George A. Albert v. Hon. John H. Chafee, Secretary of the Navy

Appellant filed a complaint in the district court challenging the lawfulness of his dismissal as a civilian employee of the Department of the Navy.

The defendants moved to dismiss. The district court entered an order purporting to grant summary judgment for the defendants. The government argues, however, and we agree, that the district court’s intention was to dismiss the action for lack of, jurisdiction.

We have repeatedly reviewed the merits of agency action discharging government employees, necessarily assuming that both district courts and this court had jurisdiction to do so. See Toohey v. Nitze, 429 F.2d 1332 (9th Cir. 1970); Herak v. Kelly, 391 F.2d 216 (9th Cir. 1968); and cases collected in Davis, Administrative Law Treatise § 29.07 (1970 Supp. at 1010-11). The source of jurisdiction is suggested by the following statement in Toohey v. Nitze describing the standard to be applied by the courts in reviewing such agency action ( 429 F.2d at 1334 ):

This, of course, is the standard applied during judicial review of agency action under the Administrative Procedure Act. 5 U.S.C. § 701 et seq. See Charlton v. United States, 412 F.2d 390 (3d Cir. 1969). Jurisdiction exists…