1 Fair Empl.prac.cas. 496, 1 Empl. Prac. Dec. P 9829alleyenne B. Davis, Appellant, v. Secretary, Department of Health, Education and Welfare, And,chairman, U.S. Civil Service Commission, Andcommissioner, Social Securityadministration, Appellees, 386 F.2d 429 (4th Cir. 1967)

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US Court of Appeals for the Fourth Circuit - 386 F.2d 429 (4th Cir. 1967) Argued Nov. 8, 1967. Decided Nov. 10, 1967

James H. Anderson, Jr., Baltimore, Md. (Court-assigned counsel) (Baker, Anderson & Briscoe, Baltimore, Md., on brief), for appellees.

Arthur G. Murphy, First Asst. U.S. Atty. (Stephen H. Sachs, U.S. Atty., on brief), for appellees.

Before WINTER and BUTZNER, Circuit Judges, and WOODROW W. JONES, District Judge.


Plaintiff sought to restrain defendants from continuing with certain administrative proceedings which had been commenced upon her allegations that she had been discriminated against, on racial grounds, in the course of her employment by the Social Security Administration of the United States Department of Health, Education and Welfare. Included among the allegations to support her claim for injunctive relief, plaintiff alleged that defendants had excluded Negroes from the panel from which the hearing officer was selected, that the hearing officer designated lacked the qualifications required by 5 C.F.R. 713.216(b) (2), and that the hearing officer was improperly conducting the proceedings.

The district judge dismissed all portions of the complaint, except those which related to the qualifications of the hearing officer, on the ground that he should not exercise jurisdiction until plaintiff had exhausted her administrative remedies. He concluded that the hearing officer was qualified under 5 C.F.R. 713.216(b) (2) as the district judge interpreted that regulation. Davis v. Secretary, Department of Health Education and Welfare, 262 F. Supp. 124 (D. Md. 1967). After an appeal from the order, the district judge also denied plaintiff's motion to stay the administrative proceeding pending this appeal.

We affirm that aspect of the order of the district judge dismissing the complaint, for the reasons set forth in the opinion of the court.

Defendants have not appealed from the portion of the district judge's order which adjudicated that the hearing officer was qualified in accordance with 5 C.F.R. 713.216(b) (2) as properly construed and, hence, defendants have raised no question of the authority of the district judge to have decided this aspect of the case at that stage of the administrative proceeding. Assuming, without deciding, that the district judge has such authority, we agree with his interpretation of the regulation and with his conclusion that the hearing officer was qualified, for the reasons expressed in his opinion.

Although plaintiff in her brief asserts error on the part of the district judge in refusing to stay the administrative proceeding pending this appeal, plaintiff did not appeal from the order denying the stay. This question is, therefore, not before us and on it we express no opinion.