Knuckles v. Bolger, 80-271C(3).

• Decision Date: 29 May 1980
• Docket Number: No. 80-271C(3).,80-271C(3).
• Citation: 490 F. Supp. 1291
• Parties: Matthew KNUCKLES, Plaintiff, v. William BOLGER, Postmaster General, United States Postal Service, United States Postal Service, Ruth Prokop, Chairperson, Merit Systems Protection Board, and Merit Systems Protection Board, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

490 F. Supp. 1291

Matthew KNUCKLES, Plaintiff, v. William BOLGER, Postmaster General, United States Postal Service, United States Postal Service, Ruth Prokop, Chairperson, Merit Systems Protection Board, and Merit Systems Protection Board, Defendants.

No. 80-271C(3).

United States District Court, E. D. Missouri, E. D.

May 29, 1980.

Edward Welch, Edwardsville, Ill., Ira M. Young, St. Louis, Mo., for plaintiff.

Joseph B. Moore, Asst. U. S. Atty., St. Louis, Mo., for defendants.

MEMORANDUM

FILIPPINE, District Judge.

This matter is before the Court on the plaintiff's motion for a preliminary injunction and on the parties' cross-motions for summary judgment. The plaintiff, a former employee of the defendant United States Postal Service ("the Service") brings this action for reinstatement, with back pay, to his position as a clerk with the Service. Plaintiff also seeks an injunction against any further proceedings against him by the defendants. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1361.

The exhibits introduced at the hearing on plaintiff's motion for a preliminary injunction and submitted in support of the parties' cross-motions for summary judgment show that the following facts are undisputed:

1. The plaintiff, as a veteran, is a "preference eligible" and an "employee" within the meaning of 5 U.S.C. § 7511(a)(1)(B). By letter dated August 24, 1979, the defendant Service, plaintiff's employer at that time, informed the plaintiff that "it is proposed to remove you from the Postal Service no earlier than 7 days from the time you receive this notice. There is reasonable cause to believe that you are guilty of a crime for which a sentence of imprisonment can be imposed." The letter went on to inform the plaintiff that the reason for the proposed action was "converting postal funds to your own use"; it specified six occasions on which the plaintiff had allegedly failed to affix postage on postage due mail when the mail was purchased. The letter informed the plaintiff of his right to file an answer, including affidavits, in opposition to the proposed action.

2. The plaintiff did submit a response; however, by letter dated September 5, 1979, the plaintiff was informed that his employment with the Service would be terminated effective September 7, 1979.

This letter informed the plaintiff of his right to appeal to the defendant Merit Systems Protection Board ("the Board"). The plaintiff did appeal to the Board, pursuant to 5 U.S.C. §§ 7513(d) and 7701. The Board held a hearing on November 7, 1979, on the plaintiff's appeal, after denying plaintiff's motion for judgment; plaintiff's motion for judgment was based on the fact that on October 19, 1979, the plaintiff had been acquitted by a federal jury of criminal charges identical to the allegations contained in the Service's notice of proposed dismissal.

3. On December 12, 1979, the Board's presiding official issued a decision upholding the plaintiff's removal from the Service. The basis of the decision was that a preponderance of the evidence established that on five of the six occasions specified, the plaintiff had converted postal funds to his own use. A "Notice" in the decision indicated that the decision would become final on January 16, 1980, unless a petition for review had been filed with the Board by that date.

4. On January 18, 1980, the Board reopened the plaintiff's case and remanded it to a presiding official.¹ The Board's order stated that the elements required to prove a criminal violation of 18 U.S.C. § 641 had not been established by a preponderance of the evidence. The Board found that the Service's evidence did prove plaintiff's "serious violations of accounting procedure", and the Board indicated that this was in fact the charge described in the Service's specifications. The Board concluded that the Service had committed the "procedural error" of mislabelling the charge against the plaintiff; it remanded to the presiding official for further proceedings to determine whether this error had been harmful and had substantially prejudiced the plaintiff's rights.

5. The presiding official, on February 4, requested memoranda of law from the parties on the issue of "mislabeling of the charge", in accordance with the Board's instructions. The Service's memorandum was submitted on March 5, 1980; the plaintiff's memorandum was submitted on February 26, 1980.² The issue is now pending before the presiding official. The Service's memorandum was captioned "United States Postal Service's motion to Reopen and for Reconsideration of the Board's Order Dated January 18, 1980"; a copy of the memorandum/motion has been forwarded to the Board by the presiding official considering the case on remand.

The plaintiff alleges, in this action, that the Board has initiated its own charges against the plaintiff, in that "harmful error" is an affirmative defense pursuant to 5 C.F.R. § 1201.56(b) and the plaintiff himself never raised the defense. Plaintiff also alleges that his due process rights were violated by the Service because plaintiff was never notified that he was being removed for violations of accounting procedures and that if he was removed for such violations, he was entitled to 30 days' notice, not 7 days', pursuant to 5 U.S.C. § 7513(b)(1).

The defendants contend that plaintiff has not made a showing of irreparable injury sufficient to entitle him to relief in this action, and that this Court is without jurisdiction over this action because the plaintiff has not exhausted his administrative remedies. Defendants also assert that, assuming judicial review is proper, the correct forum is the United States Court of Claims or Court of Appeals, pursuant to 5 U.S.C. § 7703(b)(1).

The defendants rely primarily on Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). In Sampson, the United States Supreme Court reversed the decision of the Court of Appeals for the District of Columbia, which had affirmed the District Court's entry of a temporary restraining order against the plaintiff's discharge. The plaintiff in Sampson was a probationary employee of the General Services Administration (GSA). After receiving notice that she would be discharged, plaintiff filed suit in District Court, claiming that GSA had not followed its own procedures in discharging her. She also appealed to the Civil Service Commission, and instituted her District Court action while her administrative appeal was pending. The District Court entered a temporary restraining order, which the court later ordered continued until such time as a certain GSA official should appear to testify.

The Supreme Court, in reversing, noted that the injunctive relief provided by the District Court was likely to have a disruptive effect on the administrative process; the Court also noted "the well-established rule that the Government has traditionally been granted the widest latitude in the `dispatch of its own internal affairs'." 415 U.S. at 83, 94 S.Ct. at 949 (citation omitted). The Court held that the order entered by the District Court was to be viewed as a preliminary injunction. As such, the order had been entered without a showing of irreparable injury sufficient to override the considerations just cited. The plaintiff's unverified complaint alleged that she might be deprived of income, that spurious charges would remain in her records, and that she would be greatly embarrassed. The Court held that, even had the plaintiff made a showing of those factors, sufficient irreparable injury would not have been demonstrated.

The plaintiff, in turn, contends that his case falls within the rationale of Marsden v. United States Postal Service, 390 F.Supp. 329 (D.Minn.1974), in which the District Court temporarily reinstated a Postal Service employee, who had not completed an appeal to the District Manager, because the Court found that the Service had not complied with applicable statutes and had given the plaintiff only 24 hours' notice of his suspension. The Court excused the plaintiff's failure to exhaust his administrative remedies, apparently on the ground that the Service had acted in contravention of specific statutory procedures. The Court in Marsden distinguished Sampson on two grounds: first, that Marsden was a "preference eligible" and not a mere probationary employee, and second, that there was no factual issue in Marsden, as there was in Sampson, as to the reason for the employee's dismissal. The Marsden court did not address the issue of irreparable injury.

It is not clear to this Court that the plaintiff's probationary status in Sampson exerted any influence on the Supreme Court's actual holding in that case.³ The Court did observe that Congress has accorded probationary employees fewer protections than permanent employees, including preference eligibles. 415 U.S. at 81, 94 S.Ct. at 948. It is true that the probationary plaintiff in Sampson relied solely on Civil Service Commission regulations, and not on procedures provided by Congress, as is true in the instant case. However, the factors listed by the Court as counterbalancing the showing of irreparable harm required to be made by the plaintiff: historical denial of all equitable relief in cases involving governmental employment, the rule allowing the Government the widest latitude in its own affairs, and the traditional judicial reluctance to enforce personal service contracts, are equally compelling regardless of the procedures to which an employee is entitled, by statute or by regulation, before discharge.

Secondly, it is not clear to this Court why it should be of any importance whether the facts surrounding the plaintiff's discharge are or are not in dispute. The Board does not operate solely as a fact-finding body. The judicial deference to a government employee's ongoing administrative appeal must extend, in the absence of irreparable injury, to a situation in which the underlying...