Deviny v. Campbell, 11036.

• Decision Date: 24 January 1952
• Docket Number: No. 11036.,11036.
• Citation: 194 F.2d 876,90 US App. DC 171
• Parties: DEVINY, Public Printer, et al. v. CAMPBELL.
• Court: U.S. Court of Appeals — District of Columbia Circuit

90 US App. DC 171, 194 F.2d 876 (1952)

DEVINY, Public Printer, et al. v. CAMPBELL.

No. 11036.

United States Court of Appeals District of Columbia Circuit.

Argued October 12, 1951.

Decided January 24, 1952.

E. Leo Backus, Atty., Department of Justice, Washington, D. C., with whom Edward H. Hickey, Sp. Asst. to the Atty. Gen., and Joseph Kovner, Atty, Department of Justice, Washington, D. C., were on the brief, for appellants.

Warren E. Miller, Washington, D. C., for appellee.

John C. Williamson, Washington, D. C., filed a brief on behalf of the Veterans of Foreign Wars of the United States as amicus curiae, urging affirmance.

Before CLARK, PRETTYMAN and PROCTOR, Circuit Judges.

PRETTYMAN, Circuit Judge.

Appellee Campbell was discharged from a position as a Civil Service employee at the Government Printing Office. He brought an action in the District Court against the Public Printer and the members of the Civil Service Commission to require them to restore him to his employment. After trial that court gave judgment in his favor. Defendant officials appeal.

In his complaint Campbell said that ten charges of misconduct had been preferred against him by the Public Printer and were subsequently sustained by that official; that upon appeal the Civil Service Commissioners sustained the Printer. He said that the discharge was in violation of the Veterans' Preference Act, because the reasons given prior to the discharge were not specific and in detail; that the proceedings before the Commissioners were defective, because unsworn testimony was received; that the regulations governing the appeal procedure before the Commissioners were defective and inadequate, because they failed to provide a method of requiring the presence of witnesses or an opportunity for cross examination; and that the Commissioners gave full credence to hearsay, immaterial and irrelevant evidence.

Respecting the specificity of the charges, Campbell's counsel, in his presence, at the hearing before the Civil Service Commissioners, stated that Charge No. 4 "is sufficient to comply with the Act"; that Charge No. 5 "is sufficient insofar as it specifically refers to Exhibit 9"; and that "We think that charges eight, nine and ten are procedurally sufficient." Campbell now asserts the invalidity of all the charges, but he cannot take one position on a point of this sort before the administrative body and the opposite position before the court upon appeal. We think that Charges 1, 2, 3, 6 and 7 were sufficiently specific. Upon that matter we agree with the Civil Service Commission. In Charge 1 it was alleged that Campbell, on or about April 12, 1949, distributed to other employees in the Printing Office copies of a certain printed brief, upon which he had made marginal notes in his own handwriting, which notes created disrespect for the Public Printer and discontent among those employees. Charge 2 referred to a memorandum alleged to have been prepared by Campbell, dated August 21, 1947, and addressed to Mr. Harry E. Widmayer, "copy of which is attached hereto." Charge 3 recited a statement, given in quoted text, alleged to have been made in a letter of February 3, 1948, addressed to the Comptroller of the Printing Office. In Charge 6 Campbell was accused of removing from the Printing Office, without permission, official papers of the Office; "(For example papers referred to in letter dated August 21, 1947, from American Legion to the Public Printer.)" In Charge 7 Campbell was accused of raising objection in a disorderly manner on or about January 26, 1948, to proper work assignments, "as evidenced by your reaction to your detail from the Commercial Planning Division to the Plant Planning Division." We think the District Court's conclusion that the charges were not sufficiently specific was plainly erroneous.

Campbell's point is that Section 14 of the Veterans' Preference Act¹ requires that the written notice of a proposed discharge must state "any and all reasons, specifically and in detail," and that the reasons for his dismissal "are not all set forth `specifically and in detail'". (Italics in text of his brief.) He says that he was discharged for ten reasons and that, therefore, each and all of the ten charges must meet the test of specification. We think, as we have indicated, that they did meet that test. He urges that some one of the charges was not specific enough, but his reasoning from that premise is fallacious. His argument is, in effect, that, since all the reasons for which he was discharged had to be stated in detail, failure of one asserted reason to meet that test invalidated the whole result. It seems to us that the statute would be absurd if it had such a meaning. We think the statute means that all the reasons upon which a discharge ultimately rests must be specific, but it does not mean that one reason insufficiently alleged in the original notice invalidates all reasons sufficiently stated and ultimately proven.

The logical validity of this contention of Campbell is immaterial in this case, in view of the procedural validity of all the charges. But in any event the point could not be sustainable unless the particular discharge was premised upon the stated reasons collectively. That is, if the discharge was for the cumulative and collective effect of all the reasons stated, the invalidity of one of those reasons might possibly require a remand and reconsideration. But, where the discharge is premised upon the reasons severally, each one being allegedly sufficient, the invalidity of one would be immaterial to the result, so long as the valid remainder was sufficient. In the case at bar the Government officials assert the sufficiency of each of the assigned reasons, and we find no ground to doubt the correctness of that position.

Appellee makes two points concerning his treatment by the Civil Service Commissioners. He says that the procedure followed in his case was in violation of the regulations of the Commission. And he says that the regulations themselves are not in accord with the statute. By way of specification upon the first of these points, he says that the appeal proceedings in his case were defective under the regulations, in that "unsworn testimony" was received; that, although he requested the presence of two employees of the Printing Office as witnesses, they were not required to appear; that because of the absence of these witnesses "there was no adversary hearing"; and that he was thereby deprived of the right of cross examination.

The "unsworn testimony" appears to consist of a transcript of the meetings of a board, established by the Printer to make a report to him concerning the charges against Campbell, and two memoranda submitted to that board, one from the Director of Purchases to the Executive Officer and the other from the Assistant to the Planning Manager to the Executive Officer, all these officials being in the Printing Office. The regulations of the Commission² provide that when an appeal is filed by an employee the Commission's...