Brown v. U.S. Postal Service
| Decision Date | 26 October 1988 |
| Docket Number | No. 86-2425,86-2425 |
| Parties | Andrew L. BROWN, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE; William F. Bolger, Postmaster General; Paul Sydney, Postmaster; Ruben Ford, Postmaster, Fresno; U.S. Office of Personnel Management Merit System Protection Board, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan Moss, San Francisco, Cal., for plaintiff-appellant.
Stephen E. Alpern, Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before GOODWIN, Chief Judge, FLETCHER, Circuit Judge, and KING, * District Judge.
Andrew L. Brown, appeals the district court's decision affirming his November, 1977 termination from his job as a window clerk at the post office for Madera, California. He was discharged for "willful failure to follow established postal procedures" and "misappropriation of postal funds." Because we find Brown's termination to be an unduly severe punishment under the circumstances, we reverse and remand.
During October and November, 1977, a number of postal inspectors observed Brown and a fellow window clerk, Laddie Lizak, mishandling postage-due transactions. In such transactions, customers purchase additional postage to receive mail that has been sent to them with insufficient postage. When the customer pays the window clerk, the clerk is instructed to affix to the mail stamps or a postal meter strip for the applicable postage due before giving the mail to the customer. The purpose of this requirement is to keep the window clerk's account accurate. Stamps from the clerk's stock go out, and cash from the customer comes in. The Postal Service requires that the clerk's cash till be in balance. See Postal Service Manual, Sec. 146.5.
The inspectors observed Brown handle 19 postage-due transactions. He correctly handled four of the transactions, involving business flats and parcels. For the other 15 transactions (fourteen of which involved forwarded magazines), totaling $21.14, Brown failed to affix postage-due stamps even though he accepted postage-due payments from the customer. When Brown's supervisor gave him a letter with 11 cents postage due, he handled the transaction correctly.
On November 14, 1977, the two observing postal inspectors interrogated Brown and obtained a sworn statement which included the following admissions:
During the past 10 months I have made mailings of Bibles and other Bible related books to Africa. On some of them I mailed paying the postage. Others were mailed with the intent of replacing the money.
I did not follow the proper procedure in handling the postage-due matter, knowing that it would be helpful in making up my being short when my stock is counted.
Based upon this statement and testimony by postal inspectors, Brown was terminated on November 14, 1977.
As a result of the same investigation, the other employee, Lizak, was fired for his failure to affix postage-due stamps upon magazines (although he, like Brown, followed the proper procedure for business flats). The review board reinstated Lizak after finding that the USPS had failed to prove that he knew the proper procedure and that he thus could not have intentionally violated them.
On May 10, 1978, the Federal Employee Appeals Authority (FEAA) upheld the USPS's decision to discharge Brown. On November 26, 1979, the office of appeals of the Merit Systems Protection Board (MSPB)--the successor to the FEAA--declined to reopen the earlier decision.
Brown filed this action in federal district court challenging his termination, seeking reinstatement, compensation for lost wages and other lost benefits, and costs and attorney's fees. The district court first referred the case to a magistrate for a recommendation pursuant to 28 U.S.C. Sec. 636(b) (1982). The magistrate recommended that Brown be reinstated. The district court agreed and entered judgment for Brown. However, on a timely motion for reconsideration by USPS, the district court reversed itself and affirmed the FEAA-MSPB decision. This appeal followed. 1
Brown argues that the district court lost jurisdiction over his case after entry of the initial judgment in his favor, and could not reverse itself and enter a new judgment in favor of USPS. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981) (). However, the initial judgment was not final. It established liability, but left for subsequent decision the amount of back pay and attorneys fees. See 5 C.F.R. Secs. 550.804 (1988) (). A district court judgment of liability is not a final judgment where it remains for the district court to assess damages or adjudicate other claims for relief. See, e.g., Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742, 96 S.Ct. 1202, 1205, 47 L.Ed.2d 435 (1976) (); Hain Pure Food Co., Inc. v. Sona Food Products Co., 618 F.2d 521, 522 (9th Cir.1980) (); Warner v. Rossignol, 513 F.2d 678, 684 & n. 3 (1st Cir.1975) (same). Thus, we conclude that the district court had jurisdiction to reconsider its judgment.
Brown argues that the USPS violated Fed.R.Civ.P. 7 and Local Rule 230 of the Eastern District of California because it first raised the issue of nexus in its reply brief and oral argument in support of its March 5 motion. Therefore, he says, the district court should not have remanded the case to the magistrate for reconsideration of the nexus issue.
Fed.R.Civ.P. 7 requires that any motion "shall state with particularity the grounds therefor, and shall set forth the relief or order sought." 2 Although the USPS did not rebrief the nexus issue in its opening brief on the March 5 motion, we do not charge the district court with reversible error in considering the nexus arguments. The court had the right to consider the matter. The reference in the March 5 motion to the USPS's pending motion on nexus gave Brown some notice that the issue might be reconsidered. Because the parties had already briefed and argued the nexus issue before the magistrate, Brown was not prejudiced by his failure to brief the issue in his response to the March 5 motion. Furthermore, the district court did not reverse its decision on the nexus holding; it decided only to remand the case to the magistrate, an action which is analogous to the granting of a new trial and therefore is almost wholly given over to the discretion of the district court. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 190, 66 L.Ed.2d193 (1980). Finally, Brown had a full opportunity to litigate the merits of the nexus issue before the magistrate and the district court. Given the policy of allowing a district judge "to reconsider the validity of his judgment" to "correct an otherwise erroneous judgment without implicating the appellate process," Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1249-50 (9th Cir.1982), we decline to hold that the district court erred in reconsidering the issue of nexus. There was likewise no abuse of discretion.
Judicial review "in administrative discharge cases 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.' " Calhoun v. Bailar, 626 F.2d 145, 147 (9th Cir.1980) (quoting Alsbury v. United States Postal Serv., 530 F.2d 852, 854 (9th Cir.)), cert. denied, 429 U.S. 828, 97 S.Ct. 85, 50 L.Ed.2d 91 (1976), cert. denied, 452 U.S. 906, 101 S.Ct. 3033, 69 L.Ed.2d 407 (1981). "An agency must first determine that the employee actually committed the conduct complained of, and second, that removal based on the misconduct will promote the efficiency of the service." McLeod v. Department of the Army, 714 F.2d 918, 920 (9th Cir.1983).
On appeal, Brown argues that: (1) the record, taken as a whole, does not provide substantial evidence supporting the finding that he intentionally violated the postal manual rule; (2) there exists no "nexus" between the alleged violation and the efficiency of the service; and (3) the penalty is so disproportionate to the alleged conduct that it amounts to an abuse of discretion.
The FEAA's decision was supported by substantial evidence. We may not displace an agency's decision "between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). Determination "of the credibility of the witnesses is within the discretion of the presiding official who heard their testimony and saw their demeanor." Griessenauer v. Department of Energy, 754 F.2d 361, 364 (Fed.Cir.1985).
The charge against Brown of "willful failure to follow established postal procedures" was based on his observed mishandling of the 15 postage-due transactions. The charge of "misappropriation of postal funds" was based on two allegations: the knowing mishandling of postage-due transactions to offset shortages and withhold funds "from normal remittance The conflicting testimony on whether Brown "knowingly" and "willfully" failed to follow established postage-due procedures presented the sort of question in which we defer to the trier of fact.
channels;" and the use of postal funds for personal mailings. The FEAA officer sustained both charges, relying principally upon Brown's written confession and testimony showing that Brown sometimes had followed...
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