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July 13, 1976

David S. SCHWARTZ, Plaintiff,

The opinion of the court was delivered by: ROBINSON, JR.

 AUBREY E. ROBINSON, Jr., District Judge.

 Plaintiff in this action is a former employee of the Federal Power Commission (FPC) who resigned his position after his request for a year's leave without pay was denied. He now challenges the legality of the Commission's denial of his request for leave and the procedures utilized in the processing of his grievance. Plaintiff seeks a declaratory judgment that the denial of his request for leave was unlawful and that the procedures utilized for his grievance were fatally defective. In addition, he asks that he be reinstated to his former position as Assistant Chief of the Office of Economics, a position which has since been filled by the Commission. The case is currently before the Court on cross motions for summary judgment.

 The Government contends that this Court lacks jurisdiction to review either of plaintiff's claims under the Administrative Procedure Act because both the denial of the request for leave and the grievance proceeding which arose therefrom are "agency action . . . committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The Court is not persuaded that the defendants' approach to the question concerning what the Court views as the scope of judicial inquiry into agency personnel matters is the most precise and proper one. Therefore, the Government's motion to dismiss this action on the grounds that subject matter jurisdiction is lacking must be denied for the reasons set forth below.

 It is well recognized in this Circuit that the Administrative Procedure Act, 5 U.S.C. §§ 701-706, is an independent source of jurisdiction providing the Courts with authority to review any final agency action for which there is no other judicial remedy. *fn1" However, it is also clear that Courts have traditionally recognized that certain types of administrative personnel determinations are questions of supervisory discretion within an agency and are not subject to judicial review. *fn2" In addition, in a recent case the Court specifically reached plaintiff's claim concerning the due process accorded him during the grievance proceeding and held that the Court lacked "authority" to review internal grievance matters arising from a Federal employee's lack of promotion. *fn3"

 At first blush it is difficult to reconcile those cases which recognize subject matter jurisdiction in the majority of cases challenging agency actions grounded on the APA with those which hold that personnel determinations of the Federal Government are not subject to judicial review. It is apparent, however, upon close reading of the cases in which the Courts have shied away from interfering with agency personnel matters that the question turns not on subject matter jurisdiction, but on the appropriate scope of judicial review. The judicial reluctance to interfere with agency personnel matters rests not on the statutory provisions of the APA which limits judicial review in those cases involving "agency action committed to discretion of law" as argued by defendant, but rather is based upon good common sense. As stated by now Justice Blackmun in Gnotta, supra :

Surely, promotion or non-promotion of employees within a department is a matter of supervisory discretion and not ordinarily subject to judicial review. It has been said that courts cannot undertake to pass on a plaintiff's qualifications for any given post or to compare them with those of an incumbent. . . . A claim that the plaintiff's supervisor entertained a dislike for him has not sufficed for judicial review. And Professor Davis asks, "Do we want courts inquiring into personnel management -- salary increases, sick leave, office hours, allocation of parking spaces in the basement of the agency's building?" The integrity of these authorities and the soundness of the principles they espouse, would ordinarily incline a court to avoid interfering with administrative personnel decisions and to take a dim view of Gnotta's claims here. Indeed, his is not even a discharge case. He complains not of agency action but mainly of agency inaction. And he demands a specified employment status. (Citations omitted).

 Therefore, since it appears that in this instance subject matter jurisdiction is to be distinguished from scope of judicial review, the Government's motion to dismiss this case on the grounds that the claims arise from matters which are committed to agency discretion is not on good ground and must be denied.

 This is not to say, however, that the defendants' argument is totally unpersuasive. Regardless of whether the considerations expressed in 5 U.S.C. § 701(a)(2) which exempts from Section 7 of the Administrative Procedure Act those matters "committed to agency discretion by law" is a matter of jurisdiction or scope of review, the Court is convinced that the reasons behind judicial reluctance to interfere with agency personnel matters are sound ones. Support for the limited role of the Court in such matters is found in the recent case of Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976), in which Justice Stevens stated:

The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies . . . In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee's constitutionally protected rights, we must presume that official action was regular . . . at 96 S. Ct. at 2080.

 Therefore, directed by these cases which have recognized the limited scope of judicial review of these matters, the Court undertakes a review of plaintiff's claim with great restraint.

 The undisputed facts are rather simple. In March 1975, Plaintiff and others obtained a grant from the National Science Foundation to undertake a one year study of "Competition and Regulatory Reform in the Energy Utilities." The project was to begin on May 12, 1975. Plaintiff, who at the time was employed as Assistant Chief, Office of Economics, Federal Power Commission, made formal application for one year's leave without pay pursuant to applicable FPC regulations. Plaintiff's supervisor recommended against granting the leave of absence on the basis of the heavy workload in the Office of Economics and the importance of Mr. Schwartz's presence in the office at that time. Thereafter, the Director of the Office of Personnel Programs formally denied plaintiff's request. Plaintiff then filed an informal grievance complaint concerning this denial, but since the administrative process was not completed by early May, the time at which the project was to commence, Mr. Schwartz resigned his position at the FPC "under protest." The formal grievance proceeding which followed plaintiff's resignation was conducted without benefit of hearing despite plaintiff's frequent requests, and ultimately culminated in a decision upholding the agency's denial of Mr. Schwartz's request for one year's leave without pay. Plaintiff thereafter filed this action.

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