The opinion of the court was delivered by: HIGGINBOTHAM
Mrs. Juanita M. Watkins, a supervisory employee with the Naval Publications and Forms Center in Philadelphia, Pennsylvania, was suspended from her job by her superiors for ten days without pay on charges that she had failed to safeguard certain classified material in her custody. This decision was appealed by Mrs. Watkins through the Department of the Navy's grievance procedures, and after running the procedural gauntlet of administrative review, the decision to suspend her was ultimately upheld by the Secretary of the Navy. Mrs. Watkins has now appealed the Secretary's decision to the District Court for review under the Administrative Procedure Act, 5 U.S.C. § 551, et seq. The record of the administrative proceedings has been filed, and both the plaintiff and the government defendants have filed motions for summary judgment. Government defendants have moved in the alternative for dismissal of the complaint for lack of subject matter jurisdiction. Although I find defendants' jurisdictional arguments unpersuasive, I do find that the Secretary's decision is supported by substantial evidence and is not arbitrary, capricious, or an abuse of discretion. Therefore, defendants' motion to dismiss and plaintiff's summary judgment motion are denied, and defendants' motion for summary judgment is granted.
Plaintiff holds the position of Supervisory Teletypist, GS-6, with the Naval Publications and Forms Center, and among her responsibilities is overseeing the destruction of certain classified material. Plaintiff reported for work on January 2, 1973, and found approximately twenty classified cards which by regulations should have been destroyed on the previous shift; as supervisor of her shift, she undertook the task of destroying them.
Upon inspection of the destruction report for plaintiff's shift by the registered publication systems officer, it was discovered that there was no witnessing signature on the destruction report for the destruction of a card numbered seventeen. According to plaintiff's testimony the card was in fact destroyed during her shift and the absence of a witnessing signature on the destruction report was an oversight by a Mrs. Helen Johnson, teletype operator under plaintiff's supervision, who had been designated on that occasion to witness the destruction of the material. As a result of this incident Mrs. Johnson was given an oral reprimand, the second shift supervisors were given an oral reprimand for leaving key cards undestroyed, and plaintiff received a ten (10) day suspension. Seven months before the security infraction of January 2, 1973, plaintiff had received a letter of caution for the same infraction -- failure to obtain a witness' signature on a destruction report after the destruction of classified material.
On March 27, 1973, M. B. Swayne, the Director of the Administrative Department of the Naval Publications and Forms Center, advised Mrs. Watkins by letter of her decision to suspend the plaintiff for ten (10) days without pay for the offense of "Failure to Safeguard Classified Matter, First Infraction". Her suspension was to begin April 3, 1973 and to run sporadically through April 24, 1973. In this letter, Mrs. Watkins was instructed that she might have a limited appeal to the Civil Service Commission or she could appeal the merits of the decision through the Standard Navy Grievance Procedure.
On March 30, 1973, Mrs. Watkins filed her appeal or grievance through the Standard Navy Grievance Procedure. As a result of her grievance, Swayne decided to deny the plaintiff's grievance by Memorandum dated April 12, 1973. On April 14, 1973, Mrs. Watkins appealed her grievance to the Commanding Officer, Naval Publications. This appeal resulted in a hearing held June 4, 1973, by which time Mrs. Watkins had served her suspension. The Hearing Examiner's finding was that the ten day suspension was punitive and she recommended that the penalty be reduced to a written reprimand.
The Commanding Officer, Philip Crosby, refused to agree with the Hearing Examiner's recommendation and forwarded the appeal to the Secretary of the Navy for decision. The Secretary of the Navy also declined to accept the Hearing Examiner's recommendations, relying instead on the reasons given by the Commanding Officer, Philip Crosby, for sustaining the ten day suspension. This appeal followed.
Defendants argue that the action must be dismissed under Fed. R. Civ. P. 12(b) (1) for lack of subject matter jurisdiction. Plaintiff has cited several alternative basis for this Court's jurisdiction in this matter, but I need address only one. Section 10(a) of The Administrative Procedure Act, 5 U.S.C. § 702, states:
"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, ...