McGhee v. Johnson

• Decision Date: 29 January 1970
• Docket Number: No. 165-69.,165-69.
• Citation: 420 F.2d 445
• Parties: Donald A. McGHEE, Appellant, v. James E. JOHNSON, L. J. Andolsek, Robert E. Hampton and Winton J. Blount,, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

420 F.2d 445 (1969)

Donald A. McGHEE, Appellant, v. James E. JOHNSON, L. J. Andolsek, Robert E. Hampton and Winton J. Blount,, Appellees.

No. 165-69.

United States Court of Appeals Tenth Circuit.

December 4, 1969.

Rehearing Denied January 29, 1970.

Jack N. Ferguson, El Paso, Tex., for appellant.

Ronald R. Glancz, Dept. of Justice, Wash., D. C. (William D. Ruckelshaus, Asst. Atty. Gen., Victor R. Ortega, U. S. Atty., and Robert V. Zener, Dept. of Justice, Washington, D. C., were with him on the brief) for appellees.

Before MURRAH, Chief Judge, and LEWIS and HOLLOWAY, Circuit Judges.

LEWIS, Circuit Judge.

Appellant McGhee contests the entry of summary judgment for defendant-appellees against his motion by the United States District Court for the District of New Mexico whereby the court upheld his 1966 removal as Postmaster of the Lordsburg, New Mexico Post Office. McGhee, a veterans-preference eligible, brought this action against the United States Civil Service Commissioners and Postmaster General for judicial review of his discharge, 5 U.S.C. § 701, and prayed for a declaratory judgment, 28 U.S.C. § 2201, establishing the nullity of his removal and entitlement to forfeited back pay and allowances, 5 U.S.C. § 5596, or, alternatively, the remand of his cause to the Civil Service Commission for a hearing and investigation. McGhee also sought a writ of mandamus compelling defendants to reinstate him as postmaster. 28 U.S.C. § 1361.

On appeal McGhee argues that the removal was not supported by substantial evidence and was arbitrary, capricious, and an abuse of discretion and that the Commission failed to substantially comply with the statutes and regulations governing removal proceedings.¹ The court below ruled against McGhee on both theories, and we conclude that entry of summary judgment for appellees must be affirmed.

Initially, McGhee has misconceived the review of an executive removal proceeding afforded by a federal court. Since the decision to remove is a matter within agency discretion, see 5 U.S.C. § 7512; Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822, 830, a federal court cannot reevaluate evidence in support of removal, but probes for arbitrary or capricious action or abuse of discretion. See Bishop v. McKee, 10 Cir., 400 F.2d 87, 88. Under this analysis the record of McGhee's removal proceedings reveals neither caprice in the grounds for removal nor a failure of substantial compliance with the controlling procedural requisites. Vigil v. Post Office, 10 Cir., 406 F.2d 921, 924; Davis v. Berzak, 10 Cir., 405 F.2d 642, 644.

McGhee had been severed from his position after two removal proceedings. In 1964 he was admonished for deficiencies by letter dated September 30 from the Director of Postmasters and Rural Appointments Division, Bureau of Operations; he responded by letter and advised that the conditions complained of had been rectified. A second letter of admonishment was sent to McGhee on March 16, 1964. Thereafter, on December 8, 9, and 11, 1964, two Postal Inspectors visited the Lordsburg Post Office, and McGhee was advised by letter dated December 15 of 30 procedural irregularities disclosed by their inspection.² A letter of charges was then filed by one of the inspectors on January 26, 1965, stating as grounds for removal the 30 irregularities specified in the December letter and the September and March admonishments, elements of his past record. McGhee replied to the charges, but was advised on May 5, 1965, by letter from the Director that the removal had been sustained. On appeal to the Denver Region of the Civil Service Commission, the Appeals Examiner upset the removal for procedural deficiencies because the past disciplinary action used as grounds for removal — the two admonishments — revealed neither opportunity to contest the admonishments or have them reviewed by an authority other than that which imposed them. The 1964 notices were thus canceled.

The subject notice of the instant action was issued by the Department on July 16, 1966. This letter of charges, again signed by one inspector, substantially reiterated the former, including as grounds for removal the 30 irregularities noted in the December, 1964 inspection and only the September 30, 1964 admonition to which McGhee had replied. McGhee was advised of his right to reply in person or by letter. After appellant had responded to the amended charges, the Director, Division of Postmasters, Post Office Changes and Rural Appointments on September 22, 1966, sustained the first charge as unrefuted and ordered McGhee's removal. In this communication McGhee was apprised that he had appellate rights before the Post Office Department and Civil Service Commission, that his election to appeal to the Commission would foreclose a Post Office appeal, and that he was entitled to a hearing at his request. By letter dated November 1, 1966, McGhee waived hearing...