Fass v. Ruegg

• Decision Date: 22 June 1967
• Docket Number: No. 17031.,17031.
• Citation: 379 F.2d 216
• Parties: Martin FASS, Plaintiff-Appellant, v. R. G. RUEGG et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

379 F.2d 216 (1967)

Martin FASS, Plaintiff-Appellant, v. R. G. RUEGG et al., Defendants-Appellees.

No. 17031.

United States Court of Appeals Sixth Circuit.

June 22, 1967.

Jacob A. Myers, Dayton, Ohio (Kusworm & Myers, Dayton, Ohio, on the brief), for appellant.

Roger J. Makley, Dayton, Ohio (Joseph P. Kinneary, U. S. Atty., Dayton, Ohio, on the brief) for appellees.

Before O'SULLIVAN and CELEBREZZE, Circuit Judges, and NEESE, District Judge.^*

O'SULLIVAN, Circuit Judge.

On October 26, 1962, plaintiff-appellant, Martin Fass, was fired from his job as an aeronautical engineer for the Aeronautical Systems Division (ASD), a division of the Air Force Systems Command, located at Wright-Patterson Air Force Base, Ohio. Following review of his dismissal and denial of reinstatement by various administrative agencies, which we detail below, appellant brought suit in the United States District Court for the Southern District of Ohio, Western Division.¹ His complaint sought reinstatement with back pay; the named defendants were military officers and officials of the agencies who ordered and reviewed plaintiff's dismissal. The District Judge granted the defendants' motion for summary judgment, dismissing the complaint. Plaintiff appealed to this Court. We affirm.

By letter dated September 18, 1962, plaintiff received a six and one-half page, single-spaced "Notice of Proposed Dismissal" from the chief officer of one of ASD's engineering branches, charging that his work was inefficient: in particular, various reports he had submitted were technically incorrect, deviated from the scope of the assignments given to him, and had taken an excessive amount of time to prepare. He was also charged with displaying an improper job attitude in his approach to the tasks required of him and in his relationship with his superiors. These deficiencies were supported by illustrations setting out the standards applicable to plaintiff's work and his departures therefrom. Plaintiff responded to the "Notice" in a 41 page letter, but upon determination that his reply did not adequately refute the charges made against him, he was dismissed from his employment on October 26, 1962.

Under Department of Air Force regulations, plaintiff had a right, which he exercised, to appeal his removal to the Commander of ASD. To facilitate this appeal an Ad Hoc Committee was established to hear testimony and receive exhibits pertinent to the charges made against plaintiff, and to advise the Commander accordingly of the evidence which supported or did not support them. After the Committee conducted its hearing it submitted its findings of fact to Major General R. G. Ruegg, Commander of ASD, who sustained the removal.

Since plaintiff was a veteran, he was entitled to appeal the Commander's decision to the Chicago Regional Office of the United States Civil Service Commission (CSC). 5 U.S.C.A. § 863. This led to another hearing in Dayton, Ohio, on June 26, 1963, conducted by a representative of the Chicago Regional Office; once again the dismissal was sustained. Plaintiff next appealed to the CSC's Board of Appeals and Review in Washington, D. C., which held in an opinion issued on January 23, 1964, that "Mr. Fass's removal was procedurally adequate and for such cause as will promote the efficiency of the service."

Plaintiff then brought suit in the District Court, urging various inadequacies in the above administrative proceedings and seeking reinstatement in his job with back pay. The District Judge noted that he could not consider the merits leading to plaintiff's dismissal, found that the required procedural steps in the previous reviews of plaintiff's removal had been complied with, and awarded summary judgment to the government.

Preliminarily, we advise our agreement with the District Judge's statement of the limited role the courts are to play in cases where individuals dismissed from federal employment seek judicial review of their severance. Our recent decision in Baum v. Zuckert, 342 F.2d 145 (CA6, 1965), had to do with a suit by a discharged employee of the Air Force seeking reinstatement. The Civil Service Commission, as here, had upheld the discharge. Judge Phillips, speaking for this Court, took occasion to say:

"The function of a reviewing court in cases involving the discharge of civil service employees is a limited one. Powell v. Brannan, 91 U.S.App.D.C. 16, 196 F.2d 871, 873. The judicial function is to determine whether there has been substantial compliance with applicable procedures and statutes, and not to review the administrative determination as to the wisdom or good judgment of the agency in exercising its discretion. Hargett v. Summerfield, 100 U.S.App.D.C. 85, 243 F.2d 29, 32, cert. denied, 353 U.S. 970, 77 S.Ct. 1060, 1 L.Ed.2d 1137. The courts will not examine into the merits of the dismissal. Ellis v. Mueller, 108 U.S. App.D.C. 174, 280 F.2d 722, cert. denied, 364 U.S. 883, 81 S.Ct. 172, 5 L.Ed.2d 104; Green v. Baughman, 100 U.S.App.D.C. 187, 243 F.2d 610, 613, cert. denied, 355 U.S. 819, 78 S.Ct. 25, 2 L.Ed.2d 35." 342 F.2d at 147.

We may not, therefore, pass on plaintiff's claim before us that certain findings by the Ad Hoc Committee were not justified by the evidence, that plaintiff's reports were accurately prepared and pertinent to the assignments given him, and that his "improper job attitude" was attributed to him by a jealous and biased supervisor. These declarations were all presented before the various administrative agencies, and were not persuasive enough to offset the testimony and documents, adverse to plaintiff, presented at the hearings. Similarly, we cannot consider the alleged error in the proceedings before the Ad Hoc Committee caused by the refusal to allow plaintiff to inquire into his supervisor's supposed dislike for him. The development of the evidence before the Committee, which dealt mainly with the merits and deficiencies of the accused reports, was strictly within the discretion of the Committee's chairman.

We turn consequently, to an examination of plaintiff's allegations of procedural inadequacies at the different administrative levels. Plaintiff claims, initially, that the charges made against him in the "Notice of Proposed Dismissal" were not specific enough to provide an opportunity for him to respond to them. Air Force Manual (AFM) 40-1, chap. AF S-1.4, ¶ 4(c) does indeed require that when steps are taken to remove an employee, the statement of reasons underlying such action must be specific and detailed. But this requirement was met. The "Notice" sent to plaintiff consisted of six and one-half single-spaced typewritten pages, declaring precisely what had been required of plaintiff in his job, how he failed to meet his assigned tasks, and how errors in his past performances had been called to his attention. The document was replete with examples drawn from plaintiff's work product which evidenced his deficiencies in one respect or another, and indicated that his job attitude — his unwillingness to cooperate with others, his refusal to carry out the assignments given him — compounded his employment difficulties. Plaintiff, we believe, was afforded fair notice of what he had to meet.

Plaintiff argues also that he was unable to reply properly to the "Notice" because he could not obtain an affidavit supporting his position from a John Cole, a physicist serving in a branch of ASD. The "No...