Meehan v. Macy

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation392 F.2d 822,129 US App. DC 217
Docket NumberNo. 20812.,20812.
PartiesRichard D. MEEHAN, Appellant, v. John W. MACY, Jr., Chairman, et al., Civil Service Commission, et al., Appellees.
Decision Date18 April 1968

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Mr. Edward L. Merrigan, Washington, D. C., for appellant.

Mr. Joel M. Finkelstein, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Mrs. Ellen Lee Park, Asst. U. S. Attys., were on the brief, for appellees. Mr. Scott R. Schoenfeld, Asst. U. S. Atty., also entered an appearance for appellee.

Before EDGERTON, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

This is an appeal from an order granting the Government's motion for summary judgment dismissing an action by a former employee of the Canal Zone who attacks as unlawful his 1964 discharge by the Canal Zone Government, which was affirmed by the Civil Service Commission in 1965.

We conclude that one of the charges against appellant has been established, but not the other two, and remand so that the agency may consider his case in the light of our rulings.

I BACKGROUND AND AGENCY PROCEDURE.

On January 9, 1964, American authorities in the Canal Zone rejected the request of some 200 Panamanian students, who had made an unannounced march to Balboa High School, that the United States flag be lowered and replaced by the Panamanian and American flags raised simultaneously. The students refused to leave the Zone when requested to do so and rioting broke out.

Between January 9 and January 15, 1964, groups of rioting Panamanians marauded the Canal Zone, protesting the terms and conditions of United States occupation of the Zone. The damage was extensive and when the violence subsided an aura of tension persisted, generated by fears that renewed out-bursts might erupt. Panama-United States diplomatic relations, which had been ruptured with the first violence, remained severed, and were not resumed until April 3, 1964.

The United States authorities began a search for means to improve the situation. Toward this end the Governor of the Zone proposed to enlist Panamanians to serve as Canal Zone policemen, positions that had previously been denied to foreign nationals. This augmentation plan was discussed in advance with union representatives at a special meeting, held on February 4, 1964, and conducted at the Governor's direction by the Lieutenant Governor and the Personnel Director. Among the labor leaders summoned to the meeting was appellant, Richard Meehan, then President of the Canal Zone Police Lodge 1798, American Federation of Government Employees (AFGE), as well as a private on the police force.1 Two other representatives of that lodge and the president of the Metal Trades Council were also present. They were informed of the general terms of the Governor's proposal, and admonished to avoid press disclosure of what they had learned, and to confine any protests to regular channels. As the Personnel Director set forth in a file memorandum subsequently prepared:

During the meeting the union representatives expressed strong opposition to a proposal for the inclusion of a number of non-United States citizens in the staffing augmentation plan, stating that the Union would use all possible means available to them at the Washington level to prevent the employment of non-United States citizens as Canal Zone policemen. I cautioned the union representatives to keep their opposition in regular channels, including appeals to the Congress, and particularly to avoid local issuance of comments or statements which could be used by the Panamanian press to inflame further the current difficulties between the United States and Panama. I, further, stated emphatically that the union group should take every precaution to avoid being quoted in the Panamanian press on this issue. The Lieutenant Governor spoke further on this point requesting that all possible care be taken to present any opposition to the employment plan through regular channels including protests or appeals to the Congress.2

Later the same day appellant was sought out, while he was on duty, by representatives of the Associated Press and the New York Times and asked for his opinions about the Governor's augmentation plan and the hiring of Panamanian nationals. Appellant agreed to and did talk to them the next morning, February 5, 1964.

We interject to note appellant's position on the granting of this interview.

(1) He insists that whatever "cautioning" he received at the meeting was a "request" and did not amount to an "order" that he can be disciplined for having violated.

(2) His further position is that the Governor's "request" implicitly rested on mutuality of agreement to avoid local issuance to the press. He testified that he did not feel bound to silence because he assumed that the Governor was the source of the press' apparent knowledge of the Governor's plan and that any admonition was dissipated by management's own failure to observe the secrecy it had requested.3

(3) He also testified that he understood the meeting to be directed against release of comments to the local (Canal Zone) press.

The February 5 interview resulted within a couple of days in news stories both on the Continent and in the Zone, presenting the opinions of both the Governor and "Richard D. Meehan, President of Canal Zone Police Lodge 1798."4

On February 12, 1964, appellant expressed his opposition to the Governor's proposal by another, less refined means. During the preceding few days, appellant had arranged for the printing in large quantity of an anonymous letter, a poem signed by one Payne, and an excerpt from the Congressional Record.5 The poem contained a burning attack on the Governor and his policies. The letter, intended and used to transmit the poem, was addressed to "Dear Friends," and urged the reader to write his Congressman and protest the proposed augmentation plan.6

Appellant has consistently asserted that these documents were union publications. The agency found, after hearing, that when appellant arranged their printing, he was acting without union authority and as an individual.7

On February 12, while attending to other union business during off-duty hours, appellant began distribution of the letter and poem, by delivering a copy of each document to each of two policemen at the police station.8 The distribution ceased when, apparently due to some confusion, appellant left for another meeting without taking the rest of the documents he brought with him. When he returned to reclaim them and learned they had been sequestered he called for their return as union property, accepting responsibility for their distribution. Subsequently, copies of the letter and poem appeared elsewhere, but appellant has not been affirmatively connected with their appearance.9

On February 20, 1964, appellant was notified that he would be discharged on three charges:10

Charge 1, for "conduct unbecoming a Police Officer of the Canal Zone Government," related to the publication and distribution of the letter and poem. Specification "a" alleged that these documents contained "derogatory and libelous statements" about the Governor and that they "broadly, vaguely, and intemperately * * * in a sarcastic and contemptuous manner" criticized the Governor and the Executive Branch of the United States Government and their policies. Specification "b" alleged, inter alia, that appellant left 85 copies in the police booth with the intention thereby of making public distribution — an allegation denied by appellant and found not proven (see note 8 supra).

Charge 2, "failure to obey instructions from your superiors," charged that the cautioning at the February 4 meeting constituted "explicit instructions" not to discuss the personnel augmentation plan and that appellant's February 5 interview, inter alia, constituted a failure to obey instructions.

Charge 3 was for "failure to obtain clearance from the office of the Governor before releasing for publication articles pertaining to Government activities in the Canal Zone." It was based on the alleged violation of Canal Zone Government Executive Regulation No. 67 (1963), which forbade the publication of articles pertaining to Government activities in the Canal Zone without prior approval of their contents by the Governor.11 The newspaper interview, inter alia, was alleged to have been given in violation of this regulation.

Appellant contested his discharge. Pursuant to Canal Zone regulation12 a hearing was held March 23-24, 1964, before an agency examiner, who on April 10, concluded that charges 1(a), 2, and 3 had been sustained and that the discharge was warranted. On April 15, appellant was informed he was to be discharged effective April 16, for the reasons stated in the original charges as found by the hearing examiner. Meehan's appeal from this discharge was denied May 6, 1964, by the Governor, who found that the "charges against you are fully supported by the evidence and warranted your discharge from the service."

Exercising his rights as a Veteran's Preference Employee, Meehan appealed to the Civil Service Commission where further evidence was taken on June 19, 1964, before the Appeals Examining Office. That office sustained the discharge in its decision of September 3, 1964, which concluded that, with certain exceptions, the facts were as found by the agency, and that no change should be made in the agency's personnel action. That decision was affirmed February 8, 1965, by the Board of Appeals and Review, in the final action of the Civil Service Commission. One year later appellant, having received the support of the AFGE, filed his complaint seeking a declaratory judgment and a mandatory injunction to remedy his allegedly illegal discharge.

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