the All Writs Act. Pet. Brief p. 29. Given the facts that the

government offered absolutely no assurance that respondent’s ad-

ministrative appeal would be processed promptly and that it never

permitted respondent to prove her claim that she would be irrepa-

rably harmed in the indeterminate interim, petitioner’s attempt to

17

be forced to enjoin discharges in order to insure both ad-

ministrative and judicial review. If the employee is dis-

charged pending appeal and is unable to obtain interim

employment—-something which seems likely following an

unjustified discharge—he may find it so difficult to provide

for himself and his family that he will be unable to pursue

his administrative and legal remedies. Thus in some in-

stances, the Act will make administrative and judicial ap-

peal worthless. In that event, both sound judicial and

personnel administration suggest that, assuming proof of a

likelihood of irreparable harm and of success on the merits,

_¢civil service discharges are an appropriate context for

exercise of the preservation power embodied in the All

Writs Act.

Such cases will be, as the court of appeals emphasized,

quite rare. The traditional equitable requirements for in-

terim relief* serve as an extremely effective screen. The

petitioner without a strong case that his discharge was un-

lawful must be dismissed out of hand. Those unable to

show unique and irreparable injury are also quickly out of

court. In cases where the government has a compelling

— this factual question at this late stage is questionable on its

ace.

On the law, the government contends that since the court could

have subsequently ordered reinstatement and back pay, the

“immediate discharge of respondent would in no way limit the

court’s authority fully to review her discharge.” Id. This conclu-

sion is by no means compelled. Unless respondent is in a position

to pursue her administrative and legal appeals, no court will ever

hear her case. Moreover, a vital part of any court’s jurisdiction

is the power to frame a fully effective order following its decision.

See, Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923).

The very concept of irreparable harm assumes that in certain ex-

ceptional cases, delayed relief will not be fully effective.

_ *2 See e.g., Virginia Petroleum Jobbers Assn. v. F.P.C., 259 F. 2d

921 (D.C. Cir. 1958).

18

interest in immediate dismissal, such as those involving

security matters,” relief must also be denied. Experience

in the District of Columbia since this case was decided

confirms that the traditional equitable tests have been

extremely effective in avoiding the non-meritorious claims.

A holding that the courts lack jurisdiction to issue interim

relief on any possible state of facts would serve no purpose

other than to bar the handful of highly meritorious cases.

IV. <

“There is nothing in the “administrative scheme” which

precludes such use of the All Writs Act.

Petitioner’s contention that the “administrative scheme”

of the civil service laws implicitly precludes judicial ‘action

under the All Writs Act ignores the clear doctrine of this

and other courts that such jurisdiction may be curtailed

only by an explicit enactment of Congress. F.T.C. v. Dean

Foods, 384 U.S. 597, 608-12 (1966) ; Scripps-Howard Radio

v. F.6.C., 316 U.S. 4, 11-15 (1942) ; Virginia Petroleum Job-

bers Ass’n. v. F.P.C., 259 F.2d 921, 924 (D.C. Cir. 1958).

At the outset, it must be emphasized that Mrs. Murray

is in no way challenging existing civil service law or regu-

lations. Petitioner’s summary on the limited rights of pro-

bationary employees (Petitioner’s Brief, pp. 15-17) is

simply irrelevant, since, as petitioner concedes, if the dis-

charge at issue

23 Cafeteria & Restaurant Workers Union v. McElroy, 367 US.

886 (1961).

*4 See, Scarpa v. Smith, 294 F. Supp. 13 (S.D.N.Y. 1968).

ne

19

“was in fact based in whole or in part on conduct

occurring prior to her appointment by the General

Services Administration, [respondent] was entitled

under 5 C.F.R. 315.805 to additional procedural rights.

| Those rights include advance notice of the proposed

action against her, an opportunity to reply in writing

and with supporting affidavits, and notice of an adverse

agency decision on or before its effective date.” Peti-

tioner’s Brief, p. 4.

Since the government was unwilling to dispute Mrs. Mur-

ray’s claim that her discharge was in fact based on such

prior conduct, the two courts below had to assume that far

from contradicting the civil service law, they were uphold-

ing it.

Petitioner is thus forced to contend that Congress, in

enacting the Back Pay Acts of 1948 and 1966, intended to

preclude interim relief under the All Writs Act. Given

the clear disapproval of repeals by implication noted

above, it should first be stressed that not one word in

these acts suggests any limitation of the courts’ jurisdic-

tion. 5 U.S.C. § 5596. By contrast, it is clear that when

Congress does desire to curtail the injunctive powers of the

courts, it is quite capable of expressing that intent in ex-

plicit legislation.*

8 See, e.g., 15 U.S.C. § 634(b) (1) [Providing that no injunction

may be issued against the administrator of the Small Business

Administration]; 28 U.S.C. § 1341 [Prohibiting injunctions in

state tax cases where “a plain, speedy and efficient remedy may be

had in the courts of such state”]; 28 U.S.C. § 1342 [Prohibiting

injunctions in certain state cases]; 28 U.S.C. § 2281 [Limiting

injunctions against the enforcement of state statutes to three-judge

courts] ; 28 U.S.C. § 2282 [Limiting injunctions against the enforce-

ment of federal statutes to three-judge courts]; 28 U.S.C. § 2283

[Limiting injunctions of state court proceedings to certain cireum-

stances including “where necessary in aid of [the federal court’s]

jurisdiction” }.

In both Scripps-Howard and Dean Foods this Court noted

rather more substantial political histories regarding the

proper means of enforcing the F.C.C. and F.T.C. Acts, and

held, however, that congressional silences, and inferences

derived from them, could not curtail judicial action under

the All Writs Act. Scripps-Howard v. F.C.C., 316.U.S. 4,

11-13 (1942) ; F.T.C. v. Dean Foods, 384 U.S. 597, 600. See

also, id. at 612-13 (Fortas, J. dissenting).

By contrast, petitioner is unable to cite any consideration

of the judicial role in civil service determinations in the

history of the Back Pay Acts. Indeed that history is re-

plete with statements that the two acts were nothing more

than authorizations of back pay for wrongfully discharged

employees.

The Senate Report accompanying the original version of

the 1948 Act is representative of this narrow legislative

focus. It states that the inability of the Civil Service Com-

mission to award back pay was a “loophole” that needed

correction, and that the bill in question, “merely acts to

afford the members of the classified service the amount

of compensation they would have received if the improper

action had not been taken against them. ...” S. Rep. No.

414, 80th Cong., Ist Sess., p. 1.

Similarly, the House Report accompanying the version

ultimately enacted into law stated simply:

“The purpose of the proposed legislation is to pro-

vide payment of compensation covering periods of

separation to employees improperly removed or sus-

pended without pay from the Federal service . . . -

H. Rep. No. 1436, 80th Cong., 2nd Sess., p. 3.

In neither report, nor in any of the interpretations from

the Civil Service Commission and Comptroller General

} 21

appended to them, nor in any of the floor debate is there any

suggestion that such additional relief was intended to pre-

clude all other legislative, administrative, or judicial reme-

dies. Similarly, in extending the Act to probationary em-

ployees in 1966, the House Report made it clear that the

back pay provisions were merely triggered by—and in no

way displaced—the normal appeals process:

“H.R. 1647 is basically perfecting legislation. It

does not create any new rights of tenure, review, or

appeal. It is concerned only with adjustments in salary

and other benefits that are appropriate in consequence

of corrective actions that may now be taken. It re-

quires only that, when an erroneous action has been

corrected by the appropriate authority, the employee

will, for pay and other employment benefit purposes,

be deemed to have rendered service at his proper

grade during the period ... .” H. Rep. No. 32, 89th

Cong., Ist Session, p. 2.

This view was in large part based on the interpretation

given to the Act by the Chairman of the Civil Service

Commission :

“Essentially, the bill is perfecting legislation. It

would fill in gaps in the backpay protection currently

afforded employees in various situations. It would -

not add any rights of tenure, review, or appeal, nor

would it restrict or define the nature of corrective

actions ....”

“The bill adequately safeguards the interest of agencies

and employees. It does not require agencies to re-

view actions. It does not diminish any right or benefit

employees now have.” Id., p. 10 [Emphasis added]

At the hearings on the 1966 Act, Congressman Beck-

worth, the author of the bill, further confirmed this narrow

view :

“This bill is basically perfecting legislation, and

creates no new rights of employment tenure, review or

appeal. It merely authorizes adjustments in salaries

and other benefits that are warranted in consequence

of corrective personnel actions that may be taken under

existing law... .” Hearing on H.R. 1647 before the

Subcommittee on Civil Service of the Senate Commit-

tee on Post Office and Civil Service, 89th Cong., 2nd

Sess. (1966), p. 2.

Finally, testimony by the Chairman of the Civil Service

Commission on the 1962 predecessor of the 1966 Act dem-

onstrates that this narrow interpretation was widely and

‘ consistently advanced :

“[The 1962 bill] is concerned only with the backpay

consequence of corrective actions that may now be

taken. It has nothing to do with the substance of ap-

peal rights, the structure of the appeals process, or the

precise nature of corrective actions. It requires only

that when an erroneous action has been corrected by

the appropriate authority, the employee be given back-

pay. This bill enters the picture only when it has

finally been decided officially, and through whatever

means may be authorized now or in the future, that

a wrong has been done that should be set right.” Hear-

ing on H.R. 10685 before the House Committee on

Post Office and Civil Service, 87th Cong., 2nd Sess.,

(1962), p. 12. [Emphasis added]

In view of this insistence that the Back Pay Acts have no

effect on the “substance”, “structure”, or “precise nature”

of the corrective process, the brief remark by Senator

Langer cited by petitioner can hardly be regarded as a state-

ment of congressional intent to limit the traditional powers

of the judiciary. Similarly, the selected portion of the 1966

House Report to the effect that the Act constitutes a means

by which wrongfully discharged employees can be “made

whole,” should be viewed as but a general theory of restitu-

tion—a theory which has always allowed injunctive relief

when exceptional circumstances warrant. Beacon Theatres

v. Westover, 359 U.S. 500, 506-07 (1959) ; Pennsylvania v.

The Wheeling & Belmont Bridge Co., 13 How. 518, 561

(1851).

In sum, it is clear that Congress had no intention of pre-

eluding the jurisdiction involved in this case when it enacted

the Back Pay Acts. Given this absence of legislative intent

—and of any explicit enactment—to curtail the traditional

authority of the courts to preserve their jurisdiction, that

authority as embodied in the All Writs Act must be upheld.

Vv.

While not necessarily requiring the jurisdiction at is-

sue in this case, both the Administrative Procedure Act

and the 1972 Amendments to Title VII of the 1964 Civil

Rights Act are consistent with, and may at times be de-

pendent on, such interim injunctive relief.

Petitioner’s reliance on the Attorney General’s belief

that Section 10(d) of the Administrative Procedure Act,

5 U.S.C. § 705, does not in and of itself confer injunctive

power on a court until an appeal has been taken may well

be misplaced in light of later judicial interpretations™ and

** Compare, Federal Power Commission v. Metropolitan Edison

Co., 304 U.S. 375, 383 (1938) [cited by the Attorney General for

its narrow view that the preservation power of the All Writs Act,

which he apparently found analogous to the injunctive power con-

tained in the APA, was dependent on an actual appeal], with

Chandler v. Judicial Council, 398 U.S. 74, 112 (1970) (Harlan, J.,

con ing in denial of writ of prohibition and/or mandamus) ;

P.T.C. v. nm Foods, 384 U.S. 597, 603-04 (1966) ; Roche v. Evapo-

rated Milk Ass’n, 319 U.S. 21, 25 (1943) [All stating that the

preservation power in the All Writs Act is not dependent on an

4

the fact that the only case cited by the Attorney General

was concerned primarily with the abuse of interlocutory

appeals of mere procedural rulings. Federal Power Com-

mission v. Metropolitan Edison Co., 304 U.S. 375, 383-85

(1938).

However, assuming arguendo that the APA does not

duplicate the jurisdic ion properly exercised in this case

under the All Writs Act, it is nevertheless clear that the

injunctive power of a court formally reviewing an agency

determination is consistent with, and at times may be de-

pendent upon, prior injunctive relief to maintain the status

quo pending initial administrative action. This is, in fact,

the major premise of this Court in Dean Foods,'384 US.

597, 603-04 (1966).

Similarly, the jurisdiction exercised in this case is con-

sistent with, and may at times prove decisive in effectuat-

ing, the 1972 extension of Title VII of the 1964 Civil Rights

Act to federal employees. As indicated by the incorpora-

tion by reference which applies the same procedures to pri-

vate and federal employee discrimination suits, 42 U.S.C.

§ 2000(e)-16(d) (1972), and by the legislative history of

the 1972 Amendment, H. Rep. No. 92-238, Congress clearly

intended to create parallel remedies for employment dis-

crimination in the public and private sectors.

The government states:

“We contend here only that the district courts may

not enjoin discharge of federal employees pending ad-

ministrative review of their discharges. Whether a

actual appeal but may be exercised to preserve & court’s potential

J

urisdiction. ]

In short, Petitioner’s interpretation of Section 10(d) amounts

to little more than a reiteration of its exhaustion theory.

a)

private employer may be enjoined under certain cir-

cumstances from discharging an employee pending the

processing by an administrative agency of a complaint

challenging the discharge is, of course, a different ques-

tion.” Petitioner’s Brief, p. 20, n.5.

This is apparently an attempt to distinguish, without citing,

Drew v. Liberty Mutual Insurance Co., CCH Emp. Prac.

Guide § 8652 (5th Cir., June 4, 1973), which approves the

use of injunctive relief pending a review by the EEOC of

a private discrimination complaint. It is difficult to see why,

in light of the congressional intention to provide parallel

remedies, this should be so. It is also difficult to see how

a back pay award constitutes an exclusive remedy when

granted by the Civil Service Commission to a federal

employee discharged because of “race, color, religion, sex,

or national origin,” but is not considered exclusive when

granted by the EEOC to a similarly aggrieved private

employee.”

We are not, of course, suggesting that this case is gov-

erned by either Title VII or by previous similar laws and

regulations. See, 5 U.S.C. §7151; 5 C.F.R. 315.806. But

it is clear that if the government is allowed to violate one

of the few specific safeguards granted probationary em-

ployees (that is, the right to notice of charges based on

prior conduct and the opportunity to reply to them, 5 C.F.R.

315.805), without a possibility of judicial action maintain-

ing the status quo pending appeal, then it may also violate

the prohibitions of racial or sexual discrimination on the

same theory that the Back Pay Act precludes all judicial

intervention.

2™ Compare 5 U.S.C. § 5596(b) [Providing for back bey and

_ reinstatement for aggrieved federal employees] with 42 U.S.C.

§ 2000e-5(g) (1964), as amended, 1972 [Providing for back pay

and reinstatement for aggrieved private employees].

The government’s attempted distinction of Drew, sup-

ported entirely by a breezy “of course,” comes down to a

bald statement that federal employees are in a position

inferior to their private counterparts with regard to the

same legislatively-created rights. The long history of con-

gressional concern with protecting the rights of government

employees argues to the contrary. By contrast, the view

of the All Writs Act advanced by the court of appeals in

Mrs. Murray’s case is consistent with the clear congressional

intent to extend to federal workers the same protection

from job discrimination given to private employees under

Title VII. :

VI.

While this case will undoubtedly be applied sparingly

because of the stringent requirements of injunctive re-

lief, the underlying jurisdictional question at issue here

is of critical importance.

The court of appeals explicitly warned that the type of

relief granted in this case is limited to exceptional circum-

stances. 462 F.2d 871, 877-78. The court stressed that an

employee must fully satisfy the traditional requirements

for extraordinary relief in a court of equity.

Given the limited nature of judicial review in civil ser-

vice appeals, few courts will find even that the employee is

likely to prevail on the merits unless—as in this case—the

government appears to have violated one of its own regu-

lations and refuses to offer any testimony to rebut the

prima facie case against it. Indeed, had the government

produced its key witness, it might have persuaded Judge

Gasch that Mrs. Murray’s claim on the merits was not

strong enough to qualify for injunctive relief, and the mat-

ter would have ended forthwith.

27

Similarly, the government will undoubtedly be able to

refute most claims of irreparable injury by merely inform-

ing the court that the employee’s appeal will be heard in

the relatively near future. Here, of course, the government

refused to process Mrs. Murray’s administrative appeal.

Moreover, even where the government delays the em-

ployee’s appeal, trial courts will find a likelihood of irrepa-

rable harm only in certain exceptional cases. Again, it

must be remembered that the probability of irreparable in-

jury was never actually determined in this case.

It is not, therefore, surprising that the courts following

this case have only rarely granted injunctive relief. Of the

twelve suits cited in petitioner’s brief for certiorari® seek-

ing the relief granted here, ten were dismissed out of hand.

In American Federal of Government Employees v. Fletcher,

D. D.C. No. C.A. 1238-72, a T.R.O. was granted, but later

vacated and a preliminary injunction was denied, the dis-

trict court holding:

“This is not the ‘exceptional case’ warranting issu-

ance of a preliminary injunction, under the standard

for interlocutory court intervention prescribed by the

United States Court of Appeals for the District of

Columbia Circuit in Murray v. Kunzig ... .” Id., Find-

ings of Fact and Conclusions of Law, p. 7 (July 27,

1972).

Similarly, in Settle v. Brown, 345 F. Supp. 405 (S.D.

Tex. 1972), the district court—after approving the jurisdic-

tional holding at issue here—found that the employee had

not met the likelihood of success burden and therefore was

not entitled to injunctive relief.

** Pet. Brief on Petition for Writ of Certiorari, p. 11.

Thus, of thirteen federal cases*® brought on the strength

of this case, there was only one, Kirk v. Kleindienst, D.D.C.

No. C.A. 1397-72, in which relief was granted. Whether

plaintiff there met the test of exceptional circumstances

must remain unclear, since the court of appeals never had

an opportunity to pass on it.*

Yet despite the fact that an affirmance in this case would

not loose a flood of litigation, the underlying jurisdictional

question at issue is of extreme importance. As noted above,

if this Court accepts the government’s theory that no court

can ever enjoin the discharge of a federal employee pend-

ing administrative review, it will be eliminating the pos-

sibility of such judicial intervention even where the dis-

charge is patently improper, the harm to the individual is

extensive, and the necessity for injunctive relief to preserve

the court’s ultimate jurisdiction is manifest. It would, in

short, be removing an important brake on what might other-

wise become a personnel program of arbitrariness and un-

due delay.

A reversal in this case would also stand for the dangerous

proposition that the equitable powers of the federal courts

to preserve their jurisdiction can be eliminated by an at-

tenuated interpretation of casual congressional remarks.

Such a decision would cast grave doubt on the formerly

clear rule that in matters of such importance only explicit

*°In Jacob v. Burke, 296 A.2d 456, 463-64 (1972), the Rhode

Island Supreme Court cited the court of appeal’s decision here

with approval, but held that it was improper to grant injunctive

relief without a showing of exceptional circumstances. The court

rey ge that the burden is on the party seeking such relief.

. at «

%° Following the withdrawal of the removal letter sent to Mr.

Kirk, the court of appeals granted the government’s motion to dis-

miss its own appeal of the district court’s injunction. Kirk v.

Kleindienst, (C.A. D.C. No. 72-1704, May 24, 1973).

29

legislative enactment will suffice. It would, in short, place

the equitable powers of the federal courts and those who

need their protection in serious jeopardy.

CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

Respectfully submitted,

James A. Dopkry

Tomas J. McGrew

1229 Nineteenth Street, N.W.

Washington, D. C. 20036

Attorneys for Respondent,

Jeanne M. Murray

Of Counsel:

ARNOLD & Porter

1229 Nineteenth Street, N.W.

Washington, D. C. 20036

August, 1973