Mulligan v. Andrews, 11716.

• Decision Date: 18 February 1954
• Docket Number: No. 11716.,11716.
• Citation: 93 US App. DC 375,211 F.2d 28
• Parties: MULLIGAN v. ANDREWS, Com'r of Internal Revenue et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

93 US App. DC 375, 211 F.2d 28 (1954)

MULLIGAN v. ANDREWS, Com'r of Internal Revenue et al.

No. 11716.

United States Court of Appeals District of Columbia Circuit.

Argued November 27, 1953.

Decided February 18, 1954.

Mr. Claude L. Dawson, Washington, D. C., for appellant.

Mr. Lewis A. Carroll, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., Frank H. Strickler, Asst. U. S. Atty., and William J. Peck, Asst. U. S. Atty. at time brief was filed, Washington, D. C., were on the brief, for appellees. Messrs. Charles M. Irelan, U. S. Atty. at time record was filed, Washington, D. C., and William R. Glendon, Asst. U. S. Atty. at time record was filed, Washington, D. C., entered appearances for appellees.

Before PRETTYMAN, BAZELON, and FAHY, Circuit Judges.

BAZELON, Circuit Judge.

Appellant brought this suit to declare his removal from the classified Civil Service illegal and for reinstatement therein. His primary allegation was that disciplining officials had failed to comply with the statute and regulations governing removal procedures. In detail, the complaint alleged that the notice of charges preferred against him was not sufficiently specific, and that he was not advised of his right to file affidavits with the answer. At the hearing on cross motions for summary judgment, appellant also contended that the notice of charges was signed by officials who lacked such authority. In a written opinion,¹ the District Court held against appellant on all the issues thus raised. Accordingly, it ordered summary judgment in appellees' favor. Appellant is here seeking reversal.

We think the issues raised below were correctly decided. On this appeal, however, appellant advances a contention which he failed to make in the court below.² In substance, it is that the adverse decision, following his answer to the notice of charges served upon him, did not contain "reasons" sufficient to satisfy the requirements of the applicable removal procedure. This presents an issue of law which we consider, despite appellant's failure to raise it below, because we deem these to be "particular circumstances" in which "injustice might otherwise result."³

Briefly, these are the pertinent facts. Appellant, a Deputy Collector of Internal Revenue, was notified by letter that certain charges against him would be taken as true unless he offered satisfactory explanation. These charges, involving alleged violations of the Bureau's "Instructions to Employees," read as follows:

"* * * acceptance of fees or gifts for preparing the income tax returns over a period of years for taxpayers `Nick\' Robin, Isidore Robin, Peter and Catherine Stahl, Anthony and Magdalina Matje, and Leo C. Coleman. Amongst this group are several whose income is derived from illegal sources, which fact was known to you when you prepared their returns."

Appellant offered the following explanation:

"In connection with the money, practically pushed upon me by Magdalina Matje, she, knowing I could not type and that I had someone type the return of her father and mother (Peter and Catherine Stahl), which were too lengthy to prepare in longhand, she insisted the typing expenses be defrayed by her.

"Relative to the returns of `Nick\' Robin, Isadore Robin, Leo C. Coleman; I assisted them in the preparation of their returns from figures submitted by them. For this service I never received a fee, gift or any other gratuity. They informed me their incomes were derived from gambling commission; however, I did not think, and still do not think that I violated any Section of Bureau of Internal Revenue `Instructions to Employees\', by assisting them in the preparation of their returns."

Thereafter, disciplining officials issued the adverse decision which is under attack on this appeal. The decision read in pertinent part:

"Careful consideration has been given to your reply, together with the facts developed during the investigation, and the conclusion has been reached that the evidence is such as to show your unsuitability for continuance in the Internal Revenue Service."

The key clause in that decision was "the evidence is such as to show your unsuitability."

Administrative proceedings for removal of employees from the classified Civil Service are governed by 5 U. S.C.A. § 652(a), and the regulations and administrative interpretation promulgated thereunder. Section 652(a) provides in pertinent part:

"No person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing. Any person whose removal or suspension without pay is sought shall (1) have notice of the same and of any charges preferred against him; (2) be furnished with a copy of such charges; (3) be allowed a reasonable time for filing a written answer to such charges, with affidavits; and (4) be furnished at the earliest practicable date with a written decision on such answer."⁴

The first sentence of this section contains two broadly stated conditions requisite for removal of an employee from the classified Civil Service. They are "1 for such cause as will promote the efficiency of such service and 2 for reasons given in writing." Specific requirements for fulfilling those conditions are set forth in the very next sentence of the section. These requirements are that an employee must be served with a notice of the charges preferred against him, be afforded an opportunity to refute them by...