Alsbury v. U.S. Postal Service, No. 75--2138

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore GOODWIN and SNEED; SNEED
Citation530 F.2d 852
Docket NumberNo. 75--2138
Decision Date01 March 1976
PartiesLaymon Wesley ALSBURY, Plaintiff-Appellant, v. The UNITED STATES POSTAL SERVICE et al., Defendants-Appellees.

Page 852

530 F.2d 852
Laymon Wesley ALSBURY, Plaintiff-Appellant,
v.
The UNITED STATES POSTAL SERVICE et al., Defendants-Appellees.
No. 75--2138.
United States Court of Appeals,
Ninth Circuit.
March 1, 1976.

Page 853

John M. Sink (argued), Santa Barbara, Cal., for plaintiff-appellant.

Barry J. Trilling, Asst. U.S. Atty. (argued), Los Angeles, Cal., for defendants-appellees.

OPINION

Before GOODWIN and SNEED, Circuit Judges, and JAMESON, * District Judge.

SNEED, Circuit Judge:

Plaintiff-appellant was suspended and subsequently discharged from his position with the United States Postal Service. After the Regional Postmaster General and Assistant Postmaster General affirmed the suspension and discharge, appellant filed suit in the District Court, seeking reinstatement, back pay, and other appropriate relief. Summary judgment was granted in favor of defendants-appellees. We affirm.

A brief discussion of facts is helpful in understanding appellant's arguments on appeal. Appellant removed several items of postal property from the Mojave, California Post Office when his employment was transferred from that office to the Santa Barbara Post Office. He was subsequently charged with theft of postal property, a violation of 18 U.S.C. § 1707. Appellant was then suspended from employment, effective September 22, 1973, by the Officer-in-Charge of the Santa Barbara Post Office. The suspension was in compliance with Postal Service regulations allowing immediate suspension of an employee when there is reasonable cause to believe he is guilty of a crime for which imprisonment will result. 1 Appellant was subsequently discharged from employment, effective November 16, 1973, by the Officer-in-Charge. Appellant filed administrative

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appeals from the suspension and discharge decisions.

As a result of a jury trial held on December 19--20, 1973, appellant was acquitted of the criminal charges against him. Appellant's appeals to postal authorities were consolidated, and an evidentiary hearing was held on January 3--4, 1974. The Hearing Officer prepared findings of fact and recommendations, and forwarded these items to the Regional Postmaster General of the Western Region. The Regional Postmaster General, on March 25, 1974, affirmed the Hearing Officer's findings and upheld appellant's suspension and removal. Appellant appealed this decision, and the suspension and discharge were again affirmed by the Assistant Postmaster General on May 10, 1974. Appellant then sought judicial review of his dismissal.

We previously have held that judicial review of dismissal from federal employment is limited to a determination that the applicable procedures have been complied with and that the dismissal was supported by substantial evidence and was not arbitrary and capricious. Taylor v. United States Civil Service Commission, 374 F.2d 466 (9th Cir. 1967); Seebach v. Cullen, 338 F.2d 663 (9th Cir. 1964). These limits are applicable to our review of a discharge from the Postal Service. See Vigil v. Post Office Department of the United States, 406 F.2d 921 (10th Cir. 1969). No contention has been made that transformation of the Department to the Postal Service alters these limits. 2

Appellant directs most of his fire towards the alleged failure of the Postal Service to comply with proper procedures in effectuating his suspension and discharge. He also contends that the decisions to suspend and subsequently to discharge were improper because they were made by a person so involved in the case as to be incapable of impartiality. We believe these contentions are foreclosed by Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15, reh. den., 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d 1148 (1974), which held procedures similar to those employed here not violative of a federal employee's due process rights. 3 The Supreme Court expressly

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held that a pre-dismissal trial-type hearing was not constitutionally required. Nor did it suggest that suspension or discharge when done by one familiar with the employee's work was constitutionally flawed. There is no escape from the conclusion that the procedures about which the appellant now complains, authorized as they were by the Postal Service Manual, do not deprive the appellant of his constitutional rights.

Appellant's contention that the decisions resulting from his administrative appeals were so delayed as to deprive him of due process fares no better. See Pauley v. United States, 419 F.2d 1061, 1067...

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44 practice notes
  • Mackay v. United States Postal Service, Civ. A. No. 83-4872.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 14, 1985
    ...decision was supported by substantial evidence and not arbitrary and capricious; 5 U.S.C. § 706. Alsbury v. United States Postal Service, 530 F.2d 852, 854 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976). The review must be on the agency record; in the absence of a......
  • Doe v. Hampton, No. 76-1090
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1977
    ...also apply, or at least claim to apply, a so-called "substantial evidence" test. See, e. g., Alsbury v. United States Postal Service, 530 F.2d 852, 854 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Polcover v. Secretary of Treasury, supra, 477 F.2d at 1226-27; M......
  • Medina v. United States, Civ. No. 79-0296.
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 23, 1982
    ...of "guilt beyond a reasonable doubt." To rule that it does completely annuls that discretion. See: Alsbury v. U. S. Postal Service, 530 F.2d 852, 855 (9th Cir. 1976) cert. denied 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91; Finfer v. Caplin, 344 F.2d 38, 41 (2nd Cir. 1965) cert. denied 382 U.S......
  • Neal v. Secretary of Navy and Commandant of Marine Corps, No. 79-2174
    • United States
    • U.S. Court of Appeals — Third Circuit
    • February 2, 1981
    ...even when the employee was acquitted in criminal proceedings of charges based on such evidence. Alsbury v. United States Postal Service, 530 F.2d 852 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Polcover v. Secretary of Treasury, 477 F.2d 1223, 1231-32 (D.C.Cir......
  • Request a trial to view additional results
44 cases
  • Mackay v. United States Postal Service, Civ. A. No. 83-4872.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 14, 1985
    ...decision was supported by substantial evidence and not arbitrary and capricious; 5 U.S.C. § 706. Alsbury v. United States Postal Service, 530 F.2d 852, 854 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976). The review must be on the agency record; in the absence of a......
  • Doe v. Hampton, No. 76-1090
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1977
    ...also apply, or at least claim to apply, a so-called "substantial evidence" test. See, e. g., Alsbury v. United States Postal Service, 530 F.2d 852, 854 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Polcover v. Secretary of Treasury, supra, 477 F.2d at 1226-27; M......
  • Medina v. United States, Civ. No. 79-0296.
    • United States
    • U.S. District Court — District of Puerto Rico
    • June 23, 1982
    ...of "guilt beyond a reasonable doubt." To rule that it does completely annuls that discretion. See: Alsbury v. U. S. Postal Service, 530 F.2d 852, 855 (9th Cir. 1976) cert. denied 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91; Finfer v. Caplin, 344 F.2d 38, 41 (2nd Cir. 1965) cert. denied 382 U.S......
  • Neal v. Secretary of Navy and Commandant of Marine Corps, No. 79-2174
    • United States
    • U.S. Court of Appeals — Third Circuit
    • February 2, 1981
    ...even when the employee was acquitted in criminal proceedings of charges based on such evidence. Alsbury v. United States Postal Service, 530 F.2d 852 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976); Polcover v. Secretary of Treasury, 477 F.2d 1223, 1231-32 (D.C.Cir......
  • Request a trial to view additional results

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