Donald G. Jolly v. E. J. Listerman, Regional Representative, Bureau of Retirement and Survivors

675 F.2d 1308, 219 U.S. App. D.C. 83, 1982 U.S. App. LEXIS 19875

Opinions

ORDER

PER CURIAM.

Appellant’s suggestion for rehearing en banc has been circulated to the full Court. A majority of the Court has not voted in favor thereof.* On consideration of the forgoing, it is

ORDERED by the Court en banc that the aforesaid suggestion is denied.

The following statements are attached:

Joint statement of Circuit Judges TAMM and WILKEY setting forth their reasons for voting against rehearing en banc.

Statement of Chief Judge SPOTTSWOOD W. ROBINSON, III, with whom Circuit Judge GINSBURG joins, concurring in denial of rehearing en banc.

Statement of Circuit Judge EDWARDS setting forth his reason for voting to rehear this case en banc.

TAMM and WILKEY, Circuit Judges:

In deciding whether it is appropriate to grant an en banc hearing in a particular case, this court is guided by Rule 35(a) of the Federal Rules of Appellate Procedure:

Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the processing involves a question of exceptional importance.

Contrary to Judge Edwards’ impressions,¹ there is no question of “uniformity” between the court’s opinion in this case and other decisions of this court, and, while a gross injustice arising from some error in the analysis of a panel decision might constitute “a question of exceptional importance” in the hypothetical instance, there was no such error in this case.

A. Uniformity

The contention, raised in Judge Edwards’ statement below, that “the majority opinion is inconsistent with a prior memorandum decision in this case issued by a different panel of this court in December 1979”² is without foundation. The decision to which Judge Edwards refers³ remanded Jolly’s case to the Social Security Administration (SSA) for reconsideration of the propriety of his discharge. It did give footnote reference to agency personnel guidelines, noting that they “provide for an attempt to place an employee in a more suitable position if his or her performance is unsatisfactory;”⁴ however, contrary to our dissenting colleague’s impression, the panel at that time made no ruling that the provision required Jolly’s reassignment. The memorandum decision simply expressed an opinion that the agency’s reconsideration of Jolly’s case, “in light of the reduced charges,” might include an examination of this particular guideline.

The guideline-based argument was raised again on Jolly’s appeal from the SSA’s reconsideration. However, upon closer examination of the provisions in issue, and for reasons set forth in detail in the majority’s opinion in this case⁵ we did not find that particular argument persuasive. Simply, the “directive” which Judge Edwards identifies appears in the context of guidelines relating to grants for denials of within-grade increases. None of these have anything to do with discharges or disciplinary actions. It was hardly inconsistent with the prior decision for us also to notice the guidelines raised and, upon taking a close look at their context, to find them inapplicable to Jolly’s case.

B. The Issue of “Gross Miscarriage of Justice”

Judge Edwards’ position that this court’s denial of a rehearing en banc places an “imprimatur on a miscarriage of justice”⁶ is based only on his personal conviction that Jolly was discharged for “blowing the whistle.” It is significant that of all who have reviewed the matter, Judge Edwards stands alone in this factual conclusion. The assertion that the agency had acted in a retaliatory manner was raised before and rejected by no fewer than four fact-finding bodies: (1) an independent advisory arbitrator, (2) the Social Security Administration, (3) the Civil Service Commission’s Federal Employee Appeals Authority (FEAA), an independent adjudicatory body which held its own public hearings in the matter, and (4) the district court. Although he admits that this court should not reweigh the evidence or retry the facts, Judge Edwards apparently is convinced that this court properly may override the factual conclusions of those several fact-finders who determined that there was sufficient evidence in the record to support Jolly’s discharge, notwithstanding his claims of retaliatory motives. Judge Edwards dissented from our determination not to retry the facts as a panel, and dissents again from our refusal to do so as a full court.

The “anomaly” which Judge Edwards identifies in his own comparison of this court’s ultimate decision in Jolly and the Fifth Circuit’s opinions in Porter v. Califano⁷ and Porter v. Schweiker⁸ is simply an outgrowth of his desire to find factual conclusions where there are none. The Jolly opinion is not irreconcilable with either of the Fifth Circuit’s Porter opinions. Porter I held that the district court erred in granting summary judgment against constitutional claims made by the appellant when no evidentiary hearing had been held to settle what the appellate court saw as genuine and material factual issues.⁹ (Jolly, by contrast, was afforded an abundance of hearings to settle those factual issues.) There was similarly no finding on the facts in Porter II, the court holding only that a settlement agreement did not moot Porter’s challenge, and that dismissal was therefore inappropriate without further fact resolution.10 Judge Edwards’ conclusion that “[t]he Fifth Circuit has ruled that it is unlawful for the government to discipline an employee who protests the discharge of a ‘whistle-blower,’ ” has no foundation in these opinions. The dissent simply has read factual rulings into holdings based on the very existence of unresolved issues of fact.

C. Conclusion

The basis for the district court’s summary judgment, from which Jolly’s appeal was made to this court, is clear. It followed the factual conclusions drawn from independent adjudications at several fact-finding levels. It was not a summary judgment from out of the blue but was founded on an extensive record. This court has not given a stamp of approval to an agency’s retaliatory discipline, an action which would not be countenanced by any member of this court. Our opinion was premised on a clear conclusion that there was adequate support in the record for the findings that Jolly was-discharged for a failure to achieve an acceptable level of performance in his assigned tasks, and that the agency’s action was therefore within its discretion. An en banc rehearing in such a case is simply not required.

SPOTTSWOOD W. ROBINSON, III, Chief Judge, with whom GINSBURG, Circuit Judge, joins, concurring in denial of rehearing en banc:

An old adage warns that all too frequently hard cases make bad law. Perhaps it also should caution that making good law in hard cases ofttimes is hard on the decision-makers. This appeal has engendered a sharp division on the court, and my vote against rehearing en banc has not come easily. Nonetheless, I think that disposition makes good law, that is, it effectuates a proper application of Appellate Rule 35(a)¹ to the case. I write briefly to elucidate this belief.

Hitherto I have recounted the evolution of en banc review in the federal courts of appeals, and expressed my conclusion that history and precedent demand reservation of en banc consideration for truly extraordinary cases.² I need not retrace that path here save to reiterate the view that full-court review is justified only in litigation “of real significance to the legal process as well as to the litigants.” ³ No one would be so callous as to doubt that this appeal is of vital importance to Jolly, nor would anyone suggest that it is inconsequential if indeed the panel did reach an erroneous result. But it neither trivializes Jolly’s concern nor abdicates judicial duty to insist that this case does not call for en banc treatment.

For all of its emotional quality, the case is of no great moment to the legal process. At heart, the appeal is not about principles of law; it is about the ultimate meaning of subsidiary facts. The panel members did not disagree over the invalidity of any federal employee’s discharge for “whistleblowing,” but rather over whether the agency-employer had perpetrated a retaliatory firing in this instance. So heavily fact-dependent a ease is especially inappropriate for en banc review. What could the court en banc hope to accomplish other than to say whether the particular set of events in suit amounted to prohibited retaliatory discharge? The panel produced two careful and detailed opinions in which the majority and the dissenting members surveyed the record and explained their differing interpretations. No jurisprudential value is enhanced by having the facts aired and debated again, this time before eleven judges instead of three. Nor is mere disagreement with the panel majority’s outcome any warrant for en banc rehearing.⁴

Thus, while I respect the views that led Judge Edwards to dissent from the position of his panel colleagues, I strongly disagree with his thesis today. In declining to rehear the case en banc, the court does not “place its imprimatur on a miscarriage of justice.”⁵ We do not sit in judgment on the panel;⁶ we do not sanction the result it reached. We decide no more than that the issues presented are not such that “consideration by the full court is necessary to secure or maintain uniformity of its decisions,” or that “question[s] of exceptional importance” are involved.⁷

Footnotes

*

Circuit Judge Bork did not participate in these proceedings.

1

. See his dissenting statement below.

2

. Dissenting statement at 1312.

3

. Jolly v. Listerman, 610 F.2d 999 (D.C.Cir., 1979), reprinted in Jolly v. Listerman, 672 F.2d 935 at 959 App. (D.C.Cir., 1982).

4

. Id. at 959 n.l.

5

. Jolly v. Listerman, 672 F.2d at 944-945 (D.C. Cir., 1982).

6

. Dissenting statement at 1311.

7

. 592 F.2d 770 (5th Cir. 1979) [Porter I],

8

. 648 F.2d 310 (5th Cir. 1981) [Porter II],

9

. Porter I, 592 F.2d at 777.

10

. Porter II, 648 F.2d at 312.

1

. Fed.R.App.P. 35(a).

2

. See Church of Scientology v. Foley, 205 U.S. App.D.C. 364, 365, 640 F.2d 1335, 1336 (1981) (dissenting opinion).

3

. Id at 370, 640 F.2d at 1341.

4

. Id.

5

. Dissenting Opinion on Denial of Rehearing En Banc at 1311.

6

. “[T]he en banc court is not an institution for monitoring panel decisionmaking.” Church of Scientology v. Foley, supra note 2, 205 U.S.App.D.C. at 370, 640 F.2d at 1341 (dissenting opinion).

7

. Fed.R.App.P. 35(a).