Money v. Anderson

• Decision Date: 05 November 1953
• Docket Number: No. 11698.,11698.
• Citation: 93 US App. DC 130,208 F.2d 34
• Parties: MONEY v. ANDERSON, Secretary, Department of the Navy.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 130, 208 F.2d 34 (1953)

MONEY v. ANDERSON, Secretary, Department of the Navy.

No. 11698.

United States Court of Appeals District of Columbia Circuit.

Argued June 5, 1953.

Decided November 5, 1953.

Mr. Keith L. Seegmiller, Washington, D. C., for appellant.

Mr. E. Riley Casey, Asst. U. S. Atty., Washington, D. C., for appellee. Messrs. Charles M. Irelan, U. S. Atty., and William R. Glendon and Robert M. Scott, Asst. U. S. Attys., at the time brief was filed, Washington, D. C., were also on the brief for appellee. Mr. Leo A. Rover, U. S. Atty. at time of argument, Washington, D. C., also entered an appearance for appellee.

Before EDGERTON, BAZELON and WASHINGTON, Circuit Judges.

BAZELON, Circuit Judge.

Appellant sued to have his removal from the classified Civil Service declared illegal and requested reinstatement therein. The case was decided against him in the District Court on cross-motions for summary judgment. Two issues were raised. The first was whether appellant's removal was effected in accordance with the procedure authorized by statute¹ and defined by Civil Service Commission regulation.² This issue involved appellant's contention that the written notice of charges preferred against him for removal failed to comply with the regulatory direction that such "charges must be specific." Because the District Court found the charges sufficiently specific, it did not decide the second issue — namely, whether the suit was barred by laches.

This is what the pleadings and affidavits disclosed. On January 25, 1944, after almost twelve continuous years as a permanent Civil Service employee (with an Efficiency Rating of "Excellent") in the United States Navy Shipyards at Philadelphia, appellant was orally advised of his suspension by the Commandant for "improper relations with women." One week later, written charges were personally delivered by the Commandant with the advice that no further information would be given. These charges read:

"1. Charges of immoral or notoriously disgraceful conduct are hereby preferred against you, the nature of which is as follows:

"(a) That during the month of March 1943, at a birthday party given in your honor in Shop 23 by the women employees of your shop, you did kiss these women employees present and made further advances to at least two of them, which actions on your part were resented by these employees.

"(b) That in or near National Park, N. J., over a period of years, you have had abnormal sexual relations with, and have made advances to, girls in their teens; that these occurrences continued as recently as eight or nine months ago.

"2. Due to the charge as indicated above, you are hereby suspended from duty without pay pending action in your case. You are hereby given 3 days from the date hereof to make any reply in writing which you consider appropriate to the charges, and to show cause why you should not be discharged."³

Appellant's written answer of denial is set out in the margin below.⁴ He says of this answer in an affidavit filed in support of his motion for summary judgment below:

"* * * I made answer in writing submitting proof thought possibly to be pertinent, but without knowing whether it in fact even dealt with the same subject matter as that underlying the charges against me. * * * During the ensuing weeks I submitted numerous affidavits to the Commandant in support of my general character and integrity, but for lack of detailed knowledge of the charges against me I was not able to make specific refutation. * * *"⁵

"* * * Through long and diligent investigation, aided by detective agencies employed by me, I ultimately found, after I had been discharged from service at the Navy Yard, the names of four persons who had signed and submitted to the Commandant false charges against me of immoral conduct, which were responsible, in part at least, for my discharge. * * *"⁶

"To the date hereof I have never learned definitely whether others also filed charges against me that contributed to the action of the Navy Department in removing me from service, and I have no knowledge, except as recited herein, of the details of the charges contained in the letter of January 31, 1944 * * *."⁷

We hold the charges lack the specificity required by the applicable removal procedure. Charges preferred for removal must be specific enough to provide a fair opportunity for refutation by the innocent who have no knowledge of the conduct charged, as well as the guilty who do possess such knowledge. To meet that requirement in the present case, the first charge — that of improper advances to women employees at the party — must include the names of the women involved. To refute the charge without this information, appellant, if innocent, would be required to (1) remember or learn the names of all the women employees present at the party, (2) locate and obtain an interview with each one, and (3) overcome the natural reluctance of those who had complained to admit that it was their complaints which culminated in the charges brought ten months after the alleged incident, all preliminary to (4) undertaking to collect evidence tending to show the falsity of their charges. Such a burden hardly comports with minimal notions of fair opportunity for refutation.

The even more damaging second charge — that of "abnormal sexual relations with and * * * advances to, girls in their teens" over a period of years — provides even less opportunity for refutation than the first. Under our view of the specificity required, this second charge must include the names of the girls and the places and approximate dates of the alleged molestations. In the light of what we have already said regarding the first charge, it is plain that without such information no fair opportunity for refutation is possible except, perhaps, for one guilty of the charge.

No reason appears and none is offered for withholding more specific charges here. Considerations of national security, said to require protection for confidential informants under Executive Order No. 9835, 5 U.S.C.A. § 631 note, in Bailey v. Richardson⁸ are not present. Because no claim of risk to security interests was asserted in Deak v. Pace,⁹ we held the employee must be informed "with reasonable certainty and precision of the cause for his removal,"¹⁰ notwithstanding a statute permitting the Secretary of the Army to immediately remove an employee if such action were warranted by the demands of national security.¹¹

As we indicated earlier, the trial court did not reach consideration of the issue of whether this suit is barred by laches. The writer of this opinion is of the view that this court should decide the issue since (1) it was submitted to the court below for decision upon the record now before us; (2) it does not involve the credibility of testimony; and (3) it was fully briefed and argued in this court. The other two members of this court, however, are of the view that the District Court should pass upon the issue in the first instance since it involves the exercise of discretion,¹² in weighing the equities on either side to determine what, if any, relief can properly be granted under the circumstances of the case. Accordingly, the judgment on appeal will be reversed and the case remanded for the District Court's determination of the laches issue.¹³

Reversed and remanded for further proceedings in accordance with this opinion.

1 37 Stat. 555 (1912), 5 U.S.C.A. § 652 (1946) provides in pertinent part: "No person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing; and affidavits in support thereof; but no examination of witnesses nor any trial or hearing shall be required...