Fitzgerald v. Hampton, No. 71-1771.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtMATTHEWS, Senior
Citation467 F.2d 755
PartiesA. Ernest FITZGERALD et al. v. Robert E. HAMPTON, Chairman of United States Civil Service Commission, et al., Appellants.
Docket NumberNo. 71-1771.
Decision Date15 September 1972

467 F.2d 755 (1972)

A. Ernest FITZGERALD et al.
v.
Robert E. HAMPTON, Chairman of United States Civil Service Commission, et al., Appellants.

No. 71-1771.

United States Court of Appeals, District of Columbia Circuit.

Argued January 14, 1972.

Decided September 15, 1972.

Stay Granted December 11, 1972.


467 F.2d 756

Mr. Walter H. Fleischer, Atty., Dept. of Justice, with whom Mr. L. Patrick Gray, III, Asst. Atty. Gen. at the time the brief was filed, Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and William Kanter, Atty., Dept. of Justice, were on the brief, for appellants.

Mr. John Bodner, Jr., Washington, D. C., with whom Mr. William L. Sollee, Washington D. C., was on the brief, for appellees.

Before BAZELON, Chief Judge, TAMM, Circuit Judge, and MATTHEWS,* U. S. Senior District Judge for the District of Columbia.

Stay Granted December 11, 1972. See 93 S.Ct. 549.

MATTHEWS, Senior District Judge:

An action was brought in the District Court by A. Ernest Fitzgerald against Robert E. Hampton, Chairman of the United States Civil Service Commission, and Herman D. Staiman, Chief, Appeals Examining Office, United States Civil Service Commission, and the hearing examiner in an appeal before the Commission of plaintiff Fitzgerald. This is an appeal by defendants from an order of the District Court holding that due process requires that plaintiff be given an open and public hearing before the Commission in his appeal for reinstatement to his federal employment and enjoining the Commission from holding further hearings closed to the public and press.1

467 F.2d 757

In 1965, plaintiff Fitzgerald was appointed to the position of Deputy for Management Systems in the Office of the Secretary of the Air Force.2 On January 5, 1970, plaintiff was separated from his federal employment, purportedly by reason of the abolishment of his position through a reduction-in-force and the unavailability of another appropriate position within the Department.

Fitzgerald appealed his removal to the Civil Service Commission contending that he was in fact illegally fired from his job in retaliation for testimony which he gave before the Senate-House Joint Economic Committee with regard to cost overruns in the Air Force C5A program.

Fitzgerald requested a hearing which the Commission granted. But his numerous requests that the hearing be "open to the public and press" were denied. This request was renewed at the time the hearing commenced and was again refused. Thus, the hearing began on May 4, 1971, with the public and press being barred from entry. It was, however, adjourned on May 5, and scheduled to resume on June 16.

On June 3, 1971, Fitzgerald brought the present action in the District Court seeking to compel the Commission to open the hearing to the press and public on the ground that a non-public hearing violates his rights under the Fifth Amendment.

On June 15, 1971, the District Court denied Fitzgerald's motion for a preliminary injunction. The following day Fitzgerald moved for summary judgment and for expedited consideration since the closed hearing which the complaint sought to enjoin was continuing on a daily basis and would be completed long before the Court would resolve this case in the course of ordinary procedures. On June 22, 1971, the District Court issued a temporary restraining order against continuation of the closed hearing, pending the Court's expedited consideration of the motion for summary judgment.

In an order dated June 25, 1971, the District Court, 329 F.Supp. 997, granted plaintiff's motion for summary judgment and permanently enjoined the defendants, their agents and employees from holding hearings closed to the press and public in the appeal of Fitzgerald. This appeal followed, and pursuant to Rule 8, Federal Rules of Appellate Procedure, resumption of the Fitzgerald hearing before the Commission has been stayed by this Court pending its resolution.

Two questions are presented: (1) whether a former government employee who is a veterans' preference eligible, and who has been granted a hearing by the Civil Service Commission on his claim for reinstatement on the ground that he was illegally fired, has been denied due process of law by the Commission, which, following its own regulation, closed the hearing to the public and press; and (2) whether the exhaustion of administrative remedies doctrine precluded the District Court from enjoining the Commission from holding closed hearings in the Fitzgerald case before the administrative process had been completed.

I

THE RIGHT TO A HEARING

In a document entitled "Notice of Proposed Separation Due to Reduction in Force"3 the Air Force advised Fitzgerald of his proposed separation; Fitzgerald's employment status was stated as:

(a) Position Title and Grade: Deputy for Management Systems, GS-103-17, Schedule A.
(b) Retention Subgroup: 1A
(c) Competitive Level: 420, Financial Management Systems-Supervisor
(d) Service Compution Date: 8 November 63
467 F.2d 758

This is a position in the "excepted" service. Title 5, Code of Federal Regulations, PART 6, entitled "EXCEPTIONS FROM THE COMPETITIVE SERVICE (RULE VI)" deals with "excepted" position; § 6.4 provides:

"Except as may be required by statute, the Civil Service Rules and Regulations shall not apply to removals from positions listed in Schedules A and C or from positions excepted from the competitive service by statute." (Emphasis added.)

Fitzgerald, however, is a veteran. As such he is entitled by statute to certain Civil Service benefits afforded to "preference eligibles."4 Reduction-in-force procedures found in PART 351 of the Regulations are applicable.5 They do not provide for a hearing. But a preference eligible has a statutory right to a hearing in his appeal to the Civil Service Commission of an "adverse action" taken against him by an agency.6 The procedures for the hearing are set out in 5 C.F.R. § 772.305.

The defendants view this case as simply a "reduction-in-force separation," which is nothing more than a routine personnel matter. It is their position that the Air Force separated Fitzgerald under applicable reduction-in-force procedures, said separation being caused by the abolishment of his position and the unavailability of another appropriate position within the Department, and that Fitzgerald was not entitled to a hearing since applicable regulations do not require the holding of a hearing in reduction-in-force cases. They proffer in explanation of the granting of Fitzgerald's request for a hearing that this is the Commission's practice in cases involving "preference eligibles," and that such hearings are then conducted under the provisions of PART 772 of its regulations. In denying Fitzgerald's request for an open hearing, defendants rely on 5 C.F.R. § 772.305(c)(3), which specifically excludes the public and the press from the hearings.

Although defendants acknowledge that constitutional considerations may come into play where the stated grounds for removal will stigmatize the employee and seriously prejudice or destroy his ability to obtain any other employment,7 they submit that the impairment of individual rights in the constitutional sense is peculiarly absent where the stated ground for separation is a reduction-in-force. Consequently, say the defendants, not only is there no valid constitutional claim made to a hearing with "all the attributes of a criminal trial," but Fitzgerald has no right to any hearing at all, since a right to a hearing depends upon an applicable statute or regulation,8 and the hearing granted herein derives entirely from administrative practice.

We do not quarrel with the basic tenets upon which defendants rely nor with their applicability to a "routine reduction-in-force personnel matter." But we do not view the case as a "routine reduction-in-force personnel matter."

The separation of Fitzgerald was initiated by the Air Force. Although the Air Force stated the reason for separation as a reduction-in-force, we cannot ignore the fact that Fitzgerald is vigorously contesting his separation on the ground that it was not a reduction-in-force, and that he has, in fact, been wrongfully fired.9 Were we to look no further than the stated reason for an employee's separation, not only could an

467 F.2d 759
agency cavalierly discharge preference eligibles under the guise of a "reduction-in-force" but under that type of action it could also deprive them of all adverse action procedural rights to which preference eligibles are entitled, including the right to a hearing

It appears to us that the rationale applied in those cases involving "involuntary or coerced resignations" is applicable here.

In Paroczay v. Hodges,10 a veteran brought suit in the District Court alleging that his resignation from his position in the Department of Commerce was the result of duress and did not result in valid personnel action to terminate his service without compliance with the Veterans' Preference Act.11 A request for a hearing before the Civil Service Commission, and an appeal to the Commission, were denied by the Commission on the ground that plaintiff had voluntarily resigned and, therefore, no adverse personnel action within the purview of the Veterans' Preference Act had occurred which entitled plaintiff to a hearing. Finding on the basis of affidavits that the resignation was voluntary, the District Court granted the Government's motion for summary judgment. On appeal, we found there to be a material issue of fact as to whether or not the resignation was voluntary, making the case inappropriate for disposition by summary judgment. We reversed and remanded the case to the District Court. No contention was made by anyone at any stage that the Commission had erred in declining to entertain the appeal in the first instance. Nevertheless, the District Court remanded the case to the Civil Service Commission "with directions to conduct further...

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69 practice notes
  • White v. Franklin, No. DC85-34-NB-O.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • May 27, 1986
    ...v. Bureau of Prisons, 591 F.2d 966, 970 (D.C.Cir.1974) (pursuit of one's profession a fundamental liberty); Fitzgerald v. Hampton, 467 F.2d 755, 761-62 (D.C.Cir.1972) (same). Furthermore, the right to pursue a specific profession qualifies as a liberty interest whether the employment is pri......
  • Writers Guild of America, West, Inc. v. FCC, No. CV 75-3641-F
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 4, 1976
    ...v. Louisville & Nashville R. R. Co., 323 U.S. 192, 206, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755, 768-69 (1972); Amos Treat & Co. v. SEC, supra, 306 F.2d at 266-67;17 or where exhaustion would be futile. Houghton v. Shafer, 392 U.S. 639, 640......
  • Clemente v. United States, No. CV 80-5746-AAH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 12, 1983
    ..."property" consisting of the employment itself and "liberty" consisting of the freedom to follow a career. Fitzgerald v. Hampton, 467 F.2d 755 (D.C. The property interest involved herein is plaintiff's GS-7 position and the liberty interest her Civil Service career. Greene v. McElroy, 360 U......
  • American Federation of Government Emp. v. Hoffmann, Civ. A. No. 75-G-0652-NE.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 13, 1976
    ...removal in a reduction-in-force only if the reduction-in-force is a subterfuge. See e. g., Fitzgerald v. Hampton, 152 U.S.App. D.C. 1, 467 F.2d 755 (1972). Plaintiffs have not claimed that the reduction-in-force is in fact a subterfuge for an adverse action against them. In any event the ri......
  • Request a trial to view additional results
69 cases
  • White v. Franklin, No. DC85-34-NB-O.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • May 27, 1986
    ...v. Bureau of Prisons, 591 F.2d 966, 970 (D.C.Cir.1974) (pursuit of one's profession a fundamental liberty); Fitzgerald v. Hampton, 467 F.2d 755, 761-62 (D.C.Cir.1972) (same). Furthermore, the right to pursue a specific profession qualifies as a liberty interest whether the employment is pri......
  • Writers Guild of America, West, Inc. v. FCC, No. CV 75-3641-F
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • November 4, 1976
    ...v. Louisville & Nashville R. R. Co., 323 U.S. 192, 206, 65 S.Ct. 226, 89 L.Ed. 173 (1944); Fitzgerald v. Hampton, 152 U.S.App.D.C. 1, 467 F.2d 755, 768-69 (1972); Amos Treat & Co. v. SEC, supra, 306 F.2d at 266-67;17 or where exhaustion would be futile. Houghton v. Shafer, 392 U.S. 639, 640......
  • Clemente v. United States, No. CV 80-5746-AAH.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 12, 1983
    ..."property" consisting of the employment itself and "liberty" consisting of the freedom to follow a career. Fitzgerald v. Hampton, 467 F.2d 755 (D.C. The property interest involved herein is plaintiff's GS-7 position and the liberty interest her Civil Service career. Greene v. McElroy, 360 U......
  • American Federation of Government Emp. v. Hoffmann, Civ. A. No. 75-G-0652-NE.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • August 13, 1976
    ...removal in a reduction-in-force only if the reduction-in-force is a subterfuge. See e. g., Fitzgerald v. Hampton, 152 U.S.App. D.C. 1, 467 F.2d 755 (1972). Plaintiffs have not claimed that the reduction-in-force is in fact a subterfuge for an adverse action against them. In any event the ri......
  • Request a trial to view additional results

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