National Treasury Employees Union and Joseph MacKin v. Jerome Kurtz, Commissioner
636 F.2d 411
D.C. Cir.
1980
Check Treatment

*1 compre- use of the The limitations require valid. To permit are also

hensive NATIONAL TREASURY EMPLOYEES multi-phase dependence mutual Joseph Mackin, UNION and of which commenced phase one projects, Appellants, August prior to construction requirements new PSD exempt from the The Act Commissioner, standard. KURTZ, a reasonable threshold Jerome et al. per- separate to issue EPA discretion leaves No. 79-1086. sepa- phases that can deemed mits for sources, here Agency’s action rate Appeals, of United States Court discre- to an abuse of that does amount Circuit. of Columbia limits for commencement tion. time reasonable, Argued in order to Jan. construction100 are reserv- projects from prevent construction 20, 1980. May Decided future, dispropor- ing, long for too in the pollution incre- tionate share of available supports amply rationale

ments. same gaps in

the restriction on construction months, and exceeding eighteen

progress variances for grant

the refusal phase. first

the commencement date re-propose EPA

There is no for need rules, represent reasonable they

these rules in originally proposed

revisions

light of comments received.101 specifi-

Finally, companies object utility statement,

cally preamble regulations, power that a three-boiler

these with

plant typical example is a a source Where

major independent facilities.102 water, can utilize plants

multi-boiler shared facilities,

cooling, and is certain- other there scale,

ly regula- and EPA’s economy of industry certainty

tion reduce the pass future boiler construction will review. But EPA balanced this inter-

PSD against danger grandfathering

est multiple preempt units

for boiler would pollution

available increment into the fu- support legislative

ture. There giving for

history this adverse treatment units; multiple

construction boiler most Report Committee stated that

Senate multiple utility

contracts construction statutory

boiler units not meet the stan- do

dard “commenced construction.”103 utility boil-

Therefore EPA’s treatment of

ers is not an of discretion. abuse 26,396 26,388, 26,396 26,388, Fed.Reg. (1978). (1978). See Fed.Reg. See n.6

101. See International Harvester Co. S.Rep.No. 127, Cong., Ruckel 95th 1st Sess. shaus, (D.C.Cir.1973). 478 F.2d 632 & n.51 *2 GREEN,

JUNE L. Judge: District The issue in this ease is whether correctly District Court held that appel- lants’ failure to exhaust their contractual remedies bars consideration of this suit. below, For reasons stated we answer in the affirmative.

I. Appellant Joseph Mackin, a Revenue Agent in the Internal Revenue Service (IRS) Office, Philadelphia District received reprimand a written for failing report a bribery attempt. response, Mr. Mackin union, the appellant the National Trea- sury Employees (the Union) Union filed simultaneously lawsuit. grievance sought of removal the let- person- ter of from Mr. Mackin’s file, nel because employee who Horwitz, Murray Atty., Dept, S. Jus- originally interrogated recorded C., tice, Washington, D. with M. whom Carr giving any their conversation without Mi- Gen., Ferguson, Silbert, Atty. Asst. Earl J. -like warnings randa or allegedly assurances C., Atty., Washington, U. D. S. at the time by 634.32(1) 634.5(2) required of the §§ filed, the brief was and Crombie D. J. Gar- Internal Revenue Manual.1 The rett, Justice, Atty., Dept, Washington, D. alia, inter alleged, violation of Article C., brief, appellees. were on for 1(e) § Multi-District Myron Baum, Atty., Justice, C. Dept, of (Agreement) between the IRS and the Un- Washington, C., appear- D. also entered an ion, which bargaining states that “No unit appellees. ance for (sic) employer be the will of a disci- plinary action which reasons Persina, William E. Associate Coun- Gen. promote the efficiency of the service.” sel, C., Washington, D. with whom Robert Mr. Mackin requested agreed and the IRS Tobias, Counsel, M. Gen. Treasury Steps to waive and 2 Union, C., Employees Washington, D. was procedure. Step A meeting was held brief, on for appellants. counsel, between Mackin and his Philadelphia Chief District Collec- BAZELON, Before Senior Judge, Circuit tions Division. At this meeting, TAMM, Judge, Circuit L. JUNE argued that the IRS failed to follow its GREEN,* Judge U.S. District for the Dis procedures improper and had used tactics trict of Columbia. by obtaining information from Mr. Mackin issuing warnings without or assurances. Opinion for by the court filed grievance, The IRS Chief denied the ruling Judge JUNE L. GREEN. that Mr. Mackin properly given a writ- Dissenting opinion filed Circuit Senior failing report ap- ten an Judge BAZELON. parent bribe.

* Sitting designation pursuant (employee suspect non-employ- to 28 U.S.C. or 292(a) (1976). ee) investigation prosecu- of a criminal anticipated. 635.5(2) requires tion is Section 1. The Internal Revenue Manual is the instruc- right non-prosecu- assurances of to silence and inspectors tional handbook for of the Internal tion where it been has ascertained Security 634.32(1) Division of the IRS. Section employee prosecuted. will not be requires warnings Miranda -like to be filed, 4 and the IRS notice that such although Step put on meth- appeal was No would not be District Director was ods tolerated. hearing Step days adverse available within The general requiring rule ex adverse, were also Mr. Step 3 decision. remedies ap haustion requested arbitration. Mackin could have plicable labor-management disputes *3 of the Inter- alleged The violation lawsuit where the issue is to a contractual above, sought cited nal Revenue sections procedure. grievance and arbitration Re from the in- of the initial destruction Maddox, public Steel v. 379 U.S. 85 of the of the terrogation, prohibition use 580 L.Ed.2d This rule from the gleaned information where, here, applies the issue involves Mackin, Mr. any proceeding against in and employer’s alleged regula violations of the that should declaratory order grievance tions which to the are obey regulations at issue. procedure. Portney, Weitzel F.2d (4th 1977).2 summary judg- Upon cross-motions ment, juris- declared that the District Court argument that Appellants’ violations pursuant diction to 28 U.S.C. 1331 existed § of the Revenue Manual alleged Internal alleged agency regu- violation of independent separate here create a and issue, lations at but that could not be by the cause of action is foreclosed failure Mr. Mackin had properly invoked since attempt exhaustion of the contractual grievance. his pursue failed Portney, supra, remedies. Weitzel v. II. The decision of the District Court Agreement clearly The Affirmed. with the he provided Mr. Mackin relief sought grievance in his and lawsuit. both BAZELON, Judge, Circuit Senior dissent- Article states that arbitrator’s 33 6.C§ ing: jurisdiction are “confined ex and 17, 1978, February On filed a clusively validity of the to the seeking view, grievance lawsuit “validity” action.” our the word for Mr. Mackin’s failure to encompasses procedural irregularity al report a bribe Because I believe that Indeed, offer. leged argued appellant here. so district Further, inappropriately held that grievance. prac in his there is no judicial the exhaustion doctrine bars consid- sought tical the relief in difference between eration, I would reverse. appel lawsuit. While tape, lants of the such sought destruction unlikely. highly

relief would be Even in I. cases, criminal exclusion of tainted evi In an era dominated the activities of dence, destruction, is the rule. Fed.R. agencies, it is understanda- Miller, 41(f); Wright Federal Crim.P. fit to require ble courts have seen (1978 Supp.). Practice Procedure § litigants to exhaust administrative remedies seeking judicial existed relief.1 The bounds Contractual remedies to afford doctrine, however, hardly in appellant the relief he court: Mr. of set- cleared, result, have been As each case must Mackin’s record could tled.2 be con- Appellants’ argument (1969); League the definition of L.Ed.2d 194 Latin “grievance” Hampton, 2 of the in Article 35 American Citizens v. remedying (D.C.Cir.1974). violations of the Internal excludes Manual is undermined their con- Revenue contesting very duct in on these One commentator observed “[e]ven grounds hearing. at the though in terms of courts seldom talk require require discretion to or not to exhaus- See, g., v. United e. McKart tion, reality often is that the determinations 185. 193-94. 89 S.Ct. 1657. 1662-1663. 23 light its taped, being sidered on own terms nor that he investigated. was generating considerations exhaustion Nor rights prior was he advised of his requirement. requires a fuller review investigation.6 Mackin received notice of apparent majori- than is in the case rights only his later when he was inter- ty’s opinion. viewed ultimately three more times. He following parties dispute The do not reprimand, lodged an official 16, 1977, November facts:3 On defendant personnel his file. appellant join asked Mackin to Small February On Mackin and his in the for coffee cafeteria the Internal union both the filed instant suit and a (IRS), Revenue Service pursuant Article 35 of the coffee, employed. both were Over Small Agreement” (MDA), “Multi-District the col- asked Mackin if he had ever been offered or agreement lective bargaining negotiated conversation, accepted bribes.4 includ- between the IRS and the union. ing responses, was taped by Mackin’s *4 agreement 4-step grievance establishes pursuant electronic device obtained to rele- regulations.5 binding Mackin and conditions for arbi- vant IRS was not ad- vised the being that sought conversation was tration.7 Mackin relief under the Davis, highly discretionary.” stop any questioning are K. stop Adminis- to at time or to questioning Law of the purpose trative Seventies 446 consulting lawyer. may you waive the However— Issue, 3. Defendants’ Statement Facts Not in right your right to advice of counsel and to 35-39; reprinted (J.A.) Appendix in Joint at silent, you may questions remain and answer Plaintiffs’ Statement of Facts as to Which consulting or make statement without Issue, Appel- There is No Genuine J.A. 41-45. lawyer you if so desire.” Mackin, Joseph employee, lants are an IRS and 634.5(2) provides: Section unit, bargaining Treasury Employ- his employee When it is ascertained that the will Appellees ees Union. are the Commission- prosecuted, necessary prior not be it will be employees. er and other IRS four questioning employee to to advise the as fol- questions lows: are “You here to be asked employee 4. An IRS has “who reasonable pertaining your employment to with the In- grounds believing attempt that an to bribe ternal Revenue Service and duties that duty” him has or will be made ahas to immedi- you perform op- for the IRS. You have the ately report the matter and submit a memoran- silent, although you may tion to remain be stating dum the circumstances. Internal Reve- subject your employment by to removal from nue 0735.1 Manual Section 217.3. you if the Service fail to answer material and questions relating perform- relevant to the Diez, Security Affidavit John H. Internal your employee. ance of duties as an You Division, IRS, regul J.A. 26-29. The relevant you may a further advised that the answers 10(111), tion is Internal Revenue Manual Sec give questions propounded you (“Consensual to the to at Non-Telephone tion 652.22 Moni interview, any toring”). this or information or evi- gained by your dence which is reason of 10(111), answers, may Internal Revenue against you Manual Section not be used in a provides: 634.32(1) prosecution any criminal false answer any you may give.” questioning subject Prior to pect of a or sus- investigation, prose- of a criminal Step place employee’s 1 takes before the anticipated (employee cution is the individual Group Manager; step appeal non-employee) is an to the or will be advised as follows: Chief; step appeal Branch you 3 is an to any questions, the Divi- my “Before we ask it is Chief; step appeal sion duty you and your rights. 4 is an advise to You have right District Director. (MDA), Anything you say Multi-District to remain silent. court, against you can used Art. section J.A. 165-66. be Ad- or other proceedings. step appealed right verse decisions 4 can be You have to to consult binding attorney making any they an answering any arbitration under Article 36 if statement or specific question, you may interpretations appli- “concern and/or present you during MDA, questioning. with cations of the terms” of the MDA. Art. may attorney 8(A), appointed by You have an section J.A. 167. Other decisions can Magistrate represent appealed you only advisory or to to the court arbitration for an you decision, if cannot afford or otherwise obtain one. “insofar as the mat- you questions regulation negoti- decide to answer now ter of with would be [the relevant] lawyer, you MDA, right 8(B), without a still have the able.” Art. section J.A. 167. bargaining person- letter from Mackin’s that “no agreement’s provision (sic) majority of a file. The notes that if the employer will be nel unit arbitration, which pursued for reasons were disciplinary action efficiency jurisdiction the service” promote arbitrator’s “ 8 Mackin re- provisions. exclusively two other ‘confined to the va- would be ”12 written quested “removal of action.’ In lidity As the employee’s personnel court, folder.” appellants sought enjoin further recounts, pursue majority Mackin failed to any of the four interviews with Mac- use step. There grievance beyond this the third compel kin and to destruction of offend- ruling, which the an adverse ing tape. Only superficially he obtained do these re- by reasoning, “I re- justified sought division chief quests resemble the relief Mr. Mackin exercised main convinced that aim of is to grievance: ultimate both reporting appar- judgment by not poor consequences protect Mackin from further bribery attempt.” began ent from the without scope notice to him. The suit, appellants claimed concerning the materials tape-recorded interview November 16 Furthermore, qualities.13 fact has broader in violation of an of Mackin was obtained requested also the district court provision. The Revenue Manual Internal warnings to declare that must be investigators to advise a provision requires suspects investigations of criminal even suspect rights prior of his subject or *5 investigators duly when the obtained relief, appellants As asked questioning.9 approval monitoring. official for electronic 1) enjoin using agency the court to the from This involves construction of the simulta- tape-recorded interview the November 16 effect neous of two Internal Revenue offi- discharging “as the basis for or otherwise times, procedures merely cial for all not the Mackin”; 2) disciplining Mr. order destruc- validity particular reprimand. of a letter of interview; 3) tape-recorded tion of that en- procedures codify As the themselves Fourth join using any agency the information requirements, interpreta- Amendment subsequent obtained from the three inter- legal tive task is a one. Mackin; 4) views declare that agents suspects must advise of their majority argues The rights monitoring or electronically have obtained the same relief under the recording investigatory questioning.10 tape grievance procedure because “Mr. Mackin’s cleared, record could have been and the IRS

II. put on notice that such methods of investi- The relief majority gation asserts would not be tolerated.”14 This ar- forum, gument unduly judicial was available in either shrinks claims I agree. might was in fact identical.11 cannot As and stretches the benefits that arise above, through proce- noted grievance from removal of the letter. In- dure, appellants merely sought adequacy removal of of administrative relief is a well- MDA, 1(C), majority suggests Art. section J.A. 161. Mac- 13. The that because it is not successful, likely request kin’s also cites articles 3 and to be for destruc- anywhere ignored purposes which are not discussed else in the tion of the can be considering Majority Op. record. exhaustion. speculative reasoning is and un- 413. This supra. Moreover, helpful. appellants certainly could request agency succeed their further that the Relief, Complaint Injunctive Civil Action enjoined from further use of the information 78-0284, J.A. 4-11. by any obtained of its interviews with Mackin. Majority Op. at 413. Majority Op. at 413. MDA, 6(C). (citing 12. Id. at 4 Art. section point The relevance of this is less certain than majority p. assumes. See 416 infra.

accepted exception to the exhaustion re- action is evaluated grievance pro- under the terms, cedure in its own narrow light not in quirement.15 grievant’s of defenses external own majority ignores also a factual dis- conduct. The district chief who denied the pute unresolved in the Appellants record. grievance explained that the disputed ability grievance procedure appropriate poor because “Mackin exercised respond to their collateral as the defense judgment by reporting apparent not challenge The district reprimand.16 bribery attempt.” As the breadth of the wrongly granted summary judgment permissible inquiry under dispute, in the face majority of this unresolved, procedure remains I dissent compounds by taking judicial here the error from this court’s affirmance of the district majority notice to resolve the issue. The summary judgment. court’s assumes that the relevant authorization is arbitrator’s, that of the not but clear pursued this could ever be III. scope of administrative* arbitration.17 doctrine, essentially prudential As an four-step grievance pro-

review within the requirement exhaustion retains coherence Acknowledg- cedure remains ambiguous.18 long application as its advances its ing that the arbitrator would be restricted underlying purposes. application Its to this considering “the validity discipli- case fails on this score. action,” nary majority reasons that “[i]n discussed, view, already As has our been this is not ‘validity’ encompasses word a case in which the procedural irregularity alleged might provide here.”19 judicial wrong The court is thereby to draw on its view of requested,22 repeatedly by appellants. an issue contested eliminate the need for considera- Further, Its view cannot tion. merely be defended this case does involve grounds that appellants lodged griev- discretionary powers the “exercise of grant- ance.20 The clearest evidence agency by Congress.”23 on the issue ed the Nor does it *6 “validity” indicates that of disciplinary require application special of the IRS’s ex- See, 1186, g., Lynn, 15. e. Wallace v. 507 F.2d not been resolved where a federal officer con- (D.C.Cir.1974), Ray Fritz, ability 468 F.2d 586 ducted the search. The of decisionmak- (2d 1972) curiam). (per ing Cir. See also n.28 infra. procedure under the contract develop approach this case to for an em- Opposition Supple- 16. Plaintiffs to Defendants’ ployee’s grievance is not established in the rec- Respect mental Memorandum with to Issue of ord. Remedies, Failure to Pursue Contract J.A. 138- 48. Majority Op. 19. at 413. supra, n.26 infra. Appellants’ 20. See id. at 413 n.2. mere re- 33, 4(a) 18. Section of Article MDA states quest through grievance proce- for relief employee against “[a]n whom a dure cannot confer on the finally may appeal action has been taken may that it not have. any by applicable decision on basis allowed regulations.” provi- laws and J.A. 161. This Kurtz, IRS Memorandum to James W. Un- clarify sion does not whether a un- Steward, Chief, ion from Collection Division regulation may collaterally der one be attacked 21, (March 1978) (denying grievance at third by establishing agency violation of an- step), J.A. 121. regulation. approach, premise other action, appellants’ depends upon possi- 22. See n.28 infra. bility exclusionary non-criminal, of an rule in a majority’s question reliance on Weitzel administrative v. Port- context —a unsettled in ney, (4th 1977), Janis, misguided, the courts. In United is States v. 428 U.S 433, 3021, term, (1976), as that case 49 L.Ed.2d 1046 involved a contract not Supreme agency regulation. Court refused to introduce the violation of an exclu- sionary proceeding rule in federal civil tax 185, 23. See illegal McKart v. United where the search was conducted 194, officer; 89 S.Ct. state law L.Ed.2d 194 enforcement the issue has value Finally, pertise or discretion.24 in- the first agency, in letting the KENNEDY FOR PRESIDENT bearing COMMITTEE, Petitioner, stance, has little develop a record only in here, arises

where, judicial review as action. It independent of a suit COM FEDERAL COMMUNICATIONS could be whether this not clear States of MISSION United binding arbitration.26 appealed America, Respondents, be, might well not judicial review not available; procedure is the Inc., Broadcasting Companies, American by the Multi- prescribed, exclusive avenue Inc., Broadcasting Com CBS de- Agreement. And arbitrated District Broadcasting pany, Inc., and Public Ser only to the Federal appealed cision can be vice, Intervenors. courts; Council, not Labor Relations case, any is limited.27 such review No. 80-1482. agency’s record development of facts Appeals, judicial re- Court of form the basis for States would not Circuit. Columbia view. Thus, exceptions surprising it is not 30, Argued May compel- requirement are to the exhaustion May Decided ling in this case. Judicial consideration here, where, seek- Opinion Aug. should not be barred ing appears futile succeed,28 purely

unlikely to or the issue law,29 exercising ad- construing

one of foregoing For the

ministrative discretion.

reasons, I dissent. (Jan. 1980) (to Fed.Reg. 27. See 45 3513-4

24. See id. 2425.3) (grounds be codified at 5 C.F.R. opinion 25. See The McKart also mentioned review). id. goal avoiding “premature interruption process.” Id. at the administrative *7 Employ See American Federation of Gov’t goal has little to recom S.Ct. at 1662. This Acree, 1289, (D.C.Cir. ees v. 475 F.2d 1291 it, however, mend where the administrative 636, Ansell, (2d 1973); 477 F.2d 637 Goetz process unlikely produce sought. the relief 1973). exception futility Cir. is a natu 595, Baker, (2d g., Plano v. 504 F.2d 598 E. counterpart ral to the exhaustion doctrine’s 1974); Employ American Federation Gov’t allowing purpose of an “to correct its Aeree, 1289, (D.C.Cir. 1292 ees v. so as to moot controver own errors 1973). Davidson, 37, 34, 405 U.S. sies.” Parisi (1972). S.Ct. L.Ed.2d ap- supra. concerns thus, plication employer procedure; arbi- States, 479, 29. See McGee v. United 402 U.S. apply if the tration would 1565, (1971); 29 L.Ed.2d 47 McKart v. S.Ct. negotiable. Appellants assert that it is be- 185, 197-99, 395 U.S. 89 S.Ct. security practices, with internal cause deals 1657, 1664-1665, (1969); 23 L.Ed.2d Con nonnegotiable deemed executive order. Living sumers Union of United States v. Cost of Opposition Supple- Plaintiffs’ to Defendants’ Council, (TECA), Em.App., 491 F.2d 1396 cert. Respect mental Memorandum with Issue of denied, nom. Roundtable v. Con sub Business Remedies, Failure to Pursue Contract J.A. Inc., S.,U. 416 U.S.- sumers Union of 11(b), (citing amended). E.O. 40 L.Ed.2d apparently ignored This was the district court.