*2 Eaton, Jr., E. Robert L. Asst. U. S. gist complaint The is Atty., Titus, Jr., with whom Harold H. facially conflicts statute with Atty., Terry U. S. and John A. and Na- process the due clause Fifth Dodell, Attys., U. Asst. on S. were by permitting Amendment agencies brief, appellees. subject to refuse employees discipline they may *, Before TUTTLE Senior Circuit confront and cross-examine witnesses Judge, MaeKINNON, and and WRIGHT against present them on and witnesses Judges. Circuit Appellants their own behalf. also chal- lenge, validity reason, for the same PER CURIAM: regula- of Civil Service Commission This case involves a constitutional relating employees tions challenge to 5 U.S.C. § days. for less than 30 5 C.F.R. 752.- prescribes procedure by which which (1972). Finally, appellants 301-304 competitive members of the challenge civil service validity of Bureau of Cus- may positions be removed from their disciplinary procedures toms in this case suspended pay. without The statute ground. on the same provides part: pertinent in inspectors Two Customs stationed in (a) competi- An individual York, appellants New Patrick Bren- J. tive service be removed or sus- nan Joseph Coyne, and ques- N. pended pay only without for such April agents tioned in Customs promote efficiency cause as will regarding alleged acceptance the service. gratuities from crewmen aboard the S.S. (b) An competi- individual in UNITED In June STATES. 1967 Bren- tive service suspen- whose removal or nan pending proposal was notified that a pay sought sion without is entitled suspend pay him without writing to reasons in and to— working days five was noti-
* Circuit, sitting by designation pursuant Of the Fifth 294(d) to 28 U.S.C. §
J291
eight
proposed suspension
fied of a
filed
suit
in the District Court
days.
given
opportunity
seeking
Each was
an
a declaration that
the statute
respond
to the written
described
are un-
above
charges
against
constitutional,
injunction
him and each was
an
reply
enforcement,
an oral
and,
make
future
with re-
through
charges.
spect
counsel
Coyne,
expunge-
Brennan and
*3
Regional
March 1968 the
suspensions
Commissioner ment
the
of
earlier
from
of Customs handed
requiring
down his decision:
their
records and an order
days’ suspension
three
applications
promotion
each man.
that
their
appeal
immediately
An
to
processed.
the
of
Commissioner
Cus-
toms
suspensions
was taken and the
Initially,
the District Court
were affirmed. Neither Brennan nor
appellants’
denied
motion for a three-
availed himself of the
judge
ground
court on the
the con
that
the Customs Bureau decision
question presented
stitutional
was insub
appellate
process
the three-tier
of the
stantial. This court then denied a writ
Civil Service Commission. See 5 C.F.R.
.of mandamus to overturn the District
(1972).
serving
752.304
After
their
§
ruling. Although
Court’s
it
indicated
suspensions, both men returned to active
that
constitutional claim was
duty.
necessarily
neither
frivolous nor fore
January
disciplined
1970 the
by previous decisions,
closed
this court
inspectors were notified of the creation
seeking
held that
were
essen
position
give
of a new
which would
tially equitable
injunctive
rather
them,
eligible
they
posi-
if
were
for the
three-judge
relief and that a
court was
tion, enhanced civil service status and
not warranted.1 Back in the District
higher salary.
applied,
Each
but
Court,
the
motion to dis
Government’s
ineligible
informed he was
of
because
granted
ground
ap
miss was
on the
that
presence
disciplinary
the
of
action on
pellants had failed to exhaust
their ad
during
preceding
his record
two
by failing
ap
ministrative
remedies
years.
by
Joined
the American Federa-
peal
Employees,
tion of
the adverse
decision of the Bureau
which
represents
employees
civilian
of the fed-
of Customs to the Civil Service Commis
government obviously
by
eral
affected
permitted.
sion as the
See
disciplinary
issue,
procedures
they
at
5 C.F.R. 752.304. We reverse.
§
immediately
This court
applications
said:
pro
their
“ * * *
motion, previously
are not
[Petitioners
now
denied
of the
because
three-judge
to a
disciplinary
entitled
However,
district
court
actions.
this an
present complaint
cillary equitable
because their
not
does
relief would not consti
‘formally [allege]
equitable
‘injunction restraining
a basis for
tute
forcement,
the en
against
operation
operation
relief’
the fed-
of
or execution
of
Voyage
Congress’
eral
statute.
Bon
Idlewild
[an] Act of
within the mean
Liquor Corp.
Epstein
713,
ing
(1964).
v.
[370 U.S.
of 28 U.S.C.
2282
See
Kennedy Mendoza-Martinez,
82 S.Ct.
8 L.Ed.2d
794
v.
372 U.S.
peti-
(1962)].
court,
In the
[,
district
153-155
83
9 L.Ed.2d
S.Ct.
declaratory
injunctive
tioners
seek
(1963).
petition
644]
Until
unless
against
question,
allegations
justify
relief
the statute
ers make
that would
complaint
allege
injunctive
against
operation
that
fails
relief
they
statute,
they may
either
members of a class
a federal
invoke
they purport
represent
three-judge procedure,
are now
and their
re
by
declaratory
judg
proceedings
maining
threatened
under
for a
claim
request
single
properly
also
statute.
Petitioners
ment
considered
remedy
Donovan,
judge.
district
court
the effects
district
Mitchell v.
Cf.
past disciplinary
[,
the stat-
actions under
90
26 L.Ed.
Ordinarily, tion of exhaustion certain kinds illicit discrimi- merely parties not nation not requires relevant the Commis- doctrine proceedings only procedures sion “the will review initiate administrative grant and thus used under them relief this sub- which part.” 752.304(b). judicial interven C.F.R. § forestall the need tion, proceedings pursue such but also course, Of even re- this circumscribed Aircraft & to their conclusion. See might view the Customs Corp. Equipment Hirsch, Diesel sought inspectors the relief it L.Ed. U.S. plausible to assume the Commission there But are disapproved would have the failure customary ex rationales grant Coyne the Bureau of Customs to remedies haustion rights and Brennan of cross-examination unnecessary ju doctrine —avoidance and confrontation and remanded the *4 the need dicial intervention and proceedings. case for new be- But we agency full, unhampered exercise of exceedingly lieve this un- outcome was expertise developed on a factual well likely, procedures specified since the in making, g., see, of its e. record own regulations the Civil Service Commission States, McKart v. 395 United U.S. applicable to the Bureau of and Customs 193-195, 1657, 23 194 L.Ed.2d require only followed in this case writ- apply not the and doctrine’s —do detailing ten the notice reasons and pointless. application thus becomes supporting proposed facts a ac- adverse some the no than doctrine is more tion, reply an in Lodge 1858, futility,” “an in exercise see affidavits, and to file and notice of the American Federation of Government agency’s supported writing, decision in Employees Paine, U.S.App.D.C. 141 by reasons. 5 C.F.R. 752.302. (1970), par 436 F.2d 896 judgment, blinking In our it would be ticularly beyond it is where clear doubt reality expect Commission, the in an agency that the relevant administrative adjudicatory proceeding, to hold an grant question. will not in the relief agency subject regulations to its to a Billings See Montana National Bank higher protection procedural standard of County, 276 Yellowstone U.S. require. than its own rules Nor do we S.Ct L.Ed. 673 likely it think the that Commission nothing cases, by In such is lost circum would act in of a in advance court over- venting assuredly open, an ineffectu turning promulgated by rules itself and al, appeal and avenue of administrative governing applicable consistent with the moving to the courts. this is We believe appeal statute. Our conclusion that such a case.2 the Civil Service Commission would have appel- Here no there was chance that been futile on is based more ex- late review the Civil Service Commis- tremely strong inference. take We sion would have reversed the Bureau of judicial notice the fact that while this merits, order on the thus ob- Customs pending the director of the viating grant the need a court Civil Service Commission’s Bureau expungement Brennan and Standards, and Policies in a letter to the remedy they applicable seek. The now president of the American Federation of provision of the Service Commis- Civil Employees, Government stated that regulations sion’s makes it clear that the require agency Commission would not scope exceedingly of review limited: is provide hearing where, a as involving suspensions in cases of less require do not one. See Ex- days allega- C, Appendix than 30 there no where is hibit Joint at 113. Compare Laird, U.S.App. Hadnott v. claimants not had even initiated adminis- 358, 361, 362, proceedings D.C. 463 F.2d 307- trative and where there was (1972), panel agency might where of this court reason to believe the have affirmatively invoked the doctrine a case where acted their on claim. considering not reason for as one Court District we believe Since They they promotions. say did them for dismissing fail- action this erred discipline remedies, not their would envision that to exhaust ure I it result. find incredible have such on the the case remand we employee Government believe that constitutional merits (particularly Service in the Customs claim. honesty prime requisite) is a ordered. So recognize discipline for not that would gratuities illegal from acceptance of Judge (dissent- MacKINNON, Circuit large passen- of a of the crew members ing) : ger them. liner be held would foregoing opin because I dissent use, subject to such If not it were Appellants ad misapplies the law. ion rapidly deterio- Service would Customs their adminis mittedly to exhaust failed rate. they valid no remedies trative I also dissent because are They contend ground this refusal. guilty require and will laches appealed the Commis had if litigate culpability sus have reviewed sion would allowing By on this case stale evidence. This conclusion pensions the merits. on proceed in the District Every case speculative. completely opinion majority deprived has footing results its on own stands *5 ju- agency of its lawful in ad determined cannot of an The risdiction to decide issue. Dis- U.S.App. Laird, 149 v. Hadnott vance. jurisdiction in no these trict Court has 358, 361, 463 F.2d D.C. posture; present that lies requirement Also, the constitutional exclusively with the Customs Service. been raised could argued appeals. the Su As on such Diesel & preme in Aircraft held Court Hirsch, Corp. 331 U.S. Equipment 91 L.Ed. 67 S.Ct. (1947): very is- that constitutional fact
[T]he put constitutes sues are forward allowing strong this for not reason Secretary BRENNAN, Labor, Peter J. anticipate Trbovich, to take suit either to and Mike et al. place of [administra- the Tax Court’s agency’s] performance of its tive final UNITED MINE WORKERS OF AMER- function. al., ICA, Appellants. et No. 72-2064. The en- could have decided Commission tirely in favor. Appeals, United States v. McElroy, Cafeteria Workers 367 U. District of Columbia Circuit. 886, 894-895, S. 6 L.Ed.2d Argued Dec. 1972. also makes it clear Decided Feb. days being for three after given notice, respond represented and to be necessarily counsel is not a denial of process.” suspensions
“due The summary in nature. appears
What here is that
were satisfied with the action taken in became dissatisfied in disciplinary when action was