Hart v. United States

• Decision Date: 20 January 1960
• Docket Number: No. 330-58.,330-58.
• Parties: Julia E. HART v. UNITED STATES.
• Court: U.S. Claims Court

284 F.2d 682 (1960)

Julia E. HART v. UNITED STATES.

No. 330-58.

United States Court of Claims.

January 20, 1960.

Gerald B. Greenwald and Becker & Maguire, Washington, D. C., Blumenthal & Blumenthal, New York City, on the brief, for plaintiff.

Laurence H. Axman, Washington, D. C., with whom was George Cochran Doub, Asst. Atty. Gen., for defendant.

JONES, Chief Judge.

This action presents two questions to the court. First, was plaintiff denied a personal hearing at the agency level on the charges against her in violation of her rights under section 14 of the Veterans' Preference Act of 1944,¹ and, also, was the action of her superiors in placing her on involuntary annual leave a violation of her rights under section 6 of the Lloyd-La Follette Act of 1912, as amended?²

In substance, the facts are these: plaintiff, a preference eligible, had been employed for more than ten years as a stenographer in the New York office of the Antitrust Division, Department of Justice. In July 1956, she became involved in a dispute with an attorney in the office concerning the priorities assigned certain work projects. She was accused of having refused to perform work which it was properly her duty to perform. On July 11, 1956, the plaintiff met with the acting head of the office, her administrative supervisor, and an attorney assigned to her staff section, in an attempt to work out the problem and to assure that there would be no future misunderstanding about plaintiff's duties. Failing to resolve matters satisfactorily, the conference was terminated and plaintiff was informed that she was being placed on annual leave effective the following day.

Plaintiff at that time had not had any charges served on her but she had been told that they might be forthcoming. She was continued on annual leave with no further notice until she was instructed to come to work on August 6, 1956. On that day plaintiff again had a conference with the acting head of the office and again no understanding was reached between her and her superiors. She was thereupon restored to her duties and served with a letter of charges signed by the Assistant Attorney General, Antitrust Division, and dated August 3, proposing her discharge by the Department of Justice. She was given five days in which to reply to the charges, which period was extended another five days as a result of her telephonic request to the executive officer of the Antitrust Division in Washington.

On August 14, 1956, plaintiff forwarded her written answer to the charges to the Assistant Attorney General, Antitrust Division and concluded with the statement, "I am ready and anxious to face my accusers at a hearing in this Department or before the Civil Service Commission at any time." Plaintiff was notified by letter dated September 10, 1956, that the charges against her were sustained. She was informed that her employment was being terminated as of the close of business on September 14, 1956, and of her right to appeal to the Civil Service Commission.

Following a hearing before a regional appeals examiner of the Civil Service Commission, a decision was made sustaining the agency and it was ruled that plaintiff's separation had been in full conformity with the Veterans' Preference Act. She appealed to the Board of Appeals and Review alleging, among other things, that she had been improperly suspended. Again the Civil Service Commission found against plaintiff. In a subsequent request for reconsideration, the plaintiff alleged for the first time that she had not been permitted to answer the charges against her personally as guaranteed by the Veterans' Preference Act.³ This request was denied. Plaintiff thereupon filed her petition in this court.

We held in Washington v. United States, 1957, 147 F.Supp. 284, 137 Ct.Cl. 344, that a veteran sought to be discharged from the classified civil service has the right to personally present his side of the case to the appropriate official of the agency. This right is provided in the following language in section 14 of the Veterans' Preference Act of 1944 (5 U.S.C.A. § 863):

"No permanent or indefinite preference eligible * * * shall be discharged * * * except * * * for reasons given in writing, and the person whose discharge * * * is sought * * * shall be allowed a reasonable time for answering the same personally and in writing * * *." Emphasis supplied.

But like a great many other legal rights, this congressionally conferred safeguard may be waived. Accordingly, where a civil servant is faced with discharge and is notified of his right of personal appearance at the agency level, he must take such action as will constitute a clear assertion of this right or it will be waived. Vaughn v. United States, 1958, 158 F.Supp. 716, 141 Ct.Cl. 208. We agree that this right of personal appeal at the agency level does not entitle a Federal employee to an adversary type hearing nor does it contemplate confrontation of the witnesses. Deviny v. Campbell, 1952, 90 U.S.App. D.C. 171, 194 F.2d 876.

Plaintiff had the right, then, to answer the letter of charges personally before the proper official within her agency, contingent upon properly asserting that right. Although it appears that there may be a factual dispute as to whether plaintiff was offered such opportunity, and as to whether she rejected it, counsel for both parties indicated their preference for a determination on the facts as disclosed in the briefs, affidavits, and attached documents. It is the task of the court to decide whether the plaintiff properly and effectively requested such personal interview.

From a reading of the record in this case, it appears that the incidents leading up to plaintiff's removal originated in an unfortunate, but not unique, clash of personalities between two persons who happened to come in close employment contact. Correctly or not, plaintiff believed that she had become a pawn and a scapegoat in an intra-office intrigue involving two attorneys. She had also come to the conclusion that her actions and attitudes had been untruthfully reported to her superiors. At the time she was placed on annual leave in July 1956, plaintiff believed that she had been wronged by more than one person in her office, and that she had been denied the redress and vindication that she deserved.

It appears as a matter of fact that plaintiff was insubordinate and that her conduct justified some type of disciplinary action by the Justice Department. It may be that had we been faced with the decision we would not have meted out such harsh punishment as removal; that, however, is not for this court to determine in this type of case. Moreover, plaintiff bases her claim for recovery on the procedural aspects of the removal alone.

It is only by placing plaintiff's statement about being ready to face her accusers alongside her revealed mental attitude prior to her making of the statement, that its real meaning may be seen.

Plaintiff's feelings that she had been badly treated by certain co-workers and superiors were certainly not assuaged by her being unilaterally placed on leave. We think it only natural for her to have been eager to have her position in the whole affair fully disclosed and recognized as correct rather than the position of those she regarded as her opponents. At that stage of the matter, a public vindication would naturally have served to provide plaintiff with the greatest possible satisfaction. In view of the facts, the most reasonable conclusion as to plaintiff's motive in making her request is that she was anxious to publicly confront her detractors and prove them wrong and herself right. She had no right to such a "hearing" at the agency level and it would only have been at a hearing in review of the...