Holden v. Finch, 23523.

• Citation: 446 F.2d 1311
• Decision Date: 17 May 1971
• Docket Number: No. 23523.,23523.
• Parties: Gladys Anna HOLDEN, Appellant, v. Robert H. FINCH, Secretary, U. S. Department of Health, Education and Welfare, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

446 F.2d 1311 (1971)

Gladys Anna HOLDEN, Appellant, v. Robert H. FINCH, Secretary, U. S. Department of Health, Education and Welfare, et al.

No. 23523.

United States Court of Appeals, District of Columbia Circuit.

Argued September 22, 1970.

Decided May 17, 1971.

Mr. Richard C. Johnson, with whom Messrs. Robert H. Turtle and Ralph J. Temple, Washington, D. C., Attorney for the American Civil Liberties Union Fund of the National Capital Area, were on the brief, for appellant.

Mr. John O'B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and McGOWAN and ROBINSON, Circuit Judges.

McGOWAN, Circuit Judge:

Appellant, a federal employee in the classified service, complained in the District Court of the termination of her employment by the Department of Health, Education, and Welfare at the close of the probationary period. On cross-motions for summary judgment, appellees prevailed. This appeal presents two claims of error as undermining that judgment. One is that the dismissal was invalid because appellant had not been supervised, counselled, and evaluated as contemplated by the Government's formulations of personnel policies. For the reasons set forth in the margin, we find no occasion on this score to disturb the District Court's ruling.¹ The other challenge is to the refusal of the Civil Service Commission to entertain an appeal from the departmental action. Our conclusion in this regard is that the Commission, in the light both of the relevant statutes and of the constitutional evocations peculiar to this record, read too narrowly the provision currently made by regulation for appeals to it by probationary employees.

I

Appellant, a sociologist with sound academic credentials and extensive experience in race relations, was appointed, effective January 11, 1965, an Education Research and Program Specialist in the Office of Education of HEW. By a memorandum dated December 23, 1965, Mr. Seeley, the head of the division in which appellant worked, recommended to the Personnel Director of the Office of Education that appellant's employment be terminated during probation.² Mr. Seeley represented his conclusion to be that appellant "has not demonstrated that her general character traits and capacity are such as to fit her for satisfactory service;" and he enumerated the following respects in which he purported to find "a lack of aptitude and of cooperativeness:"

"A. Unwillingness or inability to accept direction except with manifest resentment and bad grace.

B. On one fairly substantial project, hostile and bitter response to cooperating with staff assigned to gather information from files assigned to her charge.

C. A lack of objectivity and a tendency to allow her emotional reactions on matters affecting civil rights to cloud sound judgment on how to handle inquiries or proposals assigned to her for staff work."

This recommendation was approved, and five days later Mr. Seeley wrote a letter to appellant advising that her employment would terminate on January 7, 1966.³ This letter reiterated the three reasons contained in the earlier memorandum, although the third was revised to read as follows:

"3. Your failure to use sound judgment in handling inquiries and proposals assigned to you for staff work."

On January 7, 1966, appellant wrote a letter to the Secretary of HEW requesting review and a hearing on her termination. The Director of Personnel of HEW responded on behalf of the Secretary on January 10, in a letter which asserted that the notice of termination was in compliance with Civil Service Commission requirements, and that there was no provision for formal review or hearing apart from appeal to the Civil Service Commission on the ground of a violation of Subchapter 8-4(d) of the Federal Personnel Manual, which prohibits a termination action against a probationer based on "political discrimination except as required by law * * * sex or marital status * * * or a physical handicap if the duties of the position may be efficiently performed by a person with that handicap."⁴

On January 17, 1966, appellant filed with the Civil Service Commission a petition and affidavit asserting the invalidity of her termination.⁵ A copy of this was apparently filed also with HEW, because there was further internal review of the matter within the Department, culminating in a second letter, dated February 1, 1966, from the Director of Personnel to appellant reaffirming the position taken earlier, and stating that "The only appropriate avenue of appeal for you is that covered by paragraph 8-4(d) of Chapter 315 of the Federal Personnel Manual, and is to the Civil Service Commission." On February 1, appellant retained an attorney, who filed a further petition with the Commission alleging that appellant's termination was caused by political discrimination; and a further affidavit of appellant was submitted in support of this contention.

This affidavit asserted a belief that Mr. Seeley had, beginning in the summer of 1965, "initiated a pattern of activity to suppress, intimidate and eliminate staff members of the Office of Equal Educational Opportunities who participated in local, private, volunteer civil rights activity or who otherwise indicated a strong feeling that Negroes should have equal rights * * *." A number of incidents were cited as founding this belief. Appellant recited that she herself had "continued to work actively in Washington CORE, serving as Chairman of its Housing Committee, and continued to make recommendations and take positions in carrying out assignments that would advance the attainment of equal rights for all citizens as quickly as possible." Appellant insisted that her work performance had been satisfactory, and that the true reason for dismissal had been "her active, persistent efforts to achieve equal rights for all citizens * * *." She averred that her "civil rights organizational affiliation and activity" was political in character because it was "directed toward changing the character and structure of society," and that to terminate her employment for this reason was to engage in the forbidden political discrimination. The Commission was requested to set the matter for hearing so that appellant could "demonstrate the legal and factual basis of her claim."

On May 6, 1966, a letter was sent to appellant's counsel by the Chief of the Commission's Appeals Examining Office. After reviewing appellant's assertions, it was stated:

"That there was disagreement with the Acting Director\'s policy toward civil rights activity by staff employees does not support a conclusion that partisan political considerations were the underlying reasons for the removal of appellant." (Emphasis supplied.)

The letter concluded with a finding that the appeal was "not within the purview of Section 315.806" of the Commission's regulations, and was therefore to be denied without inquiry into the merits.⁶

Appellant pursued the matter to the Commission's Board of Appeals and Review. The Board, in a letter dated August 31, 1966, sustained the ruling of the Appeals Examining Office. The Board characterized appellant's allegations of political discrimination as founded upon "organizational activities and affiliation" which "may be recognized as engaging in programs seeking to influence the formulation of public policy, and to promote political action, in the area of civil rights." The Board went on to say:

"* * * However, the various laws, rules and regulations for which the Commission has specific enforcement authority, relating to political activity of Federal employees, have the particular and direct objective of insulating the Federal civil service from either reward or reprisal based upon political influences, specifically as resulting from affiliation with or support of recognized partisan political parties, their candidates for public office, or their political campaign activities. It is this specific protection against partisan political discrimination which is provided under the limited authority established by Part 315 of the Civil Service Regulations, governing the Commission\'s appellate review of agency decisions to terminate probationary employees * * *."

The Board concluded that "the facts and circumstances which have been alleged do not establish a substantive basis to conclude that appellant's termination may have been `based on political reasons not required by statute,' within the meaning and intent of Section 315.806 of the Civil Service Regulations."

The District Court, upon the cross-motions for summary judgment pending before it and the administrative record so developed, granted appellees' motion without identification or discussion of its reasons for doing so.

II

In this court the Government in its brief asserts generally that "there is no vested legal right to government employment," and that a federal employee, like any other, may be discharged at the will of the employer, absent any statutory or contractual provision to the contrary. It recognizes, however, that, continuously from the enactment of the Civil Service Act of 1883, 22 Stat. 403, the Congress has seen fit to provide "a limited statutory protection to some federal jobs, and the executive branch itself has added additional protections," in consequence of which the Government may not terminate federal employment in violation of any procedural or substantive rights accruing by reason of the particular employment. Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). Judicial review, so it is said, is significantly limited in scope, although "a court may examine whether an agency...