Temple v. Bushell

Ninth Circuit

Temple v. Bushell

500 F.2d 591

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 1, 1974

DocketNos. 71-1834, 71-2135

StatusPublished

Cited by4 cases

This text of 500 F.2d 591 (Temple v. Bushell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Temple v. Bushell, 500 F.2d 591 (9th Cir. 1974).

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Opinion

OPINION

PER CURIAM:

Each of the appellants in these two cases was summarily suspended from his job by appellees pending an administrative determination as to whether he should be permanently removed from the postal service. Neither appellant sought to exhaust his available administrative remedies. Instead, each independently brought suit in district court to enjoin his suspension pending a full administrative hearing, alleging that the due process clause of the Fifth Amendment requires a pre-suspension administrative hearing.

In Temple’s case, the trial court denied his motion for a preliminary injunction and dismissed his action for lack of jurisdiction on the ground that he had failed to exhaust his administra[592]*592tive remedies. In Francois v. Bushell, 325 F.Supp. 531 (N.D.Cal.1971), the trial court concluded that Francois was not required to exhaust his administrative remedies, but it upheld the constitutionality of the summary suspension without a hearing. These appeals followed, and this court granted appellants’ motion to consolidate the actions on appeal.

The Supreme Court in Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, directly addressed and rejected appellants’ constitutional arguments. There is no need, therefore, to resolve the exhaustion of remedies question.

The judgments are affirmed.

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OPINION

PER CURIAM:

Each of the appellants in these two cases was summarily suspended from his job by appellees pending an administrative determination as to whether he should be permanently removed from the postal service. Neither appellant sought to exhaust his available administrative remedies. Instead, each independently brought suit in district court to enjoin his suspension pending a full administrative hearing, alleging that the due process clause of the Fifth Amendment requires a pre-suspension administrative hearing.

In Temple’s case, the trial court denied his motion for a preliminary injunction and dismissed his action for lack of jurisdiction on the ground that he had failed to exhaust his administra[592]*592tive remedies. In Francois v. Bushell, 325 F.Supp. 531 (N.D.Cal.1971), the trial court concluded that Francois was not required to exhaust his administrative remedies, but it upheld the constitutionality of the summary suspension without a hearing. These appeals followed, and this court granted appellants’ motion to consolidate the actions on appeal.

The Supreme Court in Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, directly addressed and rejected appellants’ constitutional arguments. There is no need, therefore, to resolve the exhaustion of remedies question.

The judgments are affirmed.

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500 F.2d 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/temple-v-bushell-ca9-1974.

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