*1 dealing with depar- not an isolated formal prophylactic
ture from rules which can be McCLELLAND, Riley Appellant, B. relegated insignificance by the balance of v. proceedings, but rather awith series of mutually compounding ANDRUS, errors that cannot Secretary Cecil D. ignored. frightened be A and confused Interior, et al. away alien was whisked from his home one No. 76-1654. morning facing depor- and found himself a tation order following afternoon. Appeals, Court of United States the intervening he met no compas- hours Circuit. District of Columbia sion, no understanding, nothing resem- bling scrupulous a proce- effort to follow 27, 1979. Argued March designed dures just to deal with such situa- 17, 1979. Aug. Decided Rather, tions. every stage at almost when warning a ought to have given been it was
omitted proceedings and the were hastened
toward their seemingly inevitable conclu-
sion. That the regulations statute and de-
mand Moreover, more is clear. the Su-
preme Court has noted that the “traditional
standards of fairness encompassed in due
process of law” must be met before aliens
may Further, expelled.20 be it has made
the following observation concerning depor-
tation: Here the liberty of an individual is at * * *
stake. We are dealing here
with procedural requirements prescribed protection of the alien. Though
deportation is not technically a criminal
proceeding, it great visits a hardship on
the individual deprives him of the
right stay and live and work in this
land of freedom. deportation That is a
penalty times most serious one— —at cannot be doubted. Meticulous care must procedure exercised lest the by which deprived
he is of that liberty not meet the fairness.[21]
essential standards of
On the record before us we think this metic-
ulous care has conspicuously been absent.22
We accordingly remand deporta- for a new hearing
tion proceedings other consist-
ent opinion. with this
So ordered.
See,
g.,
Mezei,
Shaughnessy
Bridges Wixon,
135, 154,
e.
v.
345 U.S.
v.
326 U.S.
65 S.Ct.
206, 212,
625, 629,
(1953)
1443, 1453,
73 S.Ct.
(1945).
1280 *2 Lawton,
Mary Atty., Justice, C. Dept. of C., J. Washington, D. with whom Earl Sil bert, Atty. U.S. at the time the brief was filed, Terry and John A. and Eric B. Marcy, C., Washington, Asst. D. Attys., U.S. brief, appellees. *3 WRIGHT, Judge, Before Chief and SWY * ROBB, Judges. Circuit GERT by filed Opinion for the court Chief Judge J. WRIGHT. SKELLY Dissenting opinion Judge filed Circuit ROBB. WRIGHT, Judge:
J. Chief SKELLY exhausting his administrative rem- After appellant, employee a former edies Service, in the National Park sued District job of his with Court for restoration retro- pay active back and other benefits. He challenged on the merits the action of the Appeals Civil Service Commission’s Review (ARB) upholding Board the decision of the him National Park to remove from Service challenged appellees’ He also the Service. provide copy him with a of a refusal personnel management prac- appellant’s supervisor at tices of Glacier Park for use in the administrative National discharge. proceedings resulting in his The report, was study, which resulted Department of Interi- recommended (AU) Judge who Law Administrative District Court first heard case. produce the re- upheld appellees’ refusal judgment summary port granted appellees on the merits.
I Rosa, James R. Washington, C., sqbstantially are D. The facts in this case appellant. Raymond Malloy, J. undisputed.1 Riley Wash- From 1956 to B. ington, C.,D. appellant. McClelland, professional was on the brief for appellant, a ecolo- * Circuit, sitting by designation (ARB) Although Appeals theOf Seventh Review Board re- pursuant 291(a) (1976). jected appel- to 28 U.S.C. § the FEAA’s recommendation reinstated, lant be neither it nor the District indicated, Except where otherwise any findings. facts disagreed of its factual Court opinion discussed this are based on the deci- alluded to were culled The rest of the facts Employees Appeals sion of the Federal Author- from the four-volume Administrative Record (FEAA) ity Hearing Examiner’s Decision which (AR) filed in this court. appears (JA) Appendix in the Joint at 49-65. gist,2 employ degree Ecology. was in ter of Science At the continuous Interior, September Department program National Park conclusion of the Ser- assigned vice. Prior he served for to Glacier to 1956 three Na- management spe- summers with the Service on a tional Park as a resource Park season- cialist, of his 17 years al basis. In the course GS-11.6 parks appellant served in three —Carlsbad Briggle July became William Caverns, Park, National Yellowstone superintendent National Park. Glacier duty Glacier National Park —and moved his indicating record There is evidence in the station 21 moves times. These were not managing Briggle’s conduct Glacier request made at appellant’s or for his con- an unusual request was erratic. At his Appellant’s venience. record with the Park number transferred out employees Service was there was not a unblemished: relationship be- Concerning of Glacier. single action, disciplinary instance of a there appellant, tween was a Briggle and *4 performance his ratings ranged from satis- between the philosophical two: difference factory to excellent. with overall man- Briggle was concerned appellant In May began serving agement in whereas was appellant of the Park Glacier of resources. park ranger, preservation National Park as a concerned with Shortly job preservation appellant’s GS-9.3 thereafter the Park But and he Service was posi- determined that it needed to create did it well. tions for carrying pro- out environmental 19, September Briggle On informed grams areas. within natural Accord- appellant abolishing posi- that he was ingly, promulgated policy a of offering specialist, management tion of resource re- long-term qualified training employees duties, distributing appellant’s and reas-
for these new The positions.4 training en- signing appellant him. told that Briggle attending university tailed a for year, one appel- this action to do with nothing had at expense, Government to obtain a Master job performance only lant’s was taken degree Ecology. Appellant of Science in persons of the performance because the applied for accepted and was a slot in this serving management specialist as resource program.5 An official of the Park Service appel- was When “difficult to evaluate.’’7 orally assured appellant that when the he meant lant what “diffi- Briggle asked training appellant completed was would evaluate,” respond.8 failed to Briggle cult to serve setting in a as a wilderness resource manage- and other Appellant’s supervisors management specialist. Appellant was also appellant’s job that ment officials testified assured assignment this official that they that performance good,9 had no was would be long-term on a basis so that he work,10and evaluating they trouble that could expertise gained use the in the course that resource had never recommended training program. position be abol- management specialist fact,
In fulfillment testified that there training program they of the In ished.11 appellant, at expense, continuing Government was a for the resource need attended position Colorado University State at Glacier September management specialist from 1968, 1967 until September employee Glacier earning a and there was no other Mas- 212-213; Appellant 205-207, 421, 2. degree holds a Bachelor of AR III at Science 7. AR II at Forestry 460; 111, degree and a Master Science AR IV at 136-137. Ecology. Ecology degree was earned in expense 1967-68 at the while on leave Id from the Park Service. 419, 9. AR III at 3. AR I at 160. 192; 153-155, 10. AR III at 429.
4. AR II AR IV at 79=81. 187-191;
5. AR II at IIIAR at 543-549. 11. AR III at 421.
6. AR I at 160.
capable providing equivalent appellant unsuccessfully While at- ser- was in the further tempting position vice.12 Evidence record indi- to transfer from one Glacier, at- Briggle’s Briggle cates that because of abolishment another within was ongoing pro- tempting studies and out of position appellant of the to transfer Gla- grams by appellant altogether. Brig- undertaken were abort- cier On October Briggle telephoned Regional gle ed.13 claimed this work was the Midwest Office employees.14 request” farmed out to other But ac- “special placement and made a cording overwhelming weight placement appellant. “special request” A is park such not the request placement evidence record a outside the case; contrariwise, appel- employee assigned. the time is from area to which the As request, position Briggle’s lant’s was abolished until the re- a result of Director of Office, management position Regional source was reestab- J. Leonard Midwest Volz, the work February lished a memorandum dated November sent management specialist resource the National Park re- was not 1971 to Service Further, performed.15 management appellant given special questing studies Briggle appellant’s placement issued after abolished consideration.
position management specialist of resource February It was not until 1972 that position.16 indicated a need for that appellant special was advised of these re- September meeting Briggle quests. requested
At He never a had transfer fact, options: offered two January transfer out of Glacier. 1971 he *5 reassignment 183, out of Glacier or a within executed entitled a Form “Career 10— position park ranger, Summary,”20 Glacier to the GS- Plans and in which he Skills ranger Appellant accepted park expressed ll.17 in his desire to remain the re- position.18 However, upon performing position management Rocky source area; ranger position appellant park February duties of the 1972 Mountain in he exe- position the same discovered that it was he cuted another Form in which 10-183 he occupied prior graduate training. to the It stated that he was uninterested in a trans- did not any embrace functions for fer to another area. On an endorsement to which he was He specially supervisor trained.19 there- this second form his immediate fore sent a memorandum dated November stated that it was in the Park Service’s 5, 1971 to Briggle requesting appellant consideration position interest to retain his ranger However, for a wilderness position year. Briggle, and indicat- for a at least ing willingness a endorsement, to take a cut appellant to GS-9 to his that stated get back into resource and wilderness man- perspective lacked he is ever to “[i]f agement. request was denied. gain thus value perspective and be of 203, 312, 12. AR II at 320-323. register employees signified a who have an assignment particular jobs interest in to or lo- 208-209, 322-323; 13. AR II at AR IV at 113— are, however, specific excep- cations. There 116, 139. general tions to that scheme: Although promotion selections for must be 14. AR II at 94. among qualified employ- made from the best 204, 312, position, reassignments (without 15. AR II at ees for the 320-323. change grade) may be made for other 16 JA at 73-77. reasons, permit employees to such as experience develop- broaden their for career 207-208, 214; 17. AR II at AR IV at 111-112. purposes; employees ment ing to assist in solv- health, family welfare and similar situa- IIAR at 215. tions, placement resulting or to solve cases 19. AR at 214, 313; reorganizations, II AR IV at 112. from modified workload sit- * * * uations or the like. Development 20. The Career Plan of the Nation- AR III at 643. provides reassignment al Park Service from
1283 Service, pellant’s reassignment reassignment 2, this time is cer- April effective tainly in order.”21 him to remain in and allow Glacier ignored appellant’s until June. Volz al- Appellant received and declined an offer leged problems.24 medical reassignment Big Canyon. By Horn a 7, Regional memorandum dated March April appellant grievance filed a accepted appellant’s Director Volz declina- over the transfer hearing order.25 A was 14-15, subsequent August tion for the that a stated reason conducted on 1972 before a Department need for his talents and educational back- of Interior ALJ. The ALJ rec- ground Regional reassignment arose in the Midwest ommended that Of- be af- fice, Omaha, Nebraska, He also connection with firmed.26 recommended that preparation coordination Park inquiry Brig- environ- Service conduct an into impact gle’s mental statements. Interestingly, management practices proce- despite Omaha,22 21, alleged May need in that dures.27 On 1973 the Office of the position Secretary has never been filled.23 Interior issued a decision adopting the ALJ’s recommendation.28
By a memorandum dated March appellant May asked Volz to reconsider appellant the reas- On 1973 Volz ordered signment; he personal duty listed and medical By on June 1973.29 problems which he preclude stated would appellant memorandum dated June moving his the next six to twelve indicated that he would not to Oma- response ap- months. Volz’s expressed willingness to make ha. He also his April according 21. JA at 56. June 25. From 1972 to FEAA, appellant testimony his before the met high officials of the Park Service to review AR I at 275. reassignment. They told that it opinion was their that the transfer order was 262; 404^105, 23. AR II at AR III at 408-409. improper they that would recommend to the Director that it be rescinded. But the order hearing 24. The FEAA examiner concluded: Briggle was not rescinded. and Volz overcame There is no evidence in the record AR II recommendation. at 252-261. *6 sought explana- shows that Mr. Volz further hay allergies tion of Mr. McClelland’s fever my It is recommendation that the order of from Mr. McClelland or Mr. McClelland’s reassignment employee of the said to the provided doctors who had or documentation Service, Region, Midwest affirmed; National Park be personnel. from other medical Mr. ad- Volz however, provided, that reexami- mitted that he was not a Doctor of Medicine qualifications, training, personal nation of his and he further stated that he did not know wants and the health of he and his [sic] how to evaluate the medical situation of Mr. family be made with a view to retransfer in Volz, however, McClelland. Mr. did state keeping possible therewith at the earliest unacquainted that he was not with the ef- date consistent with the needs of the Nation- allergies daughter fects of because his prac- suf- good management al Park Service and problems fered from such and as a result had tices. to remain housebound much of the time dur- AR I at 243. ing (Grievance Hearing the summer months. 27. The ALJ recommended that: 313) this, Transcript, p. Knowing Volz Mr. * * * Departmental inquiry Service be inquire did not even into whether Mr. proce- management practices made into and McClelland’s condition was similar to that of Superintendent covering dures the tenure of McClelland, daughter his or whether Mr. Park, Briggle William J. at National Glacier standpoint, from a medical could function matter unanswered Montana. To leave this satisfactorily in Omaha. There is no evi- administration, particularly as a cloud on his dence that he considered the matter of Mrs. received, publicity it has is view of the problems any differently. McClelland’s health him, personnel unfair of the Park to The contends that Mr. McClelland exceptional reputation of the Na- and to the problems fabricated the health but there is no tional Park Service. support evidence to this contention. It is Id balance, concluded on that Mr. Volz had his up mind made and did not wish to re-exam- 28. AR I at 225-228. ine his decision. JA at 63 -64. 29. AR I at 223. Department if he The of Interior appealed a demotion to a GS-7 could accept the ARB which reversed the FEAA and Upon appellant’s at re- remain Glacier.30 upheld appellant’s The ARB removal. con- Omaha, Regional Di- fusal to Park cluded that the Service had a rational his Decision to Remove.31 rector issued reassigning appellant basis for to Omaha.37 Shortly appellant’s removal the re- after management specialist position source recommendation,38 Pursuant to the ALJ’s was reestablished.32 Glacier Department of Interior undertook a study Briggle’s management person- and August appellant appealed On practices procedures. study nel and This his removal to the Civil Service Commis- February 6 was conducted from A hearing sion. was held before the Feder- Mangers Joseph Rumberg. Charles Employees Appeals Authority (FEAA). al Briggle recommended that be following It made the findings: (1) factual retained but that he be counselled about his there was available work in Glacier to management practices.39 On February which could have been assigned; Mangers-Rumberg report 1973 the was sub- (2) explore the Park failed to Service other mitted to the Director of the National Park filling possible ways vacancy in Oma- hearing appellant At FEAA Service. and, despite presence ha within Volz’s However, requested a copy report. jurisdiction specially of other trained re- hearing examiner held that he no had management personnel, source he did not and, further, power subpoena it inquire (3) as to availability; appel- their need not produced because it had not qualified lant was vacancy for the in Oma- upon been relied in the adverse action ha; (4) Volz had a history responding against appellant.40 Appellant also asked favorably Briggle’s outplacement re- Department the ARB41 and the of Interi- 34 (5) vacancy in Omaha quests; or42 to release the report, they but too merely pretext Briggle used to enable him support refused.43 In of its refusal appellant;35 (6) to rid himself of Volz Department of Interior relied on various explanation failed seek further appel- exemptions to the Freedom of Information problems.36 lant’s health (FOIA), (5), 552(b)(2), (6) Act U.S.C. § 35. The FEAA stated: 30. AR 1 at 214. Although the evidence is circumstantial 31. AR 1 at 172-173. indirect, the conclusion is drawn that Mr. 219-221; Briggle 428-429; gadfly. AR wanted II at to rid himself of a He AR III at JA at 73-77. chose a tool which would effect this desired end because he was unable to find another 33. The FEAA concluded that: ground support that could an adverse action firmly planted support Mr. Volz himself in against Mr. McClelland. Briggle’s request outplacement Mr. for the *7 of JA at 63. appellant and would consider no one else for position. supra. 36. See note 24 JA at 61. 34. The FEAA stated: reprinted 37. The ARB decision is at JA 67-70. responded favorably Mr. Volz had on at least Briggle’s request five other occasions to Mr. supra. 38. See note 27 * * * outplacement. for Mr. Volz did not deny any request. outplacements such Six of accompanying 39. See note 57 and text infra. personnel, key posi- some in staff and line tions, questioned. were not Out of a total of 40. AR II at 333-346. permanent employees appears staff of 55 this high employees to be a ratio of to be moved 41. AR I at 79. request Briggle. at the of Mr. This should inquire have alerted Mr. Volz to as to wheth- 42. JA at 82-85. supposedly non-disciplinary er this method of getting employee being an out of Glacier was 40, apparently, AR 43. I at abused. But 44-45. Mr. Volz was con- * * only helping Briggle. cerned Mr. JA at 62-63.
1285
44
sought production
(1976);
appeal
upheld
ly
Mangers-Rum-
In-
Solicitor
berg report.
Department
Both the
produce.45 Appellant
terior’s
refusal
to
Inte-
the ARB
rior and the District
shielded the
request
then renewed his
to
Court
declined,
report
ground
from
it
production,
stating
it
disclosure
order
but
purview
exemp-
came
question
part
is not a
within the
of various
that “the material in
tions to the
We find this reliance on
presently
before the Board
FOIA.
the record
Appellant
re-
misplaced.
FOIA to be
its review.”46
quested
report
not as a member of the
25,
appellant
On November
1975
filed a
FOIA,
public
but as
entitled to it under
complaint
two-count
in the District Court.
agency
private
individual in the throes
judicial
sought
pur-
The first count
review
proceedings adjudicating his claim of arbi-
Act,
suant to the Administrative Procedure
analyzing
trary
Accordingly,
removal.
(1976),
5
702
U.S.C.
of the Park
§
Service’s
employ
discovery
this case we
traditional
him;
discharging
action in
sought
also
applied
proceed-
doctrines as
Act,
pay pursuant
back
Pay
to the Back
5
ings.47 We intimate
view on whether
no
(1976),
U.S.C. 5596
and reinstatement
to a
§
required
Department
the Interior
would be
position in Glacier
either
resource man-
to a member of the
to disclose
agement. specialist
park ranger.
public seeking it under the FOIA.48
sought
second count
production of the Man-
discovery
party
that a
The extent of
gers-Rumberg
pursuant
FOIA,
engaged
hearing
in an administrative
is en
552(a) (1976).
5
By
U.S.C.
a Mem-
§
primarily
titled
is
determined
orandum and
May
Order of
1976 the
particular agency:
the Federal Rules
both
(Pratt, J.) granted,
District Court
on both
Rules of
counts,
Civil Procedure and the Federal
the Government’s motion for sum-
inapplicable49
Criminal Procedure are
mary judgment. The District Court held
the Administrative Procedure Act fails to
discharge
supported
was
by sub-
further,
provide expressly
discovery;
stantial evidence in the administrative rec-
consistently
agencies
have
held that
courts
Mangers-Rumberg report
ord and that
and formali
need not observe all the rules
protected
a person-
from disclosure as
proceedings.
applicable
ties
to courtroom
FOIA,
nel file
6 of the
Exemption
under
5
See,
Love,
g.,
e. Dixon v.
431 U.S.
(1976).
552(b)(6)
Appellant ap-
U.S.C. §
(1977).
52 L.Ed.2d
S.Ct.
peals from that decision.
agencies have of their own
Some
II
providing for
adopted regulations
accord
proceedi
Throughout
protracted proceed
discovery
in their
some form
ings
ngs.50
being
in this case
has
bound
those
unsuecessful-
addition
pretrial
pertaining
Id.
dis-
of Civil Procedure
covery
rules of the Federal
nor the liberalized
45. AR at 52-53.
any bearing
Rules of Criminal Procedure have
discovery
Labor
Board
Relations]
[National
46. AR 1 at 40.
procedures.”
Califano,
In Ass’n for Women in Science v.
example,
Trade
50. For
the Federal
Commission
U.S.App.D.C. 19, 22,
566 F.2d
pursuant
regula
provides discovery rights
stated,
(1977),
this court
“The FOIA neither
discovery
tions similar to the
rules of the Fed
expands
existing privileges,
nor contracts
nor
Procedure.
See 16 C.F.R.
eral Rules of Civil
*8
any
privileges.”
does it create
new
(1978).
agencies, such as
3.31-3.37
Other
§§
Board, severely
Labor Relations
the National
law,
law,
Although discovery
48.
is
not FOIA
discovery. The NLRB re
restrict
access to
case,
analyze
used to
this
for reasons discussed
the matter
to its own discretion and
serves
analysis
in note 54 infra the
contained in cases
case-by-case
on a
basis. See
decides the issue
construing Exemption 5 to FOIA is relevant
to
102.117, 102.30(a) (1978). The
29
§§
C.F.R.
our discussion.
uphold
courts will
the NLRB’s action unless
NLRB,
See,
g.,
In Title Guarantee Co. v.
534 F.2d
an abuse of discretion.
e.
there is
484,
Co.,
(2d
1976),
Valley
(6th
487
rules,
proceeding
hearing
Depart-
is bound to ensure that its
the
the
before
—the
requirements.
which the
procedures
process
propri-
meet due
Interior ALJ —in
ment of
Larkin,
35, 46,
ety
adjudi-
421
95 S.Ct.
the
Withrow v.
U.S.
of
transfer
first
order
Therefore,
1456,
(1975).
712
dis
The
the
43 L.Ed.2d
cated.
ALJ recommended
investi-
if in
covery
granted
particular
gation
Mangers-Rum-
must
the
which resulted in the
preju
berg report.52
situation
to do so would so
It is
a refusal
reasonable to infer
process.
party
deny
prompted
dice a
to
him due
he was
sup-
as
to do so
evidence
Co.,
(6th
Valley
portive
appellant’s
NLRB
530
693
of
Depending
v.
Mold
F.2d
claim.
on
denied,
824,
77,
shows,
Cir.),
report
deny appellant
429
cert.
U.S.
97 S.Ct.
what
the
to
to
(1976);
investigation
1287
Sears,
Co.,
1504,
supra, 421
at
132, 149,
Coggeshall,
We
Mangers
108
F.2d
have not
seen
U.S.App.D.C.
280
the
(1960), investigative
654
and other factual
Rumberg report.
pur
But based on the
reports
the
the Renegotiation
in
files of
investigation
poses
resulting
of the
in the
subject
discovery,
Board
to
were
whereas
be,
report
appear
it would
to
par
at least
reports
consisting
policy
of
recommenda
purpose
The
of
tially, discoverable.
the in
Carl
privileged;
tions were held to
be
in
in
vestigation
formulating
was not
aid
a
Stiftung
Zeiss, Jena,
Zeiss
v. V.E.B. Carl
decision,
policy
making a
but
review
supra,
consisting wholly
opin
documents
of
acts,
past
management
prac
the
namely,
privi
ions and deliberations were held to be
Superintendent
procedures
tices and
of
Seligson,
Freeman v.
leged;
and
132
Briggle.56
U.S.App.D.C.
(1968),
As author
paragraph
I
page
understood at the
last
on
3 and the second
prepared
time
paragraph
that
it was
page
my
that
it would
judgment,
re-
dis-
only
ceive
limited internal circulation. Ac-
closure of these evaluative comments made
cordingly,
privately by
I felt
I
Rumberg
myself
could be candid in the
Mr.
for the
being given
Again,
advice
the Director.
I
Director of the National Park Service would
making
would
grave
Briggle’s privacy.
be inhibited in
such recom-
be a
invasion of Mr.
mendations
the future
I
were
to know that
JA at 122-126.
they
required
public.
to be made
report’s
58. Our discussion of the
relevance and
Superintendent
10. The
evaluation
applicability
privilege
Briggle’s personal
strengths
of Executive
is based
and weaknesses
purpose
recommending
manager
ALJ’s stated
page
as a
5 is an evaluation of
investigation resulting
report
Superintendent’s
and on
personal
characteris-
Mangers
personal
Affidavit.
tics. His
characteristics
as a mana-
relevance,
Department
termine its
Interior
to turn the
over
any
rule on
claim of
privilege,
appellant’s
and balance
need for
is to
to the Commission. The Commission
against
it
agency’s
protect
need to
part of the record in this
make the
confidentiality of its deliberations. This
its relevance and
case
then determine
procedure
analogous
procedure
is
we
appellant’s
it. The Government
need for
frequently employed
requiring
have
the may interpose
privi-
of Executive
the claim
District
Court
conduct an in camera ex
If,
lege.59
using
principles
discussed
amination when
privi
a claim of Executive
opinion,
this
the Commission determines
lege is interposed
po
to shield a document
meritorious,
privilege
claim is
*12
tentially
litigant’s
relevant
to a
case. See
appellant’s
report
shall balance
need for the
America,
Black v.
Corp.
Sheraton
of
184 against
agency’s
protect
need to
its
the
U.S.App.D.C. 46,
(1975);
without
with the
ty adversely
perform-
action
affected her work
may
camouflaged
not be
as a dis-
cretionary
place
decision to relocate the
ance. Here the Commission must be able to
performed. Transfer,
where a
is
function
appellant’s
conclude that
transfer to Omaha
government
like other
affecting
action
an
promote
would
efficiency
of the service
*13
status,
employee’s
may not be based on more than would his retention in Glacier.61
arbitrary
“an
prede-
decision to achieve a
foregoing
For the
reasons
judgment
* * *
termined result.”
appealed
the District Court
from in this
Id. at 697.
vacated,
case is
and this case is remanded to
case,
Motto,
In this
as in
the agency can the District Court with instructions to re-
support
the adverse action on a rational mand it to the Civil
(1)
Service Commission
basis:
appellant’s
the need for
services in
permit
to
Mangers-
access to the
Omaha. But that does not eliminate the
Rumberg report
appropriate excisions,
possibility that the transfer was a sham —a
if necessary,
(2)
reopen
and
to
the record to
way of achieving
predetermined
result.
allow introduction of such further evidence
Commission,
On remand the
uphold
may
case,
as
be
relevant
this
after which
action,
adverse
must find a nexus between
the Commission shall reconsider the case on
the action taken
good
and the
of the ser-
augmented
record in accordance with
vice. See Norton Macy,
v.
135 U.S.App.
principles
stated herein
take such
D.C.
(1969).
clear and direct relationship demonstrat- ed between grounds the articulated ROBB, Judge, dissenting: Circuit an personnel adverse action and either employee’s ability accomplish join For several I his or reasons cannot her duties satisfactorily or some other opinion. court’s Although require assignment we do not the Commis- to Mr. McClelland in Glacier Na- sion, remand, adopt findings tional Park or even if there had been availa- officer, hearing recommendation of the FEAA it ble work for him in the Park but the need for appear hearing does that the officer was sensi- his services in Omaha was more critical to arbitrary tive capricious to the correct test the National Park Service and the Service text; possible outlined in he considered what reasonably explored had other methods of pro- reasons for transfer would have filling job the Omaha and the Service reason- good moted the of the service: ably considered such matters as Mr. McClel- qualifications assignment It is land’s reassign- evident for the new that the order of the past mobility change duty ment and quent and his record and conditions station and subse- obey requested removal for under which personal failure to such an his move was and the upheld order problems could be if Mr. had McClelland health which could affect requested move; ability at first perform satisfactorily and then declined to in Omaha. or if (emphasis original). there had been no work available for JA at 60 I do not agree Appeals Review is not our business to run the National Board apply failed to the correct standard Park Service. validity determining the of McClelland’s I cannot majority’s treat- subscribe to the reassignment. The Board said: ment of demand for the Man- McClelland’s Accordingly, the sole issue for the Board’s I would gers-Rumberg Report. remand the appellee’s determination is whether case to the District Court with directions to reassignment would serve the inter- best Mangers-Rumbert Report examine the ests [Emphasis of the service. added] camera, to make available to McClelland words, other the Board must determine portions Report, any, those if whether reassignment now at issue which he is entitled under Rule 26 Fed.R. was supported by
. substantial evidence Civ.P., and to determine whether failure to arbitrary, and not capricious, or unrea- make this available material to him de- And, sonable. in the Board’s view a reas- prived process him of due in the Civil Ser- signment is arbitrary capricious only proceedings. vice where it is supportable any not ration- long complaint McClelland’s and detailed al basis. [Emphasis original] filed in the District Court is in two counts. (J.A. 70) Among things alleges other the first count In conclusion the Board said: deprived proc- that McClelland was of due Board finds that the appellee’s re- [T]he ess the refusal of the Civil Service Com- assignment to the Midwest Regional Of- mission to make available to him the Man- fice, Omaha, Nebraska, arbitrary, was not gers-Rumberg Report. The second count capricious, unreasonable, but for such production demands the Report pur- of this cause as would serve the best interests of suant to the Freedom of Information Act. [Emphasis Service. added] presented case was judge to the district *14 (J.A. 72) in the framework of the issues drawn allegations. these being This so it was the As I language read this the Board found duty of the judge district to determine there was substantial evidence sup- litigant whether as a in the District Court port the conclusion that McClelland’s reas- on the first count McClelland was entitled signment served the best interests of the production to the Report. Specifical- of the evidence, service. In the absence of such ly, question was allegations whether the Board, said the reassignment would be justified of the first production pur- count “arbitrary, capricious, or unreasonable.” I suant to Rule 26 Fed.R.Civ.P. and whether think the Board’s standard was correct. allegations required the second count Although the majority pass does not production under the Freedom of Informa- the merits of appeal McClelland’s the tone tion Act. of the opinion strongly indicates a belief Putting questions arising aside under the reassignment unjust was and inval- Act, Freedom id. I of Information I think join cannot in this belief. There is allegations first required substantial count evidence of a number of valid Report reasons District examine the Court reassignment: McClelland’s a reduction in camera. Having force in done this the District Glacier National Park and a portions reduced Court could have need for identified the McClelland’s serv- there, ices the Report, any, if need for his services to which McClelland as a pre- pare litigant count, impact alleging environmental under the first statements at a Omaha, and personal and hostility process, official denial of due was entitled under disagreements Fed.R.Civ.P.; between him Super- standards Rule 26 Briggle. intendent portions The National Park those could have been Ser- made availa- thought vice that for these reasons the re- ble to McClelland. The court could then assignment justified, in the best inter- have advisedly allega- ruled on McClelland’s ests of the Service. We should not substi- tion produce that refusal of the Service; tute our judgment for that of the the Report deprived process. him of due Responding to McClelland’s demand for
the Mangers-Rumberg Report the Civil Ser- Appeals
vice Examiner ruled that he had no
subpoena power compel production (Tr. 344)
Report. In this he was correct. 772.307(c)(2).1
5 C.F.R. As I read the §
majority opinion however it graft would Regulations provi- Civil Service
sions of Rule 26 of the Federal Rules of
Civil Procedure. I This think we have no
right to do. Those govern rules the action
in the District They apply Court. do not
proceedings before the Civil Service Com-
mission and I majori- cannot concur in the
ty’s attempt to mix them with the Civil
Service Rules. Nolan, Jr., C., John Washington, E. D. COMPANY, MOTOR
FORD Petitioner George with whom W. Grandison and v. Cole, C., Washington, Charles G. D. Dearborn, Mich., Saybolt, Thomas L. ENVIRONMENTAL PROTECTION brief, petitioner. AGENCY, Respondent McNab, III, Atty., James Environmental Importers America, Automobile Inc. C., Agency, Washington, Protection D. California, and State of Intervenors. Supreme member of the bar of the Court of *15 No. 78-1791. vice, California, pro by special hae leave of court, Bertelsen, Atty., Bruce L. Environ United Appeals States Court of Washington, mental Agency, Protection D. District of Columbia Circuit C., Supreme a member of the bar Argued March vice, Michigan, pro by special hac Court of Decided Aug. 17, 1979 court, Dearing, leave of Atty., and David E. Justice, C., Dept. Washington, D. Rehearing Denied Oct. Sagalkin, whom Acting Atty. Sanford Asst. Gen., D.C., Bernstein, Washington, Joan Z. Counsel, Gleason, Atty., Gen. and Gerald K. Environmental Agency, Protection Wash D.C., Macbeth, ington, Angus Atty., Justice, C., Dept. Washington, D. brief, respondent. James W. Guerci, Lloyd Attys., Moorman and Dept. S. Justice, C., Washington, D. also entered appearances respondent. hearing;
1. Under the Civil Service rules McClelland as witnesses at the 5 C.F.R. 772.- § might appearance 307(c)(2), have demanded the of Man- but he did not do so. gers Rumberg, Report, the authors of the