Houston v. United States

• Decision Date: 07 March 1962
• Docket Number: No. 342-59.,342-59.
• Citation: 297 F.2d 838,156 Ct. Cl. 38
• Parties: Francis D. HOUSTON v. The UNITED STATES.
• Court: U.S. Claims Court

156 Ct. Cl. 38, 297 F.2d 838 (1962)

Francis D. HOUSTON v. The UNITED STATES.

No. 342-59.

United States Court of Claims.

January 12, 1962.

Rehearing Denied March 7, 1962.

Claude L. Dawson, Washington, D. C., for plaintiff.

Frances L. Nunn, Washington, D. C., with whom was Asst. Atty. Gen. William H. Orrick, Jr., for defendant.

PER CURIAM.

Plaintiff brings this suit under section 14 of the Veterans' Preference Act (58 Stat. 387, 390; 5 U.S.C. § 863) for loss of pay for his alleged wrongful discharge. Defendant, after having answered denying the crucial allegations of the petition, filed a motion for summary judgment, on the ground that there is no genuine issue as to any material fact, and that plaintiff is not entitled to recover as a matter of law. It says he is not entitled to recover as a matter of law for two reasons: first, that he is collaterally estopped by a judgment of the District Court for the District of Columbia, affirmed on appeal by the Court of Appeals, Houston v. Mason, 105 U.S.App.D.C. 377, 267 F.2d 654; and, second, that the action of the Civil Service Commission in upholding his discharge is final, in the absence of a showing that this action was arbitrary, capricious, or otherwise unlawful, and that there is no such showing.

Plaintiff replies that his suit is not barred by collateral estoppel, because, he says, the issue presented to, and decided by, the District Court and the United States Court of Appeals was not the same as the issue here, and that there were no findings of fact by the District Court.

Second, he says that the action of the Civil Service Commission was arbitrary and capricious, because it held that the failure of plaintiff to prove the charges he had made justified his dismissal; that some of the charges were based on information he had given an inspector investigating the case, and that this was privileged; and that there was no substantial evidence to support the findings and decision of the Commission.

We do not think defendant's motion based on collateral estoppel can be sustained. Plaintiff's complaint in the District Court was based alone on procedural defects. There was no allegation that the findings of the Civil Service Commission were arbitrary or capricious or otherwise unlawful. The judgment of the District Court did not assign any reason for dismissing plaintiff's complaint. The per curiam opinion of the Court of Appeals merely said: "There is nothing to suggest that he had in any wise been overreached,¹ or that there has been a denial of such procedural benefits as appellant might have been entitled to receive." In a footnote it is stated: "The record is not sufficiently clear to preclude a decision on the merits. Thus, we do not here dismiss." sic

It is clear the case was not considered on its merits. In the case here, plaintiff attacks the findings of fact and law of the Civil Service Commission, upholding his discharge, and says they were not supported by substantial evidence or were otherwise arbitrary and capricious. It seems clear plaintiff is not collaterally estopped to maintain this suit.

In order to pass upon plaintiff's allegation of arbitrary or capricious action by the Civil Service Commission it will be necessary for us to state some of the facts.

Plaintiff was the chief of the Appraisal Section of the Federal Housing Administration in Honolulu. George V. Whisenand was the Chief Underwriter, and J. Stowell Wright was the Director and in charge of the agency. Both men were plaintiff's superiors.

For some reason — just what is not clear — plaintiff asked Wright's superior, the Director of Region V in San Francisco of which Honolulu was a part, to send out an investigator to inquire into the conduct of Chief Underwriter Whisenand. An inspector by the name of Woods was sent out from that office. When Woods contacted plaintiff, he made some very serious charges, not only against Mr. Whisenand, but also against Director Wright. These charges, as set out in Woods' report, may be summarized as follows: Both Wright and Whisenand are incompetent to hold their positions. While Mr. Wright is honest, he is gullible, and Mr. Whisenand is a liar and a cheat. Both men have been aggressively and continually building up a case against plaintiff. The valuation section, of which plaintiff was the head, has been by-passed; their reports have not been included in the file of the case or have been reworked. Mr. Whisenand associated with people "communistically inclined", and Mr. Wright failed to report that a Mr. McCurry was a sexual pervert, of which fact he had knowledge.

Mr. Woods made an extensive investigation of the charges and on January 4, 1954, made his report to the Assistant Commissioner, Underwriting, of FHA, completely exonerating both Wright and Whisenand. After setting out the charges plaintiff had made to him against Wright and Whisenand, Mr. Woods commented on each charge, and, in conclusion, said in part:

"1. There is no evidence to justify an allegation of incompetency against either Director Wright or Chief Underwriter Whisenand.

* * * * * *

"8. There is no evidence, and no valid reason to believe, that either Mr. Wright or Mr. Whisenand is a liar or cheat. These gentlemen deserve complete confidence in their competency, honesty and integrity."

Before this report had been reduced to writing, but perhaps after the nature of it had been disclosed to Mr. Wright, he placed plaintiff on enforced leave. Thereupon, on December 29, 1953, plaintiff wrote a letter to the Administrator of the FHA in Washington, in which he stated he had been placed on annual leave by the Director, and that he assumed that this was caused by his statement to Mr. Woods that he intended to prefer charges against Wright and Whisenand, "the proving of which would automatically show them to be unfit to hold their present offices." His letter proceeds:

"Those charges, but only in part, are set forth below.

"Mr. Wright is unfit to hold his office because —

"1) His record during the six years that I know of has been characterized by shameful indolence, gross neglect of duty, incredible gullibility sic, and the exercise of authority in an arbitrary, capricious and abusive manner. * * *"

He enumerates four other charges, among which were the withholding of pertinent information about an employee suspected of being a security risk and the misuse of public funds.

With respect to Mr. Whisenand he said he was a "liar and a cheat", that he had conducted a campaign of villification against plaintiff built entirely on falsehoods, and he made other charges against him.

Shortly after receipt of Mr. Woods' report, the Director of Personnel of FHA wrote plaintiff, notifying him that it was proposed that he be separated from the service, because he had made these charges against his superiors, which had not been sustained on investigation.

This initial step in the separation process was set aside by the Civil Service Commission, because the charges were not sufficiently specific, but about six months later, on July 8, 1954, following plaintiff's reinstatement, specific charges were preferred. These charges were that plaintiff had made the charges against Wright and Whisenand, as contained in his letter above referred to, and further that he had made four of the eight charges detailed by Mr. Woods in his report. It was further charged that plaintiff had been unable to sustain the charges made, and that they could not be sustained. For this reason it was proposed to dismiss him.

In due course plaintiff was discharged. He took an appeal to the Civil Service Commission. The Commission heard a number of witnesses pro and con and later decided the case on its merits. The Twelfth Region held...