Hambsch v. Department of Treasury

• Decision Date: 03 July 1986
• Docket Number: No. 85-2681,85-2681
• Citation: 796 F.2d 430
• Parties: Anthony R. HAMBSCH, III, Petitioner, v. DEPARTMENT OF The TREASURY, United States Secret Service, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 430

796 F.2d 430

Anthony R. HAMBSCH, III, Petitioner, v. DEPARTMENT OF The TREASURY, United States Secret Service, Respondent.

Appeal No. 85-2681.

United States Court of Appeals, Federal Circuit.

July 3, 1986.

Brian W. Shaughnessy, Shaughnessy, Borowski & Gagner, of Washington, D.C., argued, for petitioner.

Ralph A. Mittelberger, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for respondent. With him on brief, were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, and Robert A. Reutershan, Asst. Director. James Snyder, Office of Legal Counsel, U.S. Secret Service, Washington, D.C., of counsel.

Before DAVIS and NIES, Circuit Judges, and SWYGERT, Senior Circuit Judge. ^*

SWYGERT, Senior Circuit Judge.

This case concerns a decision of the Merit Systems Protection Board ("MSPB" or "the Board") affirming the Department of the Treasury's decision to remove the petitioner, Anthony R. Hambsch, from the Department of the Treasury's Uniformed Secret Service Division ("the Service"). It requires this court to consider, among other things, the constitutionality of a regulation of the Service that limits the right of members of that Division to travel outside of the Washington, D.C. metropolitan area. The MSPB found that the regulation applied to the petitioner, that it did not impose an impermissible burden on the petitioner's right to travel, and that the Department of Treasury properly removed the petitioner from his job as a Secret Service agent. We affirm.

In June 1984 the petitioner was on unpaid leave status because he was allegedly unable to work as a result of a serious injury incurred in an accident on November 12, 1983 and subsequent surgery, and he had no remaining paid sick leave. ¹ A regulation of the Uniformed Division required officers on sick leave to obtain permission before leaving the Washington metropolitan area. The petitioner had decided in March or April that he wanted to go on vacation in June to Ocean City, Maryland (which is outside the Washington DC area) with his fiancee and members of his family. Although he believed that the regulation was inapplicable to him because he was on unpaid leave, and not sick leave, the petitioner attempted on June 27, 1984 to comply with the regulation, presumably because he had earlier lost a grievance in which he had claimed that the regulation did not apply to officers on unpaid leave. The Chief of the Uniformed Division, Frederick Walzel, denied the petitioner's request, and that denial was subsequently affirmed by the deputy assistant director. The petitioner was instructed by the chief and deputy chief not to leave the Washington metropolitan area.

The petitioner nonetheless went to Ocean City on July 3, 1984 where he was observed by Secret Service officials. Hambsch's home was placed under surveillance, and the Service made numerous telephone calls there from July 3 to July 7, allegedly to order the petitioner back to duty. On July 6 other Service officials photographed and videotaped the petitioner at Ocean City. At no point during this surveillance did members of the Service approach the petitioner and inform him that he was to report to work.

On July 9, 1984 the petitioner was interviewed by Inspector Rehkemper who advised the petitioner that he was investigating the petitioner's whereabouts from July 2 through July 8, 1984. The petitioner refused to answer questions, although he was advised that his refusal could result in disciplinary action, including removal. In a second interview, after being told that he could be "as vague as he wanted" in his answers, the petitioner signed under oath a written statement that from July 2 through July 7 he had been in Annapolis and Cape St. Claire, Maryland. In a subsequent third interview, he reaffirmed this written statement. The petitioner did not change his story even after being shown the photographs and videotape and after being told that other officers had seen him in Ocean City on July 3, 1984. The petitioner's request for an attorney or for the right to tape record the interrogations was denied.

On August 30, 1984 Chief Walzel proposed the petitioner's removal for (1) failure to comply with Uniformed Division regulations; (2) insubordinate refusal to comply with a supervisory directive; and (3) falsification of fact and failure to reply to questioning during an official investigation. The petitioner, through his attorney, responded both in writing and orally. Assistant Director Edward Pollard found, however, that the charges were fully supported by the evidence and decided that the petitioner's proposed removal would become effective on January 11, 1985.

The petitioner appealed to the MSPB. At the hearing before the presiding official, he claimed that the surveillance of him and the denial of his application to leave the Washington metropolitan area were in reprisal for his having filed, in April 1984, a grievance against Senior Staff Inspector Bernard Kotarski, and for his union activities. In that grievance, the petitioner alleged that Kotarski had made false statements about him and had committed other improper acts. At the hearing he alleged that, in retaliation, in June 1984 Kotarski falsely told Chief Walzel that the petitioner had abused his sick leave, and another official falsely alleged that the petitioner had been improperly engaging in independent law enforcement activities. He claimed that in June 1984 the Service decided to target him for investigation for abuse of sick leave and involvement in illegal activities. The petitioner also claimed that the Division had no excuse for denying him permission to leave the Washington metropolitan area. He intimated that the Division deliberately denied the permission hoping that it could catch him violating the order. He also suggested that the Service made no real attempt to inform him during July 3 through July 7, 1984 that he had been cleared by the Police and Fireman's Clinic physician to return to duty, although he admitted at the hearing that he was aware by July 3, 1984 that he had been found fit to return to duty with full benefits commencing on July 2, 1984. At the hearing he further argued that the Service's intense surveillance of his premises when it knew he was not there demonstrated the Service's bad faith.

I

The petitioner raises many issues on appeal, only two of which merit any extended discussion: ² (1) does a regulation of the Department of Treasury's Uniformed Secret Service Division that requires Secret Service officers to obtain permission from the Chief of the Division before leaving the Washington metropolitan area while on sick leave impose an impermissible burden on the petitioner's constitutional right to travel; and (2) is the MSPB's determination that the petitioner was not a victim of reprisal for his protected activities supported by substantial evidence?

A

The regulation at issue in this case provides:

Leaving the Metropolitan Area While on Sick Leave. Members while on sick leave may not leave the Metropolitan area unless granted permission by the Chief. Members who request this permission will report to the clinic in person and obtain an SSF 2029B from the Clinic Liaison Sergeant and present it to their District Doctor. Members will then deliver the form to the Deputy Chief, Administration and Program Support, for appropriate action. Approval of the request may be granted for recuperative purposes or emergency cases.

The Service urges us to adopt the rational basis test rather than the strict scrutiny test for determining the constitutionality of this regulation. Courts have differed over the appropriate test to be applied in cases such as the one at bar. Compare Pienta v. Village of Schaumburg, 710 F.2d 1258, 1260 (7th Cir.1983) ("strict scrutiny"), with Philadelphia Lodge, No. 5 v. City of Philadelphia, 599 F.Supp. 254 (E.D.Pa.1984) ("rational basis"), aff'd mem. sub nom. Local 22, Intern. Assoc. of Firefighters, AFL-CIO v. City of Philadelphia, 779 F.2d 43 (3d Cir.1985); Loughran v. Codd, 432 F.Supp. 259, 263 (E.D.N.Y.1976) (same), and Gissi v. Codd, 391 F.Supp. 1333, 1336-37 (E.D.N.Y.1974) (same). See also Shawgo v. Spradlin, 701 F.2d 470, 483 (5th Cir.), cert. denied sub nom. Whisehunt v. Spradlin, 464 U.S. 965, 104 S.Ct. 404, 78 L.Ed.2d 345 (1983) (to sustain attack on police personnel regulations, officers must demonstrate that there is no rational connection between the regulation and promotion of safety of persons and property). We agree with the Service, based on the reasoning set forth in Philadelphia Lodge, No. 5, that the rational basis test governs.

Under the rational basis test, the regulation to be constitutional must be rationally connected in a non-arbitrary fashion to the Service's interest in fostering public safety by contributing to the efficient operations of the Service. Kelly v. Johnson, 425 U.S. 238, 247-48, 96 S.Ct. 1440, 1445-46, 47 L.Ed.2d 708 (1976); Shawgo, 701 F.2d at 483.

The regulation in this case easily survives under this test. The regulation is narrowly drawn, requiring only that the officer consult with his treating physician at the Clinic and then obtain the approval of the Chief before leaving the metropolitan area. In addition, it was brought out in oral argument that "the metropolitan area" referred to in the regulation apparently encompasses a broad geographical area--as far away as Annapolis, Maryland which is some fifty miles from Washington, D.C. Finally, the petitioner has made no allegation that compliance with the regulation would prohibit him from freely exercising his religious beliefs, from voting, or from freely associating with others. Cf. Pienta, 710 F.2d at 1260-61.

This narrow restriction is rationally related to the Service's function of protecting the President and Vice President and other government employees. The efficient operation of the Service in delivering this service requires access...