Dew v. Halaby

• Decision Date: 28 March 1963
• Docket Number: No. 16741.,16741.
• Citation: 317 F.2d 582
• Parties: William Lyman DEW, Appellant, v. Najeeb E. HALABY, Administrator, Federal Aviation Agency, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

317 F.2d 582 (1963)

William Lyman DEW, Appellant, v. Najeeb E. HALABY, Administrator, Federal Aviation Agency, et al., Appellees.

No. 16741.

United States Court of Appeals District of Columbia Circuit.

Argued October 15, 1962.

Decided March 28, 1963.

As Amended May 10, 1963.

Petition for Rehearing Denied May 15, 1963.

Mr. David Rein, Washington, D. C., with whom Mr. Joseph Forer, Washington, D. C., was on the brief, for appellant.

Mr. Frank Q. Nebeker, Asst. U. S. Atty., for appellees. Mr. David C. Acheson, U. S. Atty., and Messrs. Nathan J. Paulson, Harold D. Rhynedance, Jr., and Abbott A. Leban, Asst. U. S. Attys., at the time the brief was filed, were on the brief for appellees.

Before WASHINGTON, DANAHER and WRIGHT, Circuit Judges.

WASHINGTON, Circuit Judge.

This is a civil service case. Appellant is a discharged Government employee, who seeks a declaratory judgment that his discharge was invalid, and reinstatement to his former position or one of like grade and tenure. He has appealed from a final order of the District Court denying relief.

The background of the case is this. Appellant served in the United States Air Force in 1951-55 and thus became entitled to the benefits of the Veterans' Preference Act of 1944, 58 Stat. 387, as amended, 5 U.S.C. § 851 et seq. (1958). He obtained employment thereafter in the Central Intelligence Agency as a file clerk handling coded data. In order to obtain the "secret" security clearance needed, he was required to take a lie detector test. Appellant admitted committing at least four unnatural sex acts with males, some of them for pay, in 1950, when he was 18 or 19 years of age. He also admitted smoking marijuana cigarettes on at least five occasions in 1951 and 1952 during his service in the Air Force. The officials of the Central Intelligence Agency thereupon offered to allow appellant to resign his post, and he did so.

He then applied to the Civil Aeronautics Authority for employment, and on September 17, 1956, was given an appointment as an Airways Operations Specialist, subject to a probationary period of one year,¹ and "subject to investigation."² Appellant thereafter served for some twenty months as an air traffic controller in Denver, Colorado, receiving one promotion and on July 3, 1957, receiving a performance rating of satisfactory. On May 14, 1958, the agency, having just come into possession of the information above mentioned, notified him that his removal was proposed. Detailed charges were filed, based on the incidents which appellant had admitted to the C.I.A. In his answer, appellant in substance repeated his earlier admissions, but asked time to file a "psychiatric evaluation." This was denied, and appellant's discharge was ordered. Appellant then appealed to the Civil Service Commission, which after extended proceedings affirmed the agency's decision.

Appellant thereupon brought suit in the United States District Court for the District of Columbia for reinstatement and other relief. This was ultimately granted, "on the ground that the plaintiff was not given sufficient time within which to file supporting affidavits * * *." Dew v. Quesada, Civil Action No. 275-59, D.D.C., Order of September 29, 1959. No appeal was taken, and appellant was reinstated.

Some weeks thereafter, on December 15, 1959, the agency again filed charges, based on the same incidents as before. Appellant repeated his admissions as to the incidents, and was allowed to file a "psychiatric evaluation." The psychiatrist concluded that appellant was functioning normally, and that he did not believe him to have a "homosexual personality disorder."³ The agency notified appellant, on February 16, 1960, that it had reviewed the materials submitted, and that the charges were sustained.

Appellant then filed an appeal with the Civil Service Commission. After a hearing at which the appellant's psychiatric witness testified, the Appeals Examiner affirmed the dismissal. The Board of Appeals and Review of the Commission also affirmed.

Appellant then brought the present suit in the District Court on December 15, 1960. On cross-motions for summary judgment, the court ruled that the Government was entitled to summary judgment. This appeal followed.⁴

I.

One of appellant's contentions has to be considered at the outset. The decision of the District Court in Dew v. Quesada, cited above, is alleged by appellant to be dispositive of the present appeal. This contention is clearly without merit, since the court there decided only that the first proceedings against appellant were defective because he was not given sufficient time to file supporting affidavits. This defect (assuming for present purposes that the court was correct in its holding) was carefully avoided in the later proceedings. Appellant's argument, that the District Court in Dew v. Quesada must have decided that appellant could not be discharged because of his past conduct, without giving consideration to his current fitness, is untenable on the record.

II.

Appellant further contends that since he had served the probationary period of one year, he acquired some special protection against being discharged by his agency for reasons arising from his pre-employment conduct. He argues that his removal "was inconsistent with Section 2.301(a) (3) of the Civil Service Regulations which limits the probationary period of an eligible to one year, and to Section 2.108(b) 2.107(b) which provides that the appointment condition `subject to investigation' expires after one year except in false statement or deception cases." But, as is clear from Section 2.107(c) and (e) of the Regulations,⁵ 5 C.F.R. § 2.107(c) and (e) (Rev. 1961), the one-year probationary and investigation period is designed to permit the Civil Service Commission during that period to instruct an agency to discharge an employee for cause known to the Commission. It is not intended to prevent an agency, after the one-year period, from discharging an employee, and in fact Section 9.101 of the Regulations — as it stood when charges were filed against appellant — provided that the employing agency, as distinguished from the Commission, "shall" remove an employee after such period for "such cause as will promote the efficiency of the service."⁶ The phrase last quoted is also to be found in the Veterans' Prefence Act, 5 U.S.C. § 863.⁷ The expiration of the probationary and investigatory period accordingly has no significance in cases like the present, where the question is whether the discharge is for "such cause as will promote the efficiency of the service," within the meaning of the Preference Act and the Regulations.

III.

The crucial question in this case is thus whether it is arbitrary and capricious, as appellant argues, to base removal for "such cause as will promote the efficiency of the service" on pre-employment conduct of the employee, under circumstances like those here presented.

It is at once clear that removal for certain types of pre-employment conduct was authorized by the Regulations of the Civil Service Commission in force at the time charges were filed against appellant, and at all other times relevant to the case. Section 9.101 thereof, cited in footnote 6 above, provided in pertinent part:

"§ 9.101 Agency responsibility for separation or demotion of employees.

"(a) The employing agency shall remove, demote, or reassign to another position any employee in the competitive service whose conduct or capacity is such that his removal, demotion, or reassignment will promote the efficiency of the service. The grounds for disqualification of an applicant for examination stated in § 2.106(a) (2) through (8) of this chapter shall be included among those constituting sufficient cause for removal of an employee." (Emphasis supplied.)

Section 2.106, 5 C.F.R. § 2.106 (Rev. 1961), provided in pertinent part:

"§ 2.106 Disqualifications of applicants.

"(a) Grounds for disqualification. An applicant may be denied examination and an eligible may be denied appointment for any of the following reasons:

* * * * * *

"(2) Physical or mental unfitness for the position for which applied;

"(3) Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct;

"(4) Intentional false statements or deception or fraud in examination or appointment;

"(5) Refusal to furnish testimony as required by § 05.3 of this chapter;

"(6) Habitual use of intoxicating beverages to excess "(7) Reasonable doubt as to the loyalty of the person involved to the Government of the United States; or

"(8) Any legal or other disqualification which makes the applicant unfit for the service." (Emphasis added.)

The ground of disqualification underscored above — "(3) Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct" — which Section 9.101 in its then form expressly made a ground for removal by the agency, and on which the Government here relies, cannot logically be read to refer solely to conduct occurring after Government employment has commenced, though it certainly included such conduct. It must have included pre-employment conduct, because it went to the ab initio disqualification of the employee for original appointment, and refers to acts which in many cases could only have occurred prior to Government employment: (e.g., Section 2.106(a) (4), deception or fraud in examination or appointment). Thus, it is plain that under the Regulations pre-employment conduct of a criminal or immoral nature was a sufficient cause for removal of any employee. Appellant does not argue that his pre-employment conduct was not of the sort condemned by the underscored part of Section 2.106 of the Regulations: in fact, it is difficult to see how he could ask a court to hold that the agency erred in so considering it.⁸

Appellant does contend, however, that Section 9.101 of the Regulations, and hence Section 2.106 as well, had no application to veterans preference eligibles. But Section 9.101...