SAMPSON v. MURRAY

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Argument of Keith A. Jones

Chief Justice Warren E. Burger: We will hear arguments next in 72-403, Sampson against Murray.

Mr. Jones you may proceed whenever you are ready.

Mr. Keith A. Jones: Mr. Chief Justice, may I please the court?

The issue here was whether in a case involving a routine termination action against the federal probationary employee.

Federal district court may enjoin the termination pending that employee's appeal to the Civil Service Commission.

The facts are as follows.

In January 1971, respondent was hired as a program analyst in the general services administration and a salary of about $18,000 a year.

Four months later, one of her immediate supervisors sent to his supervisor, Mr. Sanders, a memorandum recommending that her employment be terminated.

His recommendation set forth a variety of reasons why her work performance was considered to be unsatisfactory and that among these were her failure to follow the instructions of her supervisor, follow office direction generally and her inability to get along with her fellow employees.

The memorandum went on however to state that she had experienced difficulties with her previous employer, the Defense Intelligence Agency.

After studying this recommendation Mr. Sanders issued to the respondent a notice terminating her employment effective to next week, the termination notice stated expressly that the reasons for her termination or for failure to abide by office of procedure and to accept the direction of her supervisors.

On receiving this termination notice the respondent filed an appeal with the Civil Service Commission and lodged a complaint in the United States District Court to the District of Columbia.

In her complaint in the court, she alleged or she asked for injunctive relief pending the appeal to the Civil Service Commission and she alleged that if an injunction would not issue permitting her to stay at employment, she would lose income for the interim period and unrebutted charges against her would remain in her personal record.

The District Court immediately granted the temporary restraining order against her termination and set a hearing for the following week on the merits.

For describing the events of that hearing it is helpful to first summarize briefly the Civil Service regulations pertaining to federal probationary employees so that the grounds for appeal in Civil Service Commission can be better understood.

Under the Lloyd-LaFollette Act permanent employees in the competitive service, that is, employees who have finished their one year probationary term maybe discharged only for cause.

But the Act does not provider similar protections for probationary employees, during her first year of service under the Act such employees maybe terminated at will, under the regulations however, Civil Service Commission certain rights are granted to probationary employees.

Among these are the rights not to be terminated because of invidious class based discrimination, marital status, political activities or improper discrimination because of physical disability.

In addition although a probationary employee maybe terminated upon the discovery of pre-employment misconduct, termination on that ground does invoke under the Civil Service regulations, certain procedural protections, the employee must be informed of the charges of pre-employment misconduct against him and he must be given an opportunity to respond to those charges in writing before the termination becomes effective.

Thus when the respondent appealed to the Civil Service Commission, her claim was that not withstanding the fact that the termination notice recited only her poor work performance, she alleged that the fact that she was being terminated for pre-employment misconduct that is, events that took place at the Defense Intelligence Agency in her previous job.

If she prevailed upon that appeal to the Civil Service Commission, she would be reinstated with back pay.

However, at that time upon her reinstatement her employer would remain free under the Civil Service regulations to go forward with termination proceedings.

All that GSA would have to do at that time would be to inform her in writing as to the charges pre-employment misconduct, if any, made against her and permit her an opportunity to respond to those charges before she was dismissed.

In other words the respondent had no right to retain her employment under the constitution or under any statute or even under the regulations.

All she had was a right to certain procedural regularities.

I return now to the hearing which was held before the District Court on her motion for injunctive relief.

At that time government filed a motion to dismiss one of equity jurisdiction; this motion was not active upon by the District Court.

Instead the court proceeded to consider the merits of respondent’s requests for relief.

District Court did not determine whether respondent had either alleged or shown that she was in danger of irreparable injury of the injunction would not issue.

Instead the District Court first took up the question whether respondent would be likely to show before the Civil Service Commission that she in fact was being fired for pre-employment misconduct.

That was an issue which would be tried by the commission on the basis of written submissions only.

However, the District Court was not content to review the case on the basis of written submissions or so.

Instead he requested that Mr. Sanders the GSA official who had ordered respondents termination, come to the court and testify as to his reasons for terminating or informing respondent that her employment was to be terminated.

Mr. Sanders at that time was on vacation in California and he was not available to testify.

Therefore the District Court continued to temporary restraining order until he should appear.

The government appealed from that order to the Court of Appeals for the District of Columbia circuit and that court affirmed cases now here on the government’s petition for certiorari which the respondent did not oppose.

In the meantime the respondents appeal to the Civil Service Commission has been held pending the outcome of this suit.

I turn now to the legal issues involved here; our principal contention is that the general statutory and administrative scheme governing federal employment precludes the exercise of equitable jurisdiction in cases such as this.

This scheme which I will describe in a moment must be understood in its decisional context.

Under the decisions of this court a federal employee in the absence of any protective legislation or regulations has no right at all to employment, his employment maybe terminated at will, following this general rule the court expressly held in White against Berry which we cited on brief, that the federal courts have no general equity jurisdiction to enjoin a discharge of a probationary or of a federal employee rather.

That case involved a discharge which allegedly was in conflict with the pertinent Civil Service regulations at that time.

In short White against Berry involves essentially the identical issue here and this court could not affirm that overruling of that case.

In any event, that decisional background, Congress in 1912 decided to extend certain additional protections to certain federal employees.

It enacted the Lloyd-LaFollette Act which as I have previously stated, affords to non-probationary employees in the competitive service.

The protection that they maybe discharged only for cause subsequent enactment and promulgated regulations established for such employees.

The elaborate appeal procedures which are now before this Court in Arnett against Kennedy which was argued last week.

However, in enacting Lloyd-LaFollette Act Congress determined there should be a one year probationary term during which the employee would not be afforded such procedures, could be terminated without a for cause determination.

Unknown Speaker: Mr. Jones if the government loses this case; could the regulation in question be revoked without any constitutional overturns?

Mr. Keith A. Jones: Yes, I believe, it could Mr. Justice Blackmun.

There is nothing in the statute which requires the Civil Service Commission to provide probationary employees kind of procedural protections which the respondent here is relying on.

Justice Mr. Justice Rhenquist: In White against Berry, of course you didn’t have the same violation of the administrative regulation.

Did you?

Mr. Keith A. Jones: Mr. Justice Rhenquist, I think that there was such a claim.

That case of course took place before the enactment of the Lloyd-LaFollette Act but in 1883 Congress had established the Civil Service Commission and the commission had promulgated certain regulations.

And I think the claim in White against Berry was that the dismissal was in violation of one of those regulations.

Unknown Speaker: Just to tie again is the respondent still working on GSA?

Mr. Keith A. Jones: It’s my understanding that she is Mr. Justice Blackmun.

A central feature of the scheme however which applies to both probationary and non-probationary employees like is that termination becomes effective prior to appeal to the Civil Service Commission.

The employees have certain rights of appeal as to probationary employees such rights are limited and nevertheless there is no statutory or regulatory provision for them to remain in their employment pending the appeal with Civil Service Commission.

Chief Justice Warren E. Burger: I understand that Mr. Jones, the government's position is that there is no equity jurisdiction at all in this kind of a case because there is a fully adequate remedy at law in terms of reinstating the employee and giving back pay with interests and perhaps costs if the termination for any reason is determined to have been improper.

Mr. Keith A. Jones: That’s correct, that involves the back pay Act, Mr. Chief Justice to which I was just coming.

Prior to the enactment of the Back Pay Act there was an unfortunate gap governing legislation.

If an employee was terminated and it was subsequently determined that, that termination was unlawful and the employee was reinstated nevertheless the employee would have lost pay during the time of the appeal to the Civil Service Commission and there was no mechanism for the provision of such back pay and this of course was a problem which was aggravated by the fact that the courts would not grant interim equitable relief because following this courts decision in White against Berry that kind of relief was deemed unavailable.

Now confronted with this dilemma Congress could have done any combination of three things, it could have provided Civil Service Commission with authority to grant back pay upon reinstatement.

It could have granted the Civil Service Commission, the power to stay a termination, pending appeal before the commission in appropriate cases or could have explicitly granted to the courts the power to provide the kind of interim equitable relief that the District Court here thought that it could provide.

The Congress chose only to do the first of these three things, only to provide the Civil Service Commission with a power to award back pay upon reinstatement.

This we believe was a deliberate policy choice which was intended to accommodate the respective interests of both the employees and their employing agencies.

Under the Back Pay Act, if the employee's discharge was unlawful, he is fully compensated upon reinstatement.

On the other hand under the Act he has no right to remain in employment pending hearing of his appeal by the Civil Service Commission.

We believe that the exercise of equitable jurisdiction which the District Court here engaged in is disruptive of the balance which Congress was seeking to achieve between the federal employees and the interest of the government in an efficient Civil Service.

The retention of a discharged employee, an employee who has received his termination notice, pending review before the commission which could take as long as six months in some cases would be bad for morale of the agency and bad for discipline with that particular department where she was located.

And if the termination had any basis, that is, if in fact it was for poor performance, then it would be bad for the efficiency of the employing agency as well.

The citizens of this country rely upon government to provide a wide array of necessary services from national defense to social welfare and the ability of the government to provide these services quickly and efficiently shouldn’t be interfered with or hampered by the forced retention of an employee found by his supervisors to be incompetent or unwilling to follow direction or for some other reason unqualified for further service.

Chief Justice Warren E. Burger: With this folding of the court of appeals as now stands , apply to let us say the air traffic controllers work for the Commerce Department at airports?

Mr. Keith A. Jones: The exact scope of the ruling.

Like I said, it wouldn’t Mr. Chief Justice.

The court did not restrict itself to any particular class of employees.

I suppose this would apply to permanent employees as well as probationary employees and it will apply.

Chief Justice Warren E. Burger: Well, if it applies to probationary then there is a fortiori that would apply to permanent employees with their greater degree of protection.

Mr. Keith A. Jones: I would assume so.

And so far as I can tell it's not limited to any particular group of employees, it’s not limited to employees whose services may not be important to national defense or to any other important government operation.

So that in the future case the court might decide not to apply that rule in a special case, there is nothing in the courts language itself which was so --

Unknown Speaker: As the Act expressly forbid the Civil Service Commission from keeping a person under a job pending appeal?

Mr. Keith A. Jones: I believe there is nothing explicit to that effect however there is nothing which grants the commission power to do that and the commission has never viewed itself as having the power.

Chief Justice Warren E. Burger: You are relying on the proposition that no equitable remedy is available if there is remedy at law in terms of backpay and reinstatement?

Mr. Keith A. Jones: I suppose in essence that’s our argument that the remedy, the Congress has in fact provided a general remedy at law available to all federal employees and therefore there should not be a case by case determination of the matter of adequacy.

Now I think it’s important to realize that the interest of the employee do not outweigh the cost to the public, if the employee succeeds upon his appeal to the commission then interim injunctive relief would have provided him with absolutely nothing because he is reinstated with back pay anyway.

On the other hand if he does not prevail on his appeal to the Civil Service Commission, interim injunctive relief would have simply unjustly enriched him at the expense of the tax payers, at the expense of the efficiency of the government.

We believe that interim injunctive relief here not only disturbs the balance that Congress meant to achieve between the federal employees on the one hand and the needs of the government on the other.

That would also offend the values further by the exhaustion doctrine.

The Congress has left to the Civil Service Commission the responsibility for determining in first instance, employee rights subject only to subsequent judicial review, and as this Court noted in Arrow Transportation and Wichita Board of Trade cases, a preliminary court ruling on the merits pending decision by the administrative agency can be disruptive of that agency's primary jurisdiction.

Now, we believe that would be especially true in a case such as this where the court undertakes the scope of review which itself is far broader than that which would be assumed by the commission.

Here the court was granting a full evidentiary hearing where its fourth commission that would merely be a decision upon written evidence in that affidavits.

Respondent in her brief, I think essentially ignores the policy considerations that we have stated here.

She relies primarily or almost entirely for equitable relief upon the All Writs Act.

It seems clear to us that, that Act must be read in light of the pertinent statutory scheme.

The Act itself requires the issuance of writs to be “agreeable to the usages and principles of law”.

And this court in Arrow Transportation and other cases has held at a federal court’s equitable powers under the act if granted can be implicitly withdrawn by the pertinent statutory scheme, that is, can be withdrawn by the necessary implication of the statutory scheme.

In Arrow Transportation there was nothing in the Interstate Commerce Act which would have expressly taken away from the District Courts the equitable relief they sought there to grant.

Nevertheless, the general administrative scheme was such this court viewed equitable relief in those circumstances to be inappropriate.

We believe a similar result is required here.

But we would contend further that the All Writs Act does not properly extend to the kind of interim relief respondent seeks here at all.

That Act simply provides that the federal courts, “may issue all rates necessary or appropriate in aid of their respective jurisdictions”'.

This court has never read that Act as providing a broad power to grant pre-exhaustion relief in all cases.

This court has permitted pre-exhaustion relief of the kind respondent seeks only in cases where it is necessary to ride a constitutional wrong or to preserve the jurisdiction of the court upon subsequent review, that is, preserve the possibility of effective judicial relief.

In the context of this case, I think that a reading of the All Writs Act which is so limited and the respondent concedes in our brief that the All Writs Act is so limited.

I think that critically disposes off this case.

Courts below did not rely upon their power to preserve jurisdiction.

They didn't discuss that issue at all.

They instead asserted a broad power to provide pre-exhaustion relief, whenever, wherever they thought it necessary.

Court of Appeals explicitly saw its role as that of breathing life into the Civil Service Regulations, that is, of giving pre-exhaustion equitable enforcement to regulatory rights.

Whenever the likelihood, even a preliminary denial, not a permanent denial but even a preliminary denial of those rights have been shown.

We believe that the All Writs Act is not conferred such a broad power.

Our respondent seeks to defend the decision below finally, on a ground that interim injunctive relief here pending exhaustion for administrative remedies may have been necessary to preserve jurisdiction.

Respondent however does not suggest how in this kind of case, interim injunctive relief could be relevant to the subsequent social jurisdiction.

The immediate discharge of the respondent from the GSA, would in no way limit District court's reviewing authority over the subsequent appeal from the Civil Service Commission determination, nor would it prevent the court from providing the kind of relief and the only kind of relief which Congress has made available here, reinstatement with back pay.

For that reason, the District court's order was not an --

Unknown Speaker: Do you think the irreparable injury standard is at least that that would be applicable.

I know you believe that the Court hasn't any authority at all --

Mr. Keith A. Jones: Well, since we believe the court has no authority at all, we feel that question of irreparable injury is the one which the court should not reach.

Justice Mr. Justice Rhenquist: Let's assume we disagreed with you on the jurisdiction that the court would take any action at all, why should the standard be a irreparable injury -- is that this normal standard of just -- when you just stay an order, pending an appeal?

Mr. Keith A. Jones: Well, what she is seeking is a preliminary in junction against agency action.

She is not really seeking the stay of final agency action pending review by the court--

Justice Mr. Justice Rhenquist: She is just seeking a stay of the suspension order.

Mr. Keith A. Jones: Well, she is seeking a stay of the termination, but we feel that where the record itself does not have direct reviewing authority than the normal standards for preliminary injunctive relief against an agency would apply, and --

Chief Justice Warren E. Burger: There are two sets of standards in this area, one relating to agency action in broad sense of the regulatory agencies, federal communications, federal power, civil aeronautics board and so forth, and a different standard enunciated by this court in connection with employment termination.

For example, in Cafeteria Workers, didn't this say court say flatly that an employee may be summarily discharged?

Mr. Keith A. Jones: In that case, the court recited a long history of the supreme court adjudication to that effect, that's correct.

Unknown Speaker: But Mr Jones, I thought the basic issue before Judge Gasch, was the contention that in doing what they did, the agency had not followed its own regulations, because – in other words if I understood it, the dismissal had to depend upon her, how she had acquitted herself in GSA service and not as whoever the general investigator was -- on the basis of how she had acquitted herself in previous employment and Judge Gasch said, “well, if the agency followed its own regulations, then of course, this case should be dismissed.

Bring in the man who terminated her and find out”.

The government said, “no, he is out of town, we can't bring him”.

Judge Gasch said, “well let's wait a few days”.

Then the government comes back and says we are not going to bring him and that's when he issued the interim restraint, didn't he?

Mr. Keith A. Jones: Our contention is that --

Unknown Speaker: No it is, but am I right as to the facts are concerned?

Mr. Keith A. Jones: You are honest to the facts, Mr. Justice.

Chief Justice Warren E. Burger: But the government's position at that time was, was about in the court of appeals, that the document served on her giving the reasons for termination, applying the parameters of any inquiry that can be made at that preliminary stage, before it goes to appeal.

Mr. Keith A. Jones: Yes, our contention is that the determination of whether the employing agency itself followed Civil Service Regulations, is one left in the first instance of Civil Service Commission.

Chief Justice Warren E. Burger: Well, (Inaudible) regulations, Solicitor General.

I thought the way Judge Gasch looked at it, it was a GSA -- I don't know what the identification maybe with Civil Service Regulation.

But the way he handled it was, whether the government followed its own regulation.

Mr. Keith A. Jones: No, these are Civil Service Regulations, not GSA regulations.

Unknown Speaker: According to himself, it was determined that he was just going to try to see if -- to determine whatever ---

Mr. Keith A. Jones: Whether she could establish a substantial likelihood of prevailing for appeal.

Unknown Speaker: And apply normal equitable principle.

Mr. Keith A. Jones: That's correct, that's what he sought to reply.

I would like to reserve my remaining time.

Chief Justice Warren E. Burger: Very well.

Mr. McGrew.

Argument of Thomas Mcgrew

Mr. Thomas Mcgrew: Mr. Chief Justice, may it I please the court.

I would like if I may to begin by adding slightly to counsel statement facts.

The regulation under which Mrs. Muray complained to the Civil Service Commission, protected her against the use of prior employment “ in whole or in part”.

Unknown Speaker: That is prior employment. However she may have acquitted that, was irrelevant?

Mr. Thomas Mcgrew: Exactly.

She was exposed in a three page memorandum which went to the boss of this agency, to a page and a half of her alleged conduct to the defense intelligence agency and it was exactly the sort of thing that this regulation was intended to avoid.

It was what Your Honors will read it, but it the sort of thing where it says, “true, her record is excellent, true she got all these outstanding ratings”, but the people who really knew, the people who didn't write her say this or that.

That's what they would not ---

Unknown Speaker: That's the issue you will present --

Mr. Thomas Mcgrew: That is the issue we presented to the Civil Service Commission.

The government conceded before Judge Gasch, that the author of that memorandum violated the regulation to the extent that he considered prior conduct.

The question was whether the person who signed the attached letter and memorandum said, if you agree with this, sign the attached letter and there is only one letter there.--

Unknown Speaker: Let's just assume that there is a very good chance for winning the court of Civil Service Commission, the issue still remains whether the court had any power to --

Mr. Thomas Mcgrew: Well, at that point Your Honor, it seems to me.

Unknown Speaker: -- or whether even normal equitable principles would have permitted it.

Mr. Thomas Mcgrew: Quite right, Your Honor.

It seems to me that there are two sources of power.

One is, the All Writs Act under cases like these, and the other is 11 (d) of the Administrative Procedure Act.

Unknown Speaker: But may I ask, you would conceive if the Congress had foreclosed this, as we thought in Arrow, Congress had done.

If Congress had foreclosed it and that was the scheme of the Act, then there was no power.

Mr. Thomas Mcgrew: I think that is exactly right--

Unknown Speaker: And it's only when the Congress, I gather your position is that it in fact forecloses it, that the ordinary equitable power and irreperable injury is denied--

Mr. Thomas Mcgrew: That's exactly right, Your Honor.

In fact Arrow, and Dean, and this case, I think afford a very instructive example of how one deals with this legislation.

In Arrow, the Congress had given the ICC the power to suspend rights.

This court held and I certainly belong and I think it's clearly right that that ousted the courts.

In Dean, we had a situation where the Clayton Act gave the Department of Justice the power to do interim relief and was silent on the questions of Federal Trade Commission.

There the result was that the Federal Trade Commission could go in.

This case, I think is still the easier case.

This statute is completely silent.

Justice Byron R. White: I gather that you disagree then that as to the authority of the Civil Service Commission to stay this discharge?

Mr. Thomas Mcgrew: Oh no, no Mr. Justice White.

Justice Byron R. White: Do you mean that under the Act the Congress specifically or by inferentially foreclosed the Civil Service Commission from entering this stay or this injunction.

Mr. Thomas Mcgrew: I guess I am not being clear Mr. Justice White.

What I meant to say is that in Arrow, we had a situation where the statute expressly gave the ICC the authority to suspend.

By so doing it was held that this ousted the courts.

The Civil Service Commission has no such authority.

Justice Byron R. White: Yes, and because the Congress didn't intend it to have.

Mr. Thomas Mcgrew: Thats right, well it seems to me the assumption --

Unknown Speaker: Congress did intend the Civil Service Commission to have but you are saying that they intended the courts to have.

I think the inference from Congressional silence is that Congress did not intend to effect the jurisdiction of the courts one way or the other.

Chief Justice Warren E. Burger: I suppose you would agree Mr McGrew that the Back Pay Act was an effect to redress somewhat inequitable balance that had existed, with reference to termination of government employees, it was a hardship on them.

Mr. Thomas Mcgrew: Exactly right.

Chief Justice Warren E. Burger: Do you have in mind what the government relied on in its brief and its dissenting opinion in the Court of Appeals relied on Senator Langer, that was the manager of the Bill, and he said that the Act provides that agency may remove any employee at any time but that the employee shall then have the right to appeal.

Now that's the appeal to the Civil Service Commission.

When he is removed, he is of course off the payroll.

If he wins the appeal that is provided that he shall be paid for the time during which he was suspended, that is, he gets back pay along with his reinstatement.

That was a remedy that wasn't available before that Act.

Now isn't that by inference, the suggestions that that's the exclusive course as Justice White has pointed out, that Civil Service Commission was given no power to stay and Senator Langer's statement sounds as though, he was telling the Senator is the manager of this Bill, that no one would have the power to stay that early, that first step.

Mr. Thomas Mcgrew: I thank in context Mr. Chief Justice that it is clear that Senator Langer is not saying that, Senator Langer is stating his understanding of what would happen and what I submit would happen in 999 out of a 1000 cases.

I don't think he intended that and I don't think that it can be fairly taken in context as a statement on the power of the federal courts, either directly or by inference --

Chief Justice Warren E. Burger: Then you are focusing narrowly on this one proposition that the agency was required to -- or that the court had the power to inquire into the decisional process of the agency at the first stage.

Mr. Thomas Mcgrew: No, no if I may say so your honor, it seems to me that the question here is whether there shall be a per se rule saying under no circumstances, can this be done, or whether the traditional prerequisites of equity jurisdiction will be applied.

For example, your honor raised the situation of Air Traffic Controllers or Cafeteria Workers, it seems to me that is a situation that comes clearly under one of the criteria for equitable jurisdiction, namely, what is the injury to the government.

Unknown Speaker: Well, do you go so far as to suggest that unless Congress either expressively or by implication has foreclosed exercise of equitable powers by the court, then those powers are there and it become only a question of the abusive discretion in their exercise.

Mr. Thomas Mcgrew: I would suggest your honor that Dean Foods seems very much to suggest that.

Unknown Speaker: Because we didn't have that in Arrow because we had a whole statutory history which made it clear that the ICC can act or have got the certain number of months and our conclusion was that they couldn't act after that and Congress meant then neither court nor ICC --

Mr. Thomas Mcgrew: Here your honor, has a whole statutory history which says that the sole purpose of the Back Pay Act was not to restrict any existing remedies, not to change any existing remedies, but to create one new one.

Chief Justice Warren E. Burger: No, but doesn't that have to be read along with the provisions of the one year probation which gives an absolute right of termination during one year without any reason.

Mr. Thomas Mcgrew: It gives you honor, correctly, it does give an absolute right --

Chief Justice Warren E. Burger: Is that the most preliminary power that an employer could have over an employee?

Mr. Thomas Mcgrew: It is, but there are restrictions, race, color, creed, sex, politics and prior conduct.

The one right a probationer has in sum is to be judged on the basis of his own conduct during the probationary period and not extraneously.

Unknown Speaker: In that agency?

Mr. Thomas Mcgrew: In that agency.

Unknown Speaker: And that's by regulation, and not by stand --

Mr. Thomas Mcgrew: That is by regulation.

Justice Thurgood Marshall: Tell us what is this right you are talking about that wasn't diminished?

This equitable right in the federal court that wasn't diminished by this statute, what is that right?

Mr. Thomas Mcgrew: The right, if your honor please, by the power in the District court, is to enjoin subject, of course, to likelihood of success on the merits subject to finding of irreparable injury, subject to all the conditions of equitable jurisdiction, to enjoin an agency action pending exhaustion of administrative remedies before an agency, whatever the agency may be, and --

Justice Thurgood Marshall: And the case for that is what?

Mr. Thomas Mcgrew: The case for that in terms of the relevant reviewing court and this court's is Dean Foods, I should say.

There the court of appeals was the relevant reviewing court of the Federal Trade Commission.

The Trade Commission asked for --

Justice Thurgood Marshall: That did not happen in this case.

The court will be as in the review and authority of the discharge of an employee as --

Mr. Thomas Mcgrew: No your honor.

The District court is the reviewing court for discharge.

Justice Thurgood Marshall: Where is the jurisdiction, that's what is my trouble.

Outside of your claim of the All Writs Act, where else it is?

Mr. Thomas Mcgrew: My jurisdiction in terms of the right of the District court to review the Civil Service Commission is 28 U.S.C 1361, the Mandamus Act.

In terms --

Justice Thurgood Marshall: Mandamus?

Mr. Thomas Mcgrew: Yes your honor.

In fact, as White v. Berry held--

Justice Thurgood Marshall: Mandamus still require clear legal duty?

Mr. Thomas Mcgrew: It does you honor, and I think we clearly showed one.

Justice Thurgood Marshall: And what's the clear legal duty here that you have a hearing?

Mr. Thomas Mcgrew: The clear legal duty is not to terminate a probationary employee on the basis in whole or in part, of conduct which occurred prior to the time that person was ---

Justice Thurgood Marshall: Cite me the clear legal authority where a statement uses may.

Mr. Thomas Mcgrew: That your honor, is in the court of federal regulations.

I can --

Unknown Speaker: This is not a hearing question

Mr. Thomas Mcgrew: No, this is the issue we are taking before--

Unknown Speaker: Whether or not they comply with the regulation which said that they must limit termination, so reasons effected -- affects to her service with this agency.

Mr. Thomas Mcgrew: Exactly right.

Unknown Speaker: Is there any case from this court holding that the discharge of a federal employee and the probation employee is reviewable by Mandamus after agency action is completed?

Mr. Thomas Mcgrew: Your honor,will find that White v. Berry said exactly that --

Unknown Speaker: That wasn't a probationary employee.

Mr. Thomas Mcgrew: That was not a probationary employee.

Even in any case, holding a probationary employee's discharge is reviewable even after the discharge process--

Justice Mr. Justice Rhenquist: By Mandamus.

Mr. Thomas Mcgrew: In this case, I am not -- in this court, I am not aware of any such case.

It seems to me if I may mention of the second source of jurisdiction in this respect, is 10 (d) of the Administrative Procedure Act.

This states on such conditions as maybe required into the extent necessary to prevent irreparable injury, the reviewing court may issue all necessary and appropriate process to postpone the effective date of an agency action.

Unknown Speaker: That says reviewing court, does that?

Mr. Thomas Mcgrew: And the District court is to the reviewing court.

Unknown Speaker: This is in advance of any application to review anything, is it?

Mr. Thomas Mcgrew: It is in advance of an application.

Unknown Speaker: Doesn't that really refer to the reviewing court reviewing the orders of the Civil Service Commission?

Mr. Thomas Mcgrew: I think, though it is.

It does refer to the reviewing court, for reviewing the order of the Civil Service Commission.

The question is can they stay the agency action?

Unknown Speaker: This being you think to protect the jurisdiction or review the agency to finalize its action--

Mr. Thomas Mcgrew: I think, if your honor, please that that goes directly to the question of irreparable injury.

It seems to me that loss of employment can impact very seriously on the possibility of continuing appeal through the Civil Service Process.

Unknown Speaker: I take it the District court just added an injunction pending its determination of what it thought the other issues were, the chances of success in the irreparable injury.

Mr. Thomas Mcgrew: The way I went your honor was exactly this.

Unknown Speaker: Was that correctly, is that right?

Mr. Thomas Mcgrew: Yes, thats right, the hearing was consulted --

Unknown Speaker: Did the court had any power at all to enter an injunction given good chances of success and given irreparable injury, do you think they had power to temporarily to enjoin pending those determinations?

Mr. Thomas Mcgrew: Exactly.

Unknown Speaker: So that this case really turns then, it has to turn on the power.

Mr. Thomas Mcgrew: Thats right, there is nothing else in the record.

Chief Justice Warren E. Burger: That is power before the administrative procedures in the Civil Service Commission have been exhausted.

Mr. Thomas Mcgrew: That is exactly right, Mr. Chief Justice.

Chief Justice Warren E. Burger: It might be different after the Civil Service Commission had acted then it would be before, wouldn't it?

Mr. Thomas Mcgrew: In that situation, if your honor please, the Administrative Procedure Act would clearly apply.

Justice Thurgood Marshall: Can you give me a case which says that where in administrative or any other proceeding you get the full back pay, is not an adequate remedy?

Mr. Thomas Mcgrew: I can give you, if your honor please, several cases exactly like this one in the lower courts.

Justice Thurgood Marshall: Well, I hope you'll answer the question.

My question was specific.

Give me a case – or do you say there isn't a case.

Mr. Thomas Mcgrew: Drew in the Fifth Circuit which was just decided which held that a private employee's discharge may be enjoined pending completion of the EEOC remedies.

Justice Thurgood Marshall: On the basis that full back pay was not adequate.

Mr. Thomas Mcgrew: The court did not --

Justice Thurgood Marshall: That's the one I am looking, one where the court did.

Mr. Thomas Mcgrew: The court did not explain its reasons.

It simply entered the the order in that case.

It did not say that this particular remedy will --.

Justice Thurgood Marshall: You actually don't have a case that says that you can get full back pay plus interest that that is inadequate.

Mr. Thomas Mcgrew: I do not have such a case.

Chief Justice Warren E. Burger: The Fifth Circuit case was not under the Lloyd-LaFollette Act of course.

Mr. Thomas Mcgrew: That was not, right.

Reeber v. Rossell in the Southern District of New York was.

That was Judge Kaufman's case in the early 50s and in the early 60s, there was Schwartz v. Covington which involved the Military Discharge Review Board and again the state pending that--

Chief Justice Warren E. Burger: Also it's not under the Lloyd-LaFollette Act.

Mr. Thomas Mcgrew: Again not, quite right your honor.

It does seem to me that the extreme uniqueness of this case is pointed out in the series of briefs the government has filed in the docket here.

From one court to the next, the argument of the flood of litigation has been made.

In a petition for cert and for this court, the government stated the potential volume of new litigation as indicated by the fact that according to the commission figures some 16000 individual adverse actions and some 22000 reductions in force were taken against federal employees in fiscal 1971.

We have now had almost two years experience with this case in District of Columbia.

The number of employees who have succeeded under the standard set forth by Judge Welby (ph) in the court of appeals opinion is not in the thousands and it is not in the hundreds and as far as I have been able to find out it is not even one.

Chief Justice Warren E. Burger: Well, has the Court of Appeal's opinion been extent two years.

Mr. Thomas Mcgrew: Very nearly.

Chief Justice Warren E. Burger: I thought it was the District court that was that far --

Mr. Thomas Mcgrew: The District court is still --

Chief Justice Warren E. Burger: Let me go back to one other question.

The Court of Appeals in its opinion relied heavily on Virginia Petroleum Jobbers Association, the case on which I sat when I was there if you may recall but that line of cases are all dealing with agency -- regulatory agencies where if the decision is reversed there is no equivalent to reinstatement back pay, is that not true?

Mr. Thomas Mcgrew: That is exactly right.

Chief Justice Warren E. Burger: So that the propositions laid down in the Virginia Petroleum Jobbers case are somewhat different just from this kind of situation with respect to the availability of an adequate remedy of law.

Mr. Thomas Mcgrew: It seems to me your honor that money, back pay is not always.

I think in most cases will be -- and in almost every imaginable case, it will be an adequate remedy, but it seems to me that there are situations, one can think of a situation where a person could not continue to prosecute their appeal before the Civil Service Commission, one can think of a situation where the lack of money would impact very severely on the health of one's dependents --

Chief Justice Warren E. Burger: Well whatever that may be, there is nothing in the record in this case, that would indicate which would be drawn in one of those exceptions but going back to Virginia Petroleum Jobbers, it is quite clear that all the equitable relief, given interim relief was premised on the proposition that there was no remedy available.

Mr. Thomas Mcgrew: That's right.

And what we have asked for and what the Court of Appeals held we were entitled to, is to a continuation of this hearing so that we can attempt to prove that.

Judge Welby(ph) writing for the Court of Appeal did not say we would win.

He said we might well lose but that that question had still to be made on this record and was for Judge Gasch in the first instance.

Chief Justice Warren E. Burger: Well, I suppose if the officially commend the Judge Gasch's court and had testified nor I could the terminating that petitioner -- I didn't rely at all on the records of the other agencies I did this solely on the record with the GSA.

This case would never have been here, would it?M

Mr. Thomas Mcgrew: Very probably would not -- very probably would not.

Justice Mr. Justice Rhenquist: Did the District court make any finding at the time of issue of the temporary restraining order as to why back pay and reinstatement would be inadequate in the case of this particular respondent?

Mr. Thomas Mcgrew: It did not your honor, that point was submitted in argument before the court on the temporary restraining order.

The record there is not before this court, it was not taken out by the government that the court of appeals.

So, I hesitate to quote from it.I can represent to the court what happened if you like to know.

Justice Mr. Justice Rhenquist: I just want if the District court had made a finding or had not?

Mr. Thomas Mcgrew: A decision was made on a legal issue and it was given to the court as a matter of law on the temporary restraining order.

If there are no more question, I will stop.

Chief Justice Warren E. Burger: Thank you Mr. McGrew.

Do you have anything further Mr. Jones?

Rebuttal of Keith A. Jones

Mr. Keith A. Jones: I have nothing further your honor.

Chief Justice Warren E. Burger: The case is submitted.

Thank you gentlemen.