Pelicone v. Hodges
Decision Date | 13 June 1963 |
Docket Number | No. 17467.,17467. |
Citation | 320 F.2d 754,116 US App. DC 32 |
Parties | Anthony PELICONE, Appellant, v. Luther H. HODGES, Secretary of Commerce, et al., Appellees. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Frank Q. Nebeker, Asst. U. S. Atty., with whom Mr. David C. Acheson, U. S. Atty., was on the brief, for appellees. Mr. Arnold T. Aikens, Asst. U. S. Atty., also entered an appearance for appellees.
Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and WRIGHT, Circuit Judge.
In this Government employee discharge case, the District Court granted summary judgment for the Government on cross motions.
Appellant, a veterans' preference eligible, has been employed by the Department of Commerce as a lithographic pressman and negative engraver since April 19, 1948.1 In March 1960, he was asked to complete a personal history statement, which included the question whether he had ever been arrested for "any reason other than for minor traffic violations." He answered that he had been arrested in May 1958 for "Disorderly" and had "forfeited $10 collateral."
On October 20, 1960, appellant received an official notification that he was being removed from his position on five specified charges. On appeal to the Civil Service Commission, certain charges (which we designate 2, 3 and 5) were sustained and other charges (which we designate 1 and 4) were dismissed.2 Appellant was removed from Government service on November 25, 1960.
Our review in this kind of case is limited to determining whether the statutory and regulatory procedures were observed and whether the challenged action was arbitrary and capricious or was supported by evidence. We conclude that the procedures were observed, but that there is no evidence to support the charges upon which appellant's dismissal was rested. We discuss these charges and the record relating to them.
The Government seems to base this charge on 5 C.F.R. § 2.106(a) (4) which permits disqualification for "intentional false statement or deception or fraud * * *."3 Appellant has consistently maintained that he had no reason to believe he had been arrested since he was never charged with a crime and was told by the police to forget the whole episode. There is no testimony that he was told he had been arrested, or that the circumstances were such as to indicate to a layman that he was being "arrested" rather than merely detained or questioned.4 Hence there is nothing in the record to support a determination that appellant made an "intentional false statement or deception or fraud" warranting discharge.
On oral argument the Government admitted that there was no evidence in the record to support its allegation that appellant made the second of the inconsistent statements. Hence the charged inconsistency cannot be sustained. On oral argument the Government for the first time suggested that this charge could be sustained on the ground that the record indicates that appellant, at one point, told examining officers he had made no statement to the girl in Union Station, thereby contradicting his alleged statement that he told her, "The blue-coats are over there." But it is clear that appellant was never charged with or given an opportunity to explain this newly discovered "inconsistency." Consequently we need not decide whether, in view of its context and the six year interval between the events and the testimony, the statement can fairly be regarded as an "intentional false statement or deception or fraud." A dismissal cannot be based on an uncharged inconsistency.5
The record shows the arrest referred to was for "disorderly conduct (prostitution)." Although "conduct unbecoming a Government employee" is not a ground for dismissal under the relevant regulations, the Government says this charge is based on 5 C.F.R. § 2.106(a) (3) which authorizes disqualification for "criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct."6 It appears from the Government's brief and the records of the earlier proceedings that the Government relies on the criminal nature of appellant's alleged conduct.7 The District of Columbia Code names a variety of offenses constituting disorderly conduct (e. g., disorderly conduct (duelling) (kindling bonfires) (flying kites) (playing bandy or shindy in the street)), but no such offense as disorderly conduct (pro...
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