APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Adams, Rosenn and Weis, Circuit Judges.
The discharge of an employee, especially one who has given many years of valuable service, is generally a painful and traumatic experience for both employer and employee. The history of the underlying administrative proceedings which are the genesis of the action in the district court reveals that this case is no exception to the general rule.
Robert D. Barnes was employed as an attorney for over seventeen years with the Navy, most recently with the Office of Counsel, United States Naval Aviation Supply Office in Philadelphia.*fn1 On July 12, 1971, Barnes received a Notice of Proposed Separation, alleging that he had concentrated his time over a two-year period working on two Navy contracts, one with Kurz & Root Co., and one with Decitron Electronics Corp., in disregard of the directions of his superiors and in neglect of his assigned duties. The Notice also alleged that Barnes openly had criticized anyone disagreeing with his position concerning these contracts.
After Barnes orally responded to the charges, the General Counsel of the Navy issued a final agency decision sustaining the Notice on September 10, 1971. Barnes appealed his separation to the Regional Director of the Civil Service Commission (Commission) five days later.
Barnes has defended his work on the two contracts as motivated by a desire to expose corruption and wrongdoing in the Office of the General Counsel. He claims that the orders of his superiors directing him to discontinue this work were part of an effort by the Office of the General Counsel to cover up its wrongdoing, and that his discharge resulted when he refused to terminate his investigation.
As a preference eligible employee, Barnes' appeal of his discharge entitled him to a hearing before the Commission. 5 U.S.C. § 7701; 5 C.F.R. § 772 (1974). In preparation for his hearing, Barnes requested that the presiding Regional Appeals Examiner ensure that three sets of documents be made available for the hearing: (1) the files of the Navy Contract Adjustment Board (NCAB) concerning the Decitron contract; (2) copies of eight F.B.I. reports relating to the Kurz & Root contract; and (3) a report of the Navy Inspector-General (NIG) to which the Notice of Proposed Separation referred. The Examiner requested only that a copy of the NIG report be furnished to Barnes. The Navy made available only Volume I of the four-volume report, and certain exhibits attached to the Volume were not furnished. The Examiner made no further effort to obtain the missing volumes or attachments.
Barnes' hearing originally was scheduled for March 15, 1972, but was postponed at his request until May 4, 1972. On April 24, 1972, Barnes filed a complaint in the District Court for the Eastern District of Pennsylvania seeking: (1) a preliminary injunction directing the Examiner, George W. Chatterton, from proceeding with the hearing until the adjudication of the complaint;*fn2 (2) an order directing the Examiner to render a decision as to whether the sought-after documents were material and relevant to the issues raised by the appeal; and (3) an order directing that the documents be made available for the hearing. On April 3, 1974, the district court granted the Commission's motion to dismiss the complaint, holding that Barnes had not shown sufficient reason for the court to intervene in the proceedings prior to the final agency decision. 375 F. Supp. 198 (E.D. Pa. 1974).
Following the court's decision, the Examiner convened a prehearing conference on April 29, 1974, at which time the relevancy and materiality of the documents were discussed. After considering the arguments, the Examiner declined to request the production of the documents. The hearing then commenced, with Barnes having received only the one volume of the NIG report. During the hearing, the Navy made available the remaining volumes of the report, but not the exhibits missing from Volume I. The hearing concluded on February 21, 1975, and no decision has been rendered as yet by the Examiner.
Barnes appeals the decision of the district court, alleging that the failure of the Examiner to order the production of the documents violated his statutory right to the documents, was arbitrary and capricious, and resulted in a hearing in which he could not defend adequately against the Navy's charges. Barnes claims that this violation of his statutory and constitutional rights is sufficient reason to warrant judicial intervention prior to the final agency decision. We affirm the decision of the district court.
The ultimate objective of the Government must be, whether the proceeding be a criminal or an administrative action growing out of the discharge of one of its employees, not that the Government "shall win a case, but that justice shall be done." Campbell v. United States, 365 U.S. 85, 96, 5 L. Ed. 2d 428, 81 S. Ct. 421 (1961). This is the lodestar which must guide the course of all parties in this proceeding. We recognize that the failure of the Examiner to request the production of the documents could impair significantly Barnes' defense against the Navy's charges. Barnes has important procedural rights in the appeals process. The Navy may not rely on any documents in its Notice of Proposed Separation unless the documents are made available to him. 5 C.F.R. § 752.202(a)(2)-(3) (1974).*fn3 Moreover, the Examiner "shall discuss all relevant representations and evidence with both parties and make the representations and evidence available to them for review." 5 C.F.R. § 772.304(c) (1974).*fn4 Barnes, however, lacks subpoena or other power to compel the production of such evidence. Therefore, failure of the Examiner vigilantly to safeguard Barnes' procedural rights and to secure for him documents and data necessary for his defense or for an effective cross-examination of witnesses transforms such rights into mere illusory guarantees.
Barnes' attempt to secure judicial enforcement of these rights, as important as they are, nonetheless is subject to the doctrine of the exhaustion of administrative remedies. This doctrine, evolved after substantial experience, is conducive to efficient disposition of administrative proceedings and to effective judicial review. Under this principle, Barnes first must await the final decision of the Commission before obtaining judicial relief. See McKart v. United States, 395 U.S. 185, 23 L. Ed. 2d 194, 89 S. Ct. 1657 (1969); cf. Sampson v. Murray, 415 U.S. 61, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974). See generally 3 K. Davis, Administrative Law Treatise § 20.01 et seq. (1958 ed.). As with most judicially created doctrines, there are judicially created exceptions. A party need not await a final agency decision if the preliminary agency decision clearly and unambiguously violates statutory or constitutional rights, Fitzgerald v. Hampton, 152 U.S. App. D.C. 1, 467 F.2d 755 (1972), or "if the prescribed ...