Yacovone v. Bolger, 79-2043

Decision Date20 February 1981
Docket NumberNo. 79-2043,79-2043
PartiesJoseph A. YACOVONE v. William F. BOLGER, Postmaster General of the U. S. et al., Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 77-2049).

Kenneth M. Raisler, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Peter E. George, Asst. U. S. Attys., and Stephen E. Alpern, Associate Gen. Counsel, United States Postal Service, Washington, D. C., were on brief, for appellants. Ann S. DuRoss, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellants.

Leonard W. Belter, Washington, D. C., with whom C. Dennis Ahearn, Washington, D. C., was on brief, for appellee.

Before WRIGHT, TAMM, and MacKINNON, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

In this case we are called upon to decide whether the United States Postal Service exceeded its statutory authority in dismissing one of its employees. Two issues are raised: whether the Service was arbitrary or capricious in its decision that the dismissal promoted the "efficiency of the service" within the meaning of the relevant statute; and whether the dismissal was barred by a state pardon granted to the employee for conviction of the crime that triggered his removal. Because we find that the Service was not arbitrary or capricious in its decision, and that the pardon did not bar the removal, we uphold the removal action, and reverse the decision of the district court.

I. BACKGROUND

On April 20, 1975, Joseph A. Yacovone, Postmaster of Morrisville, Vermont (plaintiff), was arrested and charged with petty larceny in connection with the shoplifting of goods worth approximately eight dollars from the Grand Union Supermarket in Morrisville. Plaintiff sought psychiatric help the same day. On June 3, 1975, he was arraigned in Vermont District Court and entered a plea of not guilty. On August 6, plaintiff's psychiatrist dismissed him from treatment, explaining later that he felt that plaintiff had been cured of the underlying problems which contributed to his shoplifting. Joint Appendix (J.A.) at 27.

On September 15, 1975, plaintiff appeared again before Vermont District Court, withdrew his previously entered plea of not guilty, and entered a plea of guilty. The record indicates that this action was taken as a result of plaintiff's alleged unwillingness to spend thirty days in a state mental hospital under observation, which the plea of not guilty by reason of insanity would have necessitated. J.A. at 41. Plaintiff was sentenced to serve up to ninety days in jail. The court suspended sentence, however, conditional upon his making restitution and continuing counseling. J.A. at 6. His conviction was noted in three local newspapers. J.A. at 9-13.

By letter of October 28, 1975, F. W. O'Brien, Sectional Center Facility Manager and Postmaster of Burlington, Vermont, advised plaintiff that the Postal Service proposed to remove him from his position based upon "conviction of a crime for which a ninety (90) day suspended sentence was imposed." J.A. at 6. Plaintiff was given ten days to reply in person or in writing or both, after which the decision would be made. On November 4, plaintiff and his then-counsel met with Mr. James F. Howard, District Manager, White River Junction District, and responded to the charges in the letter of October 28. By letter dated November 12, 1975, Mr. Howard decided that "the charges ... are fully supported by the evidence" and warranted plaintiff's removal from office. J.A. at 18.

On November 18, 1975, the Vermont District Court ordered the closing of plaintiff's probationary period. On November 28, plaintiff appealed his removal to the Federal Employee Appeal Authority (F.E.A.A.), and a hearing was set for January 15, 1976. Two days before that hearing, Governor Salmon of Vermont granted Yacovone a "Full and Unconditional Pardon" from the judgment and sentence of September 15. J.A. at 22. On April 2, 1976, the F.E.A.A. issued its decision upholding the removal.

Shortly thereafter, plaintiff requested the Civil Service Commission Appeals Review Board (A.R.B.) to reopen and reconsider the April 2 decision of the F.E.A.A., alleging that the decision of the F.E.A.A. involved an erroneous interpretation of law as to the effect to be given to the pardon. The A.R.B. reopened the case, and found that

(w)hile the State of Vermont may have forgiven (plaintiff) to the extent of a full pardon, this does not vitiate the agency's removal action or bind the Field Office.

J.A. at 34. It therefore affirmed the decision of the F.E.A.A.

On November 30, 1977, plaintiff initiated this action in the district court. On July 26, 1978, the district court held that plaintiff could not be removed for "conviction for a crime" without the Postal Service establishing a "nexus" between the removal and the efficiency of the service. Yacovone v. Bailar, 455 F.Supp. 287, 291 (D.D.C.1978), J.A. at 40, 46. By subsequent order, the court remanded the case to the agency for a determination of "whether plaintiff's removal 'will promote the efficiency of the service,' within the meaning of 5 U.S.C. § 7512(a)." J.A. at 47.

A hearing on this question was held on December 7, 1978 before the F.E.A.A. On February 6, 1979, the Merit Systems Protection Board (M.S.P.B.) (successor of the F.E.A.A. upon the January 1, 1979 reorganization of the Civil Service Commission) issued its decision sustaining the removal of Yacovone. J.A. at 48-53. On May 31, 1979, the district court rejected the findings of the M.S.P.B. and granted plaintiff's motion for a summary judgment on the grounds that no nexus had been established. Yacovone v. Bailar, 470 F.Supp. 777 (D.D.C.1979), J.A. at 54. Defendants appeal from this decision.

II. DISCUSSION
A. Nexus

The "nexus" issue in employment removal actions grows out of the statutory requirement that "an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service." 5 U.S.C.A. § 7513(a) (1980). This long-lived 1 provision has been the subject of thorough administrative and judicial interpretations.

The administrative interpretations the relevant regulations set out the factors to be considered by the agency when considering an adverse action against a protected employee. For example, 5 C.F.R. § 731.202, relevant to this case, provides in part:

(a) General. In determining whether its action will promote the efficiency of the service, OPM shall make its determination on the basis of:

(1) Whether the conduct of the individual may reasonably be expected to interfere with or prevent effective performance in the position applied for or employed in; or

(2) Whether the conduct of the individual may reasonably be expected to interfere with or prevent effective performance by the employing agency of its duties and responsibilities.

(b) Specific factors. Among the reasons which may be used in making a determination under paragraph (a) of this section, any of the following reasons may be considered a basis for disqualification:

(2) Criminal, dishonest, infamous or notoriously disgraceful conduct;

(c) Additional Considerations. In making its determination under paragraph (a) of this section, OPM shall consider the following additional factors to the extent that these factors are deemed pertinent to the individual case:

(1) The kind of position for which the person is applying or in which the person is employed, including its sensitivity;

(2) The nature and seriousness of the conduct;

(3) The circumstances surrounding the conduct;

(5) The age of the applicant or appointee at the time of the conduct;

(6) Contributing social or environmental conditions;

(7) The absence or presence of rehabilitation or efforts toward rehabilitation.

A second relevant provision is found in Chapter 751, subchapter 1-2(c)(2) of the Federal Personnel Manual, issued by the Civil Service Commission for the guidance of agencies:

The grade and nature of the position the employee occupies will have a bearing in some situations; for example, misconduct which may warrant a reprimand to an employee in a lower grade may be intolerable if it involves an employee in a supervisory or fiduciary position.

Id. (April 18, 1974) (revised December 21, 1976; quoted provision remains in effect). The Postal Service claims that application of these regulations to this case supports its dismissal of plaintiff.

The role of the courts in this area of federal employment relations is strictly limited. As long as the decision of the agency is not arbitrary or capricious, 2 was reached in accordance with relevant procedural requirements, and does not otherwise violate the Constitution, it must be affirmed by the courts. Doe v. Hampton, 566 F.2d 265, 271-72 (D.C.Cir.1977). As the case law has developed, courts have framed the "efficiency of the service" issue in terms of requiring a "nexus" between, as this court phrased it in Doe v. Hampton, "the articulated grounds for an adverse personnel action and either the employee's ability to accomplish his or her duties satisfactorily or some other legitimate governmental interest promoting the 'efficiency of the service.' " Id. at 272. In some cases, the nexus must be explicitly demonstrated by the agency; e. g., Phillips v. Bergland, 586 F.2d 1007, 1011 (4th Cir. 1978); Norton v. Macy, 417 F.2d 1161 (D.C.Cir.1969). In others, the nexus can be inferred from the circumstances of the dismissal; e. g., Doe v. Hampton, Gueory v. Hampton, 510 F.2d 1222 (D.C.Cir.1974).

In this case, an explicit nexus determination was made by the agency upon order of the district court. The agency's conclusion that plaintiff's removal would promote the efficiency of the...

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