Norton v. Blaylock
Citation | 409 F.2d 772 |
Decision Date | 21 April 1969 |
Docket Number | No. 19375.,19375. |
Parties | Ruth NORTON, Appellant, v. Len BLAYLOCK and Russell Cooper, Charlene Hudson, J. E. Hudson, Finis Hudson, Gene Smith, Wardon Davis and Troy Fowler, Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
William S. Walker, Harrison, Ark., for appellant; Gene C. Campbell, Harrison, Ark., and Kenneth R. Smith, Yellville, Ark., were on the brief with Mr. Walker.
James L. Sloan, Little Rock, Ark., for appellees and filed brief.
Before MATTHES, MEHAFFY and LAY, Circuit Judges.
This is an appeal from the order of the district court dismissing appellant's complaint for failure to state a claim entitling her to relief under the Constitution or laws of the United States.
The salient facts revealed by the complaint and attached exhibits are disclosed in the district court's opinion reported at 285 F.Supp. 659 (W.D.Ark. 1968). Appellant does not dispute the accuracy of the court's recital of the relevant events giving rise to this litigation. Neither is there any claim that the record before the district court does not disclose all pertinent facts and circumstances.
Prior to appellant's discharge in July, 1967, she was the Director of the Newton County Office of the Arkansas State Department of Welfare. Appellee Len Blaylock was the Commissioner and administrative head of the State Department and the other appellees were members of the Newton County Welfare Board. Blaylock discharged appellant because she had engaged in political activity and other conduct violative of the applicable merit system rules.
Appellant pursued the remedy afforded discharged permanent employees by appealing to the Merit System Council, created by the Arkansas Legislature in 1941. Ark.Stats.Ann. § 83-121. After a hearing, the three-member Council, in a 2-1 decision, concluded that the charges furnishing the basis for appellant's discharge had not been sustained and recommended that she be reinstated. The Commissioner declined to follow the Council's recommendation and appellant was not reinstated. She did not seek relief in the state courts as provided by the Arkansas Administrative Procedure Act of 1967, Ark.Stats.Ann. § 5-713, but turned to the federal court for redress.
The applicable federal statutes, the Standards for a Merit System of Personnel Administration promulgated by the United States Secretary of Health, Education and Welfare, and the relevant Arkansas statutes and rules are referred to in Judge Henley's opinion. Especially significant here is Art. XIII, § 4 of the Arkansas Rules of the Merit System Council relating to "Appeal from Dismissal, Suspension or Demotion." This rule provides that a discharged permanent employee shall have the right to an appeal to and a hearing before the Council. It requires the Council to make its recommendations in writing to the appointing authority "for consideration by the agency." It provides further:
(Emphasis supplied.)
It appears without contradiction, from an affidavit of an official of the Department of Health, Education and Welfare, that Rule XIII "was accepted as being in substantial conformance with the Federal Standards for a Merit System of Personnel Administration."
From the foregoing it plainly appears that the Merit System Council's function on appeal is limited to making a recommendation to the agency. The recommendation is not conclusive, and the agency is not under mandate to follow it. As Judge Henley appropriately observed:
285 F.Supp. at 663.
Notwithstanding the clear and unequivocal language of the Rule, appellant contends, as she did in the district court, that the merit system is rendered impotent if the Commissioner can ignore the Merit System Council's recommendation favorable to the employee and, in...
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State, Dept. of Human Services, Division of Public Welfare v. Hudson County, Dept. of Health and Social Services
... ... § 602(a)(5) (A); 45 C.F.R. 70.1 Et seq.; accord, Norton v. Blayblock, 285 F.Supp. 659, 660, 663 (W.D.Ark.1968), aff'd Per curiam, 409 F.2d 772 (8 Cir. 1969); Communications Workers v. Union Cty. Welf ... ...
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Marino v. Bowers
...667 (1972). See also Young v. Coder, 346 F.Supp. 165 (M.D.Pa.1972); Norton v. Blaylock, 285 F.Supp. 659 (D.Ark.1968), aff'd, 409 F.2d 772 (8th Cir. 1969). In Nunnery v. Barber, supra, the court held that dismissal of a state liquor store manager did not violate either the First or Fourteent......
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Mittelstaedt v. BD. OF TRUSTEES OF UNIVER. OF ARK.
...right as such. Cf., Miller v. Hulsey, 347 F.Supp. 192 (E.D.Ark.1972); Norton v. Blaylock, 285 F.Supp. 659 (W.D.Ark.1968), aff'd 409 F.2d 772 (8th Cir. 1969). No procedural due process hearing was required to be afforded plaintiff here, either on the issue of whether, having reached age 67, ......
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ILLINOIS STATE EMPLOYEES UNION, COUNCIL 34, ETC. v. Lewis
...at 683. 3 In accord with Alomar and Shapp, and also in conflict with our decision, is the holding of the Eighth Circuit in Norton v. Blaylock, 409 F.2d 772 (1969), affirming the decision of the Western District of Arkansas, 285 F.Supp. 659 4 In addition to the inherent difficulty of definin......