Wroblaski v. Hampton, 75--1332

• Decision Date: 24 February 1976
• Docket Number: No. 75--1332,75--1332
• Citation: 528 F.2d 852
• Parties: Elba E. WROBLASKI, Plaintiff-Appellant, v. Robert E. HAMPTON, Chairman of the United States Civil Service Commission, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 852

528 F.2d 852

Elba E. WROBLASKI, Plaintiff-Appellant, v. Robert E. HAMPTON, Chairman of the United States Civil Service Commission, et al., Defendants-Appellees.

No. 75--1332.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1975.

Decided Jan. 22, 1976.

Rehearing and Rehearing En Banc

Denied Feb. 24, 1976.

Nathan T. Notkin, Chicago, Ill., for plaintiff-appellant.

Samuel K. Skinner, U.S. Atty., Floyd Babbitt, Asst. U.S. Atty., Chicago, Ill., for defendants-appellees.

Before STEVENS, Circuit Justice, ^* FAIRCHILD, Chief Judge, and CAMPBELL, Senior District Judge. ^**

PER CURIAM.

Plaintiff Wroblaski has appealed from summary judgment by the District Court affirming a decision of the Board of Appeals and Review of the United States Civil Service Commission that plaintiff was properly separated from her position with the Immigration and Naturalization Service (INS).

The scope of judicial review of orders of the Civil Service Commission is narrow, limited to ensuring that the required procedures have been followed and that the action taken was not arbitrary or capricious. Pauley v. United States, 419 F.2d 1061, 1065 (7th Cir. 1969). This test does not require that the agency's decision be supported by 'substantial evidence,' but only that it have a rational basis. Wood v. United States Post Office Department, 472 F.2d 96, 99 n. 3 (7th Cir.) cert. denied, 412 U.S. 939, 93 S.Ct. 2775, 37 L.Ed.2d 399 (1973). ¹

Several charges ² were made against plaintiff, all growing out of the same incidents relating to her relationship with three Mexican nationals who admittedly stayed in her home for various periods of time and who looked after plaintiff's children and performed various other domestic charges. The INS characterized that relationship as one of employment; since the three Mexican nationals had only non-immigrant visitors' visas, their employment as domestics would make them subject to deportation. ³ Plaintiff, on the other hand contends that these women were guests in her home, and that their care of her children and performance of other tasks around the home were no more than any house guest in a Mexican home would undertake.

Plaintiff does not deny that the proper agency procedures were formally followed in her case. ⁴ Rather, she contends that the action taken against her was arbitrary and capricious in that the decision of the hearing officer was based upon inadmissible evidence, the hearing officer used an incorrect standard of proof, and the decision to remove was based upon prejudice and bias against the defendant. ⁵

The view which the Board of Appeals and Review took of the case makes these contentions irrelevant. ⁶ The position taken by the Board was that certain facts, which the record shows to be undisputed, were sufficient to show that plaintiff 'used her knowledge and her position to controvert the law for personal reasons, contrary to the trust and high degree of integrity required of someone in her position, an action which is not in the best of interests of the service and which does not promote the efficiency of that service.' Board Opinion at 5.

The Board concluded that the three aliens performed tasks in Mrs. Wroblaski's home which had to be performed, and that Mrs. Wroblaski paid at least some of their traveling expenses, provided them with room and board, and in at least one instance gave one of the aliens a gift of money. The Board also noted the undisputed fact that in one instance the plaintiff used her position as an INS officer to aid an alien in entering the country. ⁷

The INS requires that its employees be circumspect in their dealings with aliens so that they will not bring disrespect on the service. For example, the INS Officers' Handbook (Record Vol. 2 at 90) states:

'Officers of this Service shall avoid involvement in any conflict of interest situation, i.e., one in which a private interest (usually of an economic nature) conflicts or raises a reasonable question of conflict with official duties and responsibilities. The potential conflict is of concern whether it is read or apparent.' Handbook at 2.

and

'Any association, business, social, or otherwise, which may obligate, or appear to obligate, you to an alien in any way should be carefully avoided. Such obligation can become a serious barrier to the proper enforcement of the law and may bring criticism both to you and to the Service.' at 7.

As an officer of the INS, plaintiff was required to be familiar with these obligations. Thus, plaintiff was on notice that INS officers are expected to avoid not only obligations to aliens, but also the appearance of being obligated to aliens.

The Board concluded that there was an exchange of 'considerations,' that is, valuable services, and decided that it was irrelevant whether or not the parties involved actually considered that they were entering into an employment relationship. As the Board said, 'the nomenclature is not the issue here but whether individual services were utilized in spite of existing laws prohibiting them.' Board Opinion at 5.

On this record, we cannot conclude that this decision by the Board was without rational basis. Whether or not an actual employment relationship existed, there was certainly the appearance of one. There is no doubt that the aliens in fact performed services for plaintiff; there was, therefore, a rational basis for concluding that her obligations to them might bring criticism both to her and to the Service. As stated in its Officers' Handbook, the INS has a proper interest in ensuring that its officers do not appear to violate the laws they are employed to enforce.

Affirmed.

* Mr. Justice Stevens participated initially as Circuit Judge; on and after December 19, 1975 he participated as Circuit Justice.

** The Honorable William J. Campbell, Senior District Judge for the Northern District of Illinois, is sitting by designation.

1 As in Wood, federal court jurisdiction in this case is founded on the Administrative Procedure Act, 5 U.S.C. 701 et seq. Thus, the scope of review is governed by 5 U.S.C. § 706. Since no agency hearing was required by statute, but only by regulation, the substantial evidence requirement set forth in § 706(2)(E) does not apply.

2 The exact charges were as follows:

CHARGE I--UNETHICAL CONDUCT

Specifications:

1. In that you, an employee of the Immigration and Naturalization Service, Department of Justice, did from about October, 1971, to about July 15, 1972, hire and employ as a domestic servant in your home Benita Encarnacion Ruiz- Mesa, knowing that she then was a nonimmigrant visitor to the United States not legally permitted to be so employed.

2. In that you, an employee of the Immigration and Naturalization Service, Department of Justice, did from about August 4, 1972, to about August 11, 1972, hire and employ as a domestic servant in your home Maria Elizabeth Guadalupe Robledo-Gonzalez, knowing that she then was a nonimmigrant visitor to the United States not legally permitted to be so employed.

3. In that you, an employee of the Immigration and Naturalization Service, Department of Justice, did from about August 18, 1972, to the present, hire and employ as a domestic servant in your home Ignacia Guzman-Gonzalez, knowing that she then was a nonimmigrant visitor to the United States not legally permitted to be so employed.

CHARGE II--MAKING FALSE STATEMENTS ON SERVICE DOCUMENT

Specifications

1. In that you, an employee of the Immigration and Naturalization Service, Department of Justice, did on December 13, 1971, in an Application to Extend Time of Temporary Stay, Immigration and Naturalization Service Form...