Levine v. Farley, 7308.

• Decision Date: 07 August 1939
• Docket Number: No. 7308.,7308.
• Citation: 70 App. DC 381,107 F.2d 186
• Parties: LEVINE v. FARLEY, Postmaster General, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

70 App. DC 381, 107 F.2d 186 (1939)

LEVINE v. FARLEY, Postmaster General, et al.

No. 7308.

United States Court of Appeals for the District of Columbia.

Argued June 6, 1939.

Decided August 7, 1939.

Writ of Certiorari Denied January 2, 1940.

COPYRIGHT MATERIAL OMITTED

Frederick A. Ballard, of Washington, D. C., and Samuel Paul Puner, of New York City, for appellant.

David A. Pine, U. S. Atty., and Howard Boyd, Asst. U. S. Atty., both of Washington, D. C., for appellees.

Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.

Writ of Certiorari Denied January 2, 1940. See 60 S.Ct. 377, 84 L.Ed. ___.

GRONER, C. J.

This is an appeal from a final order dismissing appellant's petition for a writ of mandamus. The action was begun prior to the effective date of the new Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, but we assume that, while the writ of mandamus is abolished by Rule 81 (b), similar relief is still available and the substantive rights of the parties are governed by principles which have formerly been applied in mandamus cases.¹

Petitioner was employed in the New York Post Office as a regular clerk under classification by the Civil Service Commission. In 1936 his efficiency rating was 98 per cent, but on March 1, 1937, he was dismissed from the service. The circumstances, briefly stated, are as follows: Petitioner was a member of an organization known as National Federation of Post Office Clerks, affiliated with the American Federation of Labor. In April, 1936, the local of which he was a member adopted a resolution reciting that a number of postal clerks active in their trade unions had been summarily transferred and that these discriminations had finally culminated in the dismissal of Clerk Edelsberg. The resolution declared that the action of the postal authorities would result in lowering the morale and hampering the efficiency of the service, and constituted a violation of the civil service laws; that the local go on record as being opposed to all forms of discrimination; that a committee of seven be appointed to enlist the assistance of all affiliated trade unions and other organizations, looking to the reinstatement of Edelsberg; and that a copy of the resolution be sent to the Civil Service Commission, the Executive Committee of the American Federation of Labor, the New York Central Trades and Labor Council, the New York City Postmaster, the Postmaster General, and the National Officers of the Association of Post Office Clerks, and be published in the following issue of the "Union Postal Clerk". It was also resolved that copies be sent to congressional committees and to New York Congressmen with the request that a hearing be given "the dismissed clerks" and that an investigation of the conditions leading to "their dismissal" be instituted. Petitioner was elected a member of the union's committee, and he participated in sending copies of the resolution to the various individuals and organizations enumerated and also in forwarding to and having published in certain newspapers a news release covering the facts charged in the resolution. These publications in the press constituted the offense for which petitioner was dismissed, but they are not included in the record, and we have no information as to their contents.

The copy of the resolution sent to the Postmaster General was acknowledged May 1, 1936, as follows:

"The receipt is acknowledged of your letter of April 25, 1936, addressed to the Postmaster General, enclosing copy of resolution adopted by Local No. 10 of the New York Federation of Post Office Clerks, regarding the separation of Clerk Herman Edelsberg.

"Mr. Edelsberg's case has been carefully reviewed but in view of the circumstances it is our opinion that no injustice was done in authorizing his removal and that action could not be taken looking to his reinstatement."

On the following 3d of July petitioner received from the New York Postmaster a notice charging him with misconduct as follows: "It is reported that you were charged with action unbecoming a Civil Service employee, for composing, aiding and abetting in the preparation of untruthful statements, thereby reflecting discredit upon the Service and causing the publication in newspapers of said ambiguous, untruthful and misleading statements, tending to bring the Service into disrepute." This notice was followed by another under date of July 13, which in turn charged petitioner with "the preparation and publication of news items tending to bring the Post Office Department into disrepute, by having it falsely appear that clerks were discriminated against, and in some instances dismissed from the Service because of their union activities, when as a matter of fact such employee or employees were dismissed for offenses against the Regulations of the Service". Items appeared in the Jewish Morning Journal of April 26, 1936, the Daily Worker of May 8, 1936, and the New York Evening Post of May 15, 1936.

Petitioner was given five days in which to show cause in writing why he should not be dismissed from the service or otherwise disciplined, and on July 18 he answered, reciting his election to the committee and his activities as a member, and stating that no member of the committee had opposed the issuance of the news release, which had been prepared and sent for publication only after careful discussion and deliberation. Apparently no action was thereafter taken until March 1, 1937, at which time petitioner received a notice from the Postmaster at New York that his services as clerk had terminated on that date, the ground of dismissal being that he had aided and abetted in the preparation and newspaper publication of untruthful statements reflecting discredit on the service.

Coincidently with the action dismissing petitioner, other members of the committee were punished as follows: Richard Lick-dyke and Paul Wolfe were transferred from one station to another; William Harris was reduced $200 a year in salary, lost his status as a special clerk, and was placed on probation for one year; two other members of the committee were reduced in salary $100 each, were transferred to another station, and placed on one year probation.

The amended petition in the court below was filed December 9, 1937. The Postmaster General answered, and petitioner filed a replication, which the Postmaster General moved to dismiss on the grounds that the court had no power to review his official action in removing petitioner; that mandamus was not the proper remedy; and that petitioner's cause of action, if he had one, was barred by laches. The District Court without opinion sustained the motion, discharging the rule to show cause, and entered a final decree dismissing the petition. This appeal was then taken, and petitioner bases his right to reversal on the ground that, since the order dismissing him from the service violated Sec. 43 of the Postal Laws and Regulations (5 U.S.C. § 652, 5 U.S.C.A. § 652)² and also Paragraph Two of Civil Service Rule 12,³ mandamus is the proper remedy.

The question in the case is not new. The printed volumes of our reports are full of cases where aggrieved government employees have sought mandamus either to compel reinstatement or to correct their official status. In most of them the writ has been denied, and in cases where it has been granted there were circumstances which are absent here. For instance, in Whitwell v. U. S. ex rel. Selden, 61 App. D.C. 169, 58 F.2d 895, and in Blair v. U. S. ex rel. Hellmann, 45 App.D.C. 353, we affirmed the granting of writs to compel reinstatement of teachers in the District of Columbia public schools, on the ground that, since the statute specifically provided that no teacher should be dismissed except upon recommendation of the superintendent of schools, the dismissals in each case, without this recommendation, were unlawful. In Kalbfus v. Siddons, 42 App.D.C. 310, we held the writ should issue in behalf of an assistant assessor of the District of Columbia who had been removed without a hearing, on the ground that the statute required a hearing. And in MacFarland v. U. S. ex rel. Russell, 31 App.D.C. 321, we affirmed the issuance of a writ to require the Commissioners of the District of Columbia to reclassify a policeman, and in Farley v. U. S. ex rel. Welch, 67 App.D.C....