Navy Contract Adjustment Board involving Decitron Corporation; Volumes II, III and IV, together with attachments to Volume I of a Navy Inspector General (NIG) Report involving the Kurz & Root Company and Decitron Corporation; and, eight FBI reports pertaining to the Kurz & Root Company.
The plaintiff bases his claim upon two grounds: (1) that he is entitled to these documents by virtue of certain regulations which purportedly guarantee to a dismissed employee the opportunity to review all the material relied upon by the agency to support his dismissal and (2) that these documents are relevant and material to his appeal before the CSC and to deny him the right of discovery as to these documents would be a violation of his constitutional rights. In light of these claims, the immediate issue facing this Court is whether it has the jurisdiction to intervene at an interlocutory stage of the plaintiff's appeal proceedings before the CSC, prior to final action by the CSC, in order to determine whether the documents should be made available to the plaintiff.
It is well established law that before one may resort to this Court for relief he must first exhaust his administrative remedies. Federal Communications Commission v. Schreiber, 381 U.S. 279, 85 S. Ct. 1459, 14 L. Ed. 2d 383 (1969); W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309, 88 S. Ct. 450, 19 L. Ed. 2d 546 (1967); American Federation of Government Employees v. Resor, 442 F.2d 993 (3d Cir. 1971); United Gas Pipe Line Company v. Federal Power Commission, 206 F.2d 842 (3d Cir. 1953). When Congress has provided an administrative procedure which is capable of resolving the issues such procedure must be utilized. It is only after the final administrative decision that the aggrieved party may invoke the jurisdiction of this Court. American Federation of Government Employees v. Resor, supra, 442 F.2d at 994. To be sure, as with most general rules there are exceptions. If the prescribed administrative procedure is clearly shown to be inadequate to prevent irreparable injury and there is a violation of a statutory or a constitutional right, a party need not exhaust his administrative remedies. Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180, 3 L. Ed. 2d 210 (1958); Public Utilities Commission v. United States, 355 U.S. 534, 78 S. Ct. 446, 2 L. Ed. 2d 470 (1958); Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S. Ct. 1194, 86 L. Ed. 1563 (1942); American Federation of Government Employees v. Resor, supra ; Securities and Exchange Commission v. R.A. Holman & Company, 116 U.S. App. D.C. 279, 323 F.2d 284 (1963); Amos Treat & Company v. Securities and Exchange Commission, 113 U.S. App. D.C. 100, 306 F.2d 260 (1962); Sperry and Hutchinson Company v. Federal Trade Commission, 256 F. Supp. 136 (S.D.N.Y. 1966); R.H. Macy & Company v. Tinley, 249 F. Supp. 778 (D.D.C. 1966); Knoll Associates, Inc. v. Dixon, 232 F. Supp. 283 (S.D.N.Y. 1964). For a court to take jurisdiction where the plaintiff has not exhausted his administrative remedies there must be a showing that the alleged violation is at variance with one of the plaintiff's rights and that the plaintiff will suffer irreparable injury if the court does not intervene.
Judicial reluctance to interfere with the preliminary and procedural determinations before an administrative agency stems from the court's desire to avoid undue protraction of administrative proceedings as well as the obvious desirability of having complex matters resolved in the first instance by the agency. Davis, Administrative Law § 8.03 (1958). In this vein, agency refusals to accede to pre-hearing demands for the production of information have withstood interlocutory attack in the courts. Sperry & Hutchinson Company v. Federal Trade Commission, supra, and cases cited therein.
It has been said unequivocally that "administrative orders of a merely preliminary or procedural character are not directly or immediately reviewable." Sperry & Hutchinson Company v. Federal Trade Commission, supra at 140. Only rarely will preliminary or procedural agency action threaten so irreparable an injury as to justify interlocutory resort to corrective judicial process. Bristol-Myers Company v. Federal Trade Commission, 469 F.2d 1116 (2d Cir. 1972). Likewise an agency's evidentiary rulings in the course of a proceeding do not constitute a final order justifying judicial review except in extreme instances where the action is held to constitute an effective deprivation of plaintiff's rights. Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 139 U.S. App. D.C. 366, 433 F.2d 524 (1970). Indeed, § 10(c) of the Administrative Procedure Act, 5 U.S.C. § 704 provides that any preliminary, procedural or intermediate agency action not otherwise reviewable may be scrutinized by the courts only upon review of final agency action.
In the instant case the plaintiff appealed his dismissal from the Department of the Navy to the Regional Appeals level of the CSC. In the plaintiff's appeal before the CSC, the Navy is bound by the allegations recited in the Notice of Proposed Separation to support its dismissal action. If the Regional Appeals Examiner determines that none of the reasons cited by the Navy in the Notice support the dismissal action, then the plaintiff will be reinstated, 5 U.S.C. § 7701, with the right to recover his back pay, 5 U.S.C. § 5596. The Navy, however, need not prove all of the allegations contained in the Notice but only such allegations as will justify a dismissal of the plaintiff "for such cause as will promote the efficiency of the service." If the Navy fails to establish one of the charges in the Notice, such charge may be dropped. Baughman v. Green, 97 U.S. App. D.C. 150, 229 F.2d 33 (1956). However, this does not invalidate the employee's removal if the remaining well-proven charges are sufficient to warrant removal. Deviny v. Campbell, 90 U.S. App. D.C. 171, 194 F.2d 876 (1952).
If the plaintiff does not prevail at the Regional Appeals level, he has a right to appeal the "Regional" decision to the Civil Service Commission Board of Appeals and Review in Washington, D.C. The Board of Appeals and Review reviews the record of the proceedings and all relevant written representations and renders a final decision. 5 C.F.R. § 772.301 et seq. (1973).
If a dismissal or other adverse action is upheld after exhaustion of the administrative procedures available to the plaintiff, he may turn to the federal courts to secure reinstatement and to recover back pay for the period of his alleged wrongful dismissal. After exhausting his administrative remedies, one of the plaintiff's paths of review is to the federal district court. The district courts have jurisdiction to review adverse decisions of the Civil Service Commission. Benson v. United States, 421 F.2d 515 (9th Cir.), cert. denied, 398 U.S. 943, 90 S. Ct. 1861, 26 L. Ed. 2d 279 (1970); Charlton v. United States, 412 F.2d 390 (3d Cir. 1969); Camero v. McNamara, 222 F. Supp. 742 (E.D. Pa. 1963); Taylor v. Civil Service Commission, 374 F.2d 466 (9th Cir. 1967); 5 U.S.C. § 702 (1970).
The scope of review of employee actions in the federal district court extends to a review of the procedure followed in effecting the dismissal, to assure that the decision was not "arbitrary and capricious"; to a review to assure that the decision was supported by substantial evidence on the record, Charlton v. United States, supra ; and to a review and remand where the administrative agency's improper exclusion of evidence amounts to prejudicial error. N.L.R.B. v. Capitol Fish Company, 294 F.2d 868 (5th Cir. 1961); Eastman Kodak Company v. E.I. DuPont de Nemours Company, 284 F. Supp. 389 (E.D. Tenn. 1968); Dolcin Corporation v. Federal Trade Commission, 94 U.S. App. D.C. 247, 219 F.2d 742 (1955).
The plaintiff may choose to appeal the CSC's final decision to the Court of Claims under 28 U.S.C. § 1491. The Court of Claims generally adheres to the same scope of review as that of the district court, Peters v. United States, 408 F.2d 719, 187 Ct. Cl. 63 (1969); however, the Court of Claims may, if it feels that the record before it was not adequately developed by the CSC, remand the matter to one of its own trial commissioners and direct him to hold a limited fact-finding hearing. Camero v. United States, 345 F.2d 798, 170 Ct. Cl. 490 (1965). The Court of Claims may grant back pay and reinstatement. 28 U.S.C. § 1491.
Accordingly, this Court must decide in this action whether the plaintiff has established a case for a departure from the general rule that he must exhaust his administrative remedies. In determining whether we should by-pass the exhaustion principles outlined above, we must bear in mind that the administrative determination thus far made in this matter has been in the pre-hearing stage and that the plaintiff will be afforded additional opportunity to present his claim that the documents he seeks should be made available to him for his hearing.
As stated, the plaintiff's first claim for relief rests heavily upon his contention that the refusal by the Navy Department and the Regional Appeals Examiner to accede to his request for the production of the subject documents contravenes regulatory rights allegedly guaranteeing access to the documents requested. Specifically noted by the plaintiff is Chapter 752, Subchapter 2, subparagraph 2-2c(4) of the Federal Personnel Manual (FPM) which provides:
Except for medical information of the sort which may be disclosed only to a licensed physician in accordance with FPM, Chapter 294, Section 4-1b(2), the employee is entitled to review all the material relied on by the agency to support the reasons in the notice, including material relevant to the employee's past record if the record forms part of the basis of the action proposed. This requirement means that the agency cannot use any material to support its reasons, which because of security or other considerations, cannot be disclosed to the employee or his designated physician. The notice must inform the employee of his right to review the material relied on and must tell him where he may review it.