Holden v. Mathews, 76-1036

• Decision Date: 16 June 1977
• Docket Number: No. 76-1036,76-1036
• Citation: 554 F.2d 1190
• Parties: Gladys Anna HOLDEN, Appellant, v. F. David MATHEWS et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1190

554 F.2d 1190

180 U.S.App.D.C. 331

Gladys Anna HOLDEN, Appellant, v. F. David MATHEWS et al.

No. 76-1036.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 25, 1977.

Decided April 19, 1977.

Rehearing Denied June 16, 1977.

Paul J. Tagliabue, Washington, D. C., with whom Matthew F. Medeiros and Ralph J. Temple, Washington, D. C., were on the brief, for appellant.

Daniel A. DeRose, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty. and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellees.

Before Mr. Justice CLARK, ^* of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by Justice CLARK.

Mr. Justice CLARK:

This is the second appeal to this court. Gladys Anna Holden v. Robert H. Finch, Secretary, 144 U.S.App.D.C. 310, 446 F.2d 1311 (1971), stemming from appellant's attack on her termination on January 7, 1966, from her one-year probationary position as a Research Assistant in the Equal Educational Opportunities Program, Department of Health, Education and Welfare, Washington, D.C. (EEOP). The termination was based on the ground that she "has not demonstrated that her general character traits and capacity are such as to fit her for satisfactory service." Appellant claimed that her termination was based on political discrimination because of her civil rights activities, particularly with the Congress of Racial Equality (CORE), and was violative of her First Amendment rights.

She submitted her claim to the Civil Service Commission which denied it as untimely. Appellant then filed suit in the United States District Court, and upon an adverse ruling there, appealed to this court. A panel of this court found the record on the appeal consisted "solely of untested affidavits and unexplained unilateral assertions", Id. at p. 1316, and remanded the case with directions that it be referred back to the Commission for it to inquire "by evidentiary hearing if necessary, into this tangle of assertion and counter-assertion, and to make a fair and rational judgment on the question of whether, as the Government insists, appellant subordinated her public duties to her personal prepossessions, or whether, as appellant alleges, her performance of the one was unimpaired by her indulgence of the other."

On remand and referral back to the Commission, a five-day hearing before a hearing officer was held, eleven witnesses testified and voluminous documentary evidence was received, comprising some 1900 pages. This record was presented to the Commission for review, and through its Appeals Examining Office a summary opinion was filed on February 7, 1973, denying the claim. It concluded that the basic factual question to be decided, as stated in appellant's closing brief, was "whether her termination was grounded on political considerations, specifically the 'expression of her views on civil rights matters, both within and without the government, and her participation in private civil rights activities'." In deciding this question, the opinion closely examined the testimony of the Acting Director of EEOP. The latter testified that he was aware of the appellant's general activity with CORE and that it was one of the reasons that induced him to initially recruit appellant; that her activity in that regard during her employment with EEOP did "not necessarily constitute an undesirable level of civil rights activity" for an employee of his agency and that it was not the basis of appellant's termination; that, on the contrary, she was terminated because of her lack of aptitude and cooperation. The Commission on a careful review of the whole record "found the allegation that Miss Holden's separation was based on political discrimination because of her civil rights activities is not supported by the evidence of record." ¹

Appellant then took her case to the Board of Appeals and Review of the Civil Service Commission. Its opinion, dated May 21, 1973, "after fully considering the appellate record concludes that there is no basis for a finding that appellant was removed for any reasons other than those given in the agency's notice of December 28, 1965". In addition the Board of Appeals and Review noted that appellant's contention of political discrimination was of a First Amendment nature "in that she has alleged that she was terminated not for the reasons given but because of activities, comments and/or other exercises of her Constitutional right to freedom of expression." This contention was found to be without support.

Appellant again filed suit in the district court and sought relief on three grounds: (1) political discrimination in violation of her 5th Amendment rights, as well as under 5 U.S.C. § 7324(c); (2) violations of appellant's First Amendment rights; and (3) a violation of her rights under the Performance Rating Act. 5 U.S.C. §§ 4301-4307. On cross motions for summary judgment, the district court granted the motion of the Commission, and this appeal followed.

The appellant raises only First Amendment issues here, asserting (1) the Commission did not comply with this court's order in the former appeal to make a "fair and rational judgment" with respect to the First Amendment issues raised; and (2) the hearing officer did not render any decision after hearing the evidence, and the Commission rendered its decision without hearing any evidence or giving any reasons or making any findings: and (3) there is no indication that the Commission satisfied First Amendment requirements by balancing the interest of the government with that of the appellant; and, (4) whether the court erred in granting the summary judgment of HEW where appellant's dismissal was based, at least in part, on her participation in nonpartisan political activities in the exercise of her First Amendment rights; and finally, there was no substantial evidence to support the reasons given by HEW for appellant's termination, its asserted reasons being purely pretexts, based on no findings or evidence that supported the position that appellant's nonpartisan civil rights activities affected any protected interest of the federal government.

1. Appellant points out that Judge McGowan in his opinion for the panel on the previous appeal stated:

There is enough in the record before us to raise a nonfrivolous issue as to a possible entrenchment upon appellant's political rights of speech and association, limited though they may be in some degree by the special character of her employment. Id. at 1316.

And the Commission was ordered to:

inquire, by evidentiary hearing if necessary . . . and to make a fair and rational judgment on the question of whether, as the Government insists, appellant subordinated her public duties to her personal prepossessions, or whether, as appellant alleges, her performance of the one was unimpaired by her indulgence of the other. Id. at 1316.

And, she contends that implicit in this direction was "a requirement that the Commission make findings and articulate reasons in support of its ultimate conclusion, so that this Court, if necessary, could determine whether the Commission's decision was 'fair and rational' and in accord with applicable law." App. brief, p. 11. In her reply brief, appellant urges us to examine the record and make the appropriate findings.

We believe that the opinions of the Commission are quite sufficient to meet the requirements of the former opinion of this court. The Commission issued two opinions, covering eleven pages, one for the Commission by the Appeals Examining Office and the other by the Board of Appeals and Review. These opinions might well have included a more detailed statement of reasons, but we find no statutory requirement or constitutional command that requires detailed findings of fact or the articulation of underlying reasons. All Judge McGowan required was that the Commission "make a fair and rational judgment", and this it has done on the question posed by the appellant. As the trial court found: "there exists a rational basis for the administrative decision of the Civil Service Commission that plaintiff's separation was based solely on her failure to perform as a probationary employee and was not due to political discrimination."

It might be argued that the question posed to the Commission by appellant was not the one called for by Judge McGowan in his opinion for this court. However, the Commission could hardly be held accountable for that since appellant urged the political question upon it. However, in order to make it clear beyond question that the requirements of the former opinion are met, we shall accept the appellant's suggestion that we make a plenary review of the record and make our own findings.

2. We conclude from a careful and prolonged study of the entire record (some 1900 pages) that appellant subordinated her public duties (to EEOP) to her personal pre-possessions and that her performance of her duties for EEOP was necessarily impaired by her indulgence of her work for CORE and other groups.

At the outset, we note that appellant was recruited for EEOP because of her prior experience and association with CORE. When she first approached EEOP for a job, she was Chairman of the CORE Housing Committee and inquired at her first interview for a job with EEOP, whether she could continue to participate in local civil rights activities. She was told by Mr. Sullivan, who interviewed her, that HEW recognized the right of employees to participate in such activities with the possible exception of activities involving school desegregation, in which EEOP was engaged.

During her entire tenure at EEOP, appellant spent a large percentage of her time performing chores for CORE. As...