The opinion of the court was delivered by: SHARP
This is a suit by a federal non-probationary employee who was discharged from his employment without first being provided a formal hearing. Since the plaintiff seeks to enjoin his discharge on the theory that Title 5 U.S.C. § 7501 as applied to him violates the Fifth Amendment to the United States Constitution, a three-judge District Court was convened.
At the time of his termination, the plaintiff, Walter S. Shelton, was the District Director of the Seattle District Office of the Equal Employment Opportunity Commission (hereinafter EEOC). He was initially employed by the EEOC on August 29, 1966, as an Equal Employment Officer, Grade GS-12. After several intervening promotions, Mr. Shelton was assigned, on July 11, 1971, to the position of District Director, Seattle District Office, and his grade classification was increased to GS-14.
By letter dated July 3, 1972, plaintiff was informed that his superior, the Regional Director of the San Francisco Region, proposed to recommend his removal from his position as District Director. This notice detailed numerous specific charges, which may be summarized as a failure to carry out his manifold responsibilities as the highest ranking EEOC officer in this area, including, generally, failure to recruit, to supervise and to follow administrative procedures.
He was initially granted fifteen (15) days, including thirty-two (32) hours of official time, to review the material relied on in support of the charges and to reply to the charges orally or in writing with accompanying affidavits. If he chose to reply orally, he could be accompanied by a representative of his own choosing. After two extensions of time, Mr. Shelton elected to respond by letter dated August 29, 1972, addressed to his Regional Director. This letter was submitted to the EEOC Personnel Director based in Washington, D.C., who, on December 1, 1972, replied by letter decision removing Mr. Shelton from office effective December 8, 1972. This decision struck several of the specific charges alleged in the initial notice from the Regional Director, but the general tenor and gravity of the remaining charges stayed the same.
By letter dated December 5, 1972, plaintiff notified the EEOC that he was appealing the decision to remove him, by following general appeal procedures. Presumably, that agency is presently engaged in processing his appeal through its post-termination procedure, with an independent examiner conducting an adversary-type hearing.
Plaintiff also filed a complaint and motion in the U.S. District Court seeking a temporary restraining order to prevent his discharge until a motion for a preliminary injunction could be heard. The temporary restraining order was granted on December 8, 1972, and defendant was enjoined from discharging plaintiff prior to 5:00 p.m. on December 12, 1972. A hearing was held on December 12, 1972, and the District Court granted the plaintiff's request to convene a three-judge court but refused to enjoin the defendant from discharging plaintiff. Plaintiff was discharged from the EEOC by notice effective December 13, 1972.
The thrust of petitioner's argument is that the Fifth Amendment to the Constitution of the United States requires an adversary hearing before an impartial decision maker prior to termination for cause. Congress has declared otherwise. Title 5 U.S.C. § 7501:
"§ 7501. Cause; procedure; exception
(a) An individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.
(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to --
(1) notice of the action sought and of any charges preferred against him;
(2) a copy of the charges;
(3) a reasonable time for filing a written answer to the charges, ...