Thomas v. Ward

• Citation: 96 US App. DC 302,225 F.2d 953
• Decision Date: 18 August 1955
• Docket Number: No. 12438.,12438.
• Parties: Charles S. THOMAS, Secretary of the Department of the Navy, Appellant, v. William E. WARD, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

96 US App. DC 302, 225 F.2d 953 (1955)

Charles S. THOMAS, Secretary of the Department of the Navy, Appellant, v. William E. WARD, Appellee.

No. 12438.

United States Court of Appeals District of Columbia Circuit.

Argued June 3, 1955.

Decided August 18, 1955.

Petition for Rehearing Denied September 23, 1955.

Mr. Samuel J.L'Hommedieu, Jr., Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., Lewis Carroll and Joseph M. F. Ryan, Jr., Asst. U. S. Attys., were on the brief, for appellant.

Mr. Marcus Borchardt, Washington, D. C., for appellee.

Before PRETTYMAN, BAZELON and WASHINGTON, Circuit Judges.

Petition for Rehearing In Banc Denied September 23, 1955.

WASHINGTON, Circuit Judge.

In 1951 plaintiff-appellee was a personnel officer in the Marine Corps Air Station at Cherry Point, North Carolina. Effective June 29, 1951, he was removed from his office pursuant to charges brought against him under the provisions of the Lloyd-LaFollette Act.¹ The charges alleged lack of professional knowledge and supervisory ability; poor personnel management and public relations and acts of misconduct involving failure to carry out orders; disloyalty to his superiors and untruthfulness in official relations with other employees. Plaintiff-appellee was given an opportunity to reply to the charges and was granted a full hearing. The Commanding General of the Station, on reviewing the record, found the charges proved and ordered appellee's removal.

Appellee thereupon brought suit to have his removal from the classified civil service declared illegal, and for reinstatement. He raised two objections to his removal: (1) that it was effected through bad faith, fraud and official collusion, and (2) that it violated the Performance Rating Act of 1950.² As to the latter point — raised for the first time in the District Court — he claimed that his dismissal for "unsatisfactory services" was equivalent to dismissal on the ground of an "unsatisfactory performance" rating, and that he had not received the ninety-day warning of unsatisfactory performance required by the statute as a condition for receiving an unsatisfactory rating.³ Appellee's contentions were rejected by the District Court. We reversed on appeal on the sole ground that the possible mandatory applicability of the Performance Rating Act of 1950 to all discharges for "cause" under 5 U.S.C.A. § 652⁴ raised an important issue which should not be decided by the courts without benefit of a prior ruling by the administrative agency involved. Ward v. Anderson, 1953, 93 U.S.App.D.C. 156, 208 F.2d 48.

Accordingly, on remand a ruling was made by the Department of the Navy on the "Question of Law Presented by U. S. Court of Appeals for Administrative Ruling by the Department of the Navy." This ruling determined —

"1. That plaintiff was removed for such cause as will promote the efficiency of the classified civil service and for reasons given in writing.

"2. That it was appropriate, proper, and a legal exercise of the authority of the Navy Department to remove the plaintiff by preferring charges of inefficiency under the Act of August 24, 1912 (5 U.S.C. 652).

"3. The Performance Rating Act of 1950, section 6 (5 U.S.C. 2005) was not the appropriate law to invoke, nor is it applicable, because this Act was intended to be applied to an employee whom the department believes will improve his work performance or whose experience and services can be utilized by reassignment to another position. In other words, the Performance Rating Act should be applied when the agency or department contemplates continued employment of the individual rather than his immediate removal as soon as the procedures of the applicable removal laws (5 U.S. C. 652, id. 863) shall have been complied with.

"4. When a department or agency elects to dismiss an employee on charges of inefficiency under the Act of August 24, 1912 (5 U.S.C. 652), instead of giving him an unsatisfactory performance rating and then preferring charges on the basis of such rating, if the charges or any of them, relate to a period covered by a satisfactory performance rating or a `good\' or better than `good\' efficiency rating (as some do in this case) such rating or ratings are only a part of the evidence to be considered in the determination under the Act of August 24, 1912.

"5. While it is not a factor in this case, if a department or agency had given an employee an unsatisfactory performance rating which was either appealed to a statutory board of review and affirmed (5 U. S.C. 2006) or was not appealed and the unsatisfactory performance rating stood, the Civil Service Commission has allowed it to serve as a basis for removal from the position or from the Federal service at the option of the agency provided the fact, date, and finality of the unsatisfactory performance rating was set forth in a letter of charges prepared in compliance with the Veterans\' Preference Act of 1944, as amended, (5 U.S.C. 863) or the Act of August 24, 1912 (5 U.S.C. 652) as the case may be."

Appellee then moved the District Court for a further ruling or for summary judgment. On July 12, 1954, the District Court adjudged appellee's removal from the classified civil service illegal — evidently on the ground that the Performance Rating Act had not been observed — and ordered him reinstated. The Secretary of the Navy now appeals.

As we view appellee's contention it comes down to this: that an employee in the classified civil service can be removed "for such cause as will promote the efficiency of such service", 5 U.S.C.A. § 652, where the "cause" relates to the employee's performance of his official duties, only if he first has been rated unsatisfactory, and that a performance rating of satisfactory precludes dismissal for "cause" of that sort. Nothing in the applicable statutes, however, expressly provides for such a limitation on discharges for cause and nothing in them compels such a construction. Performance ratings were introduced⁵ — long before the adoption of the Lloyd-LaFollette Act⁶ — to measure employee performance for the purposes of promotion, retention priority or other adjustments in grade and pay. While an unsatisfactory performance rating may sometimes lead to dismissal for cause, it may also justify lesser personnel action such as transfer to a more suitable position⁷ or demotion without severance of employment.⁸ On the other hand, though an employee's ordinary over-all performance of duties throughout the rating period may be rated as satisfactory he may still be guilty of conduct in connection with the execution of his official duties, either in particular instances or in a particular aspect of his tasks, which would justify dismissal under 5 U.S.C.A. § 652 in the interest of promoting the efficiency of the service.

These matters were fully developed in the hearings on the bills⁹ out of which grew the Performance Rating Act of 1950. President Mitchell of the Civil Service Commission testified that both presentation of charges and unsatisfactory ratings were available as means of dismissing an inefficient employee, but indicated that the proper method was to make "definite charges against him which he can appeal."¹⁰ Commissioner Perkins, a former Secretary of Labor, testified to like effect.¹¹ The testimony also reveals the extreme difficulties suffered by an executive department in using the alternative method of discharging an inefficient employee through giving him an unsatisfactory rating.¹²

The administrative ruling made by the Navy Department in this case represents an attempt to balance and reconcile the considerations just discussed, based not only on theoretical fairness but on practical experience. We cannot say that the ruling is either unreasonable or outside the compass of the statutes involved. Jones v. Hobby, supra, note 8. In the absence of compelling considerations to the contrary,¹³ the agency's answer to the legal question presented — the only question remaining in the case — should therefore be accepted.

Accordingly, the judgment of the District Court must be

Reversed and the cause remanded with directions to dismiss the complaint.

BAZELON, Circuit Judge (concurring in the result).

The Performance Rating Act of 1950 requires that an employee be given a 90-day warning and opportunity to improve before he is rated unsatisfactory and removed.¹ Congress did not expressly limit or qualify these requirements. Under our holding today, however, the employing agency may, in dismissing an employee, avoid the requirements of the 1950 Act by proceeding under the 1912 Lloyd-LaFollette Act² which authorizes a more summary dismissal. Since the Performance Rating Act is the more recent law, and affords additional protection to federal employees, I would be unwilling to infer that Congress intended such a result without express language to...