holding that, although Congress gave the Secretary of Interior absolute discretion to terminate an employee in the name of national security, the Secretary was nevertheless required to follow its own procedural rules when making such a determination
How later courts described this case
- holding that, although Congress gave the Secretary of Interior absolute discretion to terminate an employee in the name of national security, the Secretary was nevertheless required to follow its own procedural rules when making such a determination
- holding U.S. Department of Interior violated its own termination proceeding regulations when it denied employee the right to cross-examine adverse witnesses and failed to provide a specific statement of charges at disciplinary hearing
- explaining that "[a] veteran is entitled to disability benefits upon a showing that he [or she] meets the eligibility requirements set forth in the governing statutes and regulations"
- holding that plaintiff was “entitled to reinstatement”
Written by the judges who cited it.
Later courts went against this
Declined to follow by Anthony Crosby-Bey v. District of Columbia, a Municipal Corporation, 786 F.2d 1182 (1986)
359 U.S. 535, 547, 79 S.Ct. 968, 976, 3 L.Ed.2d 1012 (1959) (Frankfurter, J., concurring and dissenting) (a “judicially evolved rule of administrative law”), and we reject the invitation to extend them to administrative procedures within the District of Columbia government.
The opinion
Mr. Justice Frankfurter,
whom Mr. Justice Clark, - Mr. Justice Whittaker and Mr. Justice Stewart join,
concurring in part and dissenting in part.
An executive agency must be rigorously held to the standards by which it professes its action to be judged. See Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80, 87-88 . Accordingly, if dismissal from *547 employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. See Service v. Dulles, 354 U. S. 363 . This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword. Therefore, I unreservedly join in the Court’s main conclusion, that the attempted dismissal of Vitarelli in September 1954 was abortive and of no validity because the procedure under Department of the Interior Order No. 2738 was invoked but not observed.
But when an executive agency draws on the freedom that the law vests in it, the judiciary cannot deny or curtail such freedom. The Secretary of the Interior con-cededly had untrammelled right to dismiss Vitarelli out of hand, since he had no protected ■ employment rights. He could do so as freely as a private employer who is not bound by procedural restrictions of a collective bargaining contract. The Secretary was under no law-imposed or self-imposed restriction in discharging an employee in Vitarelli’s position without statement of reasons and without a hearing. And so the question is, did the Secretary take action, after the abortive discharge in 1954, dismissing Vitarelli?
T o October 1956 there was served upon Vitarelli a copy of a new notice of dismissal which had been inserted in the Department’s personnel records in place of the first notice. Another copy was filed with the District Court in this proceeding. This second notice contained no mention of grounds of discharge. If, instead of sending this second notice to Vitarelli, the Secretary had telephoned Vitarelli to convey the contents of the second notice, he would have said: “I note that you are contesting the validity of the dismissal. I want to make this very clear to you. If I did not succeed in dismissing you before, *548 I now dismiss you, and I dismiss you retroactively, effective September 1954.”
The Court disallows this significance to the second notice of discharge because it finds controlling meaning •in the suggestion of the Government that’the expunging from the record of any adverse comment, and the second notice of dischargé, signified a reassertion of the effectiveness of the first attempt at dismissal. And so, the Court concludes, no intention of severance from service in 1956 could legally be found since the Secretary expressed no doubt that the first dismissal had been effective. But this document of 1956 was not a mere piece of paper in a dialectic. The paper was a record of a process, a manifestation of purpose and action. The intendment of the second notice, to be sure, was to discharge Vitarelli retroactively, resting this attempted dismissal on valid authority — the summary power to dismiss without reason. Though the second notice could not pre-date the summary discharge because the Secretary rested his 1954 discharge on an unsustainable ground, and Vitarelli could ■not be deprived of rights accrued during two years of unlawful discharge, the prior wrongful action did not deprive the Secretary of the power in him to fire Vitarelli prospectively.' And if the intent of the Secretary be manifested in fact by what he- did, hpwever that intent be expressed — here,' the intent to be rid of Vitarelli — the Court should not frustrate the Secretary’s rightful exercise of this power as of- October 1956. The fact that he wished to accomplish more does not mean he accomplished nothing.
To construe the second notice to mean administratively nothing is to attribute to the Secretary the purpose of a mere diarist, the corrector of entries in. the Department’s archives. This wholly disregards the actualities in the conduct of a Department concerned with terminating the services of an undesired employee as completely and by *549 whatever means .that may legally be accomplished. If an employer summons before him an employee over whom he has unfettered power of dismissal and says to him: “You are no longer employed here because I fired you last week,” can one reasonably escape the conclusion that though the employer was in error and had not effectively carried out his purpose to fire the employee last week, the employer’s statement clearly manifests a present belief that the employee is dismissed and an intention that he be foreverafter dismissed? Certainly the employee would have no doubt his employment was now. at an end. Of course if some special formal document were required to bring about a severance of a relationship, cf. Felter v. Southern Pacific Co., 359 U. S. 326 , because of non-compliance with the formality the severance would not come into being. But no such formality was requisite to Vitarelli’s dismissal.
This is the common sense of it: In 1956 the Secretary said to Vitarelli: “This document tells you without any ifs, ands,.or buts, you have been fired right along and of course that means you are not presently employed by this Department.” Since he had not been fired successfully in 1954, the Court concludes he must still be employed. I cannot join in án unreal interpretation which attributes to governmental action the empty meaning of confetti throwing.