Womer v. Hampton

• Decision Date: 12 July 1974
• Docket Number: No. 73-1494.,73-1494.
• Citation: 496 F.2d 99
• Parties: Raymond D. WOMER, Plaintiff-Appellant, v. Robert HAMPTON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 99 (1974)

Raymond D. WOMER, Plaintiff-Appellant, v. Robert HAMPTON et al., Defendants-Appellees.

No. 73-1494.

United States Court of Appeals, Fifth Circuit.

June 17, 1974.

Rehearing Denied July 12, 1974.

Sam O. Buckley, New Orleans, La., for plaintiff-appellant.

Gerald J. Gallinghouse, U.S. Atty., Michaelle F. Pitard, Mary Williams Cazalas, Asst. U.S. Attys., New Orleans, La., for defendants-appellees.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

RIVES, Circuit Judge:

Raymond D. Womer, Jr. brought suit in the district court under 5 U.S.C. § 701 et seq., and 5 U.S.C. § 7512 against the United States and the members of the U.S. Civil Service Commission for wrongful removal from his civilian job with the Department of the Army. Womer sought a judgment setting aside his removal and reinstating him to his position with full rights from the date of removal. The district court granted summary judgment to the defendants-appellees. We affirm.

I.

Womer was employed by the United States Army Corps of Engineers in the position of Supervisory Construction Representative, GS-10. On November 10, 1969, the Army Engineer District in New Orleans conducted an administrative inquiry to which Womer was summoned. In addition to Womer, six agency officials were present at the inquiry. The presiding official opened the proceedings by announcing:

"Mr. Womer, good morning. This is an administrative hearing that we have here this morning, and the purpose of this hearing is strictly an administrative inquiry that we care to make at this time. We are interested in looking into certain allegations of impropriety and certain allegations of irregularities which would have occurred or are alleged to have occurred in the New Orleans Area Office. These allegations go back several years and certain of these allegations of impropriety and irregularities concern you. So, the purpose of bringing you in here is to give you an opportunity to talk to the members of the group here — I believe you know all of them — and to explain your position fully to them as you may care to do."

(P. 1, Proceedings of November 20, 1969.) The presiding official then informed Womer that the irregularities which had been alleged were serious enough to warrant the dismissal of a government employee, "specifically serious enough to warrant your dismissal." Womer was further told that it was alleged that he had been performing work for pay for government contractors on contracts which were under his supervision as the Supervisory Inspector for the New Orleans Area Office. When asked if he understood what had been said, Womer replied, "Yes, sir." The presiding official then asked, "Would you care to make any comment in that regards?" Womer replied, "I don't know what you're talking about." In response to two further questions, Womer denied working for any government contractors, and denied receiving payment for any such work.

The presiding official at this point showed Womer photostatic copies of three checks in the amounts of $1225, $1275, and $300. Each of these checks was made out to Womer by a government contractor, and endorsed by Womer or his wife. Womer said, "Can I explain?" In over seventy pages of transcribed conversation, Womer explained the circumstances whereby he received these checks, and responded to questions put to him by members of the panel. Briefly, Womer said that the checks for $1225 and $1275 were repayment of his investment in a partnership named Wallco. Womer stated that the name Wallco "represents Womer, James Arnoult, C.C. Louque, and General Russell LeBlanc."¹ (Rec. of Proc. 4.) "We drew up a company with the purpose of forming a concrete company, concrete batching company, more or less a portable company, to put material on the batture where the various different concrete slope paving jobs would be along the river, and we each put in a total of $2,500." (R. 3-4). Womer claimed that the $300 check represented payment for some work his son-in-law had performed for Arnoult and Louque Construction Company. In response to a question from the presiding officer later in the proceeding, Womer denied ever asking an employee to falsify a daily log to show that he was present at a site on a day that he had not been there.

Under questioning, Womer admitted that he was aware of one instance in which Wallco had supplied concrete to a government job under his supervision. One official asked, "At that point, didn't you realize that you were, in effect, double-dealing?" Womer replied, "Yes, sir." (Rec. 56.) Womer also admitted that after he became involved in Wallco, his partners in Wallco, who were engaged in other government contract work through Arnoult and Louque Construction Company, "began to cut corners," because "they figured they had me over a barrel." (Rec. 31.) Although Womer insisted that he did not feel obligated to them, he conceded that he felt they had a weapon over him. (Rec. 31.) Soon after this concession, the following exchange occurred with regard to Womer's interest in Wallco:

"COL. ELDER Agency official: Well, didn\'t you feel this was kind of an unusual position for you to have to be in as a Government inspector?

"MR. WOMER: Yes, sir, I did.

"COL. ELDER: Yet, you still did not bring this to anybody\'s attention?

"MR. WOMER: No, sir, because I feared I would be right where I am today.

"MR. TOWERS Agency official: In other words, you knew you were violating the standards.

"MR. WOMER: Back in 1962 or 63, there wasn\'t as much emphasis — there may have been a regulation, I don\'t know — but I didn\'t pay too much particular attention to the regulation.

"MR. TOWERS: But you signed a certificate back in 62 saying that you had paid attention to it and you were abiding by the regulations and the standards of conduct.

"MR. WOMER: In all probabilities, I did, Mr. Towers. I don\'t deny knowing I did wrong. I felt guilty about it, now more than anything else, not just today — the last 3 or 4 years that I have been having my problems with this individual contractor, that dealing with contractors, doing work for contractors, or any phase like that is taboo and I haven\'t done any of it since this particular . . . ."

(Rec. 32-33.)

By letter dated December 2, 1969, the Deputy District Engineer advised Womer that he proposed to effect Womer's removal from employment because of deviations from ethical standards of conduct. This letter detailed three charges in support of removal: (1) Womer had participated as a partner in a concrete company, and this constituted a serious conflict of interest and a violation of Army Regulation 600-50; (2) Womer had submitted a fraudulent travel voucher; and (3) Womer had performed services for a contractor at the same time and on the same job he was inspecting, in violation of sections 1.3 and 1.12 of AR 600-50.

Womer replied on December 4 to the notice of proposed adverse action. He conceded that he had entered into a partnership known as Wallco, but insisted that he gave no special consideration to Wallco or to his partners in their other government contract work. He denied that he had falsified a travel voucher or that he had personally done any work for a government contractor.

On December 29, 1969, the District Engineer notified Womer that he found that the charges in the December 2 letter were supported by the evidence and warranted Womer's removal to promote the efficiency of the service. Womer was removed effective January 6, 1970.

Womer appealed to the Civil Service Commission. On May 14, 1970, an Appeals Examiner from the Dallas Regional Board found that the charges of conflict of interest, through participation in Wallco and through either performing or arranging to have performed work for a government contractor, were sufficient to warrant removal in the interest of the efficiency of the service. The Examiner found that there was insufficient evidence to support the charge that Womer had submitted a fraudulent travel voucher. On August 18, 1970, the Board of Appeals and Review of the Civil Service Commission affirmed the Examiner's decision.

On this appeal, Womer's primary contentions concern the November 20 proceeding. Womer claims that he did not receive adequate prior notice of this administrative proceeding and of the allegations against him. He further claims that he was not fully advised of his options and of the consequences of his choice at the beginning of the proceeding. Because of these alleged procedural defects, Womer contends that the statements made by him at the proceeding may not be used as evidence to support his removal from his job.² Womer contends that if his statements of November 20, and their fruits, are suppressed, there is insufficient evidence to support removal from his job.

II.

We first examine whether Womer was entitled to prior notice of the November 20 proceeding. So far as we can determine, there are no specific statutory or administrative rules prescribing the procedures for a proceeding of the sort conducted on November 20. In the absence of any governing statutes or regulations, we turn immediately to the constitutional question of whether the failure to give Womer advance notice of the proceeding violated procedural due process.

Hannah v. Larche, 1960, 363 U.S. 420, 442, 80 S.Ct. 1502, 1514, 4 L.Ed.2d 1307, provides some general guidelines as to the requirements of due process in administrative proceedings:

"`Due process\' is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is

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