# Thomas Henry Carter v. United States of America

> Court of Appeals for the D.C. Circuit · December 13, 1968 · 407 F.2d 1238

URL: https://www.frixlaw.com/law-library/cases/9454329

## Case

- **Full name:** Thomas Henry CARTER, Appellant, v. UNITED STATES of America Et Al., Appellees
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** December 13, 1968
- **Citations:** 407 F.2d 1238
- **Precedential status:** Published
- **Opinion:** Dissent by Danaher
- **Judges:** Danaher, Leventhal, Robinson
- **Cited by:** 37 later opinions in the Frix Law Library

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## Opinion text

DANAHER, Circuit Judge
(dissenting):
Let it be observed immediately that the sitting division is unanimous in concluding that this appellant was not entitled to the procedural protections against discharge of the Veterans Preference Act, as amended, 5 U.S.C. § 863 (1964), or the Lloyd-LaFollette Act as amended, 5 U.S.C. § 652 . He never had Civil Service status. 1
Next, let it be noted, he does not seek reinstatement to his former position; although in his complaint he stated that he had been “irreparably harmed in all his future job opportunities” because of the allegedly unlawful discharge, his own affidavit shows that he lost scant time in securing a position with a local bank.
Rather, he is asking this court to place its imprimatur on his conduct, arguing through counsel that the appellant can not be faulted for engaging in “perfectly normal sexual activities * * * which Mr. Kinsey in his Report has calculated about 90 per cent of the male population engages in.” He supports that contention by supplying Chapter 16 of The Sexual Behavior in the Human Male by Kinsey, Pomeroy and Martin entitled “Heterosexual Petting,” an exhibit in the District Court.
The District Judge was unimpressed, just as had been the Bureau officials. I range myself with them. To the extent that it is suggested that we may exercise a discretion in the matter I would deny relief. Let us see just what happened.
Following military service, this appellant was notified that he was eligible for reinstatement as a fingerprint clerk, Grade GS-4, in the Identification Division of the Federal Bureau of Investigation. 2 As of August 26, 1965, he was informed that he was being dropped from the rolls of the Bureau “in view of your conduct unbecoming an employee of this Bureau.” 3
This court on many occasions has recognized the principle that the power to remove inferior Government employees is an incident of the power to appoint them, following the statement in Myers v. United States, 272 U.S. 52, 161 , 47 S.Ct. 21 , 71 L.Ed. 160 (1925). Put another way the interest of a Government employee in retaining his job can be summarily denied. “It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer.” Cafeteria and Restaurant Workers etc. v. McElroy, 367 U.S. 886, 896 , 81 S.Ct. 1743, 1749 , 6 L.Ed.2d 1230 (1961); Vitarelli v. Seaton, 359 U.S. 535, 539 , 79 S.Ct. 968 , 3 L.Ed.2d 1012 (1959). No matter who has stated the law, no one has said it better than Mr. Justice Reed speaking for the Court of Claims in *1249 Batchelor v. United States, 169 Ct.Cl. 180 , 183, cert. denied, 382 U.S. 870 , 86 S.Ct. 147 , 15 L.Ed.2d 109 (1965), where we read:
“The Supreme Court in Keim v. United States, 177 U.S. 290 (1900), considered the question of whether or not the courts may supervise the acts of an executive department head in discharging an employee. The Court’s decision in that ease clearly placed the removal of executive department employees within the ambit of executive discretion, and ruled that until Congress, by ‘special and direct legislation makes provisions to the contrary,’ the courts cannot review the soundness or propriety of the exercise of the department head’s discretion. This case stands as a solid milestone in a long line of unbroken authorities holding that where there are no established procedures or statutes to be followed, removal of an employee is solely within the discretion of agency officials and accordingly may be effected without giving reason. See Cafeteria Workers v. McElroy, 367 U.S. 886, 896-97 (1961) and cases cited therein.”
Were there no more, the Bureau’s action clearly would have been comprehended within the principles thus stated. Here, however, some would say that “cause,” the “personal misbehavior” and “misconduct” referred to in the Handbook for FBI Employees 4 is not to be equated with or deemed adequate as measuring the “cause” specified in section 459(c) (1) of the Act. 5 Some would say that Carter must be given “an opportunity to ventilate the facts at trial,” my colleagues taking the position apparently that only thus can it be determined that a “reasonable man would know that Carter’s admitted conduct” was contrary to his employer’s rules as constituting conduct “unbecoming an employee of this Bureau.”
What facts would they “ventilate”? Even as they observe that the conduct in question was “admitted” ?
The “facts” as to that conduct were supplied by the appellant. Obviously, his superiors were entitled to draw from the facts of the “admitted conduct” such reasonable inferences as naturally flow from such facts. I venture to suggest that in scores of cases, month after month, throughout the courts of this land the facts “admitted” here give rise to judicial action culminating in a decree of divorce, with its attendant consequences. Cause?
Here, the record shows, four FBI employees shared an apartment with two bedrooms. Usually, the appellant shared a bedroom with one of his fellow FBI employees. Some shifting in arrangements within the menage became necessary on the evening of August 15, 1965. At least one employee had to give up his bed and join the other two as the quarters were reassigned. All three knew that this appellant brought a young lady to the apartment. 6 She stayed there all night August 15th and again all night August 17th. On those nights, in Carter’s own words, in his own handwriting, he stated: “We slept in the same bedroom and in the same bed.” The appellant told an inquiring Special Agent that each night the girl had worn night clothes, while on one night he had worn Bermuda shorts and a tee shirt and on the other, had worn Bermuda shorts and a sport shirt. He added that on the intervening night of August 16th, with permission from an apparently complacent relative, he had slept at a different apartment, with the young lady on a couch while he slept on the floor.
It has been contended that the discharge of the appellant was arbitrary and unlawful as an “invasion of his privacy.” On brief he argues that his right is protected by “the life, liberty and pur *1250 suit of happiness guarantees which are fundamental in our free society.” But it is difficult for me to assume that our society is that “free” or that such “pursuit” remains private when the occasions involved the collaboration of his three fellow FBI employees in perfecting the arrangements. Then there was the relative whose apartment provided the locale in another instance. 7 And some other person — if not one of those mentioned— wrote a letter to the Bureau touching upon the situation, the explanation respecting which was supplied in detail by Carter himself. I would not have expected the term “privacy” to have been so expansive. And to the extent that Bureau officials and finally the Director deemed the conduct unbecoming, Carter — not the FBI — had provided the cause for his dismissal.
It has been intimated that Carter could not have known the conduct deemed “unbecoming an employee” was improper. His attorney writing to the Bureau in his behalf on September 13, 1965 seems to have been under no misapprehension. Counsel’s letter stated, in part:
“The conduct deemed ‘unbecoming’ apparently was due to the fact that Mr. Carter had a young lady, whom he had known for some time and who had flown in from Texas to visit in Washington, in his apartment over night. Mr. Carter was questioned about this immediately after it occurred, and he himself told, exactly what happened. His own statements, however, were used against him as on the basis of them he was discharged without notice and without being given the opportunity to resign.” (Emphasis added.)
It has been suggested that the Handbook for FBI Employees is not sufficiently specific in pointing out that the Bureau can not tolerate personal misbehavior of its employees “reflecting unfavorably upon them or the Bureau.” It is true that the Handbook does not say that an FBI employee may not use profane and obscene language in denouncing his superiors in the presence of others. A fingerprint clerk is not enjoined against mocking or vilifying a police officer who brings in a “lifted” fingerprint for classification in furtherance of cooperation with the Bureau. Myriad examples of unspecified misbehavior will suggest themselves. Something is lacking, it is argued, in that the Handbook did not particularize with respect to any such illustration, or by way of denouncing the very conduct under discussion here, admitted by Carter who “told exactly what happened.” If an employee of the Bureau did not know that he was expected to comply satisfactorily with “ordinarily accepted standards of personal conduct,” 8 I would suppose he did not belong in the Bureau in the first place. 9 Were I required to do so, I would rule that the Director had ample cause for dismissing Carter.
Taking the facts disclosed on this record by Carter and his roommates, even without recourse for present purposes to the affidavits of other Bureau employees, I do not agree that this appellant, whether or not “red blooded” (as his counsel puts it), is entitled to reversal. He does not seek reinstatement. This court should decline relief rather than award the appellant an opinion that his admitted conduct is to be the subject of a *1251 trial to be judged by community standards as to permissible limits of heterosexual activity. I would dismiss the appeal.
Supplemental Opinion
LEVENTHAL, Circuit Judge:
Two of the points made in appellees’ petition for rehearing merit an additional word. First is the request that we reconsider our ruling on jurisdiction. Appellees apparently agree that the Government is like any other employer in being prohibited by Congress from discharging a veteran except for cause within the year after his return. Appellees argue, however, that there is no jurisdiction in the District Court in a case of wrongful discharge by the Government. In essence appellees are arguing that Congress meant to provide a right without a judicial remedy. It would take express language to lead us to conclude that Congress intended such an anomalous result. 1 It would be contrary to the extreme solicitude Congress has manifested for the returning veteran, and its efforts to put the Government-employer in the foreground of those efforts. The contention, if sound, would confront all employees of the Government returning from military service. True, the statute (§ 9) 2 provides that the Civil Service Commission shall have jurisdiction to order a veteran’s reinstatement in the public sphere, and does not refer to the possibility of a judicial order. But the appropriateness of a judicial order for reinstatement of a veteran, not ordered by the Commission, certainly raises special issues, of possible clogging of the wheels of government. But so far as actions for damages, or declaratory and equitable relief, are concerned, we see no basis for concluding that Congress intended to override and remove customary judicial remedies. 3 The contention that Congress intended a right without any judicial remedy is neither expressed in the statute, nor supported by the legislative history 4 or cases cited by the Government. 5 We think the contention is unsound.
*1252 Appellees also urge for the first time, on petition for rehearing, that the determination of any factual issues arising out of the remand in this case must be made in the first instance by the Civil Service Commission. This is a switch from the Government’s prior submission, which sought to emphasize the FBI’s independence of the Civil Service Commission. The Government relies on section 9(e) which refers to the Commission cases where an employee seeks restoration to a position under section 9 (b). Section 9(e) involves precisely the determination — of placement in the federal service — which we agree lies outside the judicial remedies. These determinations require the executive expertise that the Commission has developed in the course of administering its other statutory duties. See footnote 2 to original opinion. They are plainly distinguishable from actions for damages or equitable relief, especially where the agency involved is not normally within the cognizance of the Civil Service Commission.
Petition for rehearing denied.
. As of March 22,196Q, lie had been offered a probationary appointment in the Bureau as a clerk. He then was informed that his continued employment “would be contingent” upon his “maintaining a satisfactory record. Positions in the Federal Bureau of Investigation are excepted by law from, the competitive Civil Service, in view of which your acceptance ■ of this appointment will automatically constitute relinquishment during your tenure of any such competitive status you may have acquired.”
. Between May 22, 1961 and May 21, 1965, the appellant had served in the United States Air Force. He thus became entitled to restoration to his former position pursuant to the Universal Military and Training Service Act, 50 U.S.C. App. § 451 et seq. (1964), and was not to “be discharged from such position without cause within one year after such restoration,” § 459(c) (1).
. The Handbook for FBI Employees (1964) provides:
“Personal misbehavior of Bureau employees reflecting unfavorably upon them or the Bureau, and neglect of duty cannot be tolerated. Any such misconduct or any neglect of duty or allegations of such nature must be promptly reported to the Bureau by any employee learning of it.”
. Supra, note 3.
. Supra, note 2.
. The statements to the Special Agent supplied by Carter’s fellow FBI employees, his usual roommates, substantially corroborated his own version of the events under discussion.
. Shortly thereafter, someone anonymously wrote to the Bureau tendering a complaint and expressing annoyance concerning the appellant’s conduct. Such was the situation when a Special Agent interviewed Carter in the course of which Carter “ventilated” the facts and presently wrote out and submitted his explanation which X have summarized.
News of such circumstances gets around, we may fairly assume.
. Handbook Veterans Assistance Program of the Selective Service System as referenced in Kemp v. John Chatillon & Sons, 169 F.2d 203, 207 (3 Cir. 1948); and see id. 206 , quoting Judge Minton in defining “cause” to be such “as a fair minded person may act upon,” and n. 6 pointing out that Judge Minton when a Senator had been one of the managers of the very legislation here considered.
. Perhaps that is what the Director concluded, too.
. Cf. Jones v, Mayer Co., 392 U.S. 409 , 414 n. 13, 88 S.Ct. 2186 , 20 L.Ed.2d 1189 (1968).
. 50 U.S.C.App. § 459(e) (1964).
. See Kephart v. United States, 75 F.Supp. 1020 , 109 Ct.Cl. 646 (1948).
. The Government adverts to the failure of Congress to enact the House version of 9(c). I-I.R. 6401, which provided that an aggrieved government employee should initially seek an administrative remedy— compensation and restoration — with judicial relief to be available when an “agency refuse[d] to take the corrective action recommended by the Commission.” 94 Cong.Rec. 8696. The bill conferred jurisdiction to “require specific compliance with the recommendation” and to enter a judgment for damages. The fact that this version was rejected by the conference in favor of the Senate version provides no meaningful support for appellees’ argument. What the House had provided was a suit to enforce the Government’s determination, not to vacate it — and that involves wholly different considerations.. It may well be that the Congress decided, on further reflection, that it was so unlikely that an agency would defy the Commission as to make it unnecessary to require explicit provision for that contingency. The conferees may have wished to leave it to courts to determine whether and in what circumstances equity should take jurisdiction in furtherance of the public interest, to enforce the Commission’s award. The courts had long since announced the doctrine establishing equitable jurisdiction in furtherance of the public interest, to enforce an administrative award even in the absence of express statutory provision therefor. See, e. g., Virginian Ry. Co. v. System Fed’n No. 40, 300 U.S. 515, 549-551, 552 , 57 S.Ct. 592 , 81 L.Ed., 789 (1937).
. In both Campbell v. Deviny, 81 F.Supp. 657 (1949), aff’d, 90 U.S.App.D.C. 176 , 194 F.2d 881 (1952); and Insular Police Comm’n v. Lopez, 160 F.2d 673 (1st Cir.), cert. denied, 331 U.S. 855 , 67 S.Ct. 1743 , 91 L.Ed. 1863 (1947), the amount in controversy did not meet the $3000.00 jurisdictional minimum. Congress has since vested the district courts with jurisdic *1252 tion in suits against the Government for less than $10,000. 28 U.S.C. § 1346 (a) (2) (1964).
The discussion of mandamus in these cases is rooted in their context of the employee’s prayer for a judicial action placing him in the federal service. Our opinion was careful to exclude that remedy from the permissible scope of the litigation before us.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454329. Public record. Not legal advice.