Harrison v. U.S. Postal Service

• Citation: 840 F.2d 1149
• Decision Date: 25 February 1988
• Docket Number: No. 87-1089,87-1089
• Parties: Leslie A. HARRISON, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE; Thomas S. Straub, Postmaster; Frederick T. Hines, Acting Director of Mail Processing; E.B. Fuller; Joseph J. Digiacomo, General Manager, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1149

840 F.2d 1149

Leslie A. HARRISON, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE; Thomas S. Straub, Postmaster;

Frederick T. Hines, Acting Director of Mail

Processing; E.B. Fuller; Joseph J.

Digiacomo, General Manager,

Defendants-Appellees.

No. 87-1089.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 4, 1987.

Decided Feb. 25, 1988.

Ruben I. Hamby, Savage, Md., for plaintiff-appellant.

Martin Himeles, Jr., Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for defendants-appellees.

Before HALL and MURNAGHAN, Circuit Judges, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

FRANK A. KAUFMAN, Senior District Judge:

This appeal arises out of the claim of plaintiff-appellant Leslie A. Harrison (Harrison) that defendant-appellees denied him access to the United States mails in violation of his due process rights under the Fifth Amendment. The district court dismissed appellant's complaint for failure to state a claim. We conclude that appellant received all the process due him, and accordingly affirm the judgment below.

I.

On February 10, 1986, Harrison filed a pro se complaint against the United States Postal Service (Postal Service) and several Postal Service officials ¹ in the United States District Court for the District of Maryland. Defendants moved to dismiss the complaint for failure to state a claim. After a hearing on defendants' motion, the district court allowed Harrison to file an amended complaint. After Harrison filed his amended complaint on October 3, 1986, defendants again moved to dismiss the complaint, and this time the district court granted their motion. It is from the dismissal of the amended complaint that Harrison appeals. ²

According to the amended complaint and exhibits attached thereto, ³ Harrison was employed until October 1985 as a driver by Ms. Gladys Blackburn, a private highway contractor for the Postal Service. On six separate occasions between September 1984 and September 1985, the Postal Police filed Security Incident Reports (incident reports) which charged Harrison with violating various Postal Service regulations. Harrison's alleged misconduct included spitting at a postal police officer, failing to comply with the instructions of a postal police officer, using abusive language in speaking to a postal police officer, and wilfully attempting to delay the movement of the mails by parking his truck illegally. On a seventh occasion, Harrison was "counseled" on "logistics on exiting and entering [and] also [on] good housekeeping." ⁴ ] In the last of the incident reports, dated September 18, 1985, the reporting office, after reviewing Harrison's record, described Harrison as "disruptive, uncooperative and counterproductive in his actions," and urged that "corrective action" be taken.

On September 26, 1985, Thomas S. Straub, Baltimore Postmaster, notified Harrison's employer, Ms. Blackburn, that as a result of Harrison's "blatant disregard for Postal personnel and regulations" Harrison was "decertified" and would henceforth be denied access to the United States mails.

Ms. Blackburn requested a hearing on the matter, and such a hearing was held on October 22, 1985. In attendance at the hearing were Ms. Blackburn, Mr. Owen Harrison (Ms. Blackburn's spokesperson), ⁵ Harrison himself, Frederick Hines (the acting chief of mail processing), and Marvin T. Russell (Logistics Coordinator).

On behalf of Harrison, Owen Harrison protested the denial of access on three grounds: (1) that Harrison was "being picked on and was a victim of circumstances"; (2) that the incident reports were not entirely accurate; and (3) that, as the contractor, Ms. Blackburn did not receive copies of some of the incident reports prior to the decision to deny Harrison access to the mails.

Frederick Hines, the Postal Service official presiding at the hearing, rejected Owen Harrison's contentions, affirmed Harrison's decertification, and summarized the reasons for his decision as follows:

I informed Mr. Harrison that these Incident Reports were compiled by several different Security Officers and that some of the incidents were repeated. Secondly, it was stated that some of Mr. Harrison's infractions were done in the presence of witnesses in retaliation for previous tickets given him. I stood firm on my belief that a person with Mr. Leslie A. Harrison['s] behavior has no business with a responsibility as important as handling U.S. Mail. Thirdly, it was stated that a copy of all Incident Reports that pertains to a driver or the contract schedule is sent to the Contract Owner. Plus in this case, in each of the last three Warning Letters, copies of the recent Incidents were included.

On October 23, 1985, pursuant to a request for information which Ms. Blackburn made at the hearing, Hines informed her that there were no additional avenues of appeal within the Postal Service itself. Nevertheless, Harrison filed written appeals in turn with the Regional General Manager of the Logistics Division, the General Counsel of the Postal Service, and the Transportation Service Office. All three affirmed Harrison's decertification.

The gravamen of Harrison's complaint and appeal is that by denying him access to the United States mails without a full-blown pretermination evidentiary hearing, the Postal Service violated Harrison's rights to procedural due process under the Fifth Amendment. At the hearing on defendants' motion to dismiss the amended complaint held on March 13, 1987, the district court went to great lengths to explain the relevant constitutional principles to Harrison. Shortly thereafter, in an opinion dated March 16, 1987, the district court dismissed the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). Relying upon certain contractual and statutory provisions which gave the Postal Service discretion to decertify contractor employees, the district court concluded that Harrison had no property interest in continued access to the mails and that, therefore, Harrison was not entitled to the procedural due process protections of the Fifth Amendment. The district court also decided that the complaint failed to state a claim under the Administrative Procedure Act, 5 U.S.C. Secs. 551-59, 701-06 (1982 & Supp. III 1985), because the Postal Service officials had discretion to decertify Harrison for any reasons which were not arbitrary and capricious.

II.

Subject matter jurisdiction over Harrison's claim against the Postal Service for violation of his Fifth Amendment right to procedural due process exists pursuant to the doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Davis v. Passman, 442 U.S. 228, 248, 99 S.Ct. 2264, 2278, 60 L.Ed.2d 846 (1979); Gaj v. United States Postal Service, 800 F.2d 64, 67-68 (3d Cir.1986). ⁶ In evaluating a civil rights complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), ⁷ we must be "especially solicitous" of the wrongs alleged. We must not dismiss the complaint "unless it appears to a certainty that the plaintiff would not be entitled to relief under any legal theory which might plausibly be suggested by the facts alleged." Canty v. City of Richmond, Va. Police Dep't, 383 F.Supp. 1396, 1399 (E.D.Va.1974), aff'd mem. sub nom. Canty v. Brown, 526 F.2d 587 (4th Cir.1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 802, 46 L.Ed.2d 654 (1976). We must be even more receptive to such cases where, as here, the plaintiff proceeded pro se in the court below. Id. at 1399-1400.

In analyzing a due process claim, the first question is whether Harrison had a liberty or property interest in continued access to the United States mails. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The court below concluded that Harrison had no such interest and therefore was not entitled to any due process. We find it unnecessary to reach that question, however, because it is apparent from the face of the complaint that, even assuming Harrison had such a protected interest, he received all the process to which he was entitled.

A.

Harrison first contends that he was entitled by statute to a full-blown pretermination evidentiary hearing. ⁸ Harrison bases this contention principally on subsection 19-125.7 of the Postal Contracting Manual, incorporated as law in 39 C.F.R. Sec. 601.100 (1987). Subsection 19-125.7 reads, in pertinent part, as follows:

Denial of Access. The decision to deny access to the mail contractor, subcontractors or their employees, shall be governed by the following:

(a) A contractor, subcontractor or any employee thereof, may be denied access to the mail on evidence of conviction of a felony, known association with felons, intentional submission of false data or concealment of data intended to induce employment, and a driver may be precluded from operating a vehicle transporting mail on evidence of serious moving traffic violations, unless the Regional General Manager, Logistics Division, has determined that such person has since been rehabilitated and has become a responsible citizen.

(b) The decision as to whether a contractor, subcontractor or contract employee shall be denied access to the mail or precluded from operating a vehicle transporting mail shall be made by the Regional General Manager, Logistics Division, in accordance with the provisions of this paragraph and the ineligibility provisions of paragraph 19-124. Such decision shall be taken only after consideration of the recommendations and comments of the Regional Counsel; the Inspection Service; Administrative Officials; and information from any other source, such as parole officials or former employers.

From this passage Harrison would have us conclude that the only reasons for which the Postal Service can decertify a contract driver are those listed in subsection 19-125.7(a), and...