SAMPSON, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, ET AL. v. MURRAY
No. 72-403
Supreme Court of the United States
Argued November 14, 1973—Decided February 19, 1974
415 U.S. 61
Keith A. Jones argued the cause for petitioners. With him on the briefs were Solicitor General Bork, Assistant Attorney General Wood, Acting Assistant Attorney General Jaffe, Samuel Huntington, and Walter H. Fleischer.
Thomas J. McGrew argued the cause for respondent pro hac vice. With him on the brief was James A. Dobkin.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent is a probationary employee in the Public Buildings Service of the General Services Administration (GSA). In May 1971, approximately four months
A divided Court of Appeals for the District of Columbia Circuit affirmed,1 rejecting the Government‘s contention that the District Court had no authority whatever to grant temporary injunctive relief in this class of cases, and holding that the relief granted by the District Court in this particular case was within the permissible bounds of its discretion. We granted certiorari, sub nom. Kunzig v. Murray, 410 U. S. 981 (1973). We agree with the Court of Appeals that the District Court is not totally without authority to grant intеrim injunctive relief to a discharged Government employee, but conclude that, judged by the standards which we hold must govern the issuance of such relief, the issuance of the temporary injunctive relief by the District Court in this case cannot be sustained.
I
Respondent was hired as a program analyst by the Public Buildings Service after previous employment in the Defense Intelligence Agency. Under the regulations
The procedural protections which the regulations accord to most dismissed probationary employees are limited. Commonly a Government agency may dismiss a probationary employee found unqualified for continued employment simply “by notifying him in writing as to why he is being separated and the effective date of the action.”4 More elaborate procedures are specified when the ground for terminating a probationary employee is “for conditions arising before appointment.”5 In such cases the regulations require that the employee receive “an advance written notice stating the reasons, specifically and in detail, for the proposed action“; that the employee be given an opportunity to respond in writing and to furnish affidavits in support of his response; that the agency “consider” any answer filed by the employee in reaching its decision; and that the employee be notified of the agency‘s decision at the earliest practicable date.6 Respondent contends that her termina-
The letter which respondent received from the Acting Commissioner, notifying her of the date of her discharge, stated that the reason for her discharge was her “complete unwillingness to follow office procedure and to accept direction from [her] supervisors.” After receipt of the letter, respondent‘s counsel met with a GSA personnel officer to discuss her situation and, in the course of the meeting, was shown a memorandum prepared by an officer of the Public Buildings Service upon which Sanders apparently based his decision to terminate respondent‘s employment. The memorandum contained both a discussion of respоndent‘s conduct in her job with the Public Buildings Service and a discussion of her conduct during her previous employment at the Defense
Respondent then filed an administrative appeal with the Civil Service Commission pursuant to the provisions of
At the hearing on the temporary injunction, the District Court expressed its desire to hear the testimony of Sanders in person, and refused to resolve the controversy on the basis of his affidavit which the Government offered to furnish. When the Government declined
On the Government‘s appeal to the Court of Appeals for the District of Columbia Circuit, the order of the District Court was affirmed. Although recognizing that “Congress presumably could remove the jurisdiction of the District Courts to grant such equitable interim relief, in light of the remedies available,”9 the court found that the District Court had the power to grant relief in the absence of an explicit prohibition from Congress. The Court of Appeals decided that the District Court acted within the bounds of permissible discretion in requiring Sanders to appear and testify,10 and in continuing the temporary injunctive relief until he was produced as a witness by the Government.
While it would doubtless be intellectually neater to completely separate the question whether a District Court has authority to issue any temporary injunctive relief at the behest of a discharged Government employee from the question whether the relief granted in this case was proper, we do not believe the questions may be thus bifurcated into two watertight compartments. We believe the basis for our decision can best be illuminated by taking up the various arguments which the parties urge upon us.
Petitioners point out, and the Court of Appeals below apparently recognized, that Congress has given the District Courts no express statutory authorization to issue temporary “stays” in Civil Service cases. Although Congress has often specifically conferred such authority when it so desired—for example, in the enabling statutes establishing the NLRB,11 the FTC,12 the FPC,13 and the SEC14—the statutes governing the Civil Service Commission are silent on the question.15 The rules and regu-
The Court of Appeals nevertheless found that the district courts had traditional power to grant stays in such personnel cases. Commenting upon the Government‘s arguments for reversal below, the court stated:
“It is asserted that the Civil Service Commission has been given exclusive review jurisdiction. But, as noted initially, there is no statutory power in the Civil Service Commission to grant a temporary stay of discharge. Prior to the Civil Service Act a United States District Court would certainly have had jurisdiction and power to grant such temporary relief. The statute did not explicitly take it away, nor impliсitly by conferring such jurisdiction and power on the CSC; we hold the District Court still has jurisdiction and may exercise the power under established standards in appropriate circumstances.”16
If the issue were to turn solely on the earlier decisions of this Court examining the authority of federal courts to intervene in disputes about governmental employment, we think this assumption of the Court of Appeals is wrong. In Keim v. United States, 177 U. S. 290 (1900), this Court held that the Court of Claims had no author-ity to award damages to an employee who claimed he
Respondent‘s case, then, must succeed, if at all, despite earlier established principles regarding equitable intervention in disputes over tenure of governmental employees, and not because of them. Much water has flowed over the dam since 1898, and cases such as Service v. Dulles, 354 U. S. 363 (1957), cited by the District Court in its memorandum opinion in this case, establish that federal courts do have authority to review the claim of a discharged governmental employee that the agency effectuating the discharge has not followed administrative regulations.22 In that case, however, judicial pro-
The Court of Appeals found support for its affirmance of the District Court‘s grant of injunctive relief in Scripps-Howard Radio v. FCC, 316 U. S. 4 (1942). In Scripps-Howard the licensee of a Cincinnati radio station petitioned the FCC to vacate an order permitting a Columbus radio station to change its frequency and to increase its broadcasting power. The licensee also requested a hearing. When the Commission denied the petition, the licensee filed a statutory appeal in the Court of Appeals for the District of Columbia and, in conjunction with the docketing of the appeal, asked the court to stay the FCC order pending its decision. The Court of Appeals, apparently departing from a longstanding policy of issuing such stays,24 declined to do so in this case and ultimately certified the question of its power to this Court.25
“It has always been held, therefore, that as part of its traditional equipment for the administration of justice,[*] a federal court can stay the enforcement of a judgment pending the outcome of an appeal.”26
But in Scripps-Howard the losing party before the agency sought an interim stay of final agency action pending statutory judicial review.27 A long progression of cases in this Court had established the authority of a court, empowered by statute to exercise appellate jurisdiction, to issue appropriate writs in aid of that jurisdiction.28 The All Writs Act, first enacted as a part of the Judiciary Act of 1789, provided statutory confirmation of this
Scripps-Howard, supra, of course, is not the instant case. The authority of the District Court to review agency action under Service v. Dulles, supra, does not come into play until it may be authoritatively said that the administrative decision to discharge an employee does in fact fail to conform to applicable regulations.30 Until administrative action has become final, no court is in a position to say that such action did or did not conform to applicable regulations. Here respondent had obtained no administrative determination of her appeal at the time she brought the action in the District Court. She was in effect asking that court to grant her, on an interim basis, relief which the administrative agency charged with review of her employer‘s action could grant her only after it had made a determination on the merits.
While both the District Court and the Court of Appeals characterized the District Court‘s intervention as a “stay,” the mandatory retention of respondent in the position from which she was dismissed actually served to provide the most extensive relief which she might conceivably obtain from the agency after its review on the merits. It may well be that the Civil Service Commission, should it have agreed with respondent‘s version of the basis for her dismissal, would prohibit the final
The Court in Scripps-Howard recognized that certain forms of equitable relief could not properly be granted by federal courts. The Court specifically contrasted the stay of a license grant and the stay of a license denial, finding that the latter would have no effect:
“Of course, no court can grant an applicant an authorization which the Commission has refused.
No order that the Court of Appeals could make would enable an applicant to go on the air when the Commission has denied him a license to do so. A stay of an order denying an application would in the nature of things stay nothing. It could not operate as an affirmative authorization of that which the Commission has refused to authorize.”32
Surely that conclusion would not vary depending upon whether the radio station had started broadcasting on its own initiative and sought to stay a Commission order directing it to cease. Yet here the District Court did authorize, on an interim basis, relief which the Civil Service Commission had neither considered nor authorized—the mandatory reinstatement of respondent in her Government position. We are satisfied that Scripps-Howard, involving as it did the traditional authority of reviewing courts to grant stays, provides scant support for the injunction issued here.
The Court of Appeals also relied upon FTC v. Dean Foods Co., 384 U. S. 597 (1966), in reaching its decision. There a closely divided Court held thаt a Court of Appeals having ultimate jurisdiction to review orders of the Federal Trade Commission might, upon the Commission‘s application,33 grant a
Neither the reviewing jurisdiction of the Civil Service Commission nor that of the District Court would be similarly frustrated by a decision of the District Court remitting respondent to her administrative remedy. Certainly the Civil Service Commission will be able to weigh respondent‘s contentions and to order necessary relief without the aid of the District Court injunction. In direct contrast to the claim of the FTC in Dean Foods that its jurisdiction would be effectively defeated by
We are therefore unpersuaded that the temporary injunction granted by the District Court in this case was justified either by our priоr decisions dealing with the availability of injunctive relief to discharged federal employees, or by those dealing with the authority of reviewing courts to grant temporary stays or injunctions pending full appellate review. If the order of the District Court in this case is to be upheld, the authority must be found elsewhere.
III
This Court observed in Scripps-Howard that “[t]he search for significance in the silence of Congress is too often the pursuit of a mirage,” 316 U. S., at 11, and this observation carries particular force when a statutory scheme grants broad regulatory latitude to an administrative agency. In Scripps-Howard a careful review of the relevant statutory provisions and legislative history persuaded this Court that Congress had not intended to nullify the power of an appellate court,37 having assumed jurisdiction after an agency decision, to issue stays in aid of its jurisdiction. The Court noted, in
“The more plausible inference is that Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be
out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction.”41
The overall scheme governing employees of the Federal Government falls neatly within neither of these precedents. Unlike Scripps-Howard, traditional stay practice lends little support to the sort of relief which the District Court granted respondent here, and the precedents dealing with the availability of equitable relief to discharged Government employees are quite unfavorable to respondent. Unlike Arrow Transportation, supra, the administrative structure is far more a creature of agency regulations than of statute. We are thus not prepared to conclude that Congress in this class of cases has wholly divested the district courts of their customary authority to grant temporary injunctive relief, and to that extent we agree with the Court of Appeals. But merely because the factors relied upon by the Government do not establish that the district courts are wholly bereft of the authority claimed for them here does not mean, as the Court of Appeals appeared to believe, that temporary injunctive relief in this class of cases is to be dispensed without regard to those factors. While considerations similar to those found sufficient in Arrow Transportation to totally deprive the district courts of equitable authority do not have that force here, they nonetheless are entitled to great weight in thе equitable balancing process which attends the grant of injunctive relief.
We are dealing in this case not with a permanent Government employee, a class for which Congress has specified certain substantive and procedural protections,42 but with a probationary employee, a class which Con-
“The President may prescribe rules, which shall provide, as nearly as conditions of good administration warrant, that there shall be a period of probation before an appointment in the competitive service becomes absolute.”
It is also clear from other provisions in the Civil Service statutory framework that Congress expected probationary employees to have fewer procedural rights than permanent employees in the competitive service. For example, preference eligibles,44 commonly veterans, are entitled to hearing procedures extended to persons in the competitive service only after they have completed “a probationary or trial period.”45 Persons suspended for national security reasons are given expanded protection provided they have completed a trial or probationary period.46
The Civil Service regulations are consistent with these statutes. These regulations are promulgated by the Civil Service Commission as authorized by Congress in
Congress has also provided a broad remedy for cases of improper suspension or dismissal. The Back Pay Act of 194851 supplemented the basic Lloyd-LaFollette Act
As we have noted, respondent‘s only substantive claim, either before the District Court or in her аdministrative appeal, was that petitioners had violated the regulations promulgated by the Civil Service Commission. Those same regulations provided for an appeal to the agency which promulgated the regulations and further provided that until that appeal had been heard on the merits, the employer‘s discharge of the employee was to remain in effect. Respondent, however, sought judicial intervention before fully utilizing the administrative scheme.
The District Court, exercising its equitable powers, is bound to give serious weight to the obviously disruptive effect which the grant of the temporary relief awarded here was likely to have on the administrative process. When we couple with this consideration the historical denial of all equitable relief by the federal courts in cases such as White v. Berry, 171 U. S. 366 (1898), the well-established rule that the Government has traditionally been granted the widest latitude in the “dispatch of its own internal affairs,” Cafeteria Workers v. McElroy, 367 U. S. 886, 896 (1961), and the traditional unwillingness of courts of equity to enforce contracts for personal service either at the behest of the employer or of the employee, 5A A. Corbin, Contracts § 1204 (1964), we think that the Court of Appeals was quite wrong in routinely applying to this case the traditional
IV
The Court of Appeals said in its opinion:
“Without passing on the merits of Mrs. Murray‘s contention that she will suffer irreparable harm if the sought-for-relief is not granted (a task for the District Court here), we note that there was a determination that such a loss of employment could be ‘irreparable harm’ in Reeber v. Rossell (1950), a case quite similar to that at bar. We agree with the Reeber court that such a loss of employment can amount to irreparable harm, and that injunctive relief may be a proper remedy pending the final administrative determination of the validity of the discharge by the Civil Service Commission.”54
“As the District Court here felt that the hearing on the motion for the preliminary injunction could not be completed until Mr. Sanders was produced to testify, it was proper for him to continue the stay, in order to preserve the status quo pending the completion of the hearing.”55
The court in its supplemental opinion filed after the Government‘s petition for rehearing further expanded its view of this aspect of the case:
“The court‘s opinion does not hold, and the trial judge has not yet held, that interim relief is proper in Mrs. Murray‘s case, but we do hold that the trial judge may consider granting such relief, as this is inherent in his historical equitable role.”56
In form the order entered by the District Court now before us is a continuation of the temporary restraining order originally issued by that court.57 It is clear from the Court of Appeals’ opinion that that court so construed it. But since the order finally settled upon by the District Court wаs in no way limited in time, the provisions of
“(b) A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before
The Court of Appeals whose judgment we are reviewing has held that a temporary restraining order continued beyond the time permissible under
We believe that the Court of Appeals was quite wrong in suggesting that at this stage of the proceeding the District Court need not have concluded that there was actually irreparable injury.59 This Court has stated that “[t]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies,” Beacon Theatres, Inc. v. Westover, 359 U. S. 500, 506-507 (1959), and the Court of Appeals itself in Virginia Petroleum Jobbers Assn. v. FPC, 104 U. S. App. D. C. 106, 259 F. 2d 921 (1958), has recognized as much. Yet the record before us indicates that no witnesses were heard on the issue of irreparable injury, that respondent‘s complaint was not verified, and that the affidavit she submitted to the District Court did not touch in any way upon considerations relevant to irreparable injury.60 We are therefore somewhat puzzled
“The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.”65
This premise is fortified by the Back Pay Act discussed above.66 This Act not only affords monetary relief which will prevent the loss of earnings on a periodic basis from being “irreparable injury” in this type of case, but
“[It] . . . provides that an agency or department of the Government may remove any employee at any time, but that the employee shall then have a right of appeal. When he is removed, he is of course off the pay roll. If he wins the appeal, it is provided that he shall be paid for the time during which he was suspended.”67
Respondent‘s complaint also alleges, as a basis for relief, the humiliation and damage to her reputation which may ensue. As a matter of first impression it would seem that no significant loss of reputation would be inflicted by procedural irregularities in effectuating respondent‘s discharge, and that whatever damage might occur would be fully corrected by an administrative determination requiring the agency to conform to the applicable regulations. Respondent‘s claim here is not that she could not as a matter of statutory or administrative right be discharged, but only that she was entitled to additional procedural safeguards in effectuating the discharge.
Assuming for the purpose of discussion that respondent had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think the showing falls far short of the type of irreparable injury which is a necessary predicate to the
It is so ordered.
MR. JUSTICE DOUGLAS, dissenting.
I think with all respect that while the narrow isolated issue involved in this litigation is exposed in the opinion of the Court the nature of the problem is not.
Respondent, a probationary employеe, claims that her discharge was not based exclusively on her work as a probationary employee. If it were based on her work as a probationary employee, the procedure is quite summary and her right of appeal to the Civil Service Commission is limited to only a few grounds such as discrimination based on race, color, religion, sex, or national origin,
The Congress in 1966 provided that all wrongfully discharged federal employees, including probationary employees are entitled to backpay,
But where an agency has terminated employment and the employee appeals to the Civil Service Commission, the Commission has no power to issue a stay of the agency‘s action. This is, therefore, not a case where the employee has gone to the courts for relief which the Commission could have granted but refused to do so. Nor is respondent challenging the Civil Service law; nor is she asking for a ruling on the merits of her claim; nor did the District Court, whose judgment was affirmed by the Court of Appeals, act in derogation of the administrative process. Rather, it protected that process by staying the discharge until the Commission had ruled on the appeal.
The power to issue a stay is inherent in judicial power and as indicated by the Court rests on the exercise of an informed discretion on a showing of irreparable injury to the applicant or to the public interest, Scripps-Howard Radio v. FCC, 316 U. S. 4, 14. That doctrine is not limited, as the Department of Justice suggests, to issuance of stays by a court only after an appeal has been taken. We held in FTC v. Dean Foods Co., 384 U. S. 597, 603-604, that the All Writs Act,
We have, therefore, a case where a stay supplements and does not curtail administrative power, the Commission having no authority to grant that relief. The District Court power preserves the status quo, does not pass on the merits of the controversy, and limits its stay to the date when the merits of the discharge are adjudicated by the Commission. I agree with the Court that that order was appealable.
A point is made that respondent has not shown irreparable injury. That misstates the issue. The District Court issued a stay pending a hearing on whether a temporary injunction should issue. The hearing, if held, would encompass two issues: (1) whether the grounds for respondent‘s discharge antedated her present employment (see 149 U. S. App. D. C. 256, 269, 462 F. 2d 871, 884) and were not restricted to her record as a probationary employee;1 and (2) whether she would suffer irreparable injury. As stated by the Court of Appeals, respondent “may show . . . irreparable damage, if the hearing before Judge Gasch is allowed to proceed to a decision.” Id., at 269, 462 F. 2d, at 884. The stay was issued by the District Court only because the federal
On that issue there is more than meets the eye.
Employability is the greatest asset most people have. Once there is a discharge from a prestigious federal agency, dismissal may be a badge that bars the employee from other federal employment. The shadow of that discharge is cast over the area where private employment may be available. And the harm is not eliminated by the possibility of reinstatement, for in many cases the ultimate absolution never catches up with the stigma of the accusation. Thus the court in Schwartz v. Covington, 341 F. 2d 537, 538, issued a stay upon a finding of irreparable injury wherе a serviceman was to be discharged for alleged homosexual activity: “[A]ppellee has shown that he will suffer irreparable damage if the stay is not granted. Irrespective of the government‘s recent assurance that the appellee would be reinstated if he prevails upon review of his discharge, the injury and the stigma attached to an undesirable discharge are clear.” Unlike a layoff or discharge due to fortuitous circumstances such as the so-called energy crisis, a discharge on the basis of an employee‘s lifetime record or on the basis of captious or discriminatory attitudes of a superior may be a cross to carry the rest of an employee‘s life. And we cannot denigrate the importance of one‘s social standing or the status of social stigma as legally recognized harm. In Ah Kow v. Nuan, 5 Sawy. 552, the Circuit Court, speaking through Mr. Justice Field, held that a Chinese prisoner could recover damages from the sheriff who cut off his queue, the injury causing great mental anguish, disgrace
There is no frontier where the employee may go to get a new start. We live today in a society that is closely monitored. All of our important acts, our setbacks, the accusations made against us go into data banks and are instantly retrievable by the computer.2 An arrest goes into the data bank even though it turns out to be unconstitutional or based on mistaken identity. There is no federal procedure for erasing arrests. While they arise in 50 States as well as in the federal area, only a few States have procedures for erasing them; and that entails a long and laborious procedure.3 More-
The District Court and the Court of Appeals were well within the limits of the law in granting a stay so that the issue of irreparable injury might be determined. It hardly comports with any standard for the expenditure of judicial energies to spend our time trying to find error in the exercise of the lower court‘s discretion to protect federal employees by giving them at least a chance to prove irreparable injury.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN concurs, dissenting.
In my view no appealable order has been entered in this case, and both the Court of Appeals and this Court accordingly lack jurisdiction.
The orders issued by the District Court are both temporary restraining orders. The first, issued on May 28 and captioned “Temporary Restraining Order,” enjоined Mrs. Murray‘s dismissal until the determination of her application for an injunction. The second, issued on June 4 and also captioned “Temporary Restraining Order,” provides “that the Temporary Restraining Order issued by this Court at twelve o‘clock p. m., May 28, 1971, is continued until the appearance of the aforesaid W. H. Sanders.” At no time did the District Court indicate it was issuing anything but a temporary restraining order. During the hearing on the application for a preliminary injunction, after the court indicated
It is well settled that the grant or denial of a temporary restraining order is not appealable, except in extraordinary circumstances, not present here, where the denial of the temporary restraining order actually decides the merits of the case or is equivalent to a dismissal of the suit. See generally 11 C. Wright & A. Miller, Federal Practice & Procedure § 2962, pp. 616-617 (1973), and cases there cited.
The Court holds, however, that since the temporary restraining order was extended by the District Court beyond the time limitation imposed by
Nor would it make sense for this Court to review the District Court‘s order in this case as the grant of a preliminary injunction. Where the District Court has not entered findings of fact and conclusions of law under
It is suggested that if an indefinitely extended temporary restraining order remained unappealable, the District Court would have virtually unlimited authority over the parties in an injunctive action. At the outset, this cannot justify this Court‘s reaching the merits of Mrs. Murray‘s claim for a preliminary injunction. Even if the order entered by the District Court is appealable, it should be appealable only for the purposes of holding it invalid for failure to comply with
In addition, the Government had other courses it could have taken in this case. In view of the District Court‘s error in granting a restraining order of unlimited duration without complying with the requirements for a preliminary injunction, the Government could have moved the Distriсt Court to dissolve its order indefinitely continuing the temporary restraining order.
Here, instead, we find the Supreme Court determining that although the District Court had jurisdiction to grant injunctive relief, the equities of Mrs. Murray‘s case did not support a preliminary injunction, when neither the District Court nor the Court of Appeals has yet confronted the latter issue.2 I do not believe this makes for sound law.
Since the majority persists in considering the merits of Mrs. Murray‘s claim for injunctive relief, some additional comment is in order. I agree with the majority‘s conclusion that Congress did not divest federal courts of their long-exercised authority to issue temporary injunctive relief pending the exhaustion of both administrative and judicial review of an employee‘s claim of wrongful dismissal. I cannot accept, however, the way in which the majority opinion then proceeds to take away with the left hand what it has just given with the right, by precluding injunctive relief in all but so-called “extraordinary cases,” whatever they may be.
At the outset, I see no basis for applying any different standards for granting equitable relief in the context of a discharged probationary employee than the long-recognized principles of equity applied in all other situations. See Virginia Petroleum Jobbers Assn. v. FPC, 104 U. S. App. D. C. 106, 259 F. 2d 921 (1958). Indeed, it appears that the factors which the
However one articulates the standards for granting temporary injunctive relief, I take it to be well settled that a prerequisite for such relief is a demonstrated likelihood of irreparable injury for which there is no adequate legal remedy. But I cannot accept the majority‘s apparent holding, buried deep in a footnote, that because of the Back Pay Act, a temporary loss in income can never support a finding of irreparable injury, no matter how severely it may affect a particular individual. See ante, at 92 n. 68. Many employees may lack substantial savings, and a loss of income for more than a few weeks’ time might seriously impair their ability to provide themselves with the essentials of life—e. g., to buy food, meet mortgage or rent payments, or procure medical services. Cf. Goldberg v. Kelly, 397 U. S. 254, 264 (1970). Government emplоyees might have skills not readily marketable outside the Government, making it difficult for them to find temporary employment elsewhere to tide themselves over until the lawfulness of their dismissal is finally determined. In some instances, the likelihood of finding alternative employment may be further reduced by the presence on the employee‘s records of the very dismissal at issue. Moreover, few employers will be willing to hire and train a new employee knowing
The availability of a backpay award several years after a dismissal is scant justice for a Government employee who may have long since been evicted from his home and found himself forced to resort to public assistance in order to support his family. And it is little solace to those who are so injured to be told that their plight is “normal” and “routine.” Whether common or not, such consequences amount to irreparable injury which a court of equity has power to prevent.
Nor can I agree with the majority‘s analysis of Mrs. Murray‘s claim of damaged reputation. It is argued that Mrs. Murray can suffer no significant loss of reputation by procedural irregularities in effectuating her discharge beсause her claim is not that she could not as a matter of statutory or administrative right be discharged, but only that she was entitled to additional procedural safeguards in effectuating the discharge. Ante, at 91. In my view, this analysis not only reflects a total misunderstanding of the gist of Mrs. Murray‘s complaint, but also fails to comprehend the purposes behind the Civil Service Commission regulations at issue here.
The Commission provides a special pretermination procedure where a probationary employee is to be terminated “for conditions arising before appointment,” not as an empty gesture, but rather because the employing agency might be mistaken about these preappointment conditions, and might decide not to dismiss the employee
Whether the likelihood of irreparable injury to Mrs. Murray if she is not allowed to retain her job pending her administrative appeal, when balanced against the Government‘s interests in having her out of the office during this period, supports equitable relief in the present case is a question I would leave for the District Court. Because of Mr. Sanders’ absence, the District Court cut short its hearing on the application for a preliminary injunction before either the Government or Mrs. Murray had an opportunity to present witnesses or other evidence. Mrs. Murray still has not had her day in court to present evidence supporting her allegation of irreparable injury, and what that evidence would be were she given that opportunity we can only speculate.
Notes
Ҥ 315.805 Termination of probationers for conditions arising before appointment.
“When an agency proposes to terminate an employee serving a
probationary or trial period for reasons based in whole or in part on conditions arising before his appointment, the employee is entitled to the following:“(a) Notice of proposed adverse action. The employee is entitled to an advance written notice stating the reasons, specifically and in detail, for the proposed action.
“(b) Employee‘s answer. The employee is entitled to a reasonable time for filing a written answer to the notice of proposed adverse action and for furnishing affidavits in support of his answer. If the employee answers, the agency shall consider the answer in reaching its decision.
“(c) Notice of adverse decision. The employee is entitled to be notified of the agency‘s decision at the earliest practicable date. The agency shall deliver the decision to thе employee at or before the time the action will be made effective. The notice shall be in writing, inform the employee of the reasons for the action, inform the employee of his right of appeal to the appropriate office of the Commission, and inform him of the time limit within which the appeal must be submitted as provided in § 315.806 (d).”
“A probationer whose termination is subject to § 315.805 may appeal on the ground that his termination was not effected in accordance with the procedural requirements of that section.”
“It appearing to the Court from the affidavits and accompanying exhibits that a Temporary Restraining Order, pending the appearance before this Court of Mr. W. H. Sanders, Acting Commissioner, Public Buildings Service, should issue because, unless Defendants are restrained from terminating Plaintiff‘s employment, Plaintiff may suffer immediate and irreparable injury, loss and damage before the Civil Service Commission can consider Plaintiff‘s claim,
“NOW, THEREFORE, IT IS ORDERED, that the Temporary Restraining Order issued by this Court at twelve o‘clock p. m., May 28, 1971, is continued until the appearance of the aforesaid W. H. Sanders.
“IT IS FURTHER ORDERED that a copy of this Order be served by the United States Marshal on Defendants forthwith.”
“When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.”
The relevant legislative history of that section, however, indicates
that it was primarily intended to reflect existing law under the Scripps-Howard doctrine, discussed infra, and not to fashion new rules of intervention for District Courts. See S. Rep. No. 752, 79th Cong., 1st Sess., 27, 44 (1945). Thus respondent‘s various contentions may be grouped under her primary theory discussed in the text.“The appointment to an official position in the Government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment. The appointing power must determine the fitness of the applicant; whether or not he is the proper one to discharge the duties of the position. Therefore it is one of those acts over which the courts have no general supervising power.
“In the absence of specific provision to the contrary, the power of removal from office is incident to the power of appointment. ‘It cannot for a moment be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment.’ In re Hennen, 13 Pet. 230, 259; Parsons v. United States, 167 U. S. 324. Unless, therefore, there be some specific provision to the contrary, the action of the Secretary of the Interior in removing the petitioner from office on account of inefficiency is beyond review in the courts either by mandamus to reinstate him or by compelling payment of salary as though he had not been removed.” 177 U. S., at 293-294.
“Where, pursuant to the provisions of Section 402 (b) of the Communications Act of 1934, an appeal has been taken, to the United States Court of Appeals, from an order of the Federal Communications Commission, does the court, in order to preserve the status quo pending appeal, have power to stay the execution of the
Commission‘s order from which the appeal was taken, pending the determination of the appeal?” Id., at 6.The wording of the question certified makes clear that the Court was faced only with the situatiоn in which an appeal has been filed seeking review of completed agency action.
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
The reliance of the Court on this provision was noted by the Court of Appeals in its opinion in this case. 149 U. S. App. D. C., at 261 n. 17, 462 F. 2d, at 876 n. 17.
“(b) An employee of an agency who, on the basis of an administrative determination or a timely appeal, is found by appropriate authority under applicable law or regulation to have undergone an unjustified or unwarranted personnel action that has resulted in the withdrawal or reduction of all or a part of the pay, allowances, or differentials of the employee—
“(1) is entitled, on correction of the personnel action, to rеceive for the period for which the personnel action was in effect an amount equal to all or any part of the pay, allowances, or differentials, as applicable, that the employee normally would have earned during that period if the personnel action had not occurred, less any amounts earned by him through other employment during that period....”
“[T]he Commission is a governmental agency to which Congress has entrusted, inter alia, the enforcement of the Clayton Act, granting it the power to order divestiture in appropriate cases. At the same time, Congress has given the courts of appeals jurisdiction to review final Commission action. It would stultify congressional purpose to say that the Commission did not have the incidental
power to ask the courts of appeals to exercise their authority derived from the All Writs Act.” 384 U. S., at 606.A contrary decision, the Court felt, would have made it virtually impossible for the Commission itself to undertake review of the proposed merger. The congressional grant of authority to the FTC in Clayton Act cases thus could have been frustrated.