Sylvia Bennett v. The United States

356 F.2d 525, 174 Ct. Cl. 492, 1966 U.S. Ct. Cl. LEXIS 163

• Court: United States Court of Claims
• Decided: February 18, 1966
• Docket: 204-64
• Status: Published

Opinions

COWEN, Chief Judge.

In February 1963, plaintiff was hired by the Department of the Navy as a clerk-typist with the Inspector of Naval Material at Newark, New Jersey. This was a career-conditional appointment calling for a one-year probationary period. As part of her application for the position, plaintiff had to answer a form questionnaire (Form 85, “Security Investigation Data for Non-sensitive Position”) inquiring as to “organizations with which affiliated (past and present) other than religious or political organizations or those which show religious or political affiliations.” Her reply to this question was “none.”

On June 21, 1963, plaintiff was notified by the Navy that it proposed to separate her, during the probationary period, on the ground of

* * * deliberate falsification of appointment papers in that you did not acknowledge membership in the International Workers Order. Information made available to this activity indicates that you were a member of this organization from 12 February 1950 until March 1951. Your certificate number as a member of Local 517 JA was 418008. Standard Form 85 which you completed on 25 February 1963 reflected the answer of “none” to question 8, “Organizations with which affiliated (past and present) other than religious or political organizations or those which show religious or political affiliation.” Your answer of this essential information is considered to be a serious action as your signature on the SF 85 was preceded by the certificate that “I certify that the above statements are true, complete, and correct to the best of my knowledge and belief, and are made in good faith.” This certification admonishes that a false statement on the form is punishable by law.¹

Plaintiff, who was given 5 days to file a written response, wrote on June 25 that she categorically denied the charges. On June 27, the Navy replied that her answer did not controvert the information available to the agency and that it proposed to remove her as of July 5, 1963. Plaintiff then employed an attorney, who by letter of July 2 to the Navy, requested that the order of discharge be rescinded and that she be granted a hearing on the charges. The request was denied and the plaintiff was removed on July 5, 1963. Plaintiff’s timely appeals to the Civil Service Commission and to its Board of Appeals and Review were dismissed on the ground that the Navy had complied with all the procedural requirements of the laws and regulations applicable to probationary employees.

At the time of her discharge, plaintiff was still serving in her probationary period, was not protected by the Lloyd-LaFollette Act, 5 U.S.C. § 652, and, in the absence of regulations preventing such action, might have been discharged without the assignment of any reason therefor. Nadelhaft v. United States, 131 F.Supp. 930, 132 Ct.Cl. 316 (1955). However, both the Civil Service Commission and the Navy had promulgated regulations respecting the discharge of probationary employees and it is not open to question that her discharge was invalid if it was not effected in compliance with such regulations. Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), and Watson v. United States, 162 F.Supp. 755, 142 Ct.Cl. 749 (1958).

Against this background of decisional law, two questions are presented by our determination: (1) whether the notice of proposed removal served on plaintiff conformed with the provisions of the governing regulations and (2) whether the employing agency’s refusal to grant plaintiff’s request for a hearing was a violation of such regulations.

THE NOTICE OF PROPOSED REMOVAL

At the time of plaintiff’s discharge, Navy regulations (Navy Civilian Personnel Instruction (NCPI) 352, Section 4-8(c) (1) (b)) provided that, where a probationer was to be separated for “pre-appointment” conditions, he was “entitled”, among other things, to “specific and detailed reasons.” This was defined (NCPI 352, Section 4-8(a) (2)) as “all the facts needed to enable him to understand the reasons for the proposed action and to join issue with it.” The Civil Service Commission’s regulations (5 CFR § 2.301(c) (2) and 5 CFR § 22.-302(a) (1963 Supp.)) imposed a similar requirement: “Notice of proposed adverse action. An employee against whom adverse action is sought shall be given advance written notice stating the reasons, specifically and in detail, for the proposed action.”

When the language of the notice of proposed removal is matched against the provisions of the regulations, we cannot but conclude that there was almost a literal compliance with the regulations. First, plaintiff was informed that she was charged with a deliberate falsification in her appointment papers by failing to acknowledge therein her membership in the International Workers Order. Second, the detailed facts regarding her membership were supplied by statements that the period of her membership extended from February 12, 1950 to March 1951, that she was a member of Local Chapter 517 of the Order, and that her membership certificate number was 418008. Third, the seriousness of the charge and the reasons for her proposed separation were explained by a reference to the certification she signed when she applied for employment and a reminder that the certification form admonished her that a false statement was punishable by law.

Was the notice sufficient to enable plaintiff to understand the reasons for the proposed separation and to join issue with them? In our opinion, her answer to the charges and the letter subsequently submitted by her attorney show quite clearly that it was. Her answer denied that she had ever been a member of the Order, disclaimed any knowledge of the local chapter or certificate number identified in the notice, and declared that during the period of her alleged membership most of her time had been spent in going to doctors who were treating her for a kidney infection. The letter sent by plaintiff’s attorney to the Navy stated in pertinent part:

My client categorically denies membership in the International Workers Order. She never paid dues, and never attended any meetings. Her registration with the Board of Elections will reflect her status as an enrolled Democrat.

The charges which have been preferred against Mrs. Bennett, to wit; a deliberate falsification, etc., and alleged membership in a subversive organization are serious. The stigma of a dismissal predicated upon such charges would be extremely serious in its implications. As a probationary employee, Mrs. Bennett has no tenure. However, to avoid a gross miscarriage of justice, it is requested that her summary dismissal as of 5 July be rescinded, and held in abeyance pending a Hearing on said charges. There is the possibility of mistaken names.

Will you please, therefore, rescind the dismissal and schedule a Hearing. May I suggest that my office be contacted so that a mutually convenient Hearing date may be arranged. Since time is of the essence, I am writing you directly.

Thus the issue was joined. It is significant that neither plaintiff nor her attorney complained about the inadequacy of the information contained in the notice of proposed separation and that no request was made for a more detailed statement of the reasons for the contemplated removal. If plaintiff’s attorney felt that the information supplied in the notice was not sufficiently detailed, it would appear that he would have asked for a more complete statement in preparation for his representation of plaintiff at the hearing he had requested. Under the tests laid down by this court in Engelhardt v. United States, 125 Ct.Cl. 603 (1953) and Sells v. United States, 146 Ct.Cl. 1 (1959), the notice served on plaintiff complied with the regulations.

In urging that the notice of proposed removal lacked the specificity required by the regulations, plaintiff takes the position that the employing agency was bound to “disclose its entire case.” The adoption of this position would require the court to amend the regulations by adding a mandate which cannot be found, expressly or by reasonable implication, within the four corners of their provisions. Plaintiff’s reading of the regulations calls for much more than the specific reasons for the proposed separation ; it compels a disclosure of all of the details of the security investigation from which the facts stated in the notice were derived. Included in the information which plaintiff says the Navy was obligated under its own regulations to furnish her were the names of those who supplied the information to the Navy, plus a showing that such information was reliable. Such an interpretation of the regulations would require the Navy not only to submit to plaintiff the report of the security investigation upon which the charge was based, but to divulge the names of confidential informants and to place other confidential information at plaintiff’s disposal.² As indicated above, we find no basis for engrafting such an additional requirement on the provisions of the regulations.

THE RIGHT TO A HEARING

Plaintiff’s .principal point is that Commission regulation 5 C.F.R. Section 2.301(c) (2) implicitly required the employing agency to offer a hearing to all probationers separated for “pre-appointment” reasons, and that the Navy was required to comply with that policy, despite the Navy’s omission of a right to a hearing (for trial-period employees) from its own personnel regulations. The part of Section 2.301(c) (2) on which plaintiff relies says that the removal “action shall be processed in the same manner as actions taken under Subpart G of Part 22 of this Chapter and the employee shall have the right of appeal provided in § 22.304 of that subpart.”³ Sub-part C of Part 22 deals with suspensions of 30 days or less, and covers various types of employees, including the career and career-conditional classes; it does not require a hearing. However, the Navy, with respect to non-probationary employees only, has gone beyond the Commission’s demands and has itself granted the right to a hearing on suspensions of 30 days or less, Navy Civilian Personnel Instruction (NCPI) 750, Section 5-4. It is clear that the Navy did not desire to extend this hearing-right to probationers; (NCPI) 750, Section 5-5 (a), 5-4(a), and 5-3(a) expressly declare that employees “serving a probationary or trial period” are excluded from the category entitled to a hearing.

But, plaintiff argues, the Navy was forced by the Commission’s regulations to give the same procedural rights to probationers charged with “pre-appointment” defaults as it gave to career employees faced with a suspension of 30 days or less. We read the Commission’s regulation differently. The Commission directed that trial-period employees be granted the same rights as the Commission required, in suspension cases, for the other kinds of workers. The regulation had nothing to say about additional protections that agencies might see fit to afford. The Navy could, as it did, give hearings to non-probationers while adhering to the Commission’s minimum for plaintiff’s class.

CONCLUSION

Although the regulations authorized plaintiff to furnish affidavits in support of her answer, none were submitted. If an effort was made by plaintiff or her attorney to obtain evidence from the former officials of Local 517 of the International Workers Order in support of her denial, it is not disclosed in the record. The proceedings that followed the receipt of her answer to the charge were in strict conformity with the regulations. The finding of the Civil Service Commission that the Navy had complied with all of the procedural requirements of the law and regulations is, we think, fully supported by the record and should be upheld. The Navy did all that was required of it by the decisions in Service v. Dulles, supra, and Vitarelli v. Seaton, supra — the two recent Supreme Court decisions which we consider are applicable to the discharge of a probationary Government employee under the factual circumstances before us.

Regardless of doubts we may harbor about the truth or falsity of the charge made against plaintiff and a natural impulse to see the issue resolved in a full and fair hearing, the law, as long ago expounded by this court and the Supreme Court, limits our jurisdiction in such cases to a review of the question as to whether there has been a compliance with the applicable statutes and regulations. It is true, as stated in the letter sent by plaintiff’s attorney to the Navy, that a stigma attaches to a dismissal for alleged membership in a subversive organization. However, the rule has been applied in other cases involving discharged Government employees where a stigma attached to the causes for dismissal, namely, charges involving offenses of serious moral turpitude, Eberlein v. United States, 53 Ct.Cl. 466 (1918), aff’d 257 U.S. 82, 42 S.Ct. 12, 66 L.Ed. 140 (1921)- — accepting bribes; Kent v. United States, 105 Ct.Cl. 280 (1946) — malfeasance in office, and Golding v. United States, 78 Ct.Cl. 682 (1934) cert. denied, 292 U.S. 643, 54 S.Ct. 776, 78 L.Ed. 1494 — repeated attempts at seduction by force. As the Supreme Court said in Eberlein v. United States, supra:

There can be no question from the findings in this case that the plaintiff had the benefit of a hearing according to the regulations then in force. The Court of Claims in its opinion stated that the subsequent investigation established his innocence of the charges made against him. But the things required by law and regulations, were done, and the discretion of the authorized officers was exercised as required by law. It is settled that in such cases the action of executive officers is not subject to revision in the courts. Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774.

For the reasons stated, defendant’s motion for summary judgment is granted, plaintiff’s cross-motion for summary judgment is denied, and plaintiff’s petition is dismissed.

1 . The International Workers Order (referred to in the notice) was included in the Attorney General’s list of subversive organizations furnished to the Loyalty Review Board of the Civil Service Commission. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951), International Workers Order, Inc. v. McGrath, 86 U.S.App.D.C. 287, 182 F.2d 368 (1950). The Superintendent of Insurance of the State of New York brought suit to dissolve the Order, and its liquidation was upheld by the New York Court of Appeals in a decision which referred to the Order’s ‘continued course of political action, involving as it did financing Communist Party organizers and publications disseminating Party literature, and supporting Communist policies and candidates for public office * * *." In re People by Bohlinger, Superintendent of Insurance, Appeal of International Workers Order, Inc., 305 N.Y. 258, 112 N.E.2d 280 (1953), cert. denied, International Workers Order, Inc. v. People of the State of New York, 346 U.S. 857, 74 S.Ct. 68, 98 L.Ed. 371 (1953).

2 . In Vitarelli v. Seaton, supra, the Supreme Court expressly avoided a decision on the question of the constitutional permissibility of an administrative adjudication based on “confidential information” not disclosed to the employee. See footnote 2 on page 540 of the opinion, 79 S.Ct. on page 973.

3 . In full text, 5 C.F.R. § 2.301(c) (2) (1963 Supp.) provides: “If an agency decides to terminate an employee during the probationary or trial period for reasons based in whole or in part on conditions arising before his appointment, the action shall be processed in the same manner as actions taken under Subpart C of Part 22 of this Chapter and tire employee shall have the right of appeal provided in § 22.304 of that subpart.”