Meehan v. Macy

• Decision Date: 12 May 1969
• Docket Number: No. 20812.,20812.
• Citation: 425 F.2d 472
• Parties: Richard D. MEEHAN, Appellant, v. John W. MACY, Jr., Chairman, et al., Civil Service Commission, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

425 F.2d 472 (1969)

Richard D. MEEHAN, Appellant, v. John W. MACY, Jr., Chairman, et al., Civil Service Commission, et al., Appellees.

No. 20812.

United States Court of Appeals District of Columbia Circuit.

Reargued December 16, 1968.

Decided May 12, 1969.

Mr. Edward L. Merrigan, Washington, D. C., for appellant.

Mr. Norman Knopf, Attorney, Department of Justice, with whom Asst. Atty. Gen., Edwin L. Weisl, Jr. (at the time the brief was filed), Messrs. David G. Bress, U. S. Atty., and John C. Eldridge, Attorney, Department of Justice, were on the brief, for appellees. Messrs. Frank Q. Nebeker, Scott R. Schoenfeld, Joel M. Finkelstein and Mrs. Ellen Lee Park, Asst. U. S. Attys., also entered appearances for appellees.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and DANAHER,^* BURGER, WRIGHT, McGOWAN, TAMM, LEVENTHAL and ROBINSON, Circuit Judges, sitting en banc.

PER CURIAM:

On April 18, 1968, a division of this court concluded that the agency which held the hearing on appellant's proposed discharge was warranted in finding that Charge 1 (conduct unbecoming a police officer) was sustained, but that the record did not contain adequate support for discharge on Charge 2 (failure to obey instructions) or Charge 3 (failure to obtain clearance for publication).¹ The division remanded to the District Court so as to permit agency reconsideration, in view of this court's ruling, of the sanction to be imposed on appellant.

On August 23, 1968, after the Supreme Court decided Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the same division of this court altered its order of remand so as to provide for reconsideration of appellant's case, on the merits, in light of the Pickering decision, and provision was specifically made for opportunity on remand for the introduction of further evidence.

Appellant had filed a petition for rehearing en banc to request reconsideration of the division's opinion in the light of Pickering. This court's granting rehearing en banc, and its order, had the effect of vacating the opinions and orders of the division. After hearing argument en banc, this court is of the view that the result reached in the division's orders was an appropriate disposition; it accordingly reinstates those orders to the extent that: (1) Charges 2 and 3 are dismissed; (2) Charge 1 is to be reconsidered in light of Pickering; and (3) if Charge 1, so reconsidered, is still found to be validly charged and proved, the penalty assessed is to be reconsidered in view of Charges 2 and 3 being dismissed.

Since proceedings on remand may result in additional evidence of record, and a different order entered by the executive authority, we see no occasion for a decision on the present record as to the implications of Pickering for Meehan.

The Commission may consider this an appropriate time to reconsider its precedents in view of Pickering and to establish general guidelines insofar as that may be feasible.

So ordered.

DANAHER, Circuit Judge (dissenting):

I disagree respecting the action reflected in the majority's Per Curiam¹ following our rehearing en banc.

To begin with, and as to the first charge, I had found myself in accord with the rationale as presented and the conclusion reached in the opinion² released on April 18, 1968. It seemed clear beyond peradventure that the appellant was properly to be found amenable on the ground of conduct unbecoming a police officer and that his proposed discharge was not unlawful. That much established, unanimously, the court, in my view, need have gone no farther. Affirmance was in order.

Then came the appellant's Petition for Reconsideration which resulted in the opinion³ of August 23, 1968, continuing but broadening the first order of remand, assertedly to take account of Pickering v. Board of Education⁴ but permitting the introduction of additional evidence and inviting "an administrative disposition to settle this case."

Our en banc consideration has culminated in the reinstatement of the August 23, 1968 order, which had included a precatory exhortation for the Commission

to reconsider its precedents in view of Pickering and to establish general guidelines insofar as that may be feasible.

Now the majority directs that (1) charges 2 and 3 be dismissed; (2) charge 1 be reconsidered in light of Pickering; and (3) if charge 1 upon reconsideration "is still found to be validly charged and proved," the penalty is to be reconsidered in view of the dismissal of charges 2 and 3.

I

My reading of Pickering leads me to conclude that the Court's decision there does not call for the action taken by the majority, and rather, upon the basis of its opinion, the legality of the proposed discharge of Meehan should be upheld in accordance with the unanimous views of the sitting division as set out in the first opinion.⁵

Let it be noted at once that at all times, this appellant was free to vent his opposition to the Governor's policy through "regular channels, including appeals to Congress." He and others comparably situated were not under prohibition to refrain from adverse criticism. There was no purportedly official edict suppressing their speech. Rather the appellant's brief⁶ tells us that the four union officials present had been urged

to avoid local issuance of comments or statements which could be used by the Panamanian press to inflame further the current difficulties between the United States and Panama.

Again, and respecting the same meeting, the record shows⁷ that the Lieutenant Governor requested of those present

that all possible care be taken to present any opposition to the employment plan through regular channels including protests or appeals to Congress. (Emphasis added.)

The appellant had been called to the meeting with the Personnel Director and the Lieutenant Governor

in his capacity as President of the Police Lodge, American Federation of Government Employees.

It is completely obvious that the Governor had caused to be taken into the confidence of the Administration, men he assumed he could trust, representatives of unions of employees whose support he hoped to enlist.

The Governor "had decided to make a concession to Panama by employing 40 citizens of Panama as police officers on the Panama Canal Zone Police Force," the appellant tells us on brief.⁸

The appellant's bitter opposition to that plan led to his utterances, his "Dear Friends" letter and the poem, "a contemptuous and derogatory lampoon of the Governor and his policies," as the original opinion described it. The appellant's conduct "was a legitimate basis for discharge to promote the efficiency of the service."⁹

Meehan's conduct must appear the more flagrant, quite apart from his betrayal of the confidence reposed in him, because he well knew of the violent disorders which had broken out¹⁰ in the Zone in January, 1964. He told us on brief that wild mobs had attacked in the Zone which had become a battleground; five persons had been killed, hundreds were wounded. Property valued at more than $1,500,000 had been destroyed, and thousands of Panamanian rioters had entered the conflict. United States Army units were called in to quell the disturbance.

Against background of that nature, Major General Fleming as Governor had proposed the step by way of concession to Panama against which this appellant knowingly had undertaken a contrary course, which in totality constituted conduct unbecoming an officer, contrary to his basic responsibility.

Our unanimous division in its first opinion concluded — properly, I submit — as follows:

We cannot upset the administrative determination that this responsibility was violated. * * * His motive does not justify his failure to comply with his obligation as an employee of the executive branch, an obligation intensified rather than diluted by the tense and sensitive situation of the time and place.

The District Court's judgment should be affirmed, forthwith and without more.

II

Do any of my colleagues really believe that the situation thus described and the conclusions reached will come within Pickering v. Board of Education?¹¹

Pickering, a school teacher, in advance of public voting as to the needs for additional school funds, had written for publication a letter critical of the Board's allocation of funds between educational and athletic programs. What Pickering said in no way could be presumed to have impeded his own performance of his duties as a teacher, or to have interfered with the operation of the schools, the Court observed. There was no question of the fitness of Pickering as a teacher.

His statements were in no way directed toward any person with whom Pickering normally as a teacher would be in contact. There was no question, the Court said, of maintaining discipline by Pickering's superiors or of continuing harmony among his co-workers. Neither personal loyalty nor confidence had been impaired.

The contrast in fact and in effect between Pickering's case and Meehan's is so marked that every facet of the result and the reasons for it as seen by the Court in Pickering, condemn the course followed by Meehan. No wonder the Court said the exercise by a teacher¹² of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. But that is not this case — or anything like it.

The Court explicitly observed an unwillingness to lay down a general standard, because of the enormous variety of fact situations which made it neither appropriate nor feasible to do so. I have no sort of doubt that the Meehan issue illustrates the prescience of the court's reluctance to prescribe the general standard, so disclaimed.

It may thus be suggested to my colleagues that this police officer because he was president of his union, had been permitted to share a confidence which for his own purposes he chose to violate; that he did so knowingly, and fully aware of the...