Davis v. Vandiver, 73-1481.

• Citation: 494 F.2d 830
• Decision Date: 28 May 1974
• Docket Number: No. 73-1481.,73-1481.
• Parties: Kenneth R. DAVIS, Plaintiff-Appellant, v. S. Ernest VANDIVER, William H. Kelly and Paul E. Innecken, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

494 F.2d 830 (1974)

Kenneth R. DAVIS, Plaintiff-Appellant, v. S. Ernest VANDIVER, William H. Kelly and Paul E. Innecken, Defendants-Appellees.

No. 73-1481.

United States Court of Appeals, Fifth Circuit.

May 28, 1974.

William R. King, Theodore G. Frankel, Atlanta, Ga., for plaintiff-appellant.

William Kanter, Walter H. Fleischer, Appellate Section, Civil Div., Dept. of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Beverly Bates, Asst. U. S. Atty., Atlanta, Ga., Eloise E. Davies, Dept. of Justice, Appellate Section, Washington, D. C., for defendants-appellees.

Before BELL, DYER and CLARK, Circuit Judges.

DYER, Circuit Judge:

Davis appeals from the district court's judgment of dismissal based upon a determination that no due process violations infected the proceedings by which he was discharged in 1971 from his position as an Air National Guard technician. We have awaited the Supreme Court's decision in Arnett v. Kennedy, 1974, ___ U.S. ___, 94 S.Ct. 1633, 40 L. Ed.2d 15 before addressing Davis' contentions, and with the guidance of that decision, we affirm the judgment below.

A professional aviator, Davis had served as a flight training instructor for the Air National Guard technician detachment in Savannah, Georgia for ten years prior to the events leading to his discharge. During August, 1971, while operating a Government vehicle off base without authority and for his personal convenience, Davis was involved in a hit-and-run accident resulting in property damage. Following an investigation by Savannah police which brought local authorities onto the National Guard base, Davis, after some delay, admitted responsibility for the accident. Two weeks later, the detachment commander formally advised Davis that he proposed to remove Davis from employment no earlier than thirty days from the notice date. Consistent with applicable National Guard regulations, this notification contained a statement of the charges and reasons for removal, indicated that Davis enjoyed a right to reply orally or in writing to the charges, and stated that after receipt of any response from Davis a written decision would be forthcoming. Davis availed himself of his right to reply, albeit under protest that the State Adjutant General, not the unit detachment commander, was the only individual authorized to act upon termination matters. Despite Davis' attempted explanation of his behavior, he was discharged from his post in September, 1971, pursuant to a notice signed by the detachment's personnel officer acting on behalf of the Adjutant General. He was subsequently afforded a full evidentiary hearing after his termination, but the dismissal was upheld as proper by the hearing examiner.

Before addressing Davis' due process contentions, we note preliminarily his two subsidiary arguments that controlling Air National Guard regulations were either substantively inadequate or unfaithfully adhered to in effecting his termination. Davis argues first that the regulations failed to provide ample notice of proscribed conduct, and secondly, that only the Adjutant General was empowered to act on Davis' discharge in view of statutory language vesting employment decision-making power in that person. 32 U.S.C.A. § 709(e) (3), (4). As to the first argument, Davis was adequately apprised of the fact that his misconduct off base could result in dismissal from employment by generally applicable Air National Guard Regulations, including § 7-37 (Table, Offense 13), which provides that misconduct by technicians off duty, if sufficiently serious, may be punished by dismissal even for a first offense. Davis impliedly demands a highly detailed catalog of offenses clearly setting forth each imaginable species of malfeasance which could result in substantial discipline. The short answer to this contention was well expressed by the District of Columbia Circuit: "It is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees includes `catchall' clauses. . . ." Meehan v. Macy, 1968, 129 U.S.App.D.C. 217, 392 F.2d 822, 835, modified 138 U.S.App.D.C. 38, 425 F.2d 469, quoted in Arnett v. Kennedy, supra, at 1648.

Davis' second contention with respect to the official statutorily empowered to act in employment matters is without foundation. The principal purpose of the National Guard Technician Act of 1968, 32 U.S.C.A. § 709, was to create a bifurcated nature of technician employment—to confer federal status on civilian technicians while granting administrative authority to State officials, headed in each State by the Adjutant General. 1968 U.S.Code Cong. & Admin.News, pp. 3319-3321. Nothing in the Act or legislative history pertaining to the vesting of managerial decisions in State officials supports Davis' extraordinary contention that all employment decisions must be made personally by the State's Adjutant General, thereby precluding delegation of such authority.

Davis' principal attack on his dismissal, however, is mustered against what he perceives as procedural infirmities violative of constitutional...