Robinson v. Blount, 26528.

• Decision Date: 03 January 1973
• Docket Number: No. 26528.,26528.
• Citation: 472 F.2d 839
• Parties: Van V. ROBINSON, Plaintiff-Appellant, v. Winton M. BLOUNT, as Postmaster General of the United States, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

472 F.2d 839 (1973)

Van V. ROBINSON, Plaintiff-Appellant, v. Winton M. BLOUNT, as Postmaster General of the United States, et al., Defendants-Appellees.

No. 26528.

United States Court of Appeals, Ninth Circuit.

January 3, 1973.

Thomas Schneider, Legal Aid Society of Alameda County, Oakland, Cal., for plaintiff-appellant.

L. Patrick Gray, III, Asst. Atty. Gen., Morton Hollander, William Kanter, Alan S. Rosenthal, Attys., Washington, D.C., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for defendants-appellees.

Before JERTBERG and WALLACE, Circuit Judges, and SOLOMON^*, District Judge.

JERTBERG, Circuit Judge:

Appellant, a former career Civil Service Postal Clerk, instituted an action in the District Court for review of the administrative decision made to separate him from the Postal Service, and for reinstatement with back pay and benefits. Both parties moved for summary judgment. The District Court denied appellant's motion and granted defendants' motion, and entered judgment in favor of the defendants. Appellant appeals in forma pauperis.

The record reveals that appellant received an appointment as a clerk with the Oakland, California Post Office on February 3, 1962. On March 9, 1967, the Oakland postmaster gave Robinson "advance notice" of proposed removal from his job. The notice stated that "the proposed action is considered to be for such cause as will promote the efficiency of the service." The notice charged a failure by Robinson to meet his financial obligations. Two such obligations were specified. One was a judgment entered against him on July 12, 1966, in the amount of $300.52, on which he had agreed to pay $25.00 a month commencing on July 22, 1966, and a similar amount on the 22nd day of each succeeding month; that no payments had been made since July 12, 1966, leaving a current balance of $251.52. The other was on a debt incurred by Robinson on October 21, 1966, in the amount of $310.80, payable starting November 15, 1966, in twenty-four installments of $12.95 each month, on which no payments had been made. The notice further stated that certain parts of Robinson's "past record will be considered in determining the extent of action to be taken should the current charge be sustained." Specifically the notice referred to an official reprimand of September 29, 1965 "for failure to pay a just debt"; a suspension of September 6, 1966 "for failure to meet your financial obligations"; and a suspension in November of 1966 for "repeated tardiness."

Robinson replied in writing March 17, 1967, and orally on March 20, 1967, at which time he advised the Postmaster of his intention to file a Wage Earners' Plan under Chapter XIII of the Bankruptcy Act (11 U.S.C. §§ 1001-1086).

On April 18, 1967, the Postmaster issued his decision ordering Robinson's removal from his job effective May 19, 1967. The decision explained that the charge listed in the notice of March 9, 1967, had been sustained and that "the sustained charge, plus all of the elements of your past record, as listed in the proposed adverse action notice, have formed the basis for my decision."

Robinson appealed that initial decision to the San Francisco Regional Office of the Post Office Department. The Regional Office held a full hearing at which Robinson submitted papers showing that he had filed a Wage Earners' Plan under the Bankruptcy Law on March 29, 1967, and that his plan had been approved on May 1, 1967.

After the hearing, and on October 4, 1967, the Regional Office affirmed the job removal, holding that it was "justified and in the best interest of the Postal Service". Having remained on duty pending that appellate decision by the Regional Office, Robinson was removed from his job on October 13, 1967.

Thereafter, Robinson filed a further appeal to the Civil Service Commission's San Francisco Regional Office. On November 21, 1967, the Commission's Regional Office conducted another de novo hearing. The Regional Office issued its decision on May 22, 1968, sustaining Robinson's removal. The Regional Office rejected Robinson's contention that his filing of the Wage Earner Plan rendered the Post Office removal decision unreasonable, stating:

"The filing under the Wage Earners Plan in March, 1967, approved in May 1967, with first payment apparently being made under the plan in July 1967 — indicates that payment in a prompt and timely manner has not been a part of appellant\'s actions in his past relationship with creditors. While this filing was a positive effort to satisfy creditors it came too late. It was not unreasonable for the Post Office Department to determine that appellant\'s efforts subsequent to the advance notice did not justify a lesser penalty."

Robinson appealed the decision of the Regional Office to the Board of Appeals and Review of the Civil Service Commission. In its decision of November 22, 1968, the Board reviewed the entire record and concluded that the removal should be sustained. The Board specifically found that "the action of the agency * * * based on the sustained charge of failure to meet his financial obligations and a prior record of three disciplinary actions was for such cause as would promote the efficiency of the service", and while acknowledging Robinson's filing of the Wage Earners' Plan subsequent to the notice of proposed removal, the Board found that the "agency's decision to effect appellant's removal on the sustained charge and the prior record which included two disciplinary actions involving financial obligations is not arbitrary, capricious, or unduly harsh."

On review of the administrative decision the District Court sustained Robinson's removal from the Postal Service, concluding that "his termination was neither arbitrary nor capricious so as to be violative of due process. This decision is based on this Court's conclusion that the administrative agency record supports the Post Office and the Civil Service Commission's findings that Robinson was not meeting his financial obligations in a proper and timely manner, and that his discharge, therefore, was for just cause and to promote the efficiency of the Service."

The issues presented on this appeal, as stated in appellant's brief are:

I. Did defendants act unlawfully in removing plaintiff from the postal service for "failure to meet financial obligations" after he had filed and was in the process of consummating a wage earners\' plan under Chapter XIII of the Bankruptcy Act, since a wage earners\' plan is a Congressionally mandated way of meeting financial obligations?

II. Did the defendants unlawfully interpret the regulation under which they acted in removing plaintiff from the postal service by determining that the "proper and timely manner" which the regulation specifies for payment of financial obligations is a shorter time and a different manner than that provided by Chapter XIII of the Bankruptcy Act?

III. Is the regulation under which defendants acted in removing plaintiff from the postal service unconstitutionally vague if it is not construed so as to exclude plaintiff\'s situation?

The law appears to be well settled in this Circuit that the scope of review on this kind of case is narrow. See Seebach v. Cullen, 338 F.2d 663, 694 (9th Cir. 1964), cert. den. 380 U.S. 972, 85 S. Ct. 1331, 14 L.Ed.2d 268 (1965); and Benson v. United States, 421 F.2d 515, 517 (9th Cir.), cert. den. 398 U.S. 943, 90 S.Ct. 1861, 26 L.Ed.2d 279 (1970).

In Seebach, this Court stated at page 664 of 338 F.2d:

"Judicial review of dismissal from federal employment, a matter of executive agency discretion, is limited to a determination of whether the required procedural steps have been substantially complied with. Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774 (1900); and see Hargett v. Summerfield, 100 U.S.App.D.C. 85, 243 F.2d 29 (1957), and cases there cited. Thus, the scope of our review is confined to questions of law, and a motion for summary judgment was an appropriate means of reaching and deciding

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