McEachern v. Macy

• Decision Date: 08 July 1964
• Docket Number: Civ. A. No. 4140.
• Parties: Clement L. McEACHERN, Plaintiff, v. John W. MACY, Jr., Chairman, the United States Civil Service Commission, Frederick J. Lawton, Commission, the United States Civil Service Commission, Robert E. Hampton, Commissioner, the United States Civil Service Commission, Robert M. Ball, Commissioner of Social Security, Department of Health, Education, and Welfare, Defendants.
• Court: U.S. District Court — District of South Carolina

233 F. Supp. 516

Clement L. McEACHERN, Plaintiff, v. John W. MACY, Jr., Chairman, the United States Civil Service Commission, Frederick J. Lawton, Commission, the United States Civil Service Commission, Robert E. Hampton, Commissioner, the United States Civil Service Commission, Robert M. Ball, Commissioner of Social Security, Department of Health, Education, and Welfare, Defendants.

Civ. A. No. 4140.

United States District Court W. D. South Carolina.

Heard June 8, 1964.

Decided July 8, 1964.

Charles C. Moore, Spartanburg, S. C., Clement L. McEachern, pro se, for plaintiff.

Robert O. DuPre, Asst. U. S. Atty., Greenville, S. C., for defendants.

HEMPHILL, District Judge.

Action for review of decision of the United States Civil Service Commission recommending removal of plaintiff from the position of Hearing Examiner of the Social Security Administration and prayer for reinstatement of plaintiff to the position. The original action commenced August 29, 1962, as an action against the United States of America, as defendant, was dismissed on grounds that the United States District Court had no jurisdiction to review the decision of the Civil Service Commission.¹ On appeal from that order the Fourth Circuit Court of Appeals held that the District Court had jurisdiction, approved venue in the district of plaintiff's residence and remanded the case for a review hearing, at the same time holding that the members of the Civil Service Commission, not the United States, were the proper parties, and allowing plaintiff to implead proper defendants.²

Clement L. McEachern is a resident of Greenville, South Carolina, having been sent to South Carolina as a Hearing Examiner of the Social Security Administration, which, on October 30, 1961, filed with the Civil Service Commission a general charge against plaintiff that he was financially irresponsible, specifying eight incidents of such failure, which allegedly brought discredit on the Agency and hence on the Department and the United States. Formal notice of the charges was served on plaintiff. After a full hearing attended by McEachern, an attorney in his own right, and his counsel, the Civil Service Commission, on July 16, 1962, rendered its opinion, making a determination that the charge of financial irresponsibility was sustained and that good cause had been established for the removal of the respondent from the position of Hearing Examiner, plaintiff was ordered removed from the Federal service. The present action asks for review and reversal of that decision and order, alleging that there was no substantial evidence that plaintiff brought discredit upon the Department, and generally claiming error of decision on the part of the Commission. Of the eight specific charges only four were sustained; four were dismissed.

Title 5 U.S.C. § 1010 provides:

"Subject to the civil-service and other laws to the extent not inconsistent with this chapter, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 1006 and 1007 of this title, who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners. Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission (hereinafter called the Commission) after opportunity for hearing and upon the record thereof. * * *"

After remand, the review was had at Greenville, S. C., June 8, 1964, at which hearing plaintiff appeared pro se,³ he being a lawyer admitted to practice in the court of hearing.

Although the matter was not de novo full opportunity was given to plaintiff to conduct his presentation as he wished. He presented oral argument and filed a written brief.

The general charge against the respondent, stated in the first paragraph of the Statement of Charges and Specifications presented to the Civil Service Commission, reads as follows:

"Your failure to met your financial obligations and your financial irresponsibility is in direct violation of the policy of the Department as set forth in Personnel Guide 2 of Chapter C-2 of the Department's personnel manual. Your conduct has been such as to bring discredit on the Office of Hearings and Appeals, the Social Security Administration and the Department of Health, Education, and Welfare, and on the basis of the facts stated below warrants your removal from the position of hearing examiner with the Social Security Administration."

The Department's policy concerning the financial affairs of its employees is contained in Personnel Guide 2, in Chapter C-2 of its Personnel Manual, issued October 10, 1953. It recognizes that Federal employees have a special responsibility to meet their financial obligations promptly inasmuch as Federal salaries are not subject to attachment or garnishment. It states that it "becomes a matter of concern to the Department when complaints are received from * * * (an employee's) creditors, when it appears that financial difficulties are impairing his efficiency on the job, or when, by reason of his irresponsibility, the attitude of the general public toward the Department is adversely affected."⁴

At the hearing before this Court plaintiff was asked about the specific items. He admitted the indebtednesses, the delinquencies in the four accounts or charges sustained by the Civil Service Commission, but complained of the manner of proof and the conduct of the hearing.⁵

There is no basis for a contention that the Civil Service Commission did not have substantial evidence before it to sustain its findings. In the Summary and Conclusions of the Decision and Order of the Commission is found the following:

"CHARGES I, II, III AND IV are sustained. We also find that each of these charges lends support to the general charge that the respondent failed to meet his financial obligations and was financially irresponsible. The further question to be decided is whether these specific charges, taken together, establish good cause for the respondent's removal.

"The evidence under CHARGE I shows that two telephone bills, one large and one comparatively small, totalling $73.72 have remained unpaid since 1958. The respondent admitted that no payments have been made on these accounts, one in Fountain Inn, South Carolina, and the other in Greenville, South Carolina.

"The proof of CHARGE II shows that the respondent borrowed $350.00 from the Federal Employees Credit Union in August 1958 on his promise to repay the principal, with interest, in seven monthly installments beginning September 16, 1958. The first payment, $100.00, was not received until February 9, 1959. When no further payments were made the credit union wrote to the respondent and, finally, the account was referred to another institution for collection. In November 1959 an official of the Office of Hearings and Appeals in Washington felt compelled to call the respondent and urged him to pay the debt. Respondent says that he relied upon the amount reported by this official as the outstanding balance, and thereupon paid the sum of $293.44 by money order dated November 5, 1959. However, there remained, in fact, an unpaid balance of $31.42 after the November 5 payment. We do not consider this balance because the apparent legal effect of the endorsement on the money order was to terminate his legal obligation.

"The debt described in CHARGE III was incurred in April 1958 for the purchase of a set of automobile tires from a firm in Greenville, South Carolina, at a cost of $174.30, to be paid on a 30-60 day charge basis. The only payment made on this account was some time between April 29, 1961 and June 30, 1961, when $25.00 was paid, leaving a balance of $149.30 still due as of March 19, 1962, the date of the hearing in this case.

"CHARGE IV was based on respondent's default on a real estate improvement loan of $2759.52 received in January 1960 from a bank in Laurens, South Carolina. At the most, three or four payments were made, according to the respondent's testimony, between January and October 1960, one of them in February 1960. Respondent confessed judgment in the bank's suit for $2529.54 filed on April 18, 1961; he excuses his failure to pay anything on the debt after October 1960 by implying that the debt somehow merged with a claim for attorney's fees which the respondent resisted as unreasonable and excessive.

"Certainly, the record on these four charges shows that the respondent failed to meet his financial obligations in these instances. This conclusion may be put another way: In each case he breached his express or implied agreement to make timely payments in accordance with the conditions of his contract. His defaults persisted after complaints were made to the Agency by the creditors or their representatives, and, in most instances, after repeated efforts by the creditors to obtain payment.

* * * * * *

"Had the respondent given the Agency or the Commission evidence of a good faith effort to meet his debt problem by making partial payments from time to time, a different picture might have been shown; it has not been demonstrated that, considering the respondent's salary, an effort to discharge his obligations in this manner would have been fruitless. But evidence of such an effort is lacking with respect to debts which were still outstanding after three, and nearly four, years had gone by. Instead we find some evidence of a litigious attitude on the part of the respondent, as well as a reluctance to concede that the Agency has a proper concern when an employee's neglect of his lawful debts takes the time and attention of Agency officers and employees and tends to discredit the Department and its personnel in the eyes of the public. We may remark also that in our review of the record in this case we have seen no persuasive evidence which

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