
    DOROTHEA ERENREICH v. THE UNITED STATES
    [No. 34-62.
    Decided January 24, 1964.
    Plaintiff’s motion to vacate judgment denied May 28,1964] 
    
    
      
      John Bilard for plaintiff.
    
      William L. Davis, with whom was Assistant Attorney Generad John W. Douglas for defendant.
    Before JONES, Chief Judge, Whitaker, Laramore, Durfeb and Davis, Judges.
    
    
      
      Plaintiff’s petition for writ of certiorari denied, by the Supreme Court, 379 U.S. 857.
    
   Durfer,

Judge, delivered the opinion of the court:

Plaintiff, a former employee in classified civil service of the United States Information Agency, seeks to recover back salary on the ground that her separation from her position as a GS-7 Information Specialist was procedurally defective. Both parties have moved for summary judgment on the pleadings.

Shortly after plaintiff’s reemployment by the Agency in 1955 she repeatedly protested, verbally and in writing, to her superiors against what she considered to be malassignment to clerical and typing functions not commensurate with her training, talents, education, ratings and previous assignments.

In February, 1960 plaintiff initiated a grievance action through her counsel. Following an extensive hearing, her grievance appeal was rejected by the Director of the Agency on June 7, 1960, on the ground that the evidence submitted to the Hearing Board did not substantiate her allegations, a conclusion which the Board had also reached.

During this period of time, upon complaint to Agency officials by her supervisor that plaintiff was spending large amounts of time away from her desk, she was orally admonished and later advised in writing by her supervisors that she would be allowed thirty minutes each day, in addition to her forty-five minute lunch period, for non-business periods away from her desk, and that any additional absences would be charged to leave. At this time her attorney repeated a previous instruction that she had the right to counsel at such disciplinary meetings, and was not to attend any of such further meetings, nor to make any written statements without his presence or approval. On March 22, with prior supervisory approval, plaintiff was absent from her desk on official business for about an hour. Upon her return, she answered inquiries of her supervisor as to her absence, and the next day was asked to submit a written statement as to her whereabouts during the period of her absence in excess of the time allowed. Plaintiff refused to submit the statement, then refused to report to the personnel office, and the next day refused twice to report to a superior as directed, on the grounds that she was ill and was entitled to counsel in such disciplinary matters.

Shortly thereafter, on March 25, I960, plaintiff received a notice from the Agency proposing her separation on the basis of four charges, each of which set forth in detail a separate refusal by plaintiff to submit a statement or to report to her superiors as directed by them. At a subsequent hearing, plaintiff conceded that she had not complied with the requests and directives as recited in the charges, giving as justification for her refusal her illness, and her reliance in good faith upon the advice of her counsel. The Hearing Board found each of the four charges sustained and thereafter on July 1,1960 plaintiff was dismissed by order of the Director of Personnel of the Agency, who concurred with the findings of the Hearing Board. The charges read as follows:

1. Shortly after 4:00 p.m. of March 23, 1960, in your office, Boom 2065, Tempo-B Building, in the Copyright Clearance Section of the Administrative Staff of the Broadcasting Service, you refused to comply with a request made orally to you by your immediate supervisor, Miss Evelyn Eisenstadt, to furnish a written statement of your whereabouts from approximately 3:15 p.m. to 4:20 p.m. on March 22,1960 in reference to an appointment on official business on March 22,1960. Specifically, you were asked orally by Miss Eisenstadt (1) the time of your appointment, (2) with whom you had met, (3) how long the appointment lasted, and (4) at what time you had returned to your office from the appointment.
2. At approximately 5:10 p.m. on March 23,1960, you were directed by telephone by your next higher supervisor, Mr. Walter Mylecraine, Administrative Officer of the Broadcasting Service, to report immediately to Mr. Eugene Brame, Assistant Chief, Domestic Operations Branch, Personnel Division, in his office in Room 2427 of the North Health, Education and Welfare Building. You refused to report to Mr. Brame.
3. At approximately 9:45 a.m. on the morning of March 24, 1960, you were directed orally by Miss Eisenstadt to report at 10:00 a.m. on that date to Mr. Mylecraine in his office. You refused to do so.
4. At approximately 10:20 a.m. on the morning of March 24, 1960, in a telephone conversation with Mr. Mylecraine you again refused to comply with his request to report immediately to his office. He asked you for the written statement requested by Miss Eisenstadt in response to the questions listed in Charge 1 specified above. You refused to furnish this to him.

Plaintiff first contends that the charge as to her refusal to comply with directives fails to state that such refusal was made with insubordinate or other reprehensible intent, and therefore failed to put plaintiff on “fair notice” within the area defined by previous “fair notice” rulings in cases involving the requirements of the Lloyd-La Follette Act, Section 6,37 Stat. 555, as amended, 5 U.S.C. § 652(a).

The Agency regulations on procedure provide as follows:

§ 565.25 Preferment of Charges.
# * * * *
d. Specificity of Charges
The letter of charges will state any and all reasons for the proposed adverse action, specifically and in detail, including dates, specific instances and other data, sufficient to enable the employee to understand fully the charges and to join issue adequately with the proposed action.

Upon their face, the charges are sufficiently clear, specific and detailed to inform plaintiff with reasonable certainty and precision of the causes for her proposed removal. Plaintiff has not cited, nor are we aware of any pertinent procedural requirement that under a clear and detailed charge of refusal to comply with specific instructions, such refusal must be specifically attributed to insubordinate or other reprehensible intent.

Plaintiff next contends that no orderly recognition was given and no Agency finding was made with regard to her defense of good faith reliance on advice of counsel in refusing to comply with directives to report to her superiors as to 'her absence from work.

Plaintiff concedes that she is not aware of any ruling of this court precisely defining agency obligations to make findings on “affirmative defenses,” and “that it is not necessary to decide whether good faith reliance on advice of counsel is an affirmative defense which the Agency must accept in all cases, or even in the instant case.”

In Schmidt v. United States, 145 Ct. Cl. 632 (1959), this court held that refusal of the Civil Service Commission to rule on whether the reassignment of a civil service employee was for alleged political purposes, in effect denied plaintiff the protection to which he was entitled under the Civil Service Act. The court reasoned that if the order of reassignment was for political purposes, and not for the good of the service, it was unlawful and that a refusal to obey such an order would not be insubordination. Therefore, it was incumbent upon the Civil Service Commission to decide this issue. However, we find nothing unlawful here in the conduct of the Agency in directing plaintiff to appear and answer to her superiors as to her whereabouts during working hours, or in dismissing her for refusing to comply with these directions, even though her refusal was made in good faith and in reliance on advice of counsel. Plaintiff was told by the Personnel Department that she had no right to insist upon having an attorney present during the supervisory discussions. The regulations of the Civil Service Commission and the Agency prescribe the conditions under which employees may be represented by counsel or other person after charges have been, made; they contain no provision for right to counsel in employer-employee supervisory discussions prior to notice of disciplinary action or adversary proceeding.

Section 565.29 of the Agency regulation provides as follows:

After all evidence relating to the charges has been considered, the Director of Personnel will determine the action to be taken and so notify the employee by letter through the employee’s immediate supervisor. The decision, if adverse, will state the reasons for the action to be taken and its effective date. The adverse decision must state the determinations made with regard to each charge originally made against the employee. The notice of adverse decision will advise the employee of his rights to appeal, and will be delivered to the employee at least 5 calendar days prior to the effective date of the adverse action.

The Agency’s Notice of Final Decision by the Director of Personnel states in pertinent part, as follows:

I have given full consideration to the information you presented in your letter of April 11, 1960, and to the information that you presented before the Hearing that was held at your request on April 12 and 13, 1960, and to the information contained in Mr. John Silard’s letter of June 9,1960. I find that each of the charges (numbers 1, 2, 3 and 4) in my letter of March 25, 1960 are fully supported by the evidence and warrant your removal. It is my decision, therefore, that you be removed from the rolls of this Agency on July 1, 1960.

In addition, plaintiff was fully advised of her rights to appeal. The decision stated “the reasons for the action to be taken and its effective date” as well as “the determinations made with regard to each charge originally made against the employee.” In the language of the Final Decision, “full consideration” was given to all information presented by plaintiff. There was no requirement in the regulations for a specific finding as to plaintiff’s reliance upon advice of counsel.

The third contention of plaintiff is that the Hearing Board in a report to the Agency, but not disclosed until after plaintiff’s dismissal, exonerated her of insubordinate intent or intentional refusal, but charged her with “poor judgment.”

Section 565.28(b) of the Agency regulations provides as follows:

Hearings in diciplinary 'action cases are conducted solely for the purpose of obtaining facts on which an equitable decision may be based, and to give the employee an opportunity to present his side of the case. They are purely administrative procedings. They are not courts, nor are they governed, by the legal rules of procedure and evidence.
5. An official record of the hearing will be made in a form deemed appropriate by the hearing officer (s)_, usually in the form of brief summaries of relevant testimony and statements by all concerned in the hearing.

Section 565.29 of the Agency regulations provides as follows:

After all the evidence relating to the charges has been considered, the Director of Personnel will determine the action to be taken * * *.

The Hearing Board did state in its report that plaintiff’s refusal to comply with the directions of her superiors to report to them “was ill advised, particularly after she had been informed by Mr. Mylecraine on March 24, 1960 that she could not refuse to meet with him on advice of counsel.” Despite this information, which the Board found plaintiff did not refute, she persisted in her refusal to meet supervisory requests and directives on advice of counsel. The Board’s Summary Findings concluded: “The Board is unanimous in its findings that all four charges listed in the March 25, 1960 letter to the employee were substantiated as being true and correct.” This ultimate finding was supported by the record before the Board on the charges submitted.

Finally, plaintiff urges that it is not necessary to define whether each of the three alleged procedural deficiencies, standing alone, might suffice to render her discharge illegal, because “the three defects overlapped and resulted in a single tainted proceeding” and that taken together, these procedural deficiencies are clearly fatal to the validity of her dismissal.

We conclude that none of the errors alleged by plaintiff, whether considered separately or together, were material violations of the procedural requirements of either the Agency, or of the Civil Service Commission, and that all procedural requirements were complied with in the dismissal of plaintiff from her employment. Plaintiff’s motion for summary judgment is denied, and defendant’s cross-motion for summary judgment is granted, and the petition is dismissed.

Davis, Judge,

dissenting:

Non-veteran employees of the Federal Government had, until recently, few procedural protections against discharge. But one of their rights the courts have consistently enforced has been the bar against removal unless found guilty of a proper charge duly laid against them. Under the Lloyd-La Follette Act, 5 U.S.C. § 652, as implemented by the Civil Service Commission’s regulations and by judicial rulings, the charge must be so specific, detailed, and precise that it gives fair notice of a valid ground for discharge; and the employing agency’s decision must be based directly on one or more such proper charges. This plaintiff’s own agency interpreted these requirements (in its regulations) as demanding a letter of charges which would be “sufficient to enable the employee to understand fully the charges and to join issue adequately with the proposed action.” She was entitled to at least that minimal protection.

I do not agree that plaintiff has been afforded this right. In the circumstances of her case, the bare charge that she “refused” to obey the orders of her superiors was an inadequate and ambiguous accusation of improper conduct. A refusal to obey is not per se an offense; sanctions can be imposed only if the refusal is without justification. If an employee refuses to obey an order because the order is illegal or he is ill or there is an acute emergency at home or a higher-echelon official has countermanded the order, the subordinate cannot ordinarily be punished for his refusal; in that situation the act of refusal does not merit any sanction. The charge should therefore take account of such a potential justification or affirmative defense, by some qualification like “without good cause” or “without adequate justification.” In that way the employee will be given notice that the justification he may already have presented informally is tentatively deemed insufficient, and the deciding official will know that he has squarely to pass upon the adequacy of the proffered defense for full exculpation or for mitigation.

It may be suggested that the defect I find in the charge— the omission of a few words — is merely “technical” and should be ignored as a formalism of the type dear to Baron Parke. “Lawyers know, if others do not, that what may seem technical may embody a great tradition of justice * * Kotteakos v. United States, 328 U.S. 150, 761 (1946). This is just such a “technicality.” It is an ingrained postulate of Anglo-American law, civil and criminal, that a charging document — be it an indictment, information, complaint, petition, or declaration — must be so self-contained that once its assertions are taken at their face value the right to relief or the liability to sanction will emerge, without supplementation or further pleading. The historical office of the demurrer or the motion to dismiss has been to apply just this test to charging documents. In part, no doubt, the principle that the initiating paper must embody all the essentials stems from the nature of the common-law record. The principle has survived, however, because it serves valid ends in our awn day. One purpose is to permit the ending of the litigation before trial if no proper claim or charge is set forth. That goal is of lesser significance for employee-removal cases in which the equivalent of the demurrer has not been used. But other aims do have meaning for cases like plaintiff’s It is important that the employee, often without counsel and generally with few other protections, know exactly what it is that the agency considers so harmful or detrimental that he should be discharged. It is also important that the employee realize that his justification or defense will be weighed, not disregarded. It is important that the officials who make the intermediate and final decisions put their minds to the precise issue — not merely to the general question of whether the employee is good or bad, worth retaining or not. See Mulligan v. Andrews, supra. The absence of full judicial review emphasizes the need for careful and considered decision at the administrative stages. As the District of Columbia Circuit said, in Mulligan, about a comparable procedural protection (211 F.2d at 31) : “* * * it is required as a procedural safeguard against just the sort of errors which, if committed at the administrative level, are beyond reach of our review.”

The administrative history of plaintiff’s case illustrates, for me, the soundness of the principle that the charge should embody all the elements of the specific offense levied against the employee. The offense here was said to be “refusal” to appear at disciplinary conferences and to make a disciplinary report on March 23rd and 24th. Miss Erenreich’s attorney had previously told her that she should not appear at such conferences or make such reports without his presence and assistance; despite this warning, she did participate in such a meeting on March 18th; at that time she apparently felt unable to present her viewpoint adequately; the next day, the attorney (not present counsel) “severely reprimanded” her for attending the meeting without him and repeated his instructions. When she was ordered on March 23rd and March 24th to make the reports on her whereabouts from 3:15 p.m. to 4:20 p.m. on March 22nd, she unfortunately followed her attorney’s directive and told her superiors that she could not appear without her lawyer. Nevertheless, the formal charges served on her, a few days later, asserted no more than that she had “refused” the orders; there was no recognition that she had proffered an excuse or that the validity of the excuse (if believed) was challenged. Plaintiff’s written reply repeated, again and again, that she had acted under her attorney’s advice and therefore that she had not “refused” to comply. At the oral hearing, unrepresented by counsel, she rested, once more, almost entirely on her attorney’s advice and did not seek to support that advice or her acceptance of it. The representatives of management at the hearing agreed that she acted in good faith and that she believed she had good reason for not reporting. Though the hearing board concluded generally that all the charges had been substantiated, the specific comments in its findings give me great pause. The board found that “Miss Erenreich relied on advice of her attorney to not report to Mr. Myleoraine’s office. In her mind, this was not refusal. In the opinion of the Board, she exercised poor judgment.” Again, the board characterized her acceptance of the attorney’s advice as a “conscious judgment” which “was ill-advised.” (Emphasis added.) The formal letter of removal from the Director of Personnel, which followed the hearing, simply said that each of the charges was fully supported by the evidence and warranted her discharge.

To my mind, this administrative record fails to show either (a) that plaintiff was properly apprised that the offense with which she was charged was not merely her bare “refusal” to obey but rather a refusal without good cause (i.e., that the validity of her excuse was in issue), or (b) that the deciding officials understood that they had to appraise the validity of her excuse in determining whether she had “refused” and what the penalty should be. Throughout, Miss Erenreich seems to have thought that, once she prevailed upon her superiors to believe that she was relying in good faith on her lawyer’s advice, she could not possibly be convicted of “refusal”; she considered her excuse so valid, if believed, that she never attempted to support its adequacy or legality. If the letter of charges had properly opened up the question of the validity of her justification (even if believed), she could have argued that point (or obtained a lawyer for the hearing to argue it for her). As things turned out, that issue was never really mooted. Plaintiff assumed her position without argument, concentrating on proof that she acted in good faith and without insubordinate intent. The management representatives simply 'assumed that the defense was totally without any justification and that good faith reliance was no excuse at all. The hearing board accepted plaintiff’s good faith but failed to weigh the validity of the excuse as a component of “refusal” or as a mitigating factor. From its comments, quoted above, one gathers that the board thought she was guilty, not of “refusal”, but of “poor judgment” or “ill-advised judgment”— a charge not made and against which she was not called upon to defend. Against this background, the colorless discharge letter from the Director of Personnel can have small significance in showing that the ultimate judge understood the precise issues to which he had to put his mind; we do not even know whether he considered plaintiff’s excuse as bearing on the punishment to be imposed. In sum, I view this record as showing, once again, that normally there is no substitute for a proper charge — detailed, specific, unambiguous, and complete. Where the charge is faulty, as here, the ensuing proceedings are likely to go awry, as here — to the employee’s detriment and the injury of the whole federal service.

It goes almost without saying that we should take no account of the facts, if they be facts, that plaintiff may be inefficient or difficult or tardy or an employment “problem.” Nor can we be concerned with her amenability to other charges not brought against her. Her rights in court are measured solely by the charges actually made and the proceedings under those charges. Looking only to those charges and proceedings, I would grant the plaintiff’s motion for summary judgment. 
      
      
         Dealt v. Pace, 185 E. 2d 997 (C.A.D.C., 1960) ; Money v. Anderson, 208 F. 2d 34 (C.A.D.C., 1958) ; Mulligan v. Andrews, 211 E. 2d 28 (C.A.D.C., 1954) ; McGuire v. United States, 145 Ct. Cl. 17 (1959).
     
      
       Apparently, plaintiff’s former attorney withdrew before the hearing.
     
      
       The Director’s decision does refer to “the information contained in” present counsel’s letter of June 9, I960-, on plaintiff’s hehalf. That short letter contained some discussion of plaintiff’s excuse, but, especially in the light of the hearing board’s comments, I do not regard it as adequate proof that the Director’s mind was directed to the right issues.
     
      
       These comments of the board were not made known to plaintiff (or her new attorney) until after the decision to remove her.
     
      
       The lawyer’s advice, though incorrect, was not frivolous; a layman should not be held to have known it was wrong, particularly since it came from an attorney experienced in personnel matters. Even one of the agency’s officials was unsure of the point when plaintiff raised it.
     