480 F.2d 314 (4th Cir. 1973), 72-2319, McNeill v. Butz

Docket Nº:72-2319, 72-2320.
Citation:480 F.2d 314
Party Name:Walter Clifton McNEILL, Appellant, v. Earl L. BUTZ, Secretary of Agriculture, et al., Appellees. Delores S. CANADY, Appellant, v. Earl L. BUTZ, Secretary of Agriculture, et al., Appellees.
Case Date:June 11, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 314

480 F.2d 314 (4th Cir. 1973)

Walter Clifton McNEILL, Appellant,

v.

Earl L. BUTZ, Secretary of Agriculture, et al., Appellees.

Delores S. CANADY, Appellant,

v.

Earl L. BUTZ, Secretary of Agriculture, et al., Appellees.

Nos. 72-2319, 72-2320.

United States Court of Appeals, Fourth Circuit.

June 11, 1973

Argued Feb. 6, 1973.

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Charles B. Winberry, Rocky Mount, N. C., and Stephen H. Nimocks, Fayetteville, N. C. (Biggs, Meadows & Batts, Rocky Mount, N. C., and Anderson, Nimocks & Broadfoot, Fayetteville, N. C., on brief), for appellants.

Jack B. Crawley, Jr., Asst. U. S. Atty. (Thomas P. McNamara, U. S. Atty., on brief), for appellees.

Before WINTER and CRAVEN, Circuit Judges and BRYAN, [*] District Judge.

WINTER, Circuit Judge:

Walter Clifton McNeill and Delores S. Canady, each of whom was a discharged employee of the Department of Agriculture, sued to effect their reinstatement to their prior federal employment and to recover back pay. In each case, the claim for relief was predicated upon the contention that the Department of Agriculture had violated plaintiff's right to procedural due process in discharging him without permitting him the opportunity to confront and cross-examine his accusers. The district court granted summary judgment for the government in both cases because, (1) in McNeill's case, the record indisputedly showed, by his own admission, that he engaged in illegal activities which justified his discharge, and (2) in Canady's case, she had no right to a hearing at which she could confront and cross-examine her accusers, or in the alternative, that the government's interest in her prompt and

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orderly discharge outweighed her right to this aspect of procedural due process.

We agree with respect to McNeill, and we therefore affirm in No. 72-2319. We disagree with respect to Canady and, hence, we reverse in No. 72-2320, and remand with directions to order her reinstatement and to assess damages.

I.

A. McNeill's Case: McNeill was employed as a Compliance Supervisor for the Cumberland County, North Carolina office of the Agricultural Stabilization and Conservation Service (ASCS). He had held this position full-time for ten years and part-time for the four preceding years. He was a non-civil service employee who had no employment contract.

In 1969, an audit report prepared by the Inspector General of the Department of Agriculture disclosed certain irregularities in the Cumberland County ASCS office. The Inspector General conducted a further investigation and assembled his findings in two reports. These investigative reports named McNeill and Canady as malefactors.

On February 16, 1970, the North Carolina State ASCS Committee advised McNeill by letter that he was suspended as of February 17 for "impeding the effectiveness of ASCS program operations . . . and for failure to perform the duties of your employment." 7 C.F.R. 7.29(b). The letter further specified the alleged acts which supported the charges: (1) that he improperly obtained the benefits of a tobacco lease without the agreement of the owner, one McDowell, in contravention of Department of Agriculture regulations which require agreement of the owner and approval by the ASCS county committee; and (2) that he "caused to be prepared" a CAP (Cropland Adjustment Program) agreement which entitled him to annual payments as the operator of a farm he had purchased six months earlier, in contravention of Agriculture regulations which extend CAP benefits only to those who had owned a farm for three years.

On February 25, McNeill requested a hearing, copies of the records pertaining to the investigation, and the right to examine his accusers. On April 8, 1970, the State Committee Office held a hearing at which McNeill made a personal appearance accompanied by counsel. At the hearing, McNeill's counsel denied the allegations. McNeill submitted an affidavit from McDowell which stated that McDowell had agreed to and signed the tobacco lease. McNeill testified and admitted knowledge of the CAP agreement and receipt of a payment pursuant to it, but denied that he had caused its preparation. He stated that he would have terminated the CAP agreement had he known it was improper. It does not appear that the government proffered any evidence at the hearing. On April 29, the State Committee upheld McNeill's dismissal.

In May, McNeill appealed his suspension to the Deputy Administrator of the ASCS in Washington, D. C. On July 9, four days before the appeal hearing, the government for the first time furnished McNeill's counsel with selected excerpts of the audit and investigatory reports. These excerpts contained only government-prepared recapitulations of incriminating evidence, but included no affidavits or sworn statements or the identity of McNeill's accusers. At the same time, the government advised McNeill's counsel that he could not examine the government's witnesses. At the hearing, McNeill's renewed requests to examine the government's witnesses and the complete investigative files were denied. McNeill presented four affidavits which tended to confirm his story. Again, it does not appear that the government proffered any evidence. In November, the Deputy Administrator affirmed McNeill's suspension.

Thereafter, the State Committee discharged McNeill and permanently disqualified him from future employment as an ASCS committeeman or employee of the ASCS county committee. 7 C.F. R. 7.29(c). McNeill appealed his discharge to the Deputy Administrator,

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who affirmed it. McNeill then brought this suit.

B. Canady's Case: Canady was employed as a Production Adjustment Clerk for the Cumberland County ASCS. She had held the position for four years. She, too, was a non-civil service employee who had no employment contract.

After the audit and investigation, the State Committee advised her by letter that she was suspended for "failure to perform the duties of your employment and impeding the effectiveness of the tobacco program." The letter alleged that Canady had mutilated two filed lease agreements, replacing them with agreements which contained erroneous information. On February 25, and again on March 27, Canady requested a hearing, copies of the records pertaining to the investigation, and an opportunity to confront her accusers. On April 1, the government advised that it would not make the investigative report available to her. On April 2, Canady again requested an opportunity to confront the witnesses against her, but the request was denied.

At the April 8 State Committee hearing, Canady testified, denying the specific allegations. Her renewed request to confront the government's witnesses was again rejected. It does not appear that the government presented any sworn or other evidence. At no time did it disclose the identity of her accusers.

The State Committee upheld Canady's dismissal. She appealed to the Deputy Administrator and again requested both confrontation and copies of the investigation and audit reports. On July 9, the government for the first time furnished her with selected excerpts of the reports, but denied her request for confrontation. Like those furnished McNeill, the excerpts contained only secondhand recapitulations of incriminating evidence, but not the identity of any government witnesses.

At the July 13 appeal before the Deputy Administrator, Canady placed in evidence her affidavit denying the specific allegations. The government proffered those excerpts from its investigative report which it had made available to Canady. On November 12, her appeal was denied. Thereafter, the State Committee discharged her and disqualified her from future employment as an ASCS committeewoman or as an employee of an ASCS county committee. The Deputy Administrator denied Canady's subsequent appeal of her discharge. She then commenced this action.

II.

The fifth amendment enjoins the federal government from depriving any person of "life, liberty, or property, without due process of law." McNeill and Canady urge that their discharge and permanent disqualification deprived them of liberty and/or property that the fifth amendment's guarantee of procedural due process therefore applied, and that due process required that they be afforded an opportunity to confront and cross-examine their accusers.

The first issue presented is whether in these circumstances notions of procedural due process rights are applicable to the dismissal of a non-civil service federal employee who has no employment contract. Procedural due process rights attach where state action condemns a person to "suffer grievous loss of any kind." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring); Goldberg v. Kelly, 397 U.S. 254, 262-263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Cf. Hannah v. Larche, 363 U.S. 420, 441-442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). The Supreme Court has recently addressed the question of procedural due process rights for untenured state employees in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). See Chitwood v. Feaster, 468 F.2d 359 (4 Cir. 1972); Johnson v. Fraley, 470 F.2d 179 (4 Cir. 1972).

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Roth is controlling in this case. Sindermann is only of collateral interest, since it dealt primarily with the question of when a teacher, not having formal tenure, may claim quasi-tenure. No such claim is made in either of the instant cases.

In Roth, supra, the Court held that a non-tenured teacher who had been employed for one year had no due process right to a statement of reasons or a hearing on a state university's decision not to renew his one-year...

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