Pauley v. United States

• Decision Date: 06 January 1970
• Docket Number: No. 17449.,17449.
• Citation: 419 F.2d 1061
• Parties: Raymond F. PAULEY, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

419 F.2d 1061 (1969)

Raymond F. PAULEY, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.

No. 17449.

United States Court of Appeals Seventh Circuit.

December 11, 1969.

Rehearing Denied January 6, 1970.

Willard J. Lassers, Alex Elson, Aaron S. Wolff, Elson, Lassers & Wolff, Chicago, Ill., for appellant.

Morton Hollander, Chief, Appellate Section, Robert V. Zener, Raymond D. Battocchi, U. S. Department of Justice, Washington, D. C., Thomas A. Foran, U. S. Atty., Chicago, Ill., William D. Ruckelshaus, Asst. Atty. Gen., for appellee.

Before HASTINGS, Senior Circuit Judge, KILEY and CUMMINGS, Circuit Judges.

HASTINGS, Senior Circuit Judge.

Plaintiff Raymond F. Pauley, a discharged Government Civil Service employee, brought this action against the United States of America and others.¹ He sought reinstatement to his former position of Regional Inspector General, Chicago Region, United States Department of Agriculture (RIG), alleging his removal was arbitrary and capricious and effected without the benefit of required procedures.

The Government moved, inter alia, for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure, Title 28, U.S.C.A., on the ground that the pleadings, together with the administrative record on file herein, showed there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. Plaintiff filed a similar motion for summary judgment, praying for the relief requested in his complaint.

In a memorandum order, the district court held: "Upon a careful review of the record we have found all procedures complied with, all of plaintiff's arguments including reduction in rank duly considered, and the evidence given including failure to accept reassignment more than enough to sustain his removal." Accordingly, the Government's motion for summary judgment was granted and judgment was entered thereon in favor of defendants and against plaintiff. Plaintiff appealed. We affirm.

Plaintiff first entered Government service in 1941 and continued thereafter in various capacities as a career employee. In 1946, he accepted a position in the Audit Division, Production Marketing Administration of the Department of Agriculture. He was head of the Chicago office from 1951 to 1963. From July 1, 1963, to July 17, 1965, he was RIG of the Chicago Region, a midwest six-state area. In this capacity he had a rating of GS-15. He had the responsibility of supervising a staff of 120 employees and the internal audits of 26 agencies.

Acting on a variety of employee complaints, on May 12, 1965, the Department of Agriculture ordered plaintiff to report to Washington, D. C., for a temporary reassignment of indefinite duration. The purpose of the temporary reassignment was to enable the office of the Inspector General to conduct an investigation of plaintiff's work in Chicago without possible interference by plaintiff and without embarrassment to him. Plaintiff disputes staff assertions that he was advised of this purpose.

After a lengthy investigation and an evaluation of the findings by the Department of Agriculture, on October 7, 1965, plaintiff was advised by the Inspector General that the facts found were not of such nature as to conclusively substantiate the allegations or to warrant disciplinary action; that he was being cleared of the charges; and that the "case is now considered closed." He was granted retroactively a previously withheld within-grade salary increase due from July 3, 1965.

On the same day, October 7, 1965, plaintiff was notified that he would be transferred and reassigned from his RIG position in Chicago to the newly created position of Assistant to the Assistant Inspector General, Operations, Washington, D. C. (AAIGO). This shift amounted to a transfer from a line to a staff position with the same GS-15 rating. It was a move from a regional assignment to one of national scope and responsibility. Plaintiff was told that this reassignment "was based on conclusions that he was unable to maintain satisfactory working relationships with his coworkers and subordinate personnel — a paramount requirement for successful and effective management of regional office operations." Further, that the new position would "capitalize on Mr. Pauley's proven technical capabilities but minimize his responsibilities for direction and supervision of employees * * * and permit him to retain his present grade, status, and pay." Plaintiff protested the reassignment and transfer for personal reasons.

Plaintiff was on sick leave in Chicago from October 18 to December 27, 1965. On October 24, 1965, he was permanently reassigned to Washington. On December 27, 1965, he was officially notified by letter to report to his new position on January 5, 1966.² On January 3, 1966, plaintiff again wrote to the Inspector General stating his personal reasons for refusing to accept such transfer and indicating his willingness to perform assigned duties in Chicago. On January 7, 1966, he was notified that he was absent without leave and that appropriate action would be taken; further, that he would be retained on a duty status for at least thirty days. On February 21, 1966, the Department of Agriculture formally notified plaintiff in writing that he was absent without leave from his new duty station; that he was charged with "Failure to Accept Transfer and Reassignment," with a statement of the specification thereof; and that it proposed to remove him from his new position.

On March 2, 1966, through his attorneys,³ plaintiff requested the opportunity to reply in person and in writing to the charges. He submitted a written reply to the charges and made an oral presentation, pursuant to procedures authorized by 5 C.F.R. 752.202(b). At plaintiff's request, the Department attempted to find alternative employment in the Chicago area. Subsequently, he was offered a position there at grade GS-13. He declined the offer. On December 8, 1966, the Department notified plaintiff in writing that the charge of February 21, 1966, Failure to Accept Transfer and Reassignment, had been fully sustained and ordered that he be removed from employment effective December 16, 1966.

Plaintiff promptly appealed his removal to the Civil Service Commission, Chicago Region. A full hearing was held on February 16, 1967. The hearing examiner, following a pre-hearing conference, stated that, without regard to prior rulings, plaintiff would be permitted "to present his total case." This he proceeded to do.

Among the contentions he made were the following: (1) there was an inordinate delay between the issuance of the post-investigation transfer order and the actual severance; (2) the offer of a lower position in Chicago was unacceptable in light of his having been cleared of all charges; (3) the reassignment from Chicago to Washington, D. C., was a reduction in rank requiring institution of adverse action proceedings pursuant to Civil Service Regulations, 5 C.F.R. 752.101 et seq.,⁴ and the failure to comply with those regulations invalidated the severance; (4) the reassignment was, in fact, a removal designed to force plaintiff out of his job instead of a transfer; and (5) the removal was not "for such cause as will promote the efficiency of the service" as required by 5 U.S.C.A. § 7501(a).⁵

The Chicago Region ruled against plaintiff on the merits of all such contentions, except the reduction in rank question, which it held plaintiff could not raise since he had not accepted the transfer. On appeal, the Civil Service Board of Appeals and Review held the reduction in rank issue should have been determined by the hearing examiner. It remanded for that purpose. After hearing all evidence which plaintiff offered, the hearing examiner concluded that the reassignment was not a reduction in rank and reaffirmed his earlier rulings.

On appeal, the Board of Appeals and Review affirmed. It found (1) there was a delay between the issuance of the post-investigation order and the actual severance but that such delay was not prejudicial to plaintiff; (2) the reassignment from Chicago to Washington, D. C., was not a reduction in rank; (3) the charge on which the removal action was based was substantiated by the record; (4) the removal was for such causes as would promote the efficiency of the service; and (5) all procedural requirements had been complied with.

As initially indicated herein, plaintiff's appeal to the district court resulted in summary judgment for defendants and against plaintiff and such judgment is now before us.⁶

Plaintiff raises three issues for review on this appeal: (1) whether his transfer and reassignment from the position of RIG in Chicago to that of AAIGO in Washington, D. C., was a "reduction in rank" within the meaning of 5 C.F.R. § 752.101, et seq.; (2) whether his removal was arbitrary and capricious; and (3) whether the delay between notification of charges and his resulting discharge was such as to invalidate his removal.

The parties appear to agree that the critical issue here is the reduction in rank question. Under relevant regulations, 5 C.F.R. § 752.101, et seq., a reduction in rank, but not a transfer, entitles an affected employee to the adverse action procedural protections of notice of the proposed action and the reasons therefor, and an opportunity to answer either personally, or in writing, or both. A reduction in rank requires the same procedural steps as in the case of a discharge. In the instant case, such procedural steps were not followed in connection with the transfer. They were followed when plaintiff was discharged for refusal to accept the transfer.

Plaintiff urges upon us all the several issues he has raised throughout the administrative proceedings and in the district court and which have been resolved against him. This immediately brings into focus the scope of our appellate review.

The overwhelming weight of authority holds that...