Angilly v. United States
| Decision Date | 07 November 1952 |
| Docket Number | No. 54,Docket 22445.,54 |
| Citation | 199 F.2d 642 |
| Parties | ANGILLY v. UNITED STATES et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Matthew E. McCarthy, New York City, for William C. Angilly, plaintiff-appellant.
Myles J. Lane, U. S. Atty., New York City, John M. Foley, Asst. U. S. Atty., New York City, of counsel, for United States and Harry M. Durning, as Collector of Customs, Port of New York, defendants-appellees.
Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.
On October 28, 1949, William C. Angilly, the plaintiff-appellant, a custom inspector stationed at LaGuardia Field, New York City, was summoned to a hearing at the Custom House, New York City, and orally charged with illegally withholding $152.44 in customs duties which he had collected and with withholding thirty-eight collector's copies of informal customs entry forms pertaining thereto, covering a period from May 10, 1948 to September 20, 1948. At the hearing, the plaintiff was required to answer the charges and the answers were recorded. On November 16, 1949, the Collector of Customs of New York served the plaintiff with written charges setting forth the withholding of the customs duties and entries. On November 21, 1949, the plaintiff replied to the charges in writing, stating that the customs duties and entries were missing because of the prevailing loose practice of the government in the handling of such funds and entries at La Guardia Field. On November 29, 1949, the plaintiff was summoned to another hearing but was not permitted to have counsel, or to have other customs inspectors as witnesses in order to establish the alleged prevailing loose practice. On December 30, 1949, plaintiff was removed by the Secretary of the Treasury from federal employment for withholding the funds and entries, and the sum of $152.44 was deducted from his accumulated salary.
Thereafter he brought this action in the district court seeking: (1) A judgment in the sum of $9,184 for loss of earnings; (2) A mandatory injunction directing Durning, the Collector of Customs, to remove all charges and accusations on file in the defendant's office affecting the plaintiff and informing the Civil Service Commission of such action; (3) A declaratory judgment declaring the action of Durning as Collector of Customs in making criminal charges against the plaintiff and finding him guilty thereof to be illegal and void; (4) An order directing Durning as Collector of Customs to summarily reinstate plaintiff in his position as an inspector and pay all back wages which had accrued, together with the sum of $152.44 deducted from his earned wages.
The district judge granted the defendants' motion for a dismissal of the complaint for failure to state a cause of action, D.C., 105 F.Supp. 257.
The requirements of the applicable statute, 5 U.S.C.A. § 652 and regulations, 5 C.F.R. § 9.101 and § 9.102, which are set forth in the margin1 in so far as here relevant were clearly met. Even if in a case involving serious charges it might have been desirable to give the employee an opportunity to produce witnesses, the statute has made this purely discretionary with the hearing officer. The claim of the plaintiff that his written answer was not considered seems quite meaningless. The defendants not only received the plaintiff's written defense, but granted him an opportunity to present his defense orally.
Plaintiff's further contentions that he was deprived of property without due process of law, and of the right to trial by jury, are both negatived by the decision of Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, which was affirmed by the Supreme Court — though the justices were evenly divided, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352. See also Carter v. Forrestal, 86 U.S.App.D.C. 53, 175 F.2d 364. The suggestion in the Note in the Harvard Law Review, 65 Harv.L.R. 156-8, to the effect that the plaintiff's reputation is "property" within the meaning of the Fifth Amendment is not in our opinion to be seriously weighed against the long established view that a civil service employee does not have a constitutionally protected right to his office. Cf. Taylor v. Beckham, 178 U. S. 548, 20 S.Ct. 1009, 44 L.Ed. 1187.
The only jurisdiction for the recovery of salary is vested in the United States Court of Claims. 28 U.S.C. § 1346(d).2 The plaintiff's claim for loss of...
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...right to his position that the quoted constitutional provision has no application. For this proposition he cites Angilly v. United States, 199 F.2d 642, 644 (2d Cir. 1952) and Kelliher v. New York State Civil Service Commission, 21 Misc.2d 1034, 194 N.Y.S.2d 89 (N.Y.1959). In Kelliher, the ......
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