Ryder v. United States, 273-77.

• Decision Date: 18 October 1978
• Docket Number: No. 273-77.,273-77.
• Citation: 585 F.2d 482
• Parties: Thomas J. RYDER v. The UNITED STATES.
• Court: U.S. Claims Court

585 F.2d 482

Thomas J. RYDER v. The UNITED STATES.

No. 273-77.

United States Court of Claims.

October 18, 1978.

Richardson R. Lynn, Nashville, Tenn., for plaintiff; Robert E. Hoehn, Nashville, Tenn., attorney of record.

Lynn J. Bush, Washington, D.C., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant.

Before COWEN, Senior Judge, and DAVIS and BENNETT, Judges.

ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

DAVIS, Judge:

Thomas J. Ryder was employed by the Department of the Army as a Supervisory General Engineer, GS-12, at Fort Campbell, Kentucky; he served there as chief of the Engineering Plans and Real Property Office of the Directorate of Facilities Engineering. At the instance of the then head of that Directorate, Col. Peach, Ryder was charged with inefficiency (in August 1973) and his removal sought on that ground. After a written reply from plaintiff, he was notified that the charge of inefficiency had been sustained and that he was to be removed on September 18, 1973.

Plaintiff chose to seek review under the Army grievance procedures and requested a hearing. This was held before an examiner of the United States Army Civilian Appellate Review Office ("USACARO") and Col. Peach was an important witness against plaintiff.¹ On the basis of the hearing, the examiner determined in a lengthy and detailed report that several specifications of inefficiency were not sustained and that the nine specifications which the examiner upheld did not warrant separation. Accordingly, the examiner recommended that plaintiff's removal from federal service be cancelled, that he be restored to his former or a like position, and that he be given a letter of reprimand for the nine sustained incidents.

Under Civil Service Commission procedures governing agency grievance systems — as implemented by the Department of the Army — the first official to act on the USACARO examiner's report was the post commander at Fort Campbell, General Berry. He was expressly empowered to accept the examiner's recommendations and to issue the decision on the grievance (favorable to Mr. Ryder) pursuant to those recommendations² — but he could not finally reject the recommendations (if, as here, they were favorable to the employee); if he found them unacceptable he had to transmit the entire grievance record to the designated higher level of authority, with his own recommendation of unacceptability. See Federal Personnel Manual, Chapter 771, Subchapter 3 ("Grievance System"), § 3-13a (1971), currently found in Chapter 771, Subchapter 1, § 1-21 (1976), and implementing Department of the Army Civilian Personnel Regulations. In a word, General Berry could definitively decide in favor of Ryder but he had no final authority (since the examiner had recommended against separation) to uphold removal.

When the examiner's report was received at Fort Campbell, the Civilian Personnel Officer sent it to the Director of Facilities Engineering (Col. Peach) for his concurrence or nonconcurrence, with the explicit recommendation that the local commander (Gen. Berry), accept the examiner's recommendations. However, Col. Peach was strongly of the view that Gen. Berry should not accept the report or recommendations, and submitted a lengthy signed statement to that effect. The Office of the Staff Judge Advocate at Fort Campbell recommended, on the other hand, that the examiner's recommendations be accepted by Gen. Berry.

Because of Col. Peach's opposition, the Civilian Personnel Office changed its position and recommended to Gen. Berry that he refuse to accept the examiner's report and forward the grievance to the next higher authority — the Commander, U.S. Army Forces Command ("FORSCOM") at Fort McPherson, Georgia — with the request that plaintiff's grievance be denied. Col. Peach's extensive written reasons for non-concurrence were made available to Gen. Berry.³ The record does not clearly show whether Col. Peach also spoke with the General or his deputy.⁴ Very shortly, Gen. Berry forwarded the grievance to FORSCOM with the recommendation that that higher authority issue a decision to deny Mr. Ryder's appeal. The short forwarding letter said that Gen. Berry disagreed with the examiner's recommendations and believed that the evidence supported the charges of inefficiency and Ryder's separation was justified; a detailed but unsigned "statements of the basis for determining appeal examiner's recommendations are unacceptable" was appended to the letter. The defendant's briefs concede that "this statement of reasons was similar in both format and content to the paper which Colonel Peach had prepared earlier in response to the Civilian Personnel Office's request for views on the sufficiency of the USACARO report," and also that this statement sent to FORSCOM "was basically the same as Colonel Peach's memorandum and contained the identical charges and the Examiner's recommendations."

Defendant does not affirmatively suggest, and there is no reason to believe, that plaintiff saw Col. Peach's written statement (either the response to the Personnel Office's request or the similar statement enclosed with Gen. Berry's letter to FORSCOM) before Gen. Berry made his determination, or that plaintiff had any opportunity to answer that statement prior to Gen. Berry's action.⁵ However, the detailed statement appended to Gen. Berry's letter to FORSCOM was made available to plaintiff (after the Berry letter was sent), and he did have the chance to reply to it and send his reply to FORSCOM before the latter acted.

FORSCOM upheld the removal in a brief letter and plaintiff sought review, as was his right, in the Civil Service Commission (first before the Federal Employee Appeals Authority and then before the Appeals Review Board).⁶ Both levels of the Commission sustained the Army Department in separating him. Neither the Appeals Authority nor the Appeals Review Board mentioned the participation of Col. Peach in Gen. Berry's decision, and it is very unlikely that it was known at all to the Commission.⁷ As we have noted, plaintiff does not appear to have learned about Col. Peach's role in the Berry decision until after suit was begun.

This action for reinstatement and back pay, on the ground that the removal was improper, was first instituted in the United States District Court for the Middle District of Tennessee (where plaintiff resides) and later transferred to this court under 28 U.S.C. § 1406(c) (1970). Both sides have moved for summary judgment on the basis of the formal administrative record and other government documents obtained by plaintiff through discovery in the District Court.

The major issue is whether Col. Peach's ex parte participation in Gen. Berry's consideration of plaintiff's case invalidated the removal process. The leading decision in this court on ex parte communications by adversaries in personnel-removal cases is Camero v. United States, 375 F.2d 777, 179 Ct.Cl. 520 (1967). That was also an Army grievance proceeding in which an adversary, evidentiary hearing was held after separation of an Army civilian employee. The grievance committee — comparable to the USACARO examiner in the present instance — also recommended that the removal action be revoked and the employee restored to his position. The deciding official was a Gen. Anderson who overturned the grievance committee and upheld the removal; he relied in substantial part on ex parte views solicited, among others, from the Army lawyer who had represented management at the grievance hearing. The court held that this taint of ex parte communications from an adversary vitiated the entire removal proceeding; Camero was awarded back pay for the wrongful removal.⁸

Except in one respect, Camero is precisely the same as plaintiff's case. Both involved trial-type evidentiary hearings before a grievance tribunal which recommended favorably to the employee. Both involved ex parte communications by a prime adversary of the removed employee. In Camero that adversary was the lawyer who had presented management's case to the grievance tribunal; here, the adversary was Ryder's superior, the Director of Facilities Engineering (Col. Peach), who was (and is acknowledged to have been) the prime instigator of the charges and a chief witness against plaintiff at the grievance hearing.⁹ In both cases, too, the plaintiff-employee did not know (at the time) of the ex parte communication and had no opportunity to respond to it before the deciding official (here, Gen. Berry; there, Gen. Anderson) made his determination.¹⁰

The one difference between the cases is that Gen. Berry (in this instance) was not the final decider in all circumstances — in view of the USACARO examiner's decision favorable to plaintiff, Gen. Berry could not himself decide against the employee but had to forward the matter to FORSCOM if he disagreed with the examiner. But Gen. Berry did have full and final authority to accept the examiner's report and to find for Mr. Ryder; he could on his own have ordered the removal set aside and plaintiff reinstated — and the whole proceeding would have ended there without any participation by FORSCOM.

It is this power of Gen. Berry to end the case in Ryder's favor, without referral to higher authority, which implicates the Camero principle of freedom from ex parte taints. An employee who has had a trial-type grievance hearing (or the equivalent), resulting in the recommendation that he be reinstated, is entitled to have the first official who can order his reinstatement make that choice, if he wishes to accept the recommendation, without infected ex parte communications. That was true of Camero, and it is just as true for Ryder. In the same way that Gen. Anderson could have restored Camero, so could Gen. Berry restore plaintiff. With respect to the ex parte intervention, the cases are on exactly the same plane. An official who...