Keane v. Berry

Decision Date15 June 1976
Docket NumberNo. Civ. 75-493 Phx. WPC.,Civ. 75-493 Phx. WPC.
Citation416 F. Supp. 858
PartiesJohn F. KEANE, Jr., Petitioner, v. Prescott A. BERRY, District Director, Internal Revenue Service, Respondent.
CourtU.S. District Court — District of Arizona

Stephen E. Silver, Burch, Cracchiolo, Levie, Guyer & Weyl, Phoenix, Ariz., for petitioner.

George B. Nielsen, Jr., Asst. U. S. Atty., Dept. of Justice, Phoenix, Ariz., for respondent.

MEMORANDUM AND ORDER

COPPLE, District Judge.

The initial question in the instant action is whether this Court has jurisdiction to hear this matter. The Court is of the opinion that it does. Petitioner is an employee of the Internal Revenue Service. He was suspended for 30 days (without pay) due to an alleged misuse of a government vehicle. He instituted this action on July 25, 1975. Petitioner's temporary restraining order was quashed, his preliminary injunction was denied and all further proceedings were stayed pursuant to this Court's order of August 8, 1975. Petitioner then exhausted his administrative remedies. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). The petitioner's amended petition was filed on February 25, 1976, and the government instituted the present motions to dismiss and for protective orders. There is no doubt of petitioner's exhaustion of his remedies under the Internal Revenue Service's administrative procedures. Arnett, supra.

The government contends that this Court lacks jurisdiction under 5 U.S.C. § 701 et seq. to review the thirty-day penalty imposed by the respondent. The Court finds Young v. United States, 498 F.2d 1211 (5th Cir. 1974), to be controlling. In Young, supra, the Court of Appeals for the Fifth Circuit held that due process violations in a termination hearing were reviewable under 5 U.S.C. § 701 et seq. The Court has found nothing in this circuit to conflict with that holding. Certainly the scope of review is narrow. Dennis v. Blount, 497 F.2d 1305 (9th Cir. 1974). The government's reliance in its brief on Toohey v. Nitze, 429 F.2d 1332 (9th Cir. 1970), is both mistaken and misleading. As Judge Trask noted in Toohey, supra at 1334:

"The scope of judicial review is narrow. Assuming that statutory procedures meet constitutional requirements, the court is limited to a determination of whether the agency substantially complied with its statutory and regulatory procedures." (Emphasis added)

Of course, the question here is whether the statutory processes conform to due process of law. The government also contends that petitioner is not seeking a review of the constitutionality of his hearing procedure. The government reaches that conclusion by citing the Court to petitioner's response to the government's motion to quash. That response was filed on August 4, 1975. The Court granted the motion to quash and required that petitioner exhaust his administrative remedies. In October of 1975 the Internal Revenue Service sent a hearing officer to Phoenix to investigate this matter. It is his actions which the petitioner in his amended petition of February 25, 1976, contends violated due process of law. The Court finds the government's citation to the earlier response of petitioner to be at best confusing and at worst misleading. It is clear to this Court that it is vested with jurisdiction in the instant action.

Petitioner was given notice of the charges against him and an opportunity to respond to them in writing. Pursuant to 5 C.F.R. § 752.302 et seq., an employee, such as the petitioner, who is suspended for thirty days or less is not entitled to a hearing which includes the confrontation of his accusers and the right to present his own witnesses. The question thus becomes: does the above procedure comport with due process? The government contends that petitioner's property right in his job is governed solely by the government's procedural regulations. The government is wrong. A majority of the Justices in Arnett, supra, 96 S.Ct. at 1649 (Powell, J., concurring) found that (1) a nonprobationary employee of the federal government had a property interest in his or her job; (2) the right to due process could not be limited by regulation; and (3) the employee had a right to at least a post-termination hearing comporting with due process. Other courts interpreting Arnett, supra, have come to the same conclusion. Christie v. United States, 518 F.2d 584 (Ct.Cl.1975); Barszcz v. Board of Tr. of Com. Col. Dist. No. 504, Ill., 400 F.Supp. 675 (N.D.Ill.1975); Young v. Hutchins, 383 F.Supp. 1167 (M.D.Fla.1974).

The question now devolves to whether the petitioner has a right to present his own witnesses and confront his accusers. The Court is of the opinion that he does. The Court notes that in Arnett, supra, 96 S.Ct. at 1651, such rights were accorded. The Supreme Court noted in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), that employees like welfare recipients have a right to due process of law. In Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2d 307 (1970), the right to due process that welfare recipients were entitled to included the right to present witnesses and the right to confront their accusers. The Court is of the opinion that no less should be afforded a government employee who is suspended for thirty days on charges that question his professional judgment and perhaps his honesty. See, Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). Other courts, in determining the nature of due process in employee cases, have found that the requirements of confrontation of accusers and presentation of one's own witnesses found in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), to be applicable. Dahlinger v. Town Board of Town of Delavan, 381 F.Supp. 474 (E.D.Wis.1974); Miller v. Iowa State ASCS Committee, 374 F.Supp. 415 (S.D.Iowa 1974).

Given the lack of required due process in the hearing afforded to the petitioner the Court need not, at this time, rule on the other issues presented in the parties' motions.

IT IS ORDERED:

1. The respondent's motion to dismiss is denied.

2. All further proceedings and discovery (except as may be permitted by the hearing officer in connection with the hearing provided for below) are stayed pending final outcome of the hearing mandated by this order.

3. The respondent is given thirty (30) days within which to afford petitioner a hearing conforming to the requirements of due process outlined herein.

SUPPLEMENTAL MEMORANDUM AND ORDER

The United States has filed with this Court a motion for reconsideration of the Court's Memorandum and Order of May 17, 1976. Keane v. Berry (Civ. 75-493 Phx.) (D. Ariz. May 17, 1976). The facts giving rise to this action are outlined in Keane, supra. After this Court's order was filed in Keane, supra, the Ninth Circuit handed down its most recent decision in the area of procedural rights of employees under the due process clause of the Fourteenth Amendment. Stretten v. Wadsworth Veterans Hospital, 537 F.2d 361 (9th Cir. 1976).

This Court is of the opinion that Stretten, supra, supports the Court's earlier determination that petitioner has a due process right to confront his accusers and to present his own witnesses. Judge Sneed in Stretten, supra, set forth a three-part balancing test to be used in determining the nature and extent of an employee's due process rights. See, Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

The first question to be examined is the interest of the parties that is at issue. In this case the interest of the petitioner is clear. He has suffered the deprivation of one month's salary and was found to have made unauthorized use of a government car. The interest of the employer (in this case the Internal Revenue Service) is to maintain control over its own personnel and their use of the government's property. In this case, however, that interest is general and not the particularized nature of physician competence found in Stretten, supra.

The second question to be examined is the risk of an erroneous deprivation of a property interest due to the procedures employed in the hearing. The court in Stretten, supra, found that when the question of medical competence was at issue the value of confronting witnesses and presenting one's own witnesses was questionable. See, Mathews, supra (Medical opinion in Social Security cases). In the instant case, however, the reason for the employer's actions was the alleged unauthorized use of a government car. This situation is hardly a question of professional competence, but rather, the very type of charge thought to fall within a quasi-criminal area. In the Court's opinion this is...

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4 cases
  • Krause v. Small Business Administration, 79 Civ. 5272.
    • United States
    • U.S. District Court — Southern District of New York
    • December 17, 1980
    ...5 U.S.C. §§ 7501 7512 (1976). In this light, it is easy to distinguish by the length of the suspension alone the case of Keane v. Berry, 416 F.Supp. 858 (D.Ariz.1976), in which the court concluded that due process requires a trial-type hearing before a probationary federal employee could be......
  • Porter v. Califano
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 26, 1979
    ...question of whether a suspended government employee is entitled to a hearing under the 5th Amendment, as held in Keane v. Berry, 416 F.Supp. 858 (D.Ariz.1976) because we find that given the circumstances of this case Porter is entitled to a judicial Finally, we also rule that the agency act......
  • Parks v. Goff
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • January 8, 1980
    ...is that a termination hearing must be both meaningful and reasonable in order to meet the requirements of due process. In Keane v. Berry, 416 F.Supp. 858 (D.Ariz. 1976), the Court cited Arnett, Goss v. Lopez, 419 U.S. 565 (1975), Wheeler v. Montgomery, 397 U.S. 280, 90 S.Ct. 1026, 25 L.Ed.2......
  • Waite v. Civil Service Commission
    • United States
    • West Virginia Supreme Court
    • December 20, 1977
    ...428 F.Supp. 100, 103 (W.D.N.C.1977); Aiello v. City of Wilmington Delaware, 426 F.Supp. 1272, 1286 (D.Del.1976); Keane v. Berry, 416 F.Supp. 858, 859 (D.Ariz.1976); McIntyre v. New York City Department of Correction, 411 F.Supp. 1257, 1259 (D.C.N.Y.1976); Puckett v. Mobile City Commission, ......

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