Young v. Hampton
| Decision Date | 21 October 1976 |
| Docket Number | No. RI-CIV-76-19.,RI-CIV-76-19. |
| Court | U.S. District Court — Southern District of Illinois |
| Parties | Charles H. YOUNG, Plaintiff, v. Robert E. HAMPTON et al., Defendants. |
Jack L. Brooks, and Richard W. McCarthy, Rock Island, Ill., for plaintiff.
Robert J. Kauffman, Asst. U. S. Atty., Peoria, Ill., for defendants.
DECISION AND ORDER
This complaint is an action in the nature of mandamus, stating a jurisdictional base under 28 U.S.C. § 1361, to compel the defendants, Commissioners of the Civil Service Commission, to reinstate him, with back pay, as an employee at the Army Arsenal at Rock Island, Illinois. The cause is before the court upon the defendants' motion to dismiss for want of subject matter jurisdiction and upon cross motions of both parties for summary judgment.
Pertinent to the jurisdictional question, suffice it to state that plaintiff's employment was terminated effective January 9, 1976, to promote the "efficiency of the service," following his plea of guilty to State felony counts alleging his unlawful possession of controlled substances1 and his unlawful possession of cannabis. His dismissal was affirmed by the Commission on April 2, 1976. The instant complaint was filed on April 26, 1976.
Defendants' motion to dismiss is predicated upon their position that a determination of employee status to promote the efficiency of the service, within the intendment of the applicable statute and regulations, is a discretionary matter, and that mandamus is not an available remedy to review a discretionary action by an administrative agency.
Though that argument be both sound in logic and substantially supported by precedential statements, in the present context it is seen to assert an overly simplistic response to a complex question.
Discussion must perforce proceed from the general rule, as stated in Cartier v. Secretary of State, 165 U.S.App.D.C. 130, 506 F.2d 191 at 199 (1974), that mandamus is an extraordinary remedy which should be employed in only the most compelling cases for the review of administrative acts, and that the remedy should be denied in any case if any alternative remedy does exist. In the context of the issue before this court, it has been stated that the issue whether an employee's termination will promote the efficiency of the service presents an inquiry which invokes the discretion of the administrative agency involved. E. g., Schlegel v. United 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 premise, to the extent that each recognizes that a court does have the power to review such exercise of discretion if the same is not taken in good faith. Ibid.
Though the power of review is rigidly circumscribed, Pauley v. United States, 419 F.2d 1061 at 1065 (7th Cir. 1969), this seems to be an area in which the tail must wag the dog. Jurisdiction is deemed to exist by virtue of the qualification stated in the above cases to permit a judicial determination as to the good faith of the act of which complaint is made. The semantic term "mandamus" cannot relieve the court of its duty to exercise its power of review. The motion to dismiss must therefore be denied.
The merits of the controversy rest upon the following agreed facts. At all material times, plaintiff was employed as a small arms inspector at the Arsenal. On January 23, 1975, he was arrested by the police of the City of Rock Island, Illinois, and charged with three counts of possession of a controlled substance, three counts of possession with intent to deliver the same, and one count of possession of cannabis. He was then off duty. The arrest was made at a private residence within the city. Thereafter, he remained free on bond until June 30, 1975.
On the latter date, he appeared in the Circuit Court at Rock Island and entered his pleas of guilty to two counts of possession of a controlled substance and the count alleging possession of cannabis. He was sentenced to serve ninety days' confinement and placed on probation for five years. The conviction involved felony offenses.
When he was released from confinement, plaintiff returned to his employment in September, 1975. Subsequently, his employment was deemed to create a moral problem in that certain of his fellow employees refused to execute a requisite ethical conduct commitment form which outlines minimum standards of employee conduct. Their refusal rested upon their stated belief that the minimum standard had not been applied to plaintiff following his felony conviction.
On September 25, the Chief of the Employee Relations Division at the Arsenal requested from the state further documentation related to the charges of which plaintiff had been convicted. On October 3, such information was supplied by the State's Attorney of Rock Island County. Thereafter, on November 4, plaintiff's supervisor submitted a formal request for plaintiff's removal from federal service. On November 20, the supervisor issued to plaintiff a written notice of proposed termination for his off-duty misconduct, which cited his arrest and conviction of the felony charges.
In his verbal response to that notice, plaintiff, of necessity, admitted the circumstances of his conviction. He then asserted that the penalty of termination was too severe, that his possession and use of drugs was not unusual, because other persons do possess and use drugs, and that his off-duty offense did not adversely affect the Arsenal.
On January 5, 1976, plaintiff was notified by the Chief of Personnel at the Arsenal that his employment would be terminated effective January 9, 1976. His administrative appeal and this complaint followed that action.
The basis for the action taken by the agency resides in the provision of 5 U.S.C. § 7501(a), which provides that a civil service employee may be removed from employment by his employing agency for misconduct for "the efficiency of the service." Implementing regulations adopted pursuant to the statute2 authorize an employing agency, in its discretion, to take adverse action, including termination of employment, against an employee for criminal, infamous, dishonest, immoral or notoriously disgraceful conduct, if, in the judgment of the agency, such action "will promote the efficiency of the service." 5 C.F.R. §§ 731.201(b), 752.104(a).
The plaintiff does not contend that any procedural infirmity affected the proceedings against him. He does not deny the fact of his felony conviction. He does assert alternative positions that:
1. His dismissal constitutes a cruel and excessive punishment;
2. The decision is arbitrary and capricious because the same is not founded upon substantial evidence; and
3. He was denied due process of law because the decision rests upon an irrebuttable presumption that the fact of his felony conviction alone provides a basis for his removal.
Each of those arguments proceeds from a refusal to recognize the existence of discretion within the statutory scheme and to admit the severe limitations which circumscribe the scope of judicial review.3 Given a set of factual circumstances sufficient to invoke the disciplinary procedures which the statute contemplates, and an agency response to such factual circumstances consistent with the statutory guidelines, a court is powerless to review that discretionary response unless an abuse of discretion is clearly shown.
Thus, although the Act is designed to confer upon non-probationary employees the right to be not discharged except for cause, and to prescribe the procedural means by which that right is protected, it does not create an expectancy of employment retention requiring procedural protection under the Due Process Clause, beyond that protection which is afforded by the statute and related regulations. Arnett v. Kennedy, 416 U.S. 134, 163, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).
In Angilly v. United States, 105 F.Supp. 257, 259 (S.D.N.Y.1952), the court aptly stated:
"* * * The government, as an employer, may dismiss an employee for such cause as will promote the efficiency of the service, * * *; and what constitutes cause for dismissal is, in the absence of discrimination, solely a matter for executive determination not subject to judicial review. * * *."
In the Rifkin case, it is said:
* * *." Rifkin v. United States, Ct.Cl., April 14, 1976, Slip Opinion at 21.4
Since it appears from the record that the disciplinary procedures provided by the Act, as interpreted by the regulations, were legally invoked and applied, the agency's exercise of discretion by termination of plaintiff's employment cannot be disturbed by this court. The force of that principle is most forcefully exemplified by the decision in Embrey v. Hampton, 470 F.2d 146 (4th Cir. 1972). It is clear that the Court of Appeals was convinced that dismissal was not warranted in the factual context of that proceeding, yet the court said that the agency had complied with the procedural requirements of the statute and regulations and the court was without power to reverse the finding that dismissal would promote the efficiency of the service. Embrey v. Hampton, supra.5
Though in Dew v. Halaby, 115 U.S....
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