Carter v. United States

• Citation: 407 F.2d 1238
• Decision Date: 26 July 1968
• Docket Number: No. 20694.,20694.
• Parties: Thomas Henry CARTER, Appellant, v. UNITED STATES of America et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

407 F.2d 1238 (1968)

Thomas Henry CARTER, Appellant, v. UNITED STATES of America et al., Appellees.

No. 20694.

United States Court of Appeals District of Columbia Circuit.

Argued September 20, 1967.

Decided July 26, 1968.

Petition for Rehearing Denied December 13, 1968.

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Mr. Richard M. Millman, Washington, D. C., with whom Miss Mary M. Burnett, Washington, D. C., was on the brief, for appellant.

Mr. Thomas Lumbard, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Joseph M. Hannon, Asst. U. S. Attys., were on the brief, for appellees.

Messrs. Ralph J. Temple and Lawrence Speiser, Washington, D. C., filed a brief on behalf of The National Capital Area Civil Liberties Union and the American Civil Liberties Union as amici curiae urging reversal.

Before DANAHER, LEVENTHAL and ROBINSON, Circuit Judges.

LEVENTHAL, Circuit Judge:

Appellant Carter brought an action asserting that his discharge from Government service deprived him of statutory and constitutional rights. He appeals to this court on the ground that the District Court erred when it granted judgment in favor of the Government without a trial.

The facts shown on the record before us are these. Carter was hired by the Federal Bureau of Investigation (FBI) in 1960 as a clerk in its identification division. His employment with the Bureau was interrupted by his enlistment in the Air Force. After completing his military service in 1965 he was reinstated at his old job. In August 1965, the FBI received an anonymous letter complaining that Carter was "sleeping with young girls and carrying on."¹ When questioned about the matter by his supervisor, Carter admitted that a female friend had twice stayed overnight at his apartment. He admitted that they slept together, although not nude, in the same bed, but insisted that they did not have sexual relations. He told his supervisor that the lady had been visiting Washington from out of town for a period of three days, that they had been going together for several years, and that he was seriously considering marriage. On one occasion she had visited at his home in Kentucky and stayed with his brother and sister-in-law.

The supervisor separately questioned each of the three other FBI employees who shared appellant's apartment. One did not know whether the lady had stayed overnight at their apartment. The other two knew she had stayed overnight, but had no knowledge of what had taken place in appellant's bedroom. When questioned, they said they had not heard any noises indicative of sexual relations. They said they had no reason to doubt the account they were told appellant had given the FBI. As one of them put it, "I consider Carter as a person of high quality."

Carter was dismissed by the FBI for "conduct unbecoming an employee of this Bureau." Through counsel he petitioned to be permitted to resign, rather than have his employment record marred by such a dismissal. The FBI, on reconsideration, adhered to its prior action. Carter sued for reinstatement and back pay, and served interrogatories. Without answering, the Government pressed a motion for summary judgment, which the District Court granted, holding that appellant was not entitled to a trial.

We affirm the District Court's ruling that Carter had no statutory rights to employment under the Civil Service laws² or the Veterans Preference Act.³ However we cannot agree with the District Court's conclusion that Carter was not entitled to a trial to determine whether the discharge violated Section 9(c) of the Universal Military Training and Service Act, 50 U.S.C. App. § 459(c) (1964). We do not rule on appellant's claim of unconstitutional arbitrariness.⁴

Because of the exemption of the FBI from the civil service laws, the Bureau is generally free to discharge its employees for any reasons it chooses, subject only to constitutional limitations. Obviously, however, that discretion is subject to any specific limitations that Congress has chosen to impose. This much is conceded by appellee. Thus, like any other employer, the FBI is subject to the provisions of § 9(c) of the Universal Military Training and Service Act by which Congress granted special rights and protections to the returning veteran: the right to reinstatement in the civilian job he held prior to military service; the right to be free in the first year after resumption of civilian life from discharge for other than "cause."

The law giving a returning veteran a right to be free of discharge except for "cause" puts on the employer the burden of coming forward with a cause sufficient to justify the discharge. We think Carter has a right to a trial on issues of fact involved in that claim, and to a court determination of that claim in the light of evidence adduced in the courtroom. We now set forth the analysis underlying our conclusions.

Carter does not put before this court any prayer for relief embracing his future employment by the FBI. There is, however, jurisdiction in the District Court to consider whether appellant is entitled to clearance of his record from the stigma of the discharge and to damages. We see no valid basis for disclaiming jurisdiction either in the District Court or in this court.⁵

A. THE STATUTORY BACKGROUND

1. The right of veterans to reinstatement in civilian employment after honorable discharge from the armed forces was established by 1940 legislation.⁶ These provisions were reenacted without substantial change in § 9 of the Universal Military Training and Service Act.⁷ They reflect an effort "to offer * * * as much protection with respect to reemployment and retention of employment benefits as is within reasonable bounds," 86 Cong.Rec. 10095 (1940) (Remarks of Sen. Sheppard). The law responded to the widespread difficulties that World War I veterans had in readjusting themselves to civilian lives. People drawn into the labor force by wartime production needs often kept their newfound jobs, shutting out veterans who needed time to reestablish their skills as well as their stability. Thus, at one time or another more than 200,000 World War I veterans ended up jobless and enrolled in Civilian Conservation Corps camps.⁸ That worry over losing a job might have substantial adverse impact on the morale of the armed services is plain.⁹ Indeed, the morale problem was viewed as the source of Congressional power to enact reemployment laws writing new terms into private labor contracts beyond the normal reach of Congress. 86 Cong.Rec. 10573 (1940).

This profound social problem of the returning serviceman is partially remedied by the reinstatement provision of § 9(c). That reinstatement right is buttressed by the further provision that for one year after reemployment a veteran has a Federal right that protects him against discharge from his regained job except for "cause." This gives a reasonable period designed to "provide for the rehabilitation of the returning veteran so that he might be equipped to enter a highly competitive world of job finding without the handicap of a long absence from work, as well as to provide for his financial stability for the period of at least one year following his discharge from service." Kay v. General Cable Corp., 59 F.Supp. 358, 360 (D.N.J. 1945).¹⁰

2. The FBI asserts that it had "cause" to dismiss Carter.¹¹ Essentially the contention is that any FBI employee would be fired for this conduct, and the application of a general FBI personnel policy which does not discriminate against veterans must be upheld unless so arbitrary as to violate due process.

A private employer may have the right, in the absence of statute or contract to the contrary, to fire an employee for personal reasons, unrelated to job function, that appeal to the employer, the color of hair, a dislike of men who smoke, or have a tattoo, etc. That does not mean that the employer can fire a returning veteran for the same reason as constituting "cause."

Moreover, a policy concerning grounds of discharge cannot be invoked as justification for firing a veteran within the one-year period, even for acts that would lead to discharge of ordinary civilian employees, if the veteran was not given fair notice that the acts constituted cause for discharge.

It is settled that veterans protections under the Act should be construed liberally "for the benefit of those who left private life to serve their country in its hour of great need." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 1111, 90 L. Ed. 1230 (1946).¹² A veteran's rights stand especially firm when it is the federal government that is his employer. Congress has been particularly concerned that the federal government lead the way in smoothing the reintegration of veterans into civilian life, and carry out policies that serve as an example for employers generally. This approach germinated in World War I, when federal civil service employees serving in the armed forces were guaranteed reemployment by Act of Congress at a time when no such right was provided against private employers.¹³ Moreover, under the present law the Government cannot invoke the defense available to a private employer that circumstances make reemployment unreasonable. The Supreme Court has explicitly held that the Government-employer is under greater restrictions than a private employer.¹⁴ The requirement that there be "cause" for discharge imposes higher duties on the Government-as-employer than merely abstaining from violation of constitutional rights, a requirement that gives no substantive content to the statute, or merely refraining from discrimination against veterans or the veteran.

3. The "cause" provision was inserted by Congress to provide the reemployed veteran with a protection of reasonableness similar to that enjoyed by a union member protected by provisions in a collective bargaining agreement limiting discharge to cause.¹...