On Appellants’ Petition for Rehearing
WILKEY, Circuit Judge:Since the appellant Government's petition for rehearing repeats and amplifies several misconceptions advanced in its first argument, we think it desirable to add these comments to our original opinion, in the hope that those charged with the responsibility of administering the laws may have a more accurate understanding.
1. The Civil Service Act1 did not confer upon the Civil Service Commission power to grant the type interim relief sought here. This seems to be beyond challenge.
2. Nor did the statute remove from the courts the power to grant interim relief. This is beyond challenge if the words of the statute, its plain meaning, and its specific provisions are considered. What the Government argues is that by implication the statute and the Congress must have intended to do this, because in other provisions the Civil Service Commission is given such complete authority.
The Government is incorrect in its allegation that the court’s opinion is inconsistent with congressional intent, since here there has been no manifest congressional intent to disturb the equity powers of the courts. The Government does not seem to perceive that this case involves a very limited principle, and that our opinion does little more than restate the proposition that in some very unusual circumstances a U. S. District Court may exercise its traditional equity powers to prevent irreparable injury. The situation of a temporary employee is not different from many other situations in this respect.
What the Government refuses to face up to is that if the courts are barred from even considering interim relief in this case, it would follow that the courts are barred from considering interim relief in any conceivable type of discharge case that could be brought before the courts. We are unwilling to deny jurisdiction to the courts in all such future eases.
3. Thus the Government’s statement of the issue, “Whether a federal employee about to be discharged has the right to a trial in district court prior to the time he exhausts his remedies with the Civil Service Commission, which later will hold a hearing on the same issues resolved in the district court proceeding” [emphasis in Governmental Petition], is incorrect. We do not hold that the employee has the right to a trial in the District Court on the same issues as are before the Civil Service Commission. All that the District Court should do is to apply the traditional Petroleum Jobbers 2 tests to determine whether injunctive relief is appropriate. While this involves a determination, inter alia, whether there is any likelihood of success on the merits, this is not a determination of the merits, which is the province of the Civil Service Commission in the first instance, and will not be disturbed by a reviewing court if it is based on substantial evidence.
4. Furthermore, while in this case it was inappropriate to conduct the proceedings merely through affidavits, .this will not always be the case. Where there are no problems of credibility in the mind of the trial judge (as we had *884here), it is not inconceivable that a great many applications for injunctive relief can be disposed of through the briefest of hearings, perhaps accompanied by affidavits. This should be particularly true as to the issue of irreparable injury, which is of course necessary for injunctive relief, and which might well be triable by affidavit.
5. The Government does not seem yet to have grasped the distinction between the issue of exhaustion of administrative remedies and the question of the propriety of granting interim relief. This court and others, including commentators such as Kenneth C. Davis and Louis Jaffe, have grasped and articulated this distinction, as made in our opinion (see notes 11-13 and accompanying text). That the Govememnt is making the same error of failing to distinguish the exhaustion cases from those dealing with the propriety of the grant of equitable interim relief is underscored by the fact that, to support its assertion that our decision “conflicts with so many others,” they rely again on the same four purely exhaustion eases which we were at some pains to distinguish in our original opinion.
6. The Government’s statement that “The majority’s conclusion that a wrongfully discharged employee’s remedy of back pay (and reinstatement) is not adequate enough to preclude the issuance of injunctive relief is very broad and equally wrong” appears to misread our opinion. This court’s opinion merely suggested that in some cases of employee discharge back pay and reinstatement may not be enough to prevent irreparable injury. This is hardly a “very broad” statement. Further, the court’s suggestion in this case appears to be inherent in the holding of Schwartz v. Covington,3 nowhere discussed in the Government’s petition for rehearing.
The situation and reasoning of the Ninth Circuit are closely parallel to ours here. In Schwartz a stay of the petitioner’s pending discharge had been issued by the District Court, at the time petitioner’s administrative appeal on the merits was in process, as in Mrs. Murray’s case. The evidence relied on by the agency (U. S. Army) making the discharge included evidence of acts during a prior enlistment, which had been terminated by an honorable discharge. Under Army Regulations acts committed during a prior enlistment are not available as evidence to support a discharge from a subsequent term of enlistment, or so it was argued. Here Mrs. Murray argues that the GSA’s decision to discharge her rests on evidence of acts committed during a prior “enlistment,” i.e., term of service with another agency. The Government disputes this, but under regulations of GSA itself an employee cannot be discharged without a hearing if evidence of service in another agency is relied upon by the discharging agency (GSA).
In Schwartz the District Court granted a stay pending administrative review, by the Army Board for Correction of Military Records, on the merits. The Ninth Circuit affirmed, finding irreparable damage to the employee if the stay were not granted, even though full back-pay compensation would be available after administrative review. Here the District Court granted a temporary restraining order pending a hearing, which stay has been continued in effect until a certain GSA official appears to testify. The District Court has not yet reached the stage at which it will decide whether to grant a temporary injunction pending administrative review, here by the Civil Service Commission, as was done in Schwartz. We affirm the District Court action staying employee discharge pending administrative review on the merits, as did the Ninth Circuit, holding merely that it is possible that Mrs. Murray may show (or may have shown) irreparable damage, if the hearing before Judge Gasch is allowed to proceed to a decision.4
*885We cite Schwartz v. Covington simply to support the proposition that equitable interim relief may sometimes be proper in the case of an about-to-be-discharged federal employee. In Schwartz the Ninth Circuit held that such relief was proper, “pending exhaustion of military remedies and judicial review by a United States District Court, during which time appellee retain his present rank and status.” 5
In his dissent to this supplemental opinion Judge Robb criticizes this reliance on the grounds that there is a decision of our court, Ogden v. Zuckert,6 which holds that consideration by such an Armed Services review board is not a part of “the administrative process which precedes finality.” Whatever the correctness of the Ogden court majority (see the closely reasoned dissent by the then Judge Burger), the holding in that case has no application to our reliance on Schwartz.
The Ninth Circuit was concerned in Schwartz solely with the question of the propriety of granting interim, relief. The opinion did not pass either on the merits or on the application or nonapplication of the doctrine of exhaustion of administrative remedies; it assumed that the doctrine did apply, and simply granted interim relief pending the final administrative determination. In Ogden, on the other hand, this court held that the exhaustion doctrine did not apply, because the matter had achieved sufficient administrative finality (there was no statute requiring further resort to the administrative process); hence, the District Court could proceed to an adjudication of the merits of the dispute, if it chose so to exercise its discretion. In other words, in Ogden, unlike Schwartz, the question was the application or non-application of the doctrine of the exhaustion of administrative remedies.
Murray v. Kunzig is a case like Schwartz v. Covington. We are not concerned with the application or non-application of the doctrine of exhaustion of administrative remedies, but simply with the propriety of the District Court’s exercise of its traditional equity powers to grant interim relief. In the view of the Ninth Circuit, Covington had not exhausted his administrative remedies before he went to court; in fact, he was busy pursuing such remedies while he was in court. So is Mrs. Murray.
Furthermore, the Government’s (and our dissenting colleague’s) attempt to distinguish Scripps-Howard Radio, Inc. v. FCC,7 FTC v. Dean Foods,8 and Reeber v. Rossell9 misses the point that our opinion cites these cases merely as examples of the propriety, under certain circumstances, of the granting of interim equitable relief. The court’s opinion does not hold, and the trial judge has not yet held, that interim relief is proper in Mrs. Murray’s case, but we do hold that the trial judge may consider granting such relief, as this is inherent in his historical equitable role.
7. The Government is fearful that every other government employee facing discharge will be able to march into the U. S. District Court, demand the same hearings, and delay a discharge for as long as the appellee Mrs. Murray has. Even if the Government is correct on the deluge of cases with which the District Court will be flooded from employees be*886ing discharged, this is no reason for misconstruing the language of the statute to evade the District Court’s assigned (or, more accurately, not removed) responsibilities.
8. We seriously question the validity of the Government’s fears of such a deluge and resulting delay in discharges. Aside from the point that Mrs. Murray has only been able to secure delay because the Government has not permitted the Civil Service Commission to rule on her case, it appears that many government employees (e.g., those with other sources of income, as from an employed spouse) will be so unable to demonstrate the possibility of irreparable injury that their proceedings in the District Court will be of the most limited duration, perhaps going no further than a motion for dismissal by the Government, and a brief duel by affidavits. The ultimate decision’ by an employee as to whether to contest a discharge must still be made by a litigant and his counsel on the basis of chances for ultimate success, not on the basis of the availability of interim relief in exceptional cases until the Civil Service Commission reaches a decision on the merits. Assuming that the Civil Service Commission is not always reined in by the Government, the Civil Service Commission should dispose of matters such as Mrs. Murray’s rather quickly, and the additional time on the job bought by a temporary restraining order or other injunctive relief will not be enough to justify the great legal expense " involved, unless there is a good chance of ultimate success.
Our original opinion says nothing about the merits of Mrs. Murray’s claim or any other. The lawyer who would cite this opinion before the District Court as a holding on any issue except as a defense against a motion to dismiss for lack of jurisdiction would be ill-advised. We have said nothing which indicates how Judge Gasch or any other judge should decide such a petition for interim relief on the merits. Only a petitioner who can establish under the test of Virginia Petroleum, Jobbers that a violation of his rights has most probably occurred will be entitled to interim relief. In Mrs. Murray’s case there is some evidence in the sparse record that the General Services Administration did consider her prior troubles at her prior agency employment, and that having done so, the General Services Administration was obligated under its own rules to give her a hearing. It was this evidence in the record that gave Mrs. Murray some hope of success, and gave Judge Gasch some ground to require the attendance of the agency official, who presumably could clear up the matter one way or another.
If our opinion is properly interpreted, there should be no.influx of prospectively dischargeable federal employees into the District Court seeking restraining orders. If such occurs, the District Court has a very keenly developed sense for the detection of sham and pretense, and will doubtless deal with such worthless petitions summarily.
The petition for rehearing is accordingly
Denied.
. Act of Jan. 16, 1883, ch. 27, 22 Stat. 403; Act of July 26, 1937, ch. 522, 50 Stat. 533; Act of June 10, 1948, ch. 434, 62 Stat. 351. For the codification of these statutes see note 33 in our original opinion in this case, at 880.
. Virginia Petroleum Jobbers Ass’n v. FPC, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958).
. 341 F.2d 537 (9th Cir. 1965).
. Lodge 1858, American Federation of Gov. Emp. v. Paine, 141 U.S.App.D.C. 152, 436 F.2d 882 (1970) is not to the contrary. Judge Robinson’s language re exhaustion, quoted and relied on by the *885Government, Appellants’ Petition for Rehearing and Suggestion for Rehearing In Banc at 6, is preceded, significantly, by:
Resort to the courts must ordinarily be postponed until administrative remedies available for rectification of the errors complained of have been exhausted. [Footnote omitted.] And the court, as a general rule, must stay its hand in reduction in force controversies until administrative resolution of the matters in issue in a proceeding efficacious to that end. [Footnote omitted.] 141 U.S.App.D.C., at 168, 436 F.2d, at 896 (emphasis supplied).
. 341 F.2d, at 538.
. Ill U.S.App.D.C. 398, 298 F.2d 312 (1961).
. 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942).
. 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966).
. 91 F.Supp. 108 (S.D.N.Y., 1950).