John J. Toohey v. Paul H. Nitze, Sec'y, U. S. Dep't of the Navy, 429 F.2d 1332 (9th Cir. 1970). · Go Syfert
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John J. Toohey v. Paul H. Nitze, Sec'y, U. S. Dep't of the Navy, 429 F.2d 1332 (9th Cir. 1970). Cases Citing This Book View Copy Cite
37 citation events (4 in the last 25 years) across 15 distinct courts.
Strongest positive: Maddern v. Austin (casd, 2022-10-20)
Treatment trajectory · 1972 → 2026 · click a year to view as-of
1972 1999 2026
Statutes interpreted (leading-cases list)
#1 5 C.F.R. § 315.803-804 cited 1× in this case · 1 total citations of statute #6 5 C.F.R. § 315 cited 1× in this case · 47 total citations of statute
Top citers, strongest first. 21 distinct citers. How cited ↗
discussed Cited as authority (rule) Maddern v. Austin
S.D. Cal. · 2022 · confidence medium
Haw. 1996) (quoting Toohey v. 9 Nitze, 429 F.2d 1332, 1334 (9th Cir.1970)). 10 So far as the Court can surmise, there were two procedural irregularities in 11 Plaintiff’s administrative review.14 12 1.
discussed Cited as authority (rule) Rancheria v. Salazar
N.D. Cal. · 2012 · confidence medium
The Ninth Circuit recognizes a narrow scope of review applicable to agency action: “Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures, whether its factual determinations were supported by substantial evidence, and whether its action was arbitrary, capricious or an abuse of discretion.” Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir.1970), cert denied, 400 U.S. 1022, 91 S.Ct. 585 , 27 L.Ed.2d 633 (1971).
discussed Cited as authority (rule) Center for Food Safety v. Vilsack
N.D. Cal. · 2012 · confidence medium
The Ninth Circuit recognizes a narrow scope of review applicable to agency action: “Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures, whether its factual determinations were supported by substantial evidence, and whether its action was arbitrary, capricious or an abuse of discretion.” Too-hey v. Nitze, 429 F.2d 1332, 1334 (9th Cir.1970), cert. denied, 400 U.S. 1022 , 91 S.Ct. 585 , 27 L.Ed.2d 633 (1971).
discussed Cited as authority (rule) Cactus Corner, LLC v. U.S. Dept. of Agriculture
E.D. Cal. · 2004 · confidence medium
This circuit recognizes a narrow scope of review applicable to agency action: “Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures, whether its factual determinations were supported by substantial evidence, and whether its action was arbitrary, capricious or an abuse of discretion.” Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir.1970), cert denied, 400 U.S. 1022 , 91 S.Ct. 585 , 27 L.Ed.2d 633 (1971).
discussed Cited as authority (rule) Briggs v. Dalton
D. Haw. · 1996 · confidence medium
Albert v. Chafee, 571 F.2d 1063, 1065 (9th Cir.1977) (quoting Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir.1970)); 5 U.S.C. § 706 (2); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414, 416 , 91 S.Ct. 814, 822-23, 824 , 28 L.Ed.2d 136 (1971) (“The court is not empowered to substitute its judgment for that of the agency.”), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 105 , 97 S.Ct. 980, 984 , 51 L.Ed.2d 192 (1977); Garrett v. Lehman, 751 F.2d 997, 1006 (9th Cir.1985) (Commanding General did not abuse discretion in ordering plaintiff returned to…
cited Cited as authority (rule) Markair, Inc. v. Civil Aeronautics Board, Transamerica Airlines, Inc., Intervenor
9th Cir. · 1984 · confidence medium
Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir.1970), cert. denied, 400 U.S. 1022 (1971).
discussed Cited as authority (rule) Anthony J. Pellicano v. United States
9th Cir. · 1982 · confidence medium
Because we believe that imposition of the discharge penalty under these circumstances was arbitrary, capricious and an abuse of agency discretion, see Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970), we reverse.
discussed Cited as authority (rule) George P. McCartin v. Eleanor Holmes Norton, Chairperson, U. S. Equal Employment Opportunity Commission and Edward Mercado (2×)
9th Cir. · 1982 · confidence medium
Alsbury v. United States Postal Service, 530 F.2d 852, 854 (9th Cir.), cert. denied, 429 U.S. 828 , 97 S.Ct. 85 , 50 L.Ed.2d 91 (1976); Dennis v. Blount, 497 F.2d 1305 , 1309 n.4 (9th Cir. 1974); Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970), cert. denied, 400 U.S. 1022 , 91 S.Ct. 585 , 27 L.Ed.2d 633 (1971); Burke v. Carpenter, 387 F.2d 259, 259 (9th Cir. 1967), cert. denied, 391 U.S. 903 , 88 S.Ct. 1651 , 20 L.Ed.2d 417 (1968); see Frommhagen v. Klein, 456 F.2d 1391, 1393 (9th Cir. 1972); Taylor v. United States Civil Service Commission, 374 F.2d 466, 469 (9th Cir. 1967).
cited Cited as authority (rule) Smith v. Lehman
E.D.N.Y · 1982 · confidence medium
Particularly is this true during the probationary period." Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970).
cited Cited as authority (rule) Smith v. Lehman
E.D.N.Y · 1982 · confidence medium
Particularly is this true during the probationary period.” Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970).
discussed Cited as authority (rule) Benson v. Dow
W.D. Pa. · 1981 · confidence medium
In Burke v. Carpenter, 9 Cir. 1967, 387 F.2d 259 and Toohey v. Nitze, 9 Cir. 1970, 429 F.2d 1332 , we also considered whether the action was an abuse of discretion and whether factual determinations were supported by substantial evidence.
discussed Cited as authority (rule) Albert v. Chafee
9th Cir. · 1978 · confidence medium
On return, Albert picked up his helper at Building 250, where they waited another five minutes in order to insure their arrival at the Public Works Center compound at the specific time they had been directed to return. 9 On August 27, 1968, appellant received from Mr. Vorheis, the head of the utilities department, a letter of proposed removal. 3 For its reasons for removal, the letter relied upon the incident of August 2, 1968 and the Letter of Requirement of December 22, 1967. 4 10 As we have indicated previously, the scope of judicial review of agency action is narrow: 11 "Assuming that stat…
discussed Cited as authority (rule) Albert v. Chafee
9th Cir. · 1977 · confidence medium
On August 27, 1968, appellant received from Mr. Vorheis, the head of the utilities department, a letter of proposed removal. 3 For its reasons for removal, the letter relied upon the incident of August 2,1968 and the Letter of Requirement of December 22, 1967. 4 As we have indicated previously, the scope of judicial review of agency action is narrow: “Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures, whether its factual determinations were supp…
cited Cited as authority (rule) 12 Fair empl.prac.cas. 208, 11 Empl. Prac. Dec. P 10,630 John F. Singer, and Other Persons Similarly Situated v. United States Civil Service Commission
9th Cir. · 1976 · confidence medium
The applicable rule was well summarized in Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970): 27 'Dismissal from federal employment is largely a matter of executive agency discretion.
cited Cited as authority (rule) Singer v. United States Civil Service Commission
9th Cir. · 1976 · confidence medium
The applicable rule was well summarized in Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970): “Dismissal from federal employment is largely a matter of executive agency discretion.
discussed Cited as authority (rule) Heaphy v. UNITED STATES TREASURY DEPARTMENT, BUREAU OF CUSTOMS
S.D.N.Y. · 1973 · confidence medium
Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures, whether its factual determinations were supported by substantial evidence, and whether its action was arbitrary, capricious or an abuse of discretion.” Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970).
cited Cited as authority (rule) Carr v. United States
N.D. Cal. · 1972 · confidence medium
In Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970), the court said: “The scope of judicial review is narrow.
cited Cited "see" Gonzales Ex Rel. Gonzales v. McEuen
C.D. Cal. · 1977 · signal: see · confidence high
Code § 10608; see Toohey v. Nitze, 429 F.2d 1332, 1334 (9th Cir. 1970); Carr v. United States, 337 F.Supp. 1172 (D.C.N.D.Cal.1972).
cited Cited "see" Keane v. Berry
D. Ariz. · 1976 · signal: see · confidence high
Young v. United States, 498 F.2d 1211 (5th Cir. 1974); See, Toohey v. Nitze, 429 F.2d 1332 (9th Cir. 1970).
cited Cited "see" George A. Albert v. Hon. John H. Chafee, Secretary of the Navy
9th Cir. · 1972 · signal: see · confidence high
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).
cited Cited "see, e.g." Beacom v. Equal Employment Opportunity Commission
D. Ariz. · 1980 · signal: see also · confidence low
See also Toohey v. Nitze, 429 F.2d 1332 (9th Cir. 1970), cert. denied, Thomas v. Nitze, 400 U.S. 1022 , 91 S.Ct. 585 , 27 L.Ed.2d 633 (1970).
Retrieving the full opinion text from the archive…
John J. TOOHEY, Appellant,
v.
Paul H. NITZE, Secretary, U. S. Department of the Navy, Et Al., Appellees
23639_1.
Court of Appeals for the Ninth Circuit.
Jul 29, 1970.
429 F.2d 1332
John J. Toohey, in pro. per., Ceil C. Poole, U. S. Atty., Jerry K. Cimmett, Brian B. Denton, Asst. U. S. Attys., San Francisco, Cal., for appellees.
Claims, Madden, Merrill, Trask.
Cited by 32 opinions  |  Published
TRASK, Circuit Judge:

John J. Toohey [1] appeals in pro per from a summary judgment rendered against him in this action brought by him against the government for reinstatement, back pay, and damages for wrongful discharge and injury to his professional reputation.

Appellant is a registered professional engineer with impressive academic credentials. On March 20, 1967, he commenced employment as a mechanical engineer for the Department of the Navy at the San Francisco Bay Naval Shipyard. Before achieving permanent employment status, he was required to satisfactorily complete a one-year probationary period. See 5 C.F.R. §§ 315.-801(a) (1) [2] ; 315.802(a). [3] Some three months later, on June 23, 1967, he was given notice of his proposed termination, pursuant to 5 C.F.R. §§ 315.803-804, [4] on[*1334] the ground that he failed to demonstrate that he possessed the necessary dependability, adaptability, cooperativeness and proper attitude for his employment. He was terminated on July 14. Toohey’s appeal of his dismissal to the Civil Service Commission was denied on the ground that the Commission was “specifically precluded by regulation from making an investigation into, or a review of, the sufficiency of the reason for the action, unless it is alleged by affidavit that the action was taken for political reasons not required by law, or resulted from discrimination * * * ” See 5 C.F.R. § 315.806(a), (b), (c). [5] Toohey did not submit any information in support of his contention that his termination was effected for political reasons.

Appellant then initiated this action in the district court. On June 20, 1968, the court granted the government’s motion for summary judgment on the ground that Toohey had been accorded all of the administrative rights to which he was entitled, and there was substantial evidence to support his removal.

Wé believe that appellant has presented his case to us in utmost sincerity, but we must affirm the district court. Dismissal from federal employment is largely a matter of executive agency discretion. Particularly is this true during the probationary period. The scope of judicial review is narrow. Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures, whether its factual determinations were supported by substantial evidence, and whether its action was arbitrary, capricious or an abuse of discretion. See Burke v. Carpenter, 387 F.2d 259 (9th Cir. 1967), cert. denied, 391 U. S. 903, 88 S.Ct. 1651, 20 L.Ed.2d 417 (1968); Mancilla v. United States, 382 F.2d 269, 270 (9th Cir. 1967), cert. denied, 390 U.S. 982, 88 S.Ct. 1104, 19 L. Ed.2d 1280 (1968); Taylor v. United States Civil Service Commission, 374 F. 2d 466 (9th Cir. 1967); Charlton v. United States, 412 F.2d 390 (3d Cir. 1969).

Upon a review of the record, we determine that the government complied with administrative procedure, and that appellant received the administrative review to which he was entitled. There is no evidence that appellant’s dismissal[*1335] was either political or discriminatory in nature. The relevant statute, 5 U.S.C. § 3301, and regulations promulgated thereunder are not unconstitutional. The administrative action was supported by substantial evidence. [6] It was not arbitrary or capricious and did not constitute an abuse of discretion.

The judgment is affirmed.

1

. Appellant Toohey has advised the court that he has changed his surname to Thomas.

2

. Ҥ 315.801 Probationary period; when required.

“ (a) The first year of service of an employee who is given a career or career-conditional appointment under this part is a probationary period when the employee:
“(1) Was appointed from a register * * * ”
3

. Ҥ 315.802 Length of probationary period.

“(a) The probationary period required by § 315.801 is 1 year.”
4

. Ҥ 315.083 Agency action during probationary period (generally).

“The agency shall utilize the probationary period as fully as possible to deter[*1334] mine the fitness of the employee and shall terminate his services during this period if he fails to demonstrate fully his qualifications for continued employment.
Ҥ 315.804 Termination of probationers for unsatisfactory performance or conduct.
“When an agency decides to terminate an employee serving a probationary or trial period because his work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action. The information in the notice as to why the employee is being terminated shall, as a minimum, consist of the agency’s conclusions as to the inadequacies of his performance or conduct.”
5

. “315.806 Appeal rights to the Commission.

“(a) Right of appeal. An employee is entitled to appeal to the Commission in writing from the agency’s decision to terminate him under § 315.804 or § 315.-805 only as provided in this section. The Commission’s review does not include any matter except as provided in paragraphs (b) and (e) of this section.
“(b) On discrimination. An employee whose termination is subject to the provisions of.§ 315.804 or § 315.805 may appeal on the ground that the action taken was based on political reasons not required by statute, or resulted from discrimination because of physical handicap. When an appeal is based on any of these grounds, the appellant shall submit an affidavit setting forth the facts and circumstances on which the appeal is based.
“(c) On improper procedure. A probationer whose termination is subject to § 315.805 may appeal on the ground that his termination was not effected in accordance with the procedural requirements of that section.”
6

. The government’s notice of proposed termination, dated June 23, 1967, was documented by specific instances of appellant’s alleged “unwillingness to adapt to, or abide by, the rules and requirements applicable to all employees.” For example appellant was absent from his job without authority for more than two full days in April, 1967, and, on June 20, 1967, he intruded upon and disrupted a labor-management negotiating session after obtaining advice that he could not attend the session. Appellant did not deny this conduct in his reply letter of June 30, but only explained, in general terms, that his concept and expectations of his duties and responsibilities differed from that of his superiors.