George P. McCartin v. Eleanor Holmes Norton, Chairperson, U. S. Equal Employment Opportunity Commission and Edward Mercado

McCartin brought this action against the Equal Employment Opportunity Commission (EEOC), its chairperson, its New York regional director, and former Senator Edward W. Brooke. McCartin sought injunc-tive relief and damages on the ground that he was denied promotion to deputy director of the Boston office of the EEOC. He alleged that his qualifications for the position were superior to those of the person appointed, and that the appointee was hired only because of a recommendation by Senator Brooke. The EEOC chairperson, the regional director, the person appointed, and Senator Brooke were all Republicans. McCartin was not. McCartin further alleged that the denial of the promotion forced him to pursue other career opportunities outside of the federal government.

McCartin relies upon a statute and regulation that limit the discretion of officials who make appointment decisions in the civil service. The statute provides:

5 U.S.C. § 3303 (1976). The regulation states:

5 C.F.R. § 4.2 .

McCartin filed a timely complaint with the EEOC, alleging denial of promotion because of political influence. In his complaint in this case, McCartin alleges that after an investigation the EEOC…

concurring:

I concur in the majority opinion. I write separately only to explain how the several issues discussed in the opinion relate to one another, and to disassociate myself from the dictum of footnote 1 of the opinion, which comments on a “due process” issue not raised or briefed on appeal.

McCartin argued to us that his complaint stated a claim for equitable and monetary relief arising under the first amendment and the Administrative Procedure Act. Parts I and IV of the opinion reject both contentions. In Part II, the opinion correctly permits judicial review of agency action under 28 U.S.C. § 1331 (a). This holding, however, must be viewed in conjunction with Part V, which rejects McCartin’s claims for damages against both the government and the individual defendant. Therefore, the opinion holds that McCartin has stated a claim only for nonmonetary relief under section 1331(a) for the alleged arbitrary and capricious conduct of the government defendants in failing to follow certain lawfully-promulgated administrative regulations.

But, surprisingly, after Part III of the opinion properly rejects McCartin’s due process claim, footnote 1, which I reject, suggests that…

674 F.2d 1317 George P. McCARTIN, Appellant v. Eleanor Holmes NORTON, Chairperson, U. S. Equal Employment Opportunity Commission; and Edward Mercado, Appellees. No. 79-4155. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 10, 1980. Decided April 22, 1982. George P. McCartin, Berkeley, Cal., for appellant. Philip B. Sklover, E.E.O.C., Washington, D. C., for appellees. Appeal from the United States District Court for the Northern District of California. Before WALLACE and CANBY, Circuit Judges and QUACKENBUSH, * district judge. QUACKENBUSH, District Judge. McCartin brought this action against the Equal Employment Opportunity Commission (EEOC), its chairperson, its New York regional director, and former Senator Edward W. Brooke. McCartin sought injunctive relief and damages on the ground that he was denied promotion to deputy director of the Boston office of the EEOC. He alleged that his qualifications for the position were superior to those of the person appointed, and that the appointee was hired only because of a recommendation by Senator Brooke. The EEOC chairperson, the regional director, the person appointed, and Senator Brooke were all Republicans.…