512 F.2d 1319 (D.C. Cir. 1975), 73-2054, Rolles v. Civil Service Com'n

Docket Nº:73-2054.
Citation:512 F.2d 1319
Party Name:Joseph P. ROLLES, Appellant, v. CIVIL SERVICE COMMISSION et al.
Case Date:May 13, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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512 F.2d 1319 (D.C. Cir. 1975)

Joseph P. ROLLES, Appellant,



No. 73-2054.

United States Court of Appeals, District of Columbia Circuit

May 13, 1975

Rehearing and Rehearing En Banc Denied Aug. 11, 1975.

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Appeal from the United States District Court for the District of Columbia (D.C. Civil 1313-72).

Bardyl Rifat Tirana, Washington, D. C., for appellant.

Albert H. Turkus, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Ellen Lee Park, Asst. U. S. Attys., were on the brief, for appellees.

Before ROBINSON, ROBB and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Dissenting Opinion filed by Circuit Judge Robb.

WILKEY, Circuit Judge:

With whirlwind speed, appellant Rolles was subjected to accusations relating to his personal integrity and honesty, denied the right to respond to the accusations, transferred out of active military reserve status, and as a result removed from the Civil Service. BEcause the Constitution and the Air Force's own regulations forbid such procedures, we reverse the District Court's dismissal of appellant's complaint and remand with instructions that it order the full hearing which appellant has so far been denied.

I. Factual Background

Appellant was employed by the Department of the Air Force in its Air REserve Technician (ART) Program. The purpose of this program is to provide active reserve units with a core of reservists who can provide support services on a full-time basis to their units. Applicable Air Force regulations provide that an ART employee must maintain his active reserve membership as a condition of employment.

The chronology of events, uncontested by the parties, is central to an understanding of this case. Prior to 6 January 1971 Mr. Rolles held the position of Air Commander in the ART Program at Grissom Air Force Base (AFB), Indiana. He simultaneously held the rank of Colonel in the United States Air Force Reserve and a GS-13 (Step 7) rating in the Civil Service. Crucial to this case is the fact that prior to that date Rolles had been on active reserve status with the Air Force.

6 January 1971

Rolles received an administrative reprimand from Brigadier General John W. Hoff, United States Air Force Reserve. The reprimand alleged that a voucher prepared by Rolles was incorrect or false and that he diverted an Air Force aircraft to Andrews Air Force Base for his personal benefit.

7 January 1971

Before any response to the reprimand could be received, the Deputy Director for the Air Force Reserve Personnel ordered "immediate action" to reassign Rolles to non-active military reserve status. These orders were actually issued on 11 January.

12 January 1971

Air Force Headquarters Before Rolles, even received his military transfer and without waiting for any

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response to the reprimand, the Air Force sent Rolles a notice of his proposed removal from the Civil Service ART position.

12 January 1971

Grissom AFB, Indiana Rolles responded to the administrative reprimand sent him by General Hoff, specifically asking whether the reprimand was rendered "in Civil Service (ART) status, or ... Military Status as a Colonel, USAFR." He also asked whether "(r)eclama or rebuttal channels (were) open to (him) ...."

15 January 1971

General Hoff notified Rolles that the reprimand "was addressed to you as a military officer of the United States Air Force Reserve." It went on to state that "an administrative reprimand is not punitive, and therefore there are no grounds for reclama."

15 January 1971

In order to cover an obvious omission of a rather fundamental ingredient, the Air Force amended its notice of proposed removal of 12 January, by adding "for unsatisfactory Military performance and conduct under Rule 8, Table 12-1, AFM 35-3."

22 January 1971

Rolles sent a response to the notice of proposed removal from his Civil Service position.

28 January 1971

The Air Force amended its order of 11 January, adding the words "Unsatisfactory military performance and conduct" to the authority for reassignment.

2 February 1971

The Air Force sent Rolles a notice of its decision that he would be removed from Civil Service employment, which was followed on 11 February by the issuance of the formal notification of personnel action, removing Mr. Rolles from his Civil Service position, effective 19 February. The The sole reason given for the removal action was: "loss of active reserve membership."

We think the above makes clear the sequence of the distinct events relating to Rolles as an officer in the Air Force and as a civilian employee. Our dissenting colleague may find confusion in our recital of them, but we think the distinctions are clear. The linkage is that the civilian discharge was built solely upon the Air Force proceedings. The abominable feature of each proceeding, which we find totally repugnant to due process, is that nowhere in the military or civilian proceeding was Rolles afforded the chance to refute the charges set forth in reputation-damaging detail in our dissenting colleague's opinion. 1 To give Rolles the opportunity to do just that is the purpose of our remand action herein.

A post-termination Civil Service Hearing was subsequently requested before an Air Force Examiner. 2 Even though

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Rolles had now been removed from his Civil Service position, he had had no opportunity to answer the charges against him. It soon became evident that the Air Force had no intention of allowing him to answer these charges. When the Air Force Examiner discovered that Rolles wanted to utilize his post-termination Civil Service hearing to answer the charges made by General Hoff, he wrote that "(n)o evidence or argument concerning ... ('the withdrawal of such reserve status from you because of alleged unsatisfactory military performance and conduct ...') will be permitted by either side ...." Although Rolles again at his hearing wished to contest the charges made in the reprimand, the Examiner strictly limited evidence to the simple question whether he had been transferred to non-active reserve status, an issue which was never in dispute.

What was in issue, as discussed later, was whether "the cause of the (Air Force) action did relate to circumstances within appellant's control." 3 On this appellant was forbidden to offer any evidence. At his hearing before the Air Force Examiner he was not permitted to go behind the Air Force's order transferring him to non active reserve status. Thus the gravamen of appellant's position is that at no point in this chronology of events has he ever been given an opportunity to refute the underlying charges made against him, as proved by the lengthy extracts from the various levels of proceedings quoted by our dissenting colleague.

Appellant filed an appropriate action in the District Court seeking review of the Civil Service Commission's decision affirming his dismissal. As a part of the relief sought, he requested a determination that he was denied a fair and adequate hearing as to the reasons for his dismissal. We emphasize that the only issue before us is the legality of a dismissal from a civilian Civil Service position and we do not decide any question relating to the legality or appropriateness of appellant's military transfer. 4 In considering this appeal we will examine first whether appellant's rights under the Civil Service law and its attendant regulations were violated, and will then examine whether appellant's constitutional rights to due process of law were infringed.

II. Appellant's Rights Under the Lloyd-La Follette Act and Attendant Regulations

The Lloyd-La Follette Act, 5 U.S.C. § 7501, although enacted in 1912, is still the basic statutory protection for the job

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tenure of Civil Service employees. 5 The statute provides:

(a) An individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.

(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to-

(1) notice of the action sought and of any charges preferred against him;

(2) a copy of the charges;

(3) a reasonable time for filing a written answer to the charges, with affidavits; and

(4) a written decision on the answer at the earliest practicable date.

Examination of witnesses, trial, or hearing is not required by may be provided in the discretion of the individual directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for and the order of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and, on request, shall be furnished to the individual affected and to the Civil Service Commission.

Both the Civil Service Commission and the Department of the Air Force have enlarged upon the procedural protections accorded by the Lloyd-La Follette Act. Specifically, the Commission has provided by regulation that an employee may appeal from an adverse decision. Such an appeal may be either to a hearing examiner within the employing agency, or directly to the Civil Service Commission. 6 Appellant was provided with a trial-type hearing by the Department of the Air Force. The procedural requirements for such hearings are set out in the Civil Service Commission's regulations. 7 Those regulations provide that

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the hearing "is conducted so as to bring out pertinent facts, including the production of pertinent records."

The constitutionality of this procedure for handling removals from the Civil...

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