Haynes v. United States

• Decision Date: 12 December 1969
• Docket Number: No. 103-68.,103-68.
• Citation: 418 F.2d 1380,190 Ct. Cl. 9
• Parties: James E. HAYNES v. The UNITED STATES.
• Court: U.S. Claims Court

190 Ct. Cl. 9, 418 F.2d 1380 (1969)

James E. HAYNES v. The UNITED STATES.

No. 103-68.

United States Court of Claims.

December 12, 1969.

William B. Barton, Washington, D. C., attorney of record, for plaintiff.

LeRoy Southmayd, Jr., Washington, D. C., with whom was Asst. Atty. Gen. William D. Ruckelshaus, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

ON PLAINTIFF'S MOTION AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

COLLINS, Judge.

This case comes before this court on plaintiff's motion and defendant's cross-motion for summary judgment. The main issues to be decided are whether any of plaintiff's procedural rights were substantially violated at the administrative level and whether the action of the Civil Service Commission in upholding plaintiff's reduction-in-grade was arbitrary, capricious, or not supported by substantial evidence.

Plaintiff was employed as an industrial engineer at the U. S. Naval Propellant Plant, Indian Head, Maryland. On March 24, 1964, he was assigned to a new project dealing with Data Processing Reports. On August 17, 1964, a letter of charges was filed against plaintiff by which it was proposed to remove him. The charges in the letter were directed mainly at plaintiff's alleged inefficiency in handling the new Data Processing project. Earlier that year (on January 31st, April 30th, and July 31st), plaintiff had received three separate 90-day warning letters of unsatisfactory performance, denying him within-grade increases. These letters were attached to and made a part of the August 17th letter of charges. The three main charges specified in the notice of proposed removal were: (1) failure by plaintiff to prepare clear and accurate procedures and documentation to support his work; (2) failure to provide certain specific data requested by the supervisor on each of the reports; and (3) failure to meet the deadlines for completion of various phases of the project.

Plaintiff requested and received a hearing which was held before a Grievance Advisory Committee at the Naval Propellant Plant in Indian Head, Maryland, on October 6, 1964. On November 10, 1964, the Committee found that plaintiff had not met deadlines; had failed to provide clear, concise backup information; had not acceded to the requests of his supervisor regarding format, documentation, and procedures; and had not prepared satisfactory reports. However, the Committee also felt that the unavailability of information and the difficulty in securing necessary data contributed in part to plaintiff's inefficiency. Consequently, it was recommended that plaintiff receive a reduction-in-grade from GS-12 to GS-11, rather than a dismissal.

Plaintiff received a letter dated November 24, 1964, confirming the action of the Grievance Advisory Committee and making the demotion effective as of December 6, 1964. Acting through the American Federation of Government Employees, plaintiff appealed the decision of the Grievance Advisory Committee to the Philadelphia Regional Office of the Civil Service Commission. A hearing was held on February 8, 1965, and on March 11, 1965, the Regional Office concluded that the action of the Advisory Committee in calling for a reduction-in-grade should be sustained. Plaintiff then appealed to the Board of Appeals and Review (B.A.R.) of the Civil Service Commission, and on September 23, 1965, the decision of the Regional Office was upheld. Plaintiff's request (on February 24, 1967) to the Civil Service Commissioners that the case be reopened and reconsidered was denied on June 30, 1967. On March 28, 1968, plaintiff filed his petition in this court, seeking to overturn the action of the B.A.R. in upholding the administrative decision.

I.

In his petition and motion for summary judgment, plaintiff alleges that the persons reviewing his case at the administrative level violated a number of procedural regulations, thus denying him the right to a hearing free from procedural error. However, since plaintiff failed to raise the majority of these issues on appeal to the B.A.R., it will not be necessary for this court to consider the substance of these particular allegations. It is a general rule of law that failure to preserve an error, either at the trial level or before an appellate court, will cause that point to be lost for any subsequent appeal. Chicago & E. Ill. R. R. v. Southern Ry., 261 F.2d 394, 402 (7th Cir. 1958); Hutchinson v. Fidelity Inv. Ass'n, 106 F.2d 431, 436, 133 A.L.R. 1061 (4th Cir. 1939); State ex rel. Royal v. City of Columbus, 3 Ohio St.2d 154, 209 N.E.2d 405, 407 (1965); City of Detroit v. Burke Rental Serv., Inc., 3 Mich.App. 353, 142 N.W.2d 473, 475 (1966). Accordingly, this court has established a general rule that failure to present an issue before the B.A.R. amounts to a failure by the plaintiff to exhaust his administrative remedy on that question, thus precluding him from seeking relief in this court on that specific ground. Pine v. United States, 371 F.2d 466, 467-468, 178 Ct.Cl. 146, 148 (1967); Alpert v. United States, 161 Ct.Cl. 810, 816 (1963); Indiviglio v. United States, 299 F.2d 266, 267, 156 Ct.Cl. 241, 242 cert. denied, 371 U.S. 913, 83 S.Ct. 260, 9 L.Ed.2d 173 (1962); Long v. United States, 148 Ct.Cl. 4, 9 (1960); Adler v. United States, 146 F.Supp. 956, 958, 134 Ct.Cl. 200, 203, cert. denied, Baker v. United States, 352 U.S. 894, 77 S.Ct. 131, 1 L.Ed.2d 87 (1956). To allow a party to withhold an important and perhaps decisive issue from the B.A.R. and later present it in this court for the first time would undermine the authority of the Civil Service Commission and negate the purpose behind the exhaustion of administrative remedies' doctrine. See Long v. United States, supra.

Plaintiff referred to a group of cases such as Ward v. Anderson, 93 U.S. App.D.C. 156, 208 F.2d 48 (1953), which seemed to imply that it was not always necessary for the plaintiff to first present his issues at the administrative level. However, we hold that Ward and the other cases cited by plaintiff are not applicable to the present situation since they deal mainly with "exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below." Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941). It is not felt that the instant case is one involving such "exceptional or particular circumstances" that it should be allowed to come under an exception to the general rule of this court. In addition, the cases cited by plaintiff should be further distinguished by pointing out that only one of them (Ward v. Anderson, supra) deals with a case which was appealed from a ruling of the Civil Service Commission.

Those allegations of procedural error advanced by plaintiff for the first time before this court are: (1) that the charges lacked specificity; (2) that the 90-day warning notices were improperly incorporated and alluded to in the charges to the detriment and prejudice of plaintiff; (3) that there was no informal discussion between line official and employee; (4) that plaintiff did not receive written notice of his demotion at least 30 calendar days in advance; (5) that a finding against plaintiff's attitude was improperly included in the demotion letter of November 24, 1964; and (6) that the decisions against plaintiff on November 10, 1964, and March 11, 1965, were improperly written and did not make specific reference to charges, findings, evidence, and conclusions. Since plaintiff failed to raise these points before the B.A.R., each of them is dismissed under the exhaustion of administrative remedies' doctrine, as discussed above.

II.

Plaintiff's only remaining allegation of procedural error relates to the filing of certain documents by defendant with the Appeals Examiner of the Philadelphia Regional Office. During the hearing of February 8, 1965, before the Appeals Examiner, it was agreed between the parties that three flow diagrams and two charts previously prepared by plaintiff would be submitted to the Examiner following the hearing. On February 12, 1965, the three flow diagrams and two charts were filed with the Examiner along with a letter from L. H. Worthman evaluating the performance of plaintiff's work. Plaintiff contends, first of all, that it was error for the "Worthman" letter to be filed with the Examiner because it contained certain prejudicial statements and because he had not agreed earlier to the submission of this letter. Plaintiff further contends that the flow diagrams and charts which were submitted were improperly tendered since they were not the ones previously agreed to by the parties.

There is no doubt but that it was improper for the defendant to submit the "Worthman" letter to the Examiner since it was not one of the documents agreed upon by both parties. However, it remains for plaintiff to show the actual harm or prejudice which he has suffered as a result of the submission of this letter. He must show that this piece of evidence was relied upon to his detriment. Plaintiff alleges that the letter is highly critical of his work, especially the sentence which states: "Because of his ignorance of basic I. E. techniques it was necessary for me to refer him to the I. E. Handbook (8-102) and try to teach him to prepare a Paper Flow Chart." Since he did not have a chance to answer the statements made in the letter and since the admission of the letter violated 5 C.F.R. § 772.304(c) (1964),¹ plaintiff claims that he was highly prejudiced and damaged by the admission of the letter. However, the fact remains that there is nothing to indicate either in the report of the Appeals Examiner on March 11, 1965, or otherwise, that this letter was relied upon by the Examiner in helping him reach his...