Jaeger v. Stephens

• Decision Date: 26 July 1971
• Docket Number: Civ. A. No. C-2790.
• Citation: 346 F. Supp. 1217
• Parties: Leonard H. JAEGER, Plaintiff, v. W. A. STEPHENS, as Area Manager of the United States Department of Transportation, Federal Aviation Administration, et al., Defendants.
• Court: U.S. District Court — District of Colorado

346 F. Supp. 1217

Leonard H. JAEGER, Plaintiff, v. W. A. STEPHENS, as Area Manager of the United States Department of Transportation, Federal Aviation Administration, et al., Defendants.

Civ. A. No. C-2790.

United States District Court, D. Colorado.

July 26, 1971.

COPYRIGHT MATERIAL OMITTED

Hindry & Meyer by Charles F. Brega and Loren L. Mall, Denver, Colo., for plaintiff.

James L. Treece, U. S. Atty. by W. Allen Spurgeon, Asst. U. S. Atty., Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

ARRAJ, Chief Judge.

Plaintiff commenced this action under 5 U.S.C. §§ 701-706 (1967) for judicial review of a final determination of the United States Civil Service Commission Board of Appeals and Review upholding his removal by the Federal Aviation Administration. On the basis of the undisputed facts in the record, both sides have moved for summary judgment.

Plaintiff is a preference eligible veteran who was employed by the FAA at Broomfield, Colorado, as an air traffic controller until April, 1969. See 5 U.S.C. §§ 7501, 7511, 7512 (1967). On March 13, 1969, he was notified in writing by the agency that he would be suspended without pay for thirty days, effective March 17, 1969, because his retention in active duty status would "be detrimental to the interests of the Government." See 5 C.F.R. § 752.202(d) (e). At the same time, the FAA advised Jaeger that it proposed to remove him as unsuitable for continued government employment because of a demonstrated lack of "trustworthiness, reliability and stability." As stated in the hearing officer's report, the FAA cited three specifications to sustain its action:

1. On October 12, 1967, Jaeger intentionally made false and misleading statements under oath to Lloyd O. Yorker . . . who was conducting an official investigation for the FAA in regard to an incident that occurred on October 8, 1967 in the FAA Control Tower at Peterson Field in Colorado Springs, Colorado. (As a result, Jaeger was suspended for 21 days . . . without pay.)

2. On July 29, 1968, Jaeger deliberately disregarded an order of his supervisor while on duty in the IFR room of the Airport Control Tower . . . to conduct a radar precision approach of a military aircraft . . (As a result, Jaeger was suspended from active duty status without pay for 10 days and reassigned . . to the Jeffco Tower, Broomfield, Colorado.)

3. On March 9, 1969, Jaeger impersonated an official of the Federal Bureau of Investigation at a public place in Lafayette, Colorado, by representing himself as an agent of the FBI investigating the purchasing and selling of marijuana. In attempting this impersonation, Jaeger used his Federal Aviation Administration Identification card. Thereafter, he was arrested on the same date by the Lafayette Police and charged with drunkenness, entering a "stop" intersection, resisting an officer, and disorderly conduct. Following his arrest, it was reported that he was uncooperative, belligerent, and argumentative during booking at the office of the Boulder County Sheriff.

In the removal notice, Jaeger was advised of his right to make a written and oral reply to the agency charges within fifteen days.

Plaintiff submitted written replies on March 14, 1969, and on April 11, 1969, in which he denied each of the allegations of specification three and protested the FAA's reliance on the other two. On March 26, 1969, in the company of his attorney, Jaeger exercised his right to make an oral reply, and an informal hearing was held before three FAA officials: W. A. Stephens, the Area Manager who initiated the adverse action against Jaeger; Eugene W. Lovelace, Area Personnel Representative; and Jaime D. Serra, Assistant Area Manager. During that conference, Jaeger gave his version of the facts which formed the basis for specification three, was allowed an additional fifteen days to investigate the charges and make a written reply, and was fully advised of applicable procedures and his appeal rights in the event he ultimately was removed. Plaintiff then requested disclosure of the FAA's case against him; specifically, he asserted his right to the names of any witnesses to the incident who might later testify against him. Although the FAA officials denied that request perfunctorily, they told Jaeger that he would be permitted to confront and cross-examine any agency evidence used at an appeal hearing. After plaintiff's second written reply was received, the FAA notified him on April 15, 1969, that his employment would terminate on April 16, 1969, and again described his appeal rights.

Immediately upon removal Jaeger appealed to the FAA's Regional Office in Los Angeles, which held an evidentiary hearing on June 17, 1969. The hearing officer refused to re-explore the merits of specifications one and two, stating that he could determine only whether prior agency actions had been arbitrary or capricious. In his written findings he concluded they were not. To prove the remaining specification, the FAA introduced: (1) the statement of a Mrs. Houlder, in which she said that Jaeger approached her in Mike's Bar in Lafayette, Colorado, and, using a government identification card, represented himself as an FBI agent and proceeded to question her about possible drug traffic there; (2) the statements of two other persons in the bar who heard Jaeger make similar remarks; and (3) the corroborative testimony of Jose Jaramillo, manager of the bar. Plaintiff's defense consisted of extensive cross-examination of Jaramillo and a general denial of the charges. Although the FAA's evidence contained numerous contradictions and conflicts on several points, and although the hearing officer questioned Jaramillo's credibility, he found the evidence consistent on the issue of Jaeger's impersonation. The hearing officer accordingly sustained only that portion of the third specification. In conjunction with the other specifications, however, he concluded that Jaeger's removal would "promote the efficiency of the service" and sustained the FAA's action.

Thereafter, Jaeger appealed to the Denver Regional Office of the Civil Service Commission, which held an evidentiary hearing on specifications one and two on March 19, 1970; it also reviewed the record made during the FAA hearing on specification three. At the hearing, both Jaeger and the FAA offered extensive documentary and testimonial evidence. In written findings, the Commission again sustained Jaeger's removal after concluding that substantial evidence supported each specification and that no procedural error had been committed by the FAA. Plaintiff took his case finally to the Board of Appeals and Review of the Civil Service Commission in Washington, which affirmed on the record. Having exhausted his administrative remedies as required by the Administrative Procedure Act, e. g., Pine v. United States, 371 F.2d 466, 178 Ct.Cl. 146 (1967), plaintiff commenced this suit.

Plaintiff contends that the record is so replete with procedural error that he was denied the full and fair hearing required by due process. Specifically he asserts: the FAA did not accord him an effective and adequate oral reply prior to removal; it improperly failed to disclose the names of witnesses against him; it improperly relied upon his past record to sustain his removal; and its improper use of unsworn ex parte statements and failure to produce adverse witnesses at the hearing denied him constitutional rights of confrontation and cross-examination. Finally, Jaeger asserts that each administrative finding was arbitrary and capricious because unsupported by substantial evidence in the record. Defendants have contested plaintiff's claims and questioned our jurisdiction to review the agency action under the Administrative Procedure Act. We shall deal first with the defendants' jurisdictional contentions.

I.

Defendants assert that the Administrative Procedure Act confers no jurisdiction upon us to review Jaeger's removal, as it was a matter "committed to agency discretion by law." 5 U.S.C. § 701(a) (2) (1967). We agree that "the appointment to or removal from an official position in the Government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment," and that "therefore, it is one of those acts over which courts have no general supervisory power." Keim v. United States, 177 U.S. 290, 293, 20 S.Ct. 574, 575, 44 L.Ed. 774 (1900); see also Rosenman v. Levbarg, 435 F.2d 1286 (3d Cir. 1970); Benson v. United States, 421 F.2d 515 (9th Cir. 1969), cert. denied, 398 U.S. 943, 90 S.Ct. 1861, 26 L.Ed.2d 279 (1970); McGhee v. Johnson, 420 F.2d 445 (10th Cir. 1969); Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969). Defendants misapprehend the nature of that limitation, for it serves only to contract the permissible scope of review rather than to preclude it altogether. Thus, while we "cannot reevaluate evidence in support of removal," McGhee v. Johnson, supra 420 F.2d at 447, and "cannot undertake to pass on a plaintiff's qualifications for any given post or to compare them with those of an incumbent," Gnotta v. United States, supra 415 F.2d at 1276, we may inquire whether administrative officials abused their discretion or utilized impermissible procedures in removing an employee. As the Court of Appeals for the Tenth Circuit has stated:

Ordinarily the scope of judicial review of the action of the department in discharging an employee is limited to two main questions: (I) Were the procedural requirements of the statutes and regulations complied with; and (II) was the action of the department officials arbitrary or capricious or not supported by substantial evidence. Vigil v. Post Office Department of United States, 406 F.2d 921, 924 (10th Cir. 1969).

Accord, Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Peoples v. United States Department of Agriculture, 138 U.S.App.D.C. 291, 427 F.2d 561, 565, 567 (1970); McGhee v....