David S. Schwartz v. Federal Energy Regulatory Commission

578 F.2d 417, 188 U.S. App. D.C. 175, 1978 U.S. App. LEXIS 11270
CourtCourt of Appeals for the D.C. Circuit
DecidedMay 9, 1978
Docket77-1279
StatusPublished
Cited by6 cases

This text of 578 F.2d 417 (David S. Schwartz v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David S. Schwartz v. Federal Energy Regulatory Commission, 578 F.2d 417, 188 U.S. App. D.C. 175, 1978 U.S. App. LEXIS 11270 (D.C. Cir. 1978).

Opinion

PER CURIAM:

Appellant Schwartz is a former employee of the Federal Power Commission (FPC) who protests the Commission’s denial of his request that he be given a year’s leave without pay in order that he might work on an outside research project. He decided to resign his position and work on the project. Subsequently, he filed this action challenging the legality of the FPC’s refusal to grant him a leave and the procedures for processing his grievance. The District Court granted summary judgment for the FPC. We affirm.

Dr. Schwartz was a career economist holding the position of Assistant Chief, Office of Economics, with major responsibilities for research related to the natural gas and electric power industries. In 1974, he approached his superior, Dr. Haskell Wald, with a proposal that he take a one year leave of absence without pay to work on an academic project on competition and regulatory reform in the energy utilities. Although Dr. Wald was not receptive to the proposed leave, Schwartz nevertheless pursued a National Science Foundation grant and made preparations to obtain a one year academic appointment.

In April, 1975, Dr. Schwartz formally requested leave, contending that his research project qualified under civil service regulations as the type of case for which approval of extended leave without pay would be proper. 1 Dr. Wald, referring to other provisions in the civil service regulations, 2 recom *419 mended the request be denied. In Dr. Wald’s judgment any gains resulting from the leave would be outweighed by the disadvantages to the agency from Schwartz’ absence during a period when regulatory policies were undergoing major changes. Dr. Wald also believed that it would be difficult to find a suitable replacement on a temporary basis for Dr. Schwartz, and that even if such a replacement were found the office would be seriously handicapped while he or she was being trained. Dr. Wald’s recommendation was upheld by the Office of Personnel Programs.

Dr. Schwartz filed a grievance with the FPC, but before it could be resolved he resigned “under protest” to begin his project. The FPC grievance was then suspended while Schwartz appealed to the Federal Employee Appeals Authority of the U.S. Civil Service Commission, which has appellate jurisdiction over adverse agency personnel actions. 3 The FEAA concluded that Dr. Schwartz’s resignation was not involuntary and tantamount to removal by the agency, as Schwartz contended; it was a voluntary decision responding to a situation created by his initiative in going forward with his project despite Dr. Wald’s discouragement.

After the FEAA decision Schwartz pursued his grievance with the FPC, maintaining that the applicable civil service regulations supported approval of his request, and that the refusal was arbitrary and capricious and was improperly motivated by the agency’s desire to get rid of Schwartz because of policy differences.

A Hearing Examiner was appointed by the FPC to handle the grievance. 4 He con-eluded on the basis of a grievance record compiled from correspondence, interviews with and statements from FPC officials, and other background material that the FPC had not acted arbitrarily nor abused its discretion in denying Schwartz’ request and that policy differences did not motivate the denial. Despite Schwartz’ allegations of error, the Examiner’s findings and recommendations were adopted, in turn, by the Executive Director and the Chairman of the FPC.

Schwartz challenges the District Court’s decision that there was “nothing improper or unconstitutional in the handling of plaintiff’s grievance.” 5 Schwartz’s challenge is directed principally at the Examiner’s refusal to hold an evidentiary hearing and to require the FPC to produce information with respect to its prior agency-wide practices as to leaves without pay. Schwartz takes issue with other aspects of the grievance proceedings, but only one of them— the examiner’s interaction with FPC officials — warrants discussion here. 6

At the outset, we find the guarantees of due process not applicable to Dr. Schwartz’s grievance proceedings. Dr. Schwartz had no entitlement or legitimate expectation to a leave without pay and the ability to return to his job after a year’s absence. Consequently he possessed no property interest protected by the Fifth Amendment. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Agency regulations clearly state that the decision to grant such a leave is a matter *420 for agency discretion. 7 The agency is charged to examine requests for leave “closely to assure that the value to the government and the serious needs of the employee are sufficient to offset the costs and administrative inconveniences to the government. . . . ” 8

The only legitimate expectation Schwartz could have was in the agency’s reasonable exercise of its discretion. In this regard we have been instructed that

[t]he federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies. We must accept the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs.

Bishop v. Wood, 426 U.S. 341, 349-50, 96 S.Ct. 2074, 2080, 48 L.Ed.2d 684 (1976) (footnote omitted).

We turn then to appellant’s claim that the FPC failed to accord him the procedural rights established by FPC regulations. As this court noted in Mazaleski v. Treusdell, 183 U.S.App.D.C. 182, 200, 562 F.2d 701, 719 (1977),

Where, as here, a government employee has no procedural due process rights apart from those which the agency has chosen to create by its own regulations, scrupulous compliance with those regulations is required to avoid any injustice. See Vitarelli v. Seaton, 359 U.S. 535, 539-40 [79 S.Ct. 968, 3 L.Ed.2d 1012] . . . (1959). See also Morton v. Ruiz, 415 U.S. 199, 235, [94 S.Ct. 1055, 39 L.Ed.2d 270 . . . (1974).

The FPC Administration Manual, Instruction No. 4x61, 7(c) (May 14, 1975) grants the hearing examiner discretion regarding the manner in which a formal grievance inquiry will be conducted. Section 7(c) provides: '

(c) Inquiry

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Bluebook (online)
578 F.2d 417, 188 U.S. App. D.C. 175, 1978 U.S. App. LEXIS 11270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-s-schwartz-v-federal-energy-regulatory-commission-cadc-1978.