
    EDGAR E. HOPPE v. THE UNITED STATES
    [No. 323-55.
    Decided October 2, 1956.
    Plaintiff’s motion for re-bearing overruled March 6, 1957]
    
    
      
      Mr. John P. Witsil for the plaintiff.
    
      Miss Kathryn PL. Baldwin, with, whom was Mr. Assistant Attorney General George Cochran Doub, for the defendant. Mr. George Leonard Ware was on the brief.
    
      
      Plaintiffs petition for -writ of certiorari denied by the Supreme Court October 14, 1957.
    
   Jones, Chief Judge,

delivered the opinion of the court:

Plaintiff, a former Government employee, sues to recover salary accruing to him from the time of his allegedly illegal removal on October 7,1953. Defendant has moved for summary judgment.

Plaintiff had been a civil service employee in the Bureau of Internal Revenue and the Internal Revenue Service since August 1929. Effective August 11, 1952, plaintiff was promoted to the position of Assistant Commissioner (Inspection), Grade GS-18. It appears that under section 3 of Reorganization Plan No. 1 of 1952, effective March 14,1952, 66 Stat. 823, 26 IT. S. C. 3905 note (1952Ed.), appointments to the positions of Assistant Commissioner of Internal Revenue were to be made under the classified civil service. While the matter is not entirely clear, plaintiff evidently was appointed in accordance with this statute.

By letter dated July 17, 1953, O. Gordon Delk, Deputy Commissioner of Internal Revenue, proposed to separate plaintiff from the Internal Revenue Service, on the ground that he had not adequately performed the duties of his position and that his separation would promote the efficiency of the service. In support of this proposed action the letter advanced certain reasons, each followed by one or more specifications. By letter of July 27, 1953, plaintiff made a lengthy reply to the charges. As a result of this letter another specification was added to the original charges. This specification stated:

The tone of the reply made by you on July 27,1953, including the allegation that the preferring of charges by the commissioner against you was the result of a conspiracy and constituted a threat to the security of the other employees of the Internal Revenue Service, clearly demonstrates your inability to work loyally and efficiently under the Commissioner and Deputy Commissioner of the Internal Revenue Service and demonstrates that your separation will promote the efficiency of the Service.

Subsequently plaintiff received the following letter from the Secretary of the Treasury:

Your replies to the charges filed against you on July 17, 1953, as amended by an additional specification dated August 19, 1953, have been considered.
I have decided that your removal will promote the efficiency of the service, and, therefore, notify you that you will be removed from the position of Assistant Commissioner (Inspection), Internal Eevenue Service, effective at the close of business October 7,1953.

The Notification of Personnel Action for plaintiff’s removal contained the following notation:

Eemoval for inefficiency, incompetence and inability to work loyally under the Commissioner and the Deputy Commissioner.

Plaintiff was a nonveteran and his rights in case of removal were governed by the provisions of the act of June 10, 1948, 62 Stat. 354, 355, which read in part:

No person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing. Any person whose removal or suspension without pay is sought shall (1) have notice of the same and of any charges preferred against him; (2) be furnished with a copy of such charges,; (3) be allowed a reasonable time for filing a written answer to such charges, with affidavits ; and (4) be furnished at the earliest practicable date with a written decision on such answer. No examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer or employee directing the removal or suspension without pay. * * *

Under the applicable regulations it was provided that the Civil Service Commission might investigate the removal of an employee when such employee establishes a prima facie case that (1) the procedure described by the Commission had not been followed or (2) the removal was made for political reasons.

Plaintiff appealed bis removal to the Civil Service Commission on the ground of procedural violations and political motivation in his removal. By letter of November 12,1953, the Civil Service Commission informed plaintiff that there were no procedural defects in Iris removal but asked for further evidence on the allegation that plaintiff’s removal was for political reasons. Plaintiff submitted an affidavit. On May 26, 1954, in a letter to plaintiff, the Chairman of the Civil Service Commission stated that it was the conclusion of the Commissioners that plaintiff was removed because the Treasury Department officials considered him deficient in the performance of his duties and that his removal was not politically motivated. About a year later the Civil Service Commission refused to reopen the appeal in plaintiff’s case; no reversible procedural defect was found to exist and no prima facie case of political motivation in the removal was said to have been established.

Plaintiff alleges that his removal was illegal because of certain procedural defects and because it was arbitrary in that it was based on political motivations. The procedural points raised are:

fl) Plaintiff did not get 90 days’ notice.
(2) The charges were not specific.
(3) The dismissal was based on the reply plaintiff made to the original charges.
(4) The notice of adverse decision did not sufficiently state the reasons for plaintiff’s removal.

Plaintiff’s contention on the point of notice appears to be that since his removal was based on inefficiency he is entitled to the period of notice required for rating an employee unsatisfactory under the Performance Eating Act of 1950, 64 Stat. 1098, 1099, 5 U. S. C. 2001 et seq. (1952 Ed.). This contention has been considered by the Court of Appeals for the District of Columbia Circuit in Thomas v. Ward, 225 F. 2d 953, and Jones v. Hobby, 223 F. 2d 345. It was held that the 90-day notice period applied only to action under that act, and that where an employee is demoted or removed for cause under 5 IT. S. C. 652 the procedure set forth in the latter statute governs. We agree with the holding of the Circuit Court and we accordingly hold that plaintiff was not entitled to 90 days’ notice prior to his separation.

The three principal reasons advanced in the letter of charges were: (1) You have not demonstrated ability to develop an appropriate inspection program for the Internal Kevenue Service; (2) You have not demonstrated ability to appropriately organize and control a going organization; and (8) You have not exhibited the degree of objectivity and sound judgment essential to the adequate performance of a high-level Federal executive position.

Four specifications were listed under the first charge mentioned in the preceding paragraph; under the second charge three specifications were listed, and under the third charge two subdivisions were given. (Originally there was only 1 under the last heading.) While some of the specifications lacked a degree of specificity, there was at least one charge under each reason that was specific, and each of such specifications was of such a nature as would permit removal, if in the discretion of the appropriate official it would promote the efficiency of the service. Another remedy, such as demotion or transfer, might have been chosen and might have been better, but removal was not beyond the bounds of discretion in this case. This was a job at a very high level; the duties were of an executive nature requiring much ingenuity and creative j udgment. What constitutes competence in this context is much more a matter of conjecture than in jobs more routine in nature. In a position of this consequence a wide discretion should be given responsible officials as to causes for removal that will promote the efficiency of the service.

The statute gives a civil service employee who has been charged “a reasonable time for filing a written answer” to the charges. This right would indeed be of little value if each answer were the basis for another charge. Nonetheless, a man is not entitled to make attacks on his superiors when he replies to the charges unless, of course, this attack can reasonably be construed to be necessary to the answer. We do not think they were here. The exchange of correspondence indicates a degree of animosity on both sides between plaintiff and his immediate supervisors. Such feelings may well have effectively precluded plaintiff’s further employment in this particular position. Perhaps outright removal would not have been the remedy we would have chosen. Perhaps a transfer to another position so he could have remained in the service if he desired to do so, might have been a more appropriate action. But our function is limited to judicial review. We cannot say that plaintiff’s superiors stepped beyond the limits of allowable discretion in removing him.

The statute requires that an employee be furnished at the earliest practicable date with a written decision on his answer to the charges. Plaintiff claims that the decision in this case was not sufficient in that the specific reasons which formed the basis of the removal were not spelled out. The letter from the Secretary of the Treasury implies that plaintiff was removed on the basis of the charges preferred against him. The notification of personnel action speaks of removal for inefficiency, incompetence and inability to work loyally under the Commissioner and the Deputy Commissioner. Some of the valid specifications in the charge letter would come under the heading of inefficiency or incompetence although, as we have pointed out, these concepts cannot have the clear meaning in the context of a high executive position that they might have in other cases and the term may therefore have unnecessarily harsh implications here. The specification added as a result of plaintiff’s reply is referred to in the last phrase of the notification, namely, inability to work loyally under the Commissioner and the Deputy Commissioner. It is a specific charge and forms an additional basis for the action taken. In the circumstances we are unable to find that the reasons for plaintiff’s removal were not adequately given.

The Civil Service Commission considered plaintiff’s allegation that his removal was politically inspired. This is the body that was officially designated by the Congress to make rules governing the selection of certain specified Federal employees and to supervise the operations of the Civil Service system. We do not think that the Commission’s decision is reviewable here since there is no showing of arbitrary action on its part. On this question we do not perceive a triable issue. We will not, therefore, overturn the finding of the Civil Service Commission that plaintiff has not established a prima facie case that his removal was politically motivated.

There being no arbitrary, capricious, or otherwise illegal action, and there being no procedural defects in plaintiff’s removal, we find that plaintiff is not entitled to recover and that defendant’s motion for summary judgment should be granted. Plaintiff’s petition will be dismissed.

It is so ordered.

Laramore, Judge, concurs.

Whitaker, Judge,

concurring:

I sympathize with much that Judge Madden has said in his dissenting opinion, but I agree with the majority that Congress has committed to the Civil Service Commission, and not to us, the review of the action of an agency in discharging an employee, and that we can take jurisdiction only if the action of the Civil Service Commission is arbitrary or otherwise unlawful.

I wish we could take jurisdiction because the procedure of the Civil Service Commission in this ease leaves much to be desired. The head of an agency should have plenary control over the work of his subordinates. He should have the right to require from them loyal and efficient and competent serv-i ce, and to discharge them if he cannot get it from them. But he has no right to discharge them for incompetency or inefficiency, if the real reason for their discharge was political considerations. This sets at naught the civil service law.

Where this issue is raised, with apparent justification, and not frivolously, it does seem, as Judge Madden says, that a man is entitled to a hearing in the nature of a trial in a court. He should not be branded as an incompetent and inefficient public servant, if this was but a false pretense for his discharge. No man should be robbed of his good name, no more than of his goods.

In such case he should have the right to be confronted by those who say he is incompetent and inefficient and have the right to cross-examine them and rebut their testimony in any legitimate way.

“Who steals my purse steals trash; ’tis something, nothing;
’Twas mine, ’tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.”

But the law and the regulations of the Civil Service Commission do not require a hearing, even in such a case, and, hence, the denial of one does not make the action of the Civil Service Commission unlawful and give us any right to review its action. It is only where the action of the Civil Service Commission is unlawful, for one reason or another, that we have a right to take jurisdiction and review the action taken.

For this reason, I concur in the majority opinion.

Maddest, Judge,

dissenting:

The plaintiff includes in his petition an allegation that his discharge was politically motivated. If that was so, it was a gross violation of the civil service statutes. The granting of the Government’s motion for a summary judgment means that the plaintiff will never have had an opportunity, here or elsewhere, to prove the truth of his allegations.

The plaintiff presented to the Civil Service Commission a sworn statement which, if true, would persuade any reader of it that the motivation for reassigning or dismissing the plaintiff was political, and had little relation to efficiency. This sworn statement appears at pages 45-47 of the defendant’s brief. It would have seemed that the persons named in the statement would have been anxious to confront the plaintiff in a hearing, or at the very least, to file .sworn statements denying the truth of the serious allegations against them. They did neither of these things. The only response which the plaintiff received to his sworn statement was a letter from the Chairman of the Civil Service Commission, which is printed on pages 47-48 of the defendant’s brief. It says:

Your representations that your removal was. made for political reasons have been carefully investigated. The report of investigation, together with your statements, have been thoroughly studied by the Commissioners. Based on all of the evidence, it is our conclusion that you were removed because officials of the Treasury Department considered that you were deficient in the performance of your duties; neither your affidavit of December 10, 1958, nor the Commission’s investigation support your contention that your removal was politically motivated. Accordingly, your appeal on this point is denied.

This letter contains no. statement that anyone, in the course of the unilateral investigation made by the Civil Service Commission, had denied the truth of the plaintiff’s sworn statement. Indeed it said, “neither your affidavit of December 10, 1953, nor the Commission’s investigation support your contention that your removal was politically motivated.”

The statement of the Chairman that the plaintiff’s affidavit did not support his contention is plainly wrong. What the Commission’s investigation showed neither we nor the plaintiff know, nor will anyone ever know, now that the court has dismissed the plaintiff’s petition.

It may be that the plaintiff’s position was so high that it should not have been included in the classified Civil Service. That is for Congress to decide, not for this court or the Civil Service Commission. When the desire to get rid of one in such a high position originates in politics, as the only sworn statement before us indicates that it did in this case, it is almost beyond human capacity to lay that motivation aside and judge fairly the question of a highly placed civil servant’s efficiency. All of us do our work at a grade so far below perfection that it would be hard to prove that the service would not he improved by a change.

The statutes require that politics be kept out of the civil service. So far as appears, that was not done in this case. In fairness to the plaintiff, and to his superiors who have never had an opportunity to publicly answer his serious charges, I would dismiss the Government’s motion and let this case go to trial.

LittletoN, Judge, joins in the foregoing dissent.  