Wathen v. United States, 249-69.

Decision Date30 January 1976
Docket NumberNo. 249-69.,249-69.
Citation527 F.2d 1191
PartiesSamuel C. WATHEN, Jr. v. The UNITED STATES.
CourtU.S. Claims Court

COPYRIGHT MATERIAL OMITTED

John I. Heise, Jr., Silver Spring, Md., attorney of record, for plaintiff.

LeRoy Southmayd, Jr., Washington, D. C., with whom was Asst. Atty. Gen. Rex E. Lee, for defendant.

Before COWEN, Chief Judge, LARAMORE, Senior Judge, and BENNETT, Judge.

OPINION

BENNETT, Judge:

Plaintiff, a former Internal Revenue agent and preference eligible veteran, seeks back pay and reinstatement asserting that both his removal from the service and a subsequent refusal of reemployment were contrary to law and void. This case, rather unusual on its facts, is before us on defendant's appeal from the opinion and conclusion of law by Trial Judge Philip R. Miller.1

At all relevant times prior to May 9, 1965, plaintiff was employed in Washington, D. C., in the National Office of the Internal Revenue Service, as a GS-12 tax law specialist. He was one of 10 agents in the Earnings and Profits Section, Corporation Tax Branch, Tax Rulings Division. In May 1965, plaintiff, age 41, had been separated from his wife for about 3 years, each having informal custody of two of their four children. A divorce was contemplated at such time as his wife's consent could be secured. For the prior 16 months, plaintiff and two of his children lived in Rockville, Maryland, with one Winifred O. McLaughlin, an Irish alien, whom plaintiff wished to marry as soon as feasible. Plans were made for a move to California, and to that end plaintiff had made application for a transfer to the IRS appellate division office located in San Francisco.

On Mother's Day, Sunday, May 9, 1965, at about 3 p. m., plaintiff and Miss McLaughlin set out by car for Friendship Airport, near Baltimore, Maryland, where she was to depart for San Francisco alone. While the car was on the Capital Beltway in Silver Spring, Maryland, for unknown reasons an altercation took place between them. They left the car, whereupon plaintiff seized a 4-barreled Derringer and killed her with two shots as she sought to flee across the Sligo Creek golf course.

At the scene, Montgomery County police arrested plaintiff, pistol in hand, who offered no resistance. The slaying was witnessed by passing motorists. Authorities placed a charge of murder against Mr. Wathen and held him without bond at the Montgomery County jail. Sensational, front-page publicity ensued. No fewer than five articles in three Washington, D. C., newspapers appeared shortly after the shooting, two of which exhibited a picture of plaintiff and victim and all of which highlighted his employment as an Internal Revenue agent. There was trial testimony by IRS personnel to the effect that accounts were carried on local radio and television news programs. IRS officials assigned a special inspector to ascertain the facts.

Under date of May 11, 1965, the inspector filed his report reciting that the Chief of Detectives of the Montgomery County Police Department had advised that Mr. Wathen had been arrested and charged with Miss McLaughlin's murder and that he was currently being held without bond. On the same day the Director of the Tax Rulings Division, Internal Revenue Service, notified plaintiff by letter of proposed adverse action, namely, suspension from duty without pay in order to promote the efficiency of the service pending further investigation and adjudication.2 Plaintiff was represented by a lawyer at the time but no papers were filed opposing such proposed action. Effective May 18, 1965, plaintiff was suspended without pay. The record shows that the suspension was based upon the fact that plaintiff had been arrested and charged with murder.

On May 14, 1965, the Director, Tax Rulings Division, again wrote to plaintiff informing him of further proposed adverse action. In this letter the Director undertook to initiate removal proceedings, and we deem the precise wording of the charge and specification to be sufficiently important to set it out in full below.3 To us it is clear that while the suspension was premised upon plaintiff's arrest, the charge resulting in removal was bottomed on the fatal shooting of Miss McLaughlin.

In due course the time allotted for plaintiff's reply ran out with no response by him to the notice of removal. By letter of June 4, 1965, the IRS notified him of his removal from the service based on the evidence of record as of that date. Such removal actually took effect June 18, 1965. It appears that the record evidence before the agency at the time consisted of the investigative report previously discussed and the media accounts referred to in the testimony, including the various newspaper articles. The notification of personnel action effecting plaintiff's removal stated that it was "because of misconduct which brought discredit upon the Internal Revenue Service, namely committing homicide." It was a considered decision of plaintiff and his then counsel not to respond to the IRS charges while the criminal case was pending.

A Maryland grand jury on June 8, 1965, returned a true bill against plaintiff indicting him for the murder of Miss McLaughlin. At the arraignment on June 23, 1965, a plea of not guilty by reason of insanity was entered, and shortly thereafter the Montgomery County, Maryland, circuit court ordered appropriate psychiatric and psychological examinations. Extensive testing and evaluation followed. It was determined that at the time of the homicide, plaintiff did not know the nature and consequences of his acts nor the difference between right and wrong. The state confessed plaintiff's plea of not guilty. Plaintiff was acquitted of the criminal charge.

The expert testimony at plaintiff's murder trial did not warrant a finding, however, that he was then totally recovered from temporary insanity. Accordingly, the court entered its order of commitment, and plaintiff was remanded to the custody of the Springfield State Hospital, where he remained under treatment from December 8, 1965, until March 29, 1966. On the latter date, the Maryland circuit court once again considered plaintiff's status, this time with the assistance of a jury. The state's medical witness at this trial—the only medical witness—gave it as his opinion that plaintiff was not then insane and had not been insane at any time during his period of hospitalization. The court declared plaintiff sane, and he was released from custody on the same day.

On April 6, 1966, plaintiff presented himself for duty in the Personnel Division of the Internal Revenue Service.4 He was then advised that consideration of his restoration to duty could be accomplished only by perfecting a written appeal. For that purpose plaintiff retained counsel who filed the necessary papers. The agency declined to act, noting on June 2, 1966, that plaintiff's appeal was out of time. This action was subsequently approved both by the Civil Service Commission Appeals Examining Office and the Board of Appeals and Review, neither of which reached the merits of the charge and specification on the basis of which plaintiff had been removed for the efficiency of the service.

At this stage plaintiff, by counsel, determined to appeal directly to the Civil Service Commissioners themselves, in a final effort to secure reopening and review on the merits of his removal. By letter dated May 24, 1967, this request was allowed, and the case was returned to the Appeals Examining Office for further development and a new adjudication on the merits. Counsel for the agency and for plaintiff agreed that the case would be submitted on written memoranda without oral hearing.

The submissions to the Appeals Examining Office in plaintiff's behalf included the docket entries of his criminal trial and of the civil proceeding leading to his release from custody. Government counsel adduced no investigative reports, but appended to its papers photocopies of the five clippings from three area newspapers which were published shortly after the shooting.

On April 4, 1968, the Chief of the Appeals Examining Office notified plaintiff of his decision sustaining the removal action of the IRS. The letter opinion found the procedures followed to have been in order, and approved the view on the merits that plaintiff had been removed for such cause as would promote the efficiency of the service.5 On June 28, 1968, the Board of Appeals and Review affirmed this disposition, and in December of that year the Commissioners declined to reopen the case on plaintiff's request. A petition was filed in this court on May 22, 1969. Plaintiff has been privately employed since his release from custody. Evidence adduced at the trial of the instant claim satisfies us that however impaired plaintiff's mental condition was at the time of the slaying, he is now recovered.

I

Plaintiff, through skilled counsel, has made a determined effort here to convince us that we should decide whether he was discharged for such cause as will promote the efficiency of the service. Thus, we are invited to examine the merits of the removal action. Before the precise questions for decision can be delimited, therefore, we must take care to outline the proper scope of judicial review in this case.

It is long settled that this court limits its review of the administrative action in civilian pay cases to a determination of whether the adverse action disclosed by the administrative record or by a de novo trial, or both, is illegal because it violates applicable statutes or regulations, or is demonstrably in bad faith or malicious because it is arbitrary, capricious, or devoid of substantial evidence to support it. Good faith of those taking administrative action is presumed. Boyle v. United States, 515 F.2d 1397, 207 Ct.Cl. 27 (1975); Holman v. United States, 383 F.2d 411, 181 Ct.Cl. 1 (1967); Finn v. United States, 152 Ct.Cl. 1 (1961); Croghan v....

To continue reading

Request your trial
35 cases
  • Shidaker v. Carlin
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 29, 1986
    ...790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); Dozier v. United States, 473 F.2d 866, 868 (5th Cir.1973); Wathen v. United States, 527 F.2d 1191, 1200 n. 9, 208 Ct.Cl. 342 (1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976). If the procedure is found substantially defect......
  • Miller v. United States
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • October 11, 1977
    ...capricious, malicious or in bad faith, in excess of legal authority or in violation of statutes and regulations." Wathen v. United States, 527 F.2d 1191, 1198 (Ct.Cl.1976). This standard is similar to that prescribed by the Administrative Procedure Act (APA), 5 U.S.C. § 706, which "The revi......
  • Termination of an Assistant United States Attorney on Grounds Related to His Acknowledged Homosexuality, 83-7
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • March 11, 1983
  • Young v. Hampton
    • United States
    • U.S. District Court — Southern District of Illinois
    • October 21, 1976
    ...States, 416 F.2d 1372, 1378, 189 Ct.Cl. 30 (1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1359, 25 L.Ed.2d 650; Wathen v. United States, 527 F.2d 1191, 1197 (Ct.Cl. 1975); Rifkin v. United States, Ct.Cl., April 14, 1976, slip opinion at 16. Yet these same opinions do qualify that stated prem......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT