Harrington v. U.S., 81-1157
| Decision Date | 02 March 1982 |
| Docket Number | No. 81-1157,81-1157 |
| Citation | 673 F.2d 7 |
| Parties | Glenn HARRINGTON, Plaintiff, Appellee, v. UNITED STATES of America, et al., Defendants, Appellees, Stephen R. Walsh, Jr., Plaintiff, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
James B. Krasnoo, Boston, Mass., with whom Norris, Kozodoy & Krasnoo, Boston, Mass., was on brief, for plaintiff, appellant.
Susan Herdina, Appellate Staff, Civil Division, Dept. of Justice, Washington, D. C., with whom Paul F. Murray, U. S. Atty., Providence, R. I., Stuart E. Schiffer, Acting Asst. Atty. Gen., and Robert S. Greenspan, Appellate Staff, Civil Division, Dept. of Justice, Washington, D. C., were on brief, for defendants, appellees.
Before CAMPBELL and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge. *
Stephen R. Walsh, Jr., formerly a probationary Deputy United States Marshal, appeals from the district court's dismissal of his complaint against the United States, the Director of the United States Marshals Service, and several of his official subordinates. The plaintiff claims that in terminating him as a probationary employee the defendants violated applicable administrative regulations and, in violation of the Fifth Amendment to the Constitution, deprived him of due process of law and equal protection.
On May 23, 1980 the plaintiff filed a complaint which had allegations to the following effect. On January 28, 1980 the United States Marshals Service, Department of Justice, hired the plaintiff in Rhode Island as a probationary employee. As a condition of his employment, the plaintiff was to complete satisfactorily both basic training and his one-year probationary period. On February 4 the plaintiff was temporarily assigned to a basic training center at Glynco, Georgia. While there, on April 19, he with other trainees while off duty but on base "was involved in an incident of frivolity and horseplay." The incident became known to the defendants. Thereafter "an investigation was pursued." The defendants forbade the plaintiff to complete his training period and on April 20 ordered him to return to Rhode Island. On May 5, 1980 the plaintiff was notified that he was to be terminated on May 23, 1980.
The complaint attaches and incorporates the May 5 notice. It is in the form of a letter dated May 5, 1980 from one of the present defendants, Frank Sidella, Chief of the Employee Development Division of the United States Marshals Service, to the plaintiff, and states that "By this memorandum I am separating you from your position as a Deputy U. S. Marshal during your probationary period ... for misconduct off duty while at the Federal Law Enforcement Training Center in Glynco, Georgia ... effective ... May 23, 1980." The letter added that the plaintiff had a right to an administrative appeal if he felt that the decision is based on discrimination because of race or color or on other specific grounds not here relevant. The letter concluded that "If you have any questions concerning the reason for your termination, your appeal rights, the procedures to be used in filing an appeal, or any other aspects of this matter, you may contact Juanita Cunningham."
Alleging that the notification of termination violated his rights under regulations governing termination procedures and under the due process and equal protection clauses of the Fifth Amendment to the Constitution, the plaintiff sought declaratory and injunctive relief.
The defendants moved to dismiss the complaint for lack of subject matter jurisdiction, failure to state a claim, and failure to exhaust administrative remedies and also moved for summary judgment. The district court granted the motion to dismiss. We affirm on the ground that the plaintiff has failed to state a cause of action.
We first address the defendants' alleged denial of the plaintiff's rights under the only administrative regulation alleged to be applicable to termination of a probationary employee for misconduct occurring after entrance on duty. 5 C.F.R. 315.804. That regulation provides:
The Federal Personnel Manual ("FPM") c. 315, subch. 3-4(a)(3), uses virtually the same language but adds "it (the notice) need not require complete and specific reasons as with career or career-conditioned employees who have completed their probationary periods and have competitive status."
The plaintiff's argument that the defendants failed to comply with their own regulation suggests that the defects were (1) that the May 5 letter does not tell the plaintiff why he was being separated inasmuch as he was given no detailed statement of the alleged conduct in which he participated and (2) that an investigative record upon which the May 5 letter was based does not include any evidence that the plaintiff participated in either destruction of property or assaultive behavior upon a fellow trainee.
As to the first branch of that argument, our standard is set by the following words of the regulation: "The information and the notice as to why the employee is being terminated shall, as a minimum, consist of the agency's conclusions as to the inadequacies of his performance or conduct." When the plaintiff was informed on May 5 that his "misconduct off duty while at the Federal Law Enforcement Center," he was given a general conclusion as to the inadequacy of his conduct, but he was not then supplied with particulars as to the type of his misconduct or the date of that misconduct. However, such specifications, even if we assume that they would ordinarily be required, were not necessary in this particular instance in light of what, according to the complaint itself, 1 the plaintiff already knew. The complaint declares that on April 19 he with others had been involved "in an incident of frivolity and horseplay," that this was known to the defendants and led to an investigation, and that the next day the defendants terminated his training and ordered him back to Rhode Island. It cannot properly be claimed that the written notice of May 5 failed to inform him, in light of his previous knowledge, that he was being terminated for participation in an April 19, 1980 conspiracy to inflict on that day injury upon a fellow trainee, even though the complaint characterizes it as "horseplay." Further detail was not required in order to meet the standard of notice permitted by the regulation. Medoff v. Freeman, 362 F.2d 472, 474 (1st Cir. 1966). See Jenkins v. U. S. Post Office, 475 F.2d 1256, 1257 (9th Cir.), cert. den., 414 U.S. 866, 94 S.Ct. 57, 38 L.Ed.2d 86 (1973).
The second branch of the plaintiff's argument is not based on an alleged failure of the defendants to follow procedures stipulated in any regulation or statute. 5 C.F.R. 315.804 does not require that...
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