Shaw v. United States

• Decision Date: 28 January 1981
• Docket Number: No. 49-79.,49-79.
• Citation: 640 F.2d 1254
• Parties: Franklin P. SHAW, Jr. v. The UNITED STATES.
• Court: U.S. Claims Court

640 F.2d 1254

Franklin P. SHAW, Jr. v. The UNITED STATES.

No. 49-79.

United States Court of Claims.

January 28, 1981.

Paul A. Kiefer, Washington, D. C., atty. of record for plaintiff. Kiefer & Brooks, Washington, D. C., of counsel.

Nancy R. Sills, Washington, D. C., with whom was Asst. Atty. Gen., Alice Daniel, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, and NICHOLS and BENNETT, Judges.

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

NICHOLS, Judge:

This civilian pay case is before the court on cross-motions for summary judgment. Plaintiff, a government employee in a policymaking position, challenges his dismissal from his GS-18 appointment on procedural, constitutional, and contractual grounds. We hold for defendant.

I

During the fall of 1973, plaintiff Franklin P. Shaw applied and was selected for the career executive position of Deputy Assistant Secretary of Defense (Regional Programs) in the Office of the Assistant Secretary for Program Analysis and Evaluation, Department of Defense. Plaintiff thereupon burned his bridges. He disposed of his Connecticut home and moved to Washington, D. C. He abandoned his employment in a private company to which he cannot now return. Plaintiff's qualifications for career appointment were submitted to and approved by the Civil Service Commission (CSC) in March 1974. Shortly thereafter, the Department of Defense sought approval from the CSC to redesignate the deputy assistant secretary position to noncareer executive assignment. The requested change was approved. Plaintiff was fully aware of the impact this might have on his job security, and protested accordingly, but to no avail. Plaintiff accepted the noncareer appointment on July 1, 1974, under protest but without cognizable coercion or duress.

Early in January 1978, plaintiff received a memorandum from Assistant Secretary of Defense Russell Murray notifying him that he would be removed from his position after 30 days. This was actually the second attempt to remove plaintiff following the change in administration. An earlier attempt, which began with a notice to plaintiff of proposed removal on April 4, 1977, was overturned by the Federal Employee Appeals Authority for reasons not stated in the parties' briefs. The January 1978 letter stated that due to the "policy-determining" nature of plaintiff's position, the incumbent was required to be an individual "suitable to his superiors" and one who is best able to determine the policies of the Department, and with the change of administration, plaintiff's relationship in that regard had ceased to exist. On January 20, 1977, the administration of the executive departments had changed from President Ford to President Carter.

As advised by the assistant secretary, plaintiff submitted his written reply to the removal notice on January 19, 1978, and also requested the opportunity to respond orally. Plaintiff wrote that the redesignation was "arbitrary," a "breach of faith" and occurred after he "was fully committed" and "had little recourse in the matter at the time." On February 8, 1978, Secretary of Defense Harold Brown designated Deanne C. Siemer, General Counsel of the Department, to hear plaintiff's oral reply. Plaintiff met with Ms. Seimer on February 21, 1978, and in a memorandum dated March 3, 1978, Ms. Seimer recommended approval of the proposed removal. The decision to remove, signed by Secretary Brown, was issued on March 15, 1978.

Plaintiff appealed his removal to the CSC's Federal Employee Appeals Authority (FEAA) on May 25, 1978. The FEAA found that the Department of Defense had complied with all of the procedural requirements of the law and Civil Service regulations in effecting plaintiff's removal. The FEAA further refused to review the claimed breach of contract and held that the decision to convert a position from career to noncareer was also not an appropriate subject for its review since the need for such positions is a management decision and prerogative. Finally, the FEAA sustained the reason for removal of plaintiff as an action that will "promote the efficiency of the service."

II

Plaintiff argues that his removal was procedurally defective for several reasons. First, because the notice of the proposed removal was not stated with sufficient particularity to apprise him of the allegations that he would have to refute and acts that he would have to justify. Coupled with this is the argument that defendant further failed to make available to the plaintiff any of the evidence that was relied on by defendant in deciding to remove plaintiff. Only what was purported to be reasons for the removal were stated and none of the evidence relied on by defendant to support those reasons was given. And so plaintiff argues that he was removed on the basis of an "unsworn, undocumented and vague allegation."

The position of deputy assistant secretary in the Office of Program Analysis and Evaluation is a noncareer executive assignment (NEA). A noncareer executive assignment is in the excepted service and so an employee serving under such an assignment does not acquire a competitive status. 5 C.F.R. § 305.603. A NEA employee may be removed "when the qualifications or relationships required for the assignment change or cease to exist." 5 C.F.R. § 305.604. The January 1978 notice of proposed removal is procedurally sufficient to terminate a NEA employee as it explained that the position in question was policy-determining in nature and with a change in administration, plaintiff no longer had the confidence of his superiors and was no longer suitable to them. In this instance it is obvious that the relationship in question had changed and ceased to exist.

However, plaintiff is entitled to additional procedural protections since he is a veteran and therefore the Veterans Preference Act, 5 U.S.C. §§ 7511-7513 (Supp. II 1978) applies. Specifically, plaintiff was entitled to —

§ 7513. Cause and procedure

* * * * * *

(1) at least 30 days' advance written notice, * * * stating the specific reasons for the proposed action;

(2) a reasonable time, * * * to answer orally and in writing * * *;

(3) to be represented by an attorney or other representative; and

(4) a written decision and the specific reasons therefor at the earliest practicable date.

In plaintiff's motion for summary judgment now before the court, he raises arguments only concerning subsection (1). He contends that the notice he received was procedurally defective. Plaintiff argues that this court has interpreted the notice provisions of the act so as to require that a notice of proposed removal must be stated with such detail and specificity that an employee may be able to refute allegations made against him. He cites Burkett v. United States, 185 Ct.Cl. 631, 402 F.2d 1002 (1968) to support this position.

While it is true that the purpose of the provision in question is to afford an employee a fair opportunity to oppose his removal in an informed manner, yet on inquiry into the sufficiency of notice, the facts and circumstances of a particular case are regarded as important. Engelhardt v. United States, 125 Ct.Cl. 603, 606 (1953). And the facts and circumstances of this case are easily distinguishable from Burkett.

In Burkett, the plaintiff employee was a veteran formerly employed by the Department of Defense, who was removed on charges of having made malicious statements against his immediate superior with the intent to harm or destroy the superior's reputation, authority, or official standing. This court held that the charges in that case had to be supported by detail containing just what statements were made, the names of the persons to whom made, and details to support the element of malicious intent and the harm which the accused intended to inflict.

In the instant case plaintiff has not been charged with any misconduct (as in Burkett), malfeasance or nonfeasance. To the contrary, his notice of removal was explicit in explaining that plaintiff was removed solely because he no longer had the confidence of his superiors. Indeed in her memorandum to the Secretary of Defense regarding plaintiff's proposed removal, the General Counsel stated, "the professional qualifications of Mr. Shaw have not been challenged. However, as the incumbent of this position, he must have the confidence of his immediate superior, Mr. Murray. The absence of that confidence is a valid basis for his removal." (Plaintiff's exhibit C, p. 2.) Yet plaintiff argues that the notice is impermissably vague because it does not state which superiors do not have confidence in him, and which policies and for which department the notice refers. This argument is not tenable. Plaintiff surely knows from which department he was terminated. He must understand also the policies with which his department was concerned, and to that end his notice of removal contained an enclosure describing the nature and purpose of the work, policies, issues, and problems his position was responsible for. As to which superiors were involved, the enclosure also specifically said that the incumbent of plaintiff's position must enjoy the personal trust and confidence of the Assistant Secretary of Defense for Program Analysis and Evaluation and the Secretary and Deputy Secretary of Defense.

A case which is more similar factually to the instant case than Burkett, and which is cited by defendant is Leonard v. Douglas, 321 F.2d 749 (D.C.Cir. 1963). In Leonard, the appellant was a Navy veteran attorney employed as first assistant to the Assistant Attorney General, an excepted position in the Justice Department's Civil Division. Subsequent to the appointment of a new Assistant Attorney General, the appellant was discharged because his confidential relationship with his superiors had ceased to exist. Appellant contested his removal alleging that the reason given for his dismissal did not constitute "caus...