McTiernan v. Gronouski

• Decision Date: 28 August 1964
• Docket Number: Docket 28818.,No. 443,443
• Parties: John T. McTIERNAN, Plaintiff-Appellant, v. John A. GRONOUSKI, as Postmaster General of the United States, John W. Macy, Jr., as Chairman and L. J. Andolsek and Robert E. Hampton, as Commissioners, constituting the United States Civil Service Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

337 F.2d 31 (1964)

John T. McTIERNAN, Plaintiff-Appellant, v. John A. GRONOUSKI, as Postmaster General of the United States, John W. Macy, Jr., as Chairman and L. J. Andolsek and Robert E. Hampton, as Commissioners, constituting the United States Civil Service Commission, Defendants-Appellees.

No. 443, Docket 28818.

United States Court of Appeals Second Circuit.

Argued May 25, 1964.

Decided August 28, 1964.

COPYRIGHT MATERIAL OMITTED

Morris Weissberg, New York City, for plaintiff-appellant.

John W. Douglas, Asst. Atty. Gen., Joseph P. Hoey, U. S. Atty., Sherman L. Cohn, Edward Berlin, Harvey L. Zuckman, Attys., Dept. of Justice, for defendants-appellees.

Before LUMBARD, Chief Judge, and WATERMAN and HAYS, Circuit Judges.

WATERMAN, Circuit Judge.

This is an appeal from a decision of the United States District Court for the Eastern District of New York, granting, upon cross-motions for summary judgment, a judgment in favor of the defendants in a suit brought by a dismissed postal employee against the Postmaster General and the three members of the United States Civil Service Commission wherein appellant sought a declaration that certain acts of the Post Office Department and of the Civil Service Commission were invalid, and sought an order directing the Postmaster General to reinstate appellant as Postmaster of the Central Islip, New York, Post Office, the position he had held until his dismissal. Following an examination of the operation of his post office by two postal inspectors, written charges were filed against appellant, a veteran of the armed services, alleging, among other allegations, a failure by appellant "to conduct the post office at Central Islip, N. Y., in accordance with the instructions of the Post Office Department as evidenced by the inspection of your office starting on February 6, 1959, which disclosed 82 irregularities, two of which were recurrent from the previous inspection."¹ After appellant was given an opportunity to reply to the charges orally and in writing, the Post Office Department, on July 23, 1959, ruled that appellant was to be removed from office. Thereafter an appeal by appellant to the Civil Service Commission proved unsuccessful, and the proceedings before that agency finally terminating on February 9, 1961,² on May 19, 1961 appellant was removed from office. More than two years later, on May 21, 1963, appellant commenced this action in the district court to secure reinstatement, alleging that his removal from office had been effected as a result of proceedings which had failed to comply with the provisions and enabling regulations of the Veterans' Preference Act, 5 U.S.C. § 851 et seq., a statute which grants to a qualifying veteran such as appellant certain procedural rights in administrative proceedings involving disciplinary action against federally employed veterans. Inasmuch as our examination of the record convinces us that appellant's numerous claims of procedural irregularity are groundless, we affirm the lower court's grant of summary judgment in favor of appellees.³

We approach the issues raised upon this appeal mindful of the limited permissible scope of judicial review in this area. The taking of disciplinary action against government employees, including the invocation of the sanction of dismissal, is a matter of executive discretion, and is subject to judicial supervision only to the extent required to insure "substantial compliance with the pertinent statutory procedures provided by Congress," Hargett v. Summerfield, 100 U.S.App.D.C. 85, 243 F.2d 29, 32 (D.C.Cir. 1959), and to guard against arbitrary or capricious action, Pelicone v. Hodges, 116 U.S.App.D.C. 32, 320 F.2d 754, 755 (1963). See also Wallace v. Day, 328 F.2d 565 (D.C.Cir. 1964) (per curiam); Studemeyer v. Macy, 116 U.S. App.D.C. 120, 321 F.2d 386, 387, cert. denied, 375 U.S. 934, 84 S.Ct. 337, 11 L.Ed.2d 265 (1963).

Appellant's first claim of procedural irregularity relates to certain affidavits which one of the postal inspectors who initiated the charges against appellant obtained from three employees of the Central Islip Post Office and which were submitted to the Post Office Department in Washington in support of the charges lodged against appellant. Neither the existence nor the contents of the affidavits were revealed to appellant either before he filed his answer to the charges or before the Post Office Department's July 23, 1959 decision ordering his dismissal. It is appellant's contention that this failure to make known to him the contents of these affidavits violated Postal Manual Regulation 745.621-a, which provides that an appointing officer's report on an employee under consideration for disciplinary action "shall not include any new charges or evidence to which the employee has not had opportunity to reply." The government argues, on the other hand, that this regulation is not designed to confer any procedural rights upon one in appellant's position, but is merely designed "to govern the internal reports of those in the chain of disciplinary decision-making."

While we have trouble with the government's construction of the regulation, for it is difficult to see what purpose this restrictive regulation is designed to serve if not to prevent the presentation to Post Office Department officials of a one-sided case against an employee threatened with disciplinary action, we need take no definite view of the proper interpretation to be accorded the regulation. Nor do we need to decide whether the withholding of these affidavits contravened certain statutory procedural rights due appellant under Section 14 of the Veterans' Preference Act, 5 U.S.C. § 863,⁴ and particularly his right to an advance written notice of charges against him "stating any and all reasons, specifically and in detail," and his right to an opportunity to answer such charges.⁵ If indeed error were committed in the course of the Post Office Department's disciplinary proceedings through a failure to reveal these affidavits the error was rendered harmless when appellant was shown the affidavits almost three months in advance of the subsequent Civil Service Commission hearing on his dismissal, a hearing incident to appellant's exercise of his right under the Veterans' Preference Act to appeal to that Commission from the adverse decision of the Post Office Department. Section 14 of the Veterans' Preference Act, providing, inter alia, that upon an employee's appeal to the Commission the Commission is to investigate and consider evidence and submit findings and recommendations binding upon officers in the employee's department, indicates that a proceeding so brought before the Commission is not an ordinary appeal but is rather contemplated to be of the nature of a de novo hearing. The regulations governing the conduct of such appeals before the Commission provide, for example, for the taking of testimonial and documentary evidence and the cross-examination of witnesses. Thus appellant was granted a hearing de novo on the merits of his dismissal and, as he was shown well in advance of the de novo hearing the affidavits of which he was denied notice prior to the departmental hearing, any error which may have clouded the earlier proceedings because of this non-disclosure has been cured,⁶ and appellant cannot now rely on that non-disclosure in pressing his efforts to have his dismissal overturned. Green v. Baugham, 100 U.S.App.D.C. 187, 243 F. 2d 610 (D.C.Cir.), cert. denied, 355 U.S. 819, 78 S.Ct. 25, 2 L.Ed.2d 35 (1957).

Appellant further claims that his dismissal should be voided because of other Post Office Department conduct which he alleges violated not only Postal Manual Regulation 745.621-a, but also that part of Section 14 of the Veterans' Preference Act which grants to employees against whom the taking of serious disciplinary action is being contemplated the right to answer personally and in writing charges which have been made against them. Appellant's contention in this regard is based upon a claimed withholding from him by the Post Office Department, prior to his answering the charges which had been made against him in the departmental proceedings, of a cashbook and related records which had earlier been removed from appellant's post office by postal inspectors. Our examination of the record, however, convinces us that the alleged withholding of these items simply did not take place. Although the Post Office Department official having custody of the seized cashbook and records refused to permit appellant and his attorney to take possession of them, he did, sometime prior to the date appellant first answered the departmental charges, meet with appellant's attorney to show and explain the items to him, and at that time he indicated that appellant and his attorney were free at any time to go to the office where the cashbook and records were kept and were free to examine them there. We think this was a sufficient accommodation of any right which appellant had to examine the items by virtue of either Postal Manual Regulation 745.621-a or Section 14 of the Veterans' Preference Act. Moreover, since the cashbook and records were introduced in evidence during the departmental proceedings, thus giving appellant a clear opportunity to examine them as part of the record of those proceedings well in advance of the subsequent de novo hearing on his dismissal before the Civil Service Commission, this contention also merits rejection for the same reasons we set forth in rejecting appellant's first claim of error.

The third ground upon which appellant relies relates to a failure by the Post Office Department to produce, at the hearing before the Civil Service Commission, three employees of the Department whom appellant had requested the Department to produce at that hearing. One of the employees, a postal inspector, had executed affidavits which were included as evidence in the record of the departmental hearing...