Petition — Sexton v. Simon

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Supreme Court, U. &

FILED

FEB 25 1976

MICHAEL RODAK, je. CLERK j

In the Supreme Court of the United States

JAMES F. SEXTON,

Petitioner,

vs.

DAVID M. KENNEDY, Secretary of

the Treasury, et al.,

Respondents.

———_

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

JAMES F’. SEXTON

1021 Fidelity Building

Cleveland, Ohio 44114

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

TABLE OF CONTENTS

Opinions Below ............ subedeastlidatieliaenapeteeiaaaiinedasaninnmnalaaedinensiiis l

PIRES Seer CE Sn I ea cn PC 2

I il 2

Constitution and Statutes Involved 200.000... 3

I 4

i 4

Petitioner's Uncontroverted Allegations .................. 4

TO AGITIETORIVR TROGBEE — ..0..ccecceceeeccesesceeccccsesecceseess 8

Reasons for Granting the Writ ......0..0.... cece eeeeees 9

I. The Discharge of a Government Employee for

Protected First Amendment Speech Is Adverse

Action, Regardless of the Formal Charge of

Refusing to Accept a Transfer. The Fourth,

Fifth, Sixth and Seventh Circuits, Entirely

Apart from Any First Amendment Consider-

ations, Are in Conflict As to Whether an Em-

ployee Transfer, Under Circumstances Here

Present, Is an “Adverse Action” Under Title

5, Section 7512, United States Code .................... 9

II. A Conflict Has Developed Among the Circuits

As to the Standard of Judicial Review of Fed-

eral Employee Discharges—an Area Affecting

2.5 Million Federal Employees. The District

of Columbia, Third and Fourth Circuits Fol-

low the “Substantial Evidence” Test and Also

Permit Review of the Procedures Followed

and Whether the Action Taken Was Arbitrary

or Capricious. The Sixth and Seventh Cir-

cuits, However, Refuse to Follow the “Sub-

stantial Evidence” Rule and Narrowly Limit

the Scope of Judicial Review .......................... 12

III. This Petitioner Was Denied Important Pro-

cedural and Substantive Safeguards. To Per-

mit This to Happen Is to Endanger the Careers

of All Government Employees ........................0-+. 15

IV. The Sixth Circuit Clearly Is in Error and in

Conflict With Its Own Prior Decision and

Those of the Other Circuits in Sustaining the

District Court’s Deciding This Case on the

Government’s Motion for Summary Judgment 17

EERE CON NOS ee SR EE a Pe re me oe 19

APPENDIX:

Memorandum and Order of the District Court (May

a Al

Memorandum and Order of the District Court (July

RSE BY SEALER SI Nee b eee cd I SAR OR OO Ad

Order of the District Court (July 3, 1974) -.....0000000.... All

Opinion of the Court of Appeals (October 2, 1975) .. Al2

Order of the Court of Appeals (October 30, 1975) .. A23

Constitution of the United States:

I A24

Amendment V ........... Ee a eT we ee ao ee A24

| EE ens: eae ee Se as ae: ee eT A24

5 EGR EL Le a a Tat ee A iy | A25

| EEE ee eon rere Sanne ae Se Cem ann A26

RCE pence nnn anne cee ern ae A27

ree 3 en ae

Ilr

TABLE OF AUTHORITIES

Cases

Allied Mutual Insurance Company v. Lysne et al., 324

I I a ccceaseaeciiconieints 18

Arnett v. Kennedy, 416 US. 134 (1974) 000... 9

Baum v. Zuckert, 342 F.2d 145 (6th Cir., 1965) ............ 14

Begnaud et al. v. White, 170 F.2d 323 (6th Cir., 1948) 18

Brown v. Zuckert, 349 F.2d 461 (7th Cir., 1965) ............ 13

Brawner v. Pearl Assurance Company, Ltd. et al., 267

ee A Ge Os MI icin cc inscisteesineeaestenegectnbihemnaiatabed 18

Charlton v. United States, Macy et al., 412 F.2d 390

SUE Ic SII « cas iaraticceiackcubinseatiaauesainiglieciadbbigdeabncmmmsinedeiil 12, 14

Conrad v. Delta Air Lines, Inc. et al., 494 F.2d 914 (7th

atic FUIIUIII v’ sibsvais clsalicadeldstadieiaccccodiecsciiiatsadaelbuaemapatevscdbsstdedéniet 18

Friedman et al. v. Meyers et al., 482 F.2d 435 (2d Cir.,

IY die torial ici itanladiiad dsasiiainiietadiuniadieiipediaiiiciiialdasiiiaaia 17

1975)

Motto v. General Services Administration et al., 335

F. Supp. 694 (E.D. La., 1971), affirmed without

opinion in 502 F.2d 1165 (5th Cir., 1974), cert.

denied 420 US. 927, 95 S. Ct. 1125, 43 L. Ed. 2d 398

I ii Id 9,11

Pauley v. United States of America et al., 419 F.2d

BE eee: 10, 13, 14

Pelicone v. Hodges et al., 320 F.2d 754 (D. C. Cir. 1963)

Pickering v. Board of Education, 391 U.S. 563 (1968) 9

Rota et al. v. Brotherhood of Railway, Airline and

Steamship Clerks et al., 489 F.2d 998 (7th Cir.,

1973 )

Tee Pak, Inc. v. St. Regis Paper Company, 491 F.2d

1193 (6th Cir., 1974) occccccccccccsssscecsscescssssssecsessessssssseeee 18

Weinberg v. Macy et al., 360 F.2d 816 (D.C. Cir.,

|} eS 14, 15

Constitution and Statutes

Constitution of the United States:

Ft GRRE .cninncimnimniiimaiae 2, 3,4, 7,9

2 i NEEL err 2, 3, 15

BD. CEE, CIP UI cccacisccsscocscessccscctenesntecieisiansdemmannnannn 3, 15

i’ ae | SRD 3, 15

BD WEBS. GUID occccssscccssstcicnncorossessensitueensinnnaaneee 3, 15

BD UGE. CEE) cceisccccocsecesssssseseteunsiiaenusaee «

BD TG, BEG cxccessesinccstccscccsnssencnsvsnseunumnnenaaananeee 3, 15, 16

yt Coal | | |) Ears 2

Text

73 Am. Jur. 2d 726, Summary Judgment, Section 4... 17

a’

In the Supreme Court of the United States

October Term, 1975

EN ae

JAMES F. SEXTON,

Petitioner,

vs.

DAVID M. KENNEDY, Secretary of

the Treasury, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

The petitioner respectfully prays that a writ of cer-

tiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit, en-

tered in this proceeding on October 30, 1975.

OPINIONS BELOW

The Sixth Circuit’s opinion, reported at 523 F.2d 1311,

appears at page Al2 of the Appendix. The opinion of the

District Court is unreported and appears at page A4 of the

Appendix. The order denying petition for rehearing also

appears in the Appendix at page A23.

JURISDICTION

The judgment of the United States Court of Appeals

was entered on October 2, 1975. A timely petition for re-

hearing was denied on October 30, 1975. This Supreme

Court granted extension of time to February 28, 1976, for

filing this petition for certiorari, which is filed within that

time. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Whether in an employee dismissal case a federal

agency can circumvent the adverse action procedural pro-

tections of the Veterans Preference Act and infringe upon

the employee’s First Amendment rights through the sub-

terfuge of an arbitrary transfer to avoid a specific statement

of charges, thereby creating a charge for the purpose of

separating the employee from the federal civil service?

2. Whether a District Court is limited in a federal em-

ployee separation case to a review of only whether ap-

plicable procedures were followed and whether the action

taken was arbitrary and capricious; or whether the District

Court’s review may also include a determination as to

whether substantial evidence supports the administrative

findings?

3. Whether the United States deprived petitioner of

other procedural and substantive safeguards secured to him

by the Fifth Amendment and federal statute:

a. In removing him from the payroll without a prior

thirty (30) day notice;

b. In denying him all right to witnesses (contrary to

procedure) in a prior grievance;

c. In denying him reinstatement as ordered and

thereby denying him the benefits accruing there-

from;

d. In taking a reprisal by way of transfer against the

employee because he criticized the improper han-

dling of tax cases and exercised legitimate First

Amendment rights;

e. In removing important documents, forty-six (46) in

number, from the administrative record of proceed-

ings; and

f. By designating the personnel officer participating in

the making of prior adverse decisions as the official

to hear the oral reply?

4. Whether the District Court erred by granting the

Government’s motion for summary judgment where ma-

terial and subsiantial issues of fact must be resolved in

petitioner’s favor for purposes of the motion for summary

judgment?

CONSTITUTION AND STATUTES INVOLVED

The Constitutional provisions involved are the First

and Fifth Amendments. The statutes involved are Title 5,

Sections 7511, 7512, 7701, and Title 5, Section 706, of the

United States Code. The Constitutional provisions and

statutes are set forth in the Appendix.

STATEMENT OF THE CASE

Introduction

This case involves the discharge of an IRS agent from

the federal service because of his refusal to accept a puni-

tive transfer motivated by his superior’s retaliation for his

exercising First Amendment rights, both in his official

capacity and that of a private citizen. Petitioner’s transfer

was a subterfuge. Rather than accuse petitioner of any

wrongdoing, the IRS transferred petitioner to another city

ia order to use the transfer as a basis for discharge.

The Sixth Circuit, 523 F.2d 1311, at page 1312, concedes

the facts when it states:

“Sexton had been an IRS agent for some ten years

before his ‘continuing commentary’ about the quality

of his supervision resulted in his transfer * * * from

the Cleveland IRS office to that in Dayton (Ohio)

*_**”

This criticism, by the Sixth Circuit’s interpretation, again

at page 1312, constituted “incompatibility” and therefore

was ground for punitive transfer.

The agency never was able to formulate any charges

against petitioner for what he said. Instead, the agency

transferred petitioner for the sole purpose of using his re-

fusal to accept the new post of duty as a ground for dis-

charge.

Petitioner’s Uncontroverted Allegations

The Government filed no answer to petitioner’s com-

plaint, an action in mandamus, charging that his dismissal

from the federal service resulted from an illegal, arbitrary

and capricious transfer (Complaint, Par. 2; R. 7).'

Petitioner’s IRS career started August 9, 1954. Over

the years, he examined income tax returns, corporate and

individual. In 1958 and 1959, he served in taxpayer as-

sistance programs, including appearances on radio and

television as well as supervising selection of agents and

preparation of material in schools for the public. In 1961

and 1962, he served in the Overseas Taxpayer Assistance

programs, travelling to Germany, Italy, Lebanon, Saudi

Arabia, Pakistan, India, Iran, Iraq, Turkey, Austria, Spain

and Portugal. On these tours—from January to April—

he taught military details and then travelled to various

consulates and embassies in assisting military and civilian

personnel living overseas (Complaint, Par. 3; R. 7).

In his examination of income tax returns, petitioner’s

case assignments saw substantial resolutions (Complaint,

Par. 4; R. 9).?

On May 19, 1964, petitioner criticized in a tax case

report the way that case and several other cases in his

inventory previously had been handled. The truth of the

criticisms were not subject to challenge (Complaint, Par.

5; R. 9).

On March 7, 1965, petitioner in a letter to the Re-

gional Commissioner of the Central Region placed respon-

sibility squarely on the Central Region and the Regional

Commissioner. The validity and factual basis of petition-

er’s statements were never made the basis of any charge

1. These references are to the paragraphs of the complaint

and to pages of the Appendix filed in the Court of Appeals.

2. He closed one of the first international cases in the Cleve-

land District. It was resolved for $950,000, to which the tax-

payer agreed. Another of petitioner’s cases was resolved for

$600,000.00 on reopening letters. A third case was a bank ex-

amination in which the taxpayer agreed to deficiencies of $1,-

076,189.00 (Complaint, Par. 4; R. 9).

of misconduct. Instead, the Regional Commissioner re-

sorted to a transfer designed to separate petitioner from

the government service (Complaint, Par. 6; R. 10). Iron-

ically, while this was being done, one of the cases involved

in the criticism ended up with ultimate deficiencies of

$1,076,189.00 after the National Office, as a result of pe-

titioner’s insistence, reversed itself as to a position twice

taken by it on the case (Complaint, Par. 7; R. 10).

The Regional Commissioner advised petitioner of the

transfer by letter of July 20, 1965. He gave petitioner's

criticisms as the reasons for the transfer, quoting from the

May 19, 1964, and March 7, 1965, documents (Complaint,

Par. 8; R. 11, 20). A subsequent grievance hearing, at

which petitioner was denied witnesses, to which he was

entitled, delayed the transfer date (Complaint, Par. 10;

R. 12).

On the transfer date, August 28, 1966, petitioner did

not report for duty in Dayton, Ohio, and was removed

from the payroll without the 30 day notice required by

law, an action subsequently confirmed by personnel ac-

tion dated November 4, 1966, retroactively effective to Au-

gust 28, 1966, for declination of a new post of duty (Com-

plaint, Par. 11, R. 13; Par. 14, R. 15). That decision was

reversed and petitioner was ordered retroactively restored

to the employment rolls (Complaint, Par. 11; R. 13). But

this was never done. The restoration was retroactive to

November 4, 1966, thus erroneously effecting a merit de-

termination for the period from August 28, 1966—the date

of transfer—to November 4, 1966—the date of actual sepa-

ration. Petitioner was next and finally separated on De-

cember 29, 1967, again with the procedural defect respect-

ing the 30 day notice required by statute (Complaint, Par.

12, R. 13; Par. 14, R. 15).

Petitioner's complaint alleged that because the trans-

fer was a subterfuge intended to deny him rights guaran-

teed by the Veterans Preference Act, the transfer became

an adverse action. A statement of charges to administer

the punishment, as required under the statute, became a

requisite to the transfer. This never was done because

the reasons for petitioner’s transfer were his criticisms.

Any statement of charges would have fallen apart be-

cause of the validity of the criticisms. The Regional Com-

missioner therefore resorted to a transfer deliberately de-

signed to separate petitioner from the government service

(Complaint, Par. 6, R. 10; Par. 9, R. 11).

Other allegations of the Complaint challenged various

procedures and activities of the agency. Petitioner par-

ticularly objected to his oral reply in the second and last

personnel action being heard by the personnel officer who

had made prior adverse recommendations, thus denying

petitioner an impartial consideration and hearing of the

second oral reply (Complaint, Par. 13; R. 14). During

the period of his reinstatement, petitioner was entitled to

annual leave, sick leave and official time to prepare his

oral and written replies, all of which were denied. He

was removed from the payroll without the requisite thirty

(30) day notice required by statute. He was denied his

back pay (Complaint, Par. 14: R. 15).

The Complaint stressed that petitioner’s March 7, 1965,

letter to the Regional Commissioner of the Central Region

was a petition for redress of grievance within the meaning

of the First Amendment to the Constitution of the United

States. His criticisms in that letter specifically were as-

signed as reasons for his transfer to Dayton, Ohio. Peti-

tioner contended that this was arbitrary, capricious and a

violation of petitioner’s First Amendment rights and of his

right to free speech (Complaint, Par. 15; R. 16).

The Administrative Record

The only testimony in the administrative record was

that of the petitioner and of witnesses called by the peti-

tioner (Tr. pp. 61-155). The agency called no witnesses.

It merely introduced the transfer as its evidence, appar-

ently resting on a presumption of regularity. The burden

of proof thus was placed upon the petitioner; and this is

contrary to ordinary procedures in personnel actions of

dismissal. The petitioner’s testimony substantiated the al-

legations of the Complaint. The testimony of the other

witnesses corroborated petitioner’s testimony, thus bring-

ing the questions of subterfuge, pretext and intent of the

transferring official into issue. It was uncontroverted evi-

dence and raised serious factual issues favorable in their

import to petitioner.*

Before filing this administrative record, the Govern-

ment first filed a motion to dismiss, which the District

Judge treated as a motion for summary judgment to “de-

termine if there is a genuine issue as to any material fact”.

The District Judge first decided on May 30, 1972 (App. p.

Al), agai’ st the Government, thus holding on the allega-

tions of the Complaint that there was a genuine issue of

fact. On July 3, 1974, the District Judge then sustained

the Government’s motion for summary judgment, on an ad-

ministrative record in which the sworn testimony substan-

tiated the allegations of petitioner’s Complaint.

3. This is a reference to the administrative record.

4. The removal of 46 documents from the administrative

record should here be noted. Petitioner’s May 19, 1964, report

and March 7, 1965, letter were missing. The Regional Commis-

sioner’s July 20, 1965, letter to petitioner was the documentary

evidence of the reasons for the transfer. It too was missing. Also

missing were letters bearing initials of those reviewing and ap-

proving decisions. The initials were blocked out. Documents

attached to the written reply were missing. Removed, for ex-

ample, was a copy of the December, 1964, issue of Taxes—The

Tax Magazine (a CCH publication), at page 186, which discusses

one of the very cases involved in petitioner’s criticisms. The

entire content of the documents removed was important.

REASONS FOR GRANTING THE WRIT

I. The Discharge of a Government Employee for

Protected First Amendment Speech Is Adverse

Action, Regardless of the Formal Charge of Re-

fusing to Accept a Transfer. The Fourth, Fifth,

Sixth and Seventh Circuits, Entirely Apart From

Any First Amendment Considerations, Are in Con-

flict as to Whether an Employee Transfer, Under

Circumstances Here Present, Is an ‘‘Adverse Ac-

tion’? Under Title 5, Section 7512, United States

Code.

On the Government’s motion for summary judgment,

the petitioner, by the allegations of his complaint and by

the evidence which he introduced into the administrative

record, must be conceded to have been denied very valuable

First Amendment rights, which this Court has decided

deserve protection. See Pickering v. Board of Education,

391 U.S. 563 (1968) and Arnett v. Kennedy, 416 U.S. 134

(1974).°

Regardless of First Amendment considerations, the

Fifth and Seventh Circuits are in conflict on the transfer

aspect of the case.

In Motto v. General Services Administration, 335 F.

Supp. 694 (E.D., La., 1971), aff'd without opinion in 502

F.2d 1165 (5th Cir., 1974), cert. denied 420 U.S. 927, 95

S. Ct. 1125, 43 L. Ed. 2d 398 (1975), Judge Rubin states:

5. The Sixth Circuit’s opinion refers to evidence and “proofs”

in the administrative record. Once conceding the “pretext” issue,

thus bringing the question of intent into play, there arose a factual

issue which could not be resolved adverse to petitioner on the

Government’s motion for summary judgment. Compare Motto

v. General Services Administration et al., 335 F. Supp. 694 (E.D.,

La., 1971), aff'd without opinion in 502 F.2d 1165 (5th Cir.,

1074), cert. denied 420 U.S. 927, 95 S. Ct. 1125, 43 L. Ed. 2d 398

(1975).

“Motto contends his transfer was an adverse ac-

tion, 5 U.S.C.A. § 7512, entailing an elimination of

supervisory status, hence a reduction in rank, and he

was entitled to written notice and a hearing. 5 U.S.C.A.

§ 7512(b). Whether or not he was a supervisor,

Motto’s transfer was ordered because he was consid-

ered an undesirable ernmployee, and to induce his resig-

nation. Hence it was an adverse action even if it

entailed no reduction in rank * * *”’.

Although McCourt v. Hampton et al., 514 F.2d 1365 (4th

Cir., 1975) did not involve a transfer to another city, the

Fourth Circuit (infra, p. 12) treats the “transfer” to

another function as the ‘adverse action”. Although there

was a reduction in pay, that was a later event apart from

the transfer itself. This view accerds to that of the Fifth

Circuit, namely that the transfer itself becomes the adverse

action.

Pauley v. United States of America et al., 419 F.2d 1061

(7th Cir., 1969) decides exactly to the contrary. At page

1065, the Seventh Circuit states:

“The parties appear to agree that the critical issue

here is the reduction in rank question. Under relevant

regulations 5 C.F.R. §751.101, et seq., a reduction in

rank, but not a transfer, entitles an affected employee

to the adverse action procedural protections of notice

of the proposed action and the reasons therefor, and an

opportunity to answer either personally, or in writing,

or both. A reduction in rank requires the same pro-

cedural steps as in the case of a discharge. In the

instant case, such procedural steps were not followed

in connection with the transfer. They were followed

when plaintiff was discharged for refusal to accept the

transfer.”

With the issue thus defined, the Seventh Circuit, again at

page 1065, states:

“Noticeably absent from the adverse action regula-

tions is any provision determining how and by whom

it is to be decided whether a given action constitutes

one of the ‘adverse actions’ to which the regulations

apply. Absent such provision, we cannot say that the

procedure followed in this case violated the regula-

tions.”

Thus, under circumstances similar to those in the Motto

case, affirmed by the Fifth Circuit, the Seventh Circuit

decides that a transfer is not an adverse action, which is in

complete conflict with the Motto rationale. The Sixth

Circuit’s holding (App. p. Al8) that petitioner’s transfer

is not “adverse action” likewise is in direct conflict with

the Fifth Circuit’s affirmance of the decision in Motto v.

General Services Administration et al., supra.

The importance of the procedure followed in peti-

tioner’s discharge from the government service is mani-

fest. If the transfer had been an “adverse action”, the

reason for the transfer was petitioner’s criticisms. These

criticisms would have to be contained in the notice or state-

ment of charges forming a basis for discharge or transfer.

The agency then would have had the burden of proving

that the criticisms were unfounded or were detrimental

to the “efficiency of the service”. This would have been

most difficult in view of the fact that petitioner worked in

Cleveland, Ohio, for over a year after the transfer was

proposed under circumstances that saw one of the cases

involved in the criticisms meet reversal by the National

Office of its own policy with a resultant betterment to the

revenues of $1,076,189.00 in accordance with petitioners’

views.

II. A Conflict Has Developed Among the Circuits as

to the Standard of Judicial Review of Federal Em-

ployee Discharges—an Area Affecting 2.5 Million

Federal Employees. The District of Columbia,

Third and Fourth Circuits Follow the ‘‘Substan-

tial Evidence’’ Test and Also Permit Review of

the Procedures Followed and Whether the Action

Taken Was Arbitrary or Capricious. The Sixth

and Seventh Circuits, However, Refuse to Follow

the ‘‘Substantial Evidence’ Rule and Narrowly

Limit the Scope of Judicial Review.

Charlton v. United States, Macy et al., 412 F.2d 390

(3rd Cir., 1969), at page 395, states:

“In summary, we are of the opinion that the scope

of judicial review of a federal agency’s action with re-

spect to the dismissal or discipline of a civil service

employee extends to the determination whether pro-

cedural requirements have been satisfied in the ad-

ministrative proceedings, and whether the administra-

tive record establishes that substantial evidence sup-

ports the agency’s actions and that it was not arbitrary,

capricious or an abuse of discretion.”

McCourt v. Hampton et al., 514 F.2d 1365 (4th Cir.,

evidence to show that the position occupied by McCourt

had been functionally changed, the decision of the

Civil Service Commission sustaining McCourt’s trans-

fer and subsequent demotion must be set aside, * * *.”

The Seventh Circuit follows a wholly different rule.

In Pauley v. United States et al., 419 F.2d 1061 (7th Cir.,

1969), the Court at page 1065 states:

“The overwhelming weight of authority holds that

judicial review of employee disciplinary actions is

limited to insuring that required procedures have been

substantially complied with and that the action taken

was not arbitrary or capricious. Brown v. Zuckert, 7

Cir., 349 F.2d 461, 463 (1965); McTiernan v. Gronouski,

2 Cir., 337 F.2d 31, 34 (1964); Seebach v. Cullen, 9 Cir.,

338 F.2d 663, 664 (1964). See Keim v. United States,

177 U.S. 290, 20 S.Ct. 574, 44 L.Ed. 774 (1900); Eber-

lein v. United States, 257 U.S. 82, 84, 42 S.Ct. 12, 66

L.Ed. 140 (1921). Cf Kletschka v. Driver, 2 Cir., 411

F.2d 436 (1969); Norton v. Macy, D.C. Cir., 417 F.2d

1161 (1969). A majority in Charlton v. United States,

3 Cir., 412 F.2d 390, 393 (1969), however, announced a

substantial evidence test which Judge Stahl rejected

in a concurring opinion.”

1975) reiterates the “substantial evidence” test for the

Fourth Circuit, when at page 1368 the Court states:

In Brown v. Zuckert, 349 F.2d 461 (7th Cir., 1965), cited

and approved in Pauley, supra, the Seventh Circuit is even

“* * * we see two fatal errors in the administrative more explicit when, at page 463, it states:

proceedings which require that McCourt be given sub-

stantially the relief he prayed. First, we conclude that

McCourt was not afforded the statutory notice of his

transfer to the defunct position to which he was en-

titled as a veteran protected by the Veterans Prefer-

ence Act of 1944, 5 U.S.C. §851 et seq.; and, second,

we conclude that since there was lacking substantial

“In Seebach, supra, 338 F.2d at page 665, the Court

emphasized ‘* * * (W)e do not review findings of fact

in cases such as this’. We agree! It follows that plain-

tiff’s argument directed to the unsubstantiality of the

evidence is not the basis for judicial review. We,

therefore, turn to a consideration of plaintiff’s claim

that his procedural rights were violated.”

Baum v. Zuckert, 342 F.2d 145 (6th Cir., 1965) follows a

similar rule when the Court states:

«“* * * We hold that no procedural errors were

committed by the Air Force or the Civil Service Com-

mission * * *.”

The Sixth Circuit, in 523 F.2d, at page 1315 (App., p. Al8)

approves and follows Pauley v. United States et al., supra,

and at page 1314 (App., p. Al7) approves and follows Baum

v. Zuckert, supra, as the rule of the Sixth and Seventh

Circuits. This is squarely in conflict with the decisions

of the Third and Fourth Circuits as well as the District of

Columbia.

The District of Columbia adheres to the rule in the

Third and Fourth Circuits and follows the substantial evi-

dence test. In Pelicone v. Hodges et al., 320 F.2d 754 (D.C.

Cir., 1963), at page 755, the Court states:

“Our review in this kind of case is limited to de-

termining whether the statutory and regulatory pro-

cedures were observed and whether the challenged ac-

tion was arbitrary and capricious or was supported by

evidence. We conclude that the procedures were ob-

served, but there is no evidence to support the charges

upon which appellant’s dismissal was rested. * * *.”

Weinberg v. Macy et al., 360 F.2d 816 (D.C. Cir., 1965),

follows and approves Pelicone v. Hodges et al., supra. Note

also in Weinberg v. Macy et al., supra, the detailed manner

in which the Court analyzes the evidence. Some of the

Circuits have cited earlier decisions in the District of Co-

lumbia as supporting a different proposition. Charlton v.

United States, Macy et al., supra, at pages 394 and 395,

presents a detailed analysis of the earlier District of Co-

lumbia cases in such manner that there no longer can be

any doubt that the District of Columbia follows the sub-

stantial evidence test, as in Pelicone v. Hodges et al., supra,

and Weinberg v. Macy et al., supra.

The scope of review presumably would involve Fifth

Amendment.considerations. It also involves the interpre-

tation to be accorded Section 706, in Title 5 U.S.C., of the

Administrative Procedures Act, as well as of the Fifth

Amendment, in the discharge of a veterans preference eli-

gible under Title 5, Sections 7511, 7512 and 7701, United

States Code.

III. This Petitioner Was Denied Important Procedural

and Substantive Safeguards. To Permit This to

Happen Is to Endanger the Careers of All Govern-

ment Employees.

Title 5, Section 7512(b), U.S.C., states:

“(b) A preference eligible employee against

whom adverse action is proposed is entitled to—

(1) at least 30 days’ advance written notice,

except when there is reasonable cause to believe him

guilty of a crime for which a sentence of imprison-

ment can be imposed, stating any and all reasons, spe-

cifically and in detail, for the proposed action;

(2) a reasonable time for answering the notice

personally and in writing and for furnishing affidavits

in support of the answer; and

(3) anotice of an adverse decision.”

The statute anticipates that the employee ordinarily will

remain on the payroll for at least 30 days after notice, thus

permitting the employee a reasonable time to submit oral

and written replies. The advance written notice in turn

presumably contains the specific reasons for adverse action.

As to petitioner, what was done does not accord to the

intent of this statute.

He was removed from the payroll on the date of trans-

fer and carried in an absent without leave status. The

actual removal action therefore was immediate. He there-

after received the advance notice. It gave the refusal to

accept the transfer as the reason for the proposed adverse

action and thus avoided any mention of petitioner’s crit-

icism, which was the real reason for the removal action.

The technical removal then was made retroactive to the

transfer date.

This procedure alone was unusual. The circumstances

attendant the second and final removal were even more so.

Actually there had never been a reinstatement. The trans-

fer again was used as the reason for the removal action,

thus once more avoiding the criticism which was the real

reason for the adverse action. Since petitioner had never

been placed back on the payroll, he never received a 30

day “advance” notice. The 46 missing documents (footnote

4) take perspective in this background. Title 5, U.S.C.

Section 7701, anticipates review of the agency’s action.

Whether a proper review was made by the Civil Service

Commission must always be subject to question, for ex-

ample, where initials can be blocked out, thus disguising

the role of the personnel officer hearing the second oral

reply. The July 20, 1965, letter assigning petitioner’s criti-

cisms as the reasons for transfer goes to the very crux of

the case. The removal of the other documents was equally

significant.

This petitioner’s career as an IRS agent extended over

a period of twelve years. He was sufficiently competent

to appear in public taxpayer programs, on radio and tele-

vision, and to travel to a dozen countries overseas as an

official representative of his Government. All of the pro-

cedures followed here—including the removal of these doc-

uments—were detrimental to petitioner’s career. To dis-

regard procedures in this manner endangers the careers of

all government employees.

IV. The Sixth Circuit Ciearly Is in Error and in Con-

flict With Its Own Prior Decision and Those of the

Other Circuits in Sustaining the District Court’s

Deciding This Case on the Government’s Motion

for Summary Judgment.

It was error for the District Judge to sustain the Gov-

ernment’s motion for summary judgment. Petitioner had

presented a genuine issue of fact involving the intent of

the official making the transfer, thus bringing the question

of “pretext” into play, by the Sixth Circuit’s own interpre-

tation.

73 Am. Jur. 2d 726, Summary Judgment, Section 4,

states:

“* * * There are three classes of litigation which

are not usually suited for summary disposition, namely,

negligence actions, cases where motive, intent, con-

sciousness, conscience, or subjective feelings and re-

actions are involved, and equitable actions. * * *.”

Friedman et al. v. Meyers et al., 482 F.2d 435 (2d Cir.,

1973), to the same effect, at page 439, states:

“The other claims and defenses in the present suit

bristle with genuine issues as to the material facts.

For instance, issues are raised as to the state of mind,

intent and knowledge of the parties. We have re-

peatedly stated that summary judgment is particu-

larly inappropriate where, as here, it is sought on the

basis of ‘the inferences which the parties seek to have

drawn (as to) questions of motive, intent, and sub-

jective feelings and reactions.’ (citation of cases omit-

ea) °° o>

In accord with this view, see also Conrad v. Delta Air Lines,

Inc., 494 F.2d 914, at page 918 (7th Cir., 1974). For pur-

poses of the Government’s motion for summary judgment,

there was a material issue of fact, involving intent, pretext

and subterfuge. To decide in the Government’s favor on

its motion for summary judgment was entirely inappropri-

ate.

That petitioner filed a cross motion for summary judg-

ment does not alleviate this error. Begnaud et al. v. White,

170 F.2d 323 (6th Cir., 1948), at page 327, states:

“* * * that both parties make motions for sum-

riary judgment * * * does not require the Court to rule

that no fact issue exists. Each, in support of his own

motion, may be willing to concede certain contentions

of his opponent, which concession, however, is only

for the purpose of the pending motion. If the motion

is overruled, the concession is no longer effective * * *.”

Begnaud et al. v. White, supra, has been approved in the

Sixth Circuit as late as 1974 and has been cited and ap-

proved in other Circuits. See, e. g., Tee Pac, Inc. v. St.

Regis Paper Company, 491 F.2d 1193, 1196 (6th Cir., 1974);

Rota et al. v. Brotherhood of Railway, Airline and Steam-

ship Clerks et al., 489 F.2d 998, 1004 (7th Cir., 1973); Allied

Mutual Insurance Company v. Lysne et al., 324 F.2d 290,

292 (8th Cir., 1963); and Brawner v. Pearl Assurance Com-

pany, Ltd. et al., 267 F.2d 45, 46 (9th Cir., 1958).

The Sixth Circuit’s decision in the instant case that

the filing of a cross motion for summary judgment pre-

cluded the review of evidence in the administrative record

is clearly erroneous. Its decision in this regard also is in

conflict with its own prior decision and those in other Cir-

cuits.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Sixth

Circuit.

Respectfully submitted,

JAMEs F.. SEXTON

Counsel for Petitioner

APPENDIX

MEMORANDUM AND ORDER OF THE

DISTRICT COURT

(Filed May 30, 1972)

Case No. C70-883

UNITED STATES DISTRICT COURT

NorRTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES F. SEXTON,

Plaintiff,

Vv.

DAVID M. KENNEDY, et al.,

Defendants.

MEMORANDUM AND ORDER

GREEN, J.:

This case arises out of a decision by the Internal

Revenue Service, affirmed by the United States Civil Ser-

vice Commission on September 17, 1968, to dismiss plain-

tiff from federal service. Plaintiff's dismissal was by

reason of his refusal to accept a transfer of duty station.

In his complaint, filed on September 16, 1970, plain-

tiff alleges that his transfer was arbitrary, capricious and

in violation of his first amendment rights. He then con-

tends that his discharge, being as a consequence of his

refusal to accept the unlawful transfer, is necessarily in-

valid. For his relief, plaintiff seeks, inter alia, retroac-

tive reinstatement as an Internal Revenue Agent in Cleve-

land, Ohio.

Defendants, Secretary of the Treasury, Commissioner

of Internal Revenue Service, and three Commissioners of

the United States Civil Service Commission, have filed a

motion to dismiss the complaint, pursuant to Rule 12(b)

of the Federal Rules of Civil Procedure. They allege that

there is no venue in this District, that plaintiff has failed

to state a claim upon which relief can be granted, and

that the plaintiff is guilty of laches in filing this action.

There were at the time the said motion was filed, a num-

ber of non-governmental defendants joined as parties to

the complaint, who have since been dismissed on motion.

While defendants denominate this pleading as a mo-

tion to dismiss under Rule 12(b), the addition of support-

ing affidavits obligates the Court to treat this as a mo-

tion for summary judgment under Rule 56, F.R.C.P. 2A

Moore’s Federal Practice {/12.09[3]. Pursuant thereto, the

Court has considered the affidavits and briefs of both

parties to determine if there is a genuine issue as to any

material fact.

The motion to dismiss for improper venue is predi-

cated on the joinder of the non-government defendants.

However, with their subsequent dismissal, it appears that

venue is now proper in this court under 28 U.S.C. §1391

(e), this being the district wherein plaintiff resides and

all defendants being officers or employees of the United

States or an agency thereof.

Defendants’ allegation that plaintiff has failed to state

a claim upon which relief can be granted is also predi-

cated on the joinder of the non-governmental defendants.

Again, with the subsequent dismissal of all but the pres-

ent defendants that argument is substantially undercut.

It appears to the Court that the complaint, although it

contains much surplusage and irrelevant allegations, is

sufficient to state a claim for relief. See, Motto v. Gen-

eral Services Adm., 335 F. Supp. 694 (E.D, La., 1971).

Defendants’ final assertion is that plaintiff, by wait-

ing almost two years to file this suit, and by failing to

show any reason for the delay, is guilty of laches. How-

ever, laches is an affirmative factual defense with the

party asserting it carrying the burden of satisfying the

court that the adverse party’s conduct should preclude

him from a right of recovery.. In the Court’s opinion such

a question is not appropriate for decision based upon the

present record. Defendants may, if they wish, continue

to assert such defense in their answer for the Court’s con-

sideration at a proper time.

The motion to dismiss will be denied.

IT IS SO ORDERED.

/s/ Ben C. GREEN

United States District Judge

MEMORANDUM AND ORDER OF THE

DISTRICT COURT

(Filed July 3, 1974)

Case No. C70-883

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES F. SEXTON,

Plaintiff,

DAVID M. KENNEDY, et al.,

Defendants.

MEMORANDUM AND ORDER

GREEN, J.:

In a memorandum and order dated May 11, 1973, this

Court stayed proceedings on cross-motions for summary

judgment in this case pending a decision by the Supreme

Court in a case now reported as Arnett v. Kennedy, 42

L.W. 4513 (1974). That decision having been rendered,

and supplemental briefs with regard thereto having been

filed by both sides in this case, the Court is now pre-

pared to rule on the cross-motions for summary judg-

ment.

Plaintiff was originally separated from the Internal

Revenue Service on November 4, 1966 for failing to re-

port for reassignment from Cleveland, Ohio to Dayton,

Ohio. No change in plaintiff's rank or compensation was

involved in the reassignment.

This reassignment, based on the Regional Commis-

sioner’s finding of an inability to conform to proper su-

pervision in the Cleveland office, went through the avail-

able appeals procedures, and was confirmed upon admin-

istrative appeal.

Plaintiff then refused to report for duty to Dayton,

and was thereafter separated for refusal to report as

directed. Plaintiff then appealed his separation to the

Civil Service Commission, Chicago Region, and finally to

the Board of Appeals and Review, where his dismissal was

reversed and he was ordered restored to the Internal Rev-

enue Service rolls in Dayton, Ohio. Record, p. 257.' | The

reversal was based on a finding that “the agency had un-

duly limited [plaintiff’s] right of oral reply to the removal

charge.” Record, p. 11.

Plaintiff again failed to report for duty in Dayton,

and on July 6, 1967, he was informed by the Regional

Commissioner that, under 5 C.F.R. Part 752:

In order to promote the efficiency of the service, it is

proposed to remove you from the Service or other-

wise discipline you at any time after thirty (30) cal-

endar days from the date you received this letter.

Record, p. 259.

This same letter informed plaintiff of the procedural rights

available to him for review of this new adverse action, as

well as the charges and supporting specifications.

Thereafter, plaintiff made several written replies, and

on November 3, 1967, an oral reply. Record, p. 213. On

December 14, 1967, plaintiff was notified that the Regional

Commissioner found the charge and supporting specifica-

1. Record references cited herein are to the administrative

record, which is in evidence herein as an exhibit to the motions

for summary judgment.

tions to be sustained, and that in order to promote the

efficiency of the service, he was to be removed on De-

cember 29, 1967. Plaintiff was also advised of his appeal

rights, which he perfected through the Civil Service Com-

mission and Board of Appeals and Review. Both review-

ing agencies upheld the Regional Commissioner’s finding

and found no error in the removal proceeding.

As to the cross-motions for summary judgment, the

plaintiff argues that his dismissal from the Internal Rev-

enue Service was an arbitrary and capricious act, contend-

ing that such position is supported by a 452 page file com-

piled by the Civil Service Commission through various

stages of appeal. Plaintiff also argues that two letters

which he wrote dated May 19, 1964 and March 7, 1965,

which critized his supervisor, and which plaintiff claims

were the motivating reason for his allegedly illegal trans-

fer, are missing from his administrative file “and this

alone makes the government’s case fatally defective in

view of the importance of the document|s}.” Apparently,

plaintiff contends that such letters would prove that his

original transfer was based on criticism of his supervisors,

and that such a reason is arbitrary, capricious and in vi-

olation of his First Amendment rights.

The government argues that on review, this Court

is limited in its scope to a determination of whether ap-

plicable due process requirements were met in the ad-

ministrative review process, and whether the dismissal

for refusal to accept transfer was arbitrary and capricious.

The government continues that the removal for failure to

accept reassignment and the subsequent review were both

procedurally and substantively correct, and that the orig-

inal order of transfer was not such an adverse proceed-

ing requiring the procedural protections given plaintiff in

the later review procedures.

As to the scope of a reviewing court on a discharge

of a Civil service employee, the Sixth Circuit Court of

Appeals has stated that:

The judicial function is to determine whether there

has been substantia] compliance with applicable pro-

cedures and statutes, and not to review the admin-

istrative determination as to the wisdom or good judg-

ment of the agency in exercising its discretion. | Cita-

tions omitted}. Baum v. Zuckert, 342 F. 2d 145, 147

(CA 6, 1965).

The Court must, therefore, ascertain what the applicable

statutes and procedures are, and whether there has been

substantial compliance with same.

Under 5 U.S.C. §7512(b), a “preference eligible em-

ployee”, such as plaintiff, against whom an “adverse ac-

tion” is proposed, is entitled to:

(1) at least 30 days’ advance written notice,

. stating any and all reasons, specifically and in

detail, for the proposed action;

(2) a reasonable time for answering the notice

personally and in writing and for furnishing affidavits

in support of the answer; and

(3) a notice of an adverse decision.

An adverse action then is defined as a “removal, suspen-

sion for more than 30 days, furlough without pay, or re-

duction in rank or pay.” 5 U.S.C, §7511(2).

Although it would appear that a transfer is not an

adverse action within the terms of the statute, plaintiff

maintains that it is within the meaning thereof. In Motto

v. General Services Administration, 335 F. Supp. 694 (E.D.

La., 1971), the court stated that, considering 5 U.S.C. $7512

(b):

Motto’s transfer was ordered because he was consid-

ered an undesirable employee, and to induce his resig-

nation. Hence it was an adverse action even if it en-

tailed no reduction in rank. Id. at p. 696.

In Motto, however, plaintiff had resigned rather than ac-

cept transfer, and was able to get a hearing on the merits

on his “appeal” to the district court. In this case, plaintiff

chose to ignore the transfer and fight the subsequent re-

moval action through the designated administrative pro-

ceedings. As was stated earlier, in such a case, a federal

court is prohibited from reconsidering the merits of the

case. Consequently, the type of hearing afforded in Motto

is not applicable in this court at this juncture of the pro-

ceedings. |

There is no evidence in the record that plaintiff was

transferred in order to induce his resignation or in order

to chill his First Amendment rights. In fact, the Board

of Appeals and Review specifically found that:

The agency’s decision to effect the reassignment was

within its administrative prerogative and there is no

evidence that the reassignment was arbitrary, capri-

cious or unreasonable. Since there was no reduction

in rank or compensation, there was no violation of

adverse action procedures required by the Veteran’s

Preference Act. [5 U.S.C. §7512]. Record, 0. 14.

* x >

The preponderance of the evidence does not indicate

that appellant’s reassignment was designed to “stifle

valid criticism directed to the handling of tax liabil-

ities.” Instead, it indicates inability of appellant to

get along with his supervisors because of an exag-

gerated idea of his own abilities. Record, p. 15.

In Arnett v. Kennedy, 42 L.W. 4513 (1974), the Su-

preme Court stated, in regards to the statutory scheme for

removing a competitive service employee:

Where the focus of legislation was this strongly on the

procedural mechanism for enforcing the substantive

right which was simultaneously conferred, we decline

to conclude that the substantive right may be viewed

wholly apart from the procedure provided for its en-

forcement. The employee’s statutorily defined right

is not a guarantee against removal without cause in

the abstract, but such a guarantee as enforced by the

procedures which Congress has designated for the de-

termination of cause. Id. at p. 4518.

While this decision deals with removal of competitive ser-

vice employees, the Court does not believe that the differ-

ence is of any consequence. What is important is the fact

that the due process rights granted by Congress are vir-

tually the same for both preference eligible employees and

competitive service employees.

This Court must, therefore, conclude that: (1) plain-

tiff’s transfer to Dayton, Ohi®, was not such an adverse

action as contemplated in 5 U'S.C. §7512(b) (3); (2) the

record amply demonstrates that the reassignment was

neither arbitrary, capricious nor unreasonable; and (3)

all other procedural due process rights granted under the

Veteran’s Preference Act were given to plaintiff during the

appeal of his removal from service.

Al0

As to the matter of two missing letters from plaintiff's

file, the Court has thoroughly read the record and is con-

vinced that the letters were fully considered by the respec-

tive appellate agencies. Since this Court is limited to de-

termining whether applicable due process rights were

granted plaintiff, the actual contents of the missing letters

are immaterial to such a decision. The other 41 “missing”

items, ranging from letters for requested interviews to po-

tential witnesses to photostatic copies of Internal Revenue

Service bulletins, are also immaterial to this proceeding.

In conclusion, the record demonstrates that plaintiff's

transfer was not an abuse of administrative discretion and

that there has been substantial compliance with the pro-

cedural due process rights granted by Congress under 5

U.S.C. §7512. Therefore, plaintiff's motion for summary

judgment will be denied and defendants’ cross-motion for

summary judgment will be granted.

IT IS SO- ORDERED.

/s/ Ben C. GREEN

United States District Judge

All

ORDER OF THE DISTRICT COURT

(Filed July 3, 1974)

Case No. C70-883

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES F. SEXTON,

Plaintiff,

DAVID M. KENNEDY, et al.,

Defendants.

ORDER

GREEN, J.

UPON CONSIDERATION of plaintiff's motion for

summary judgment and defendants’ cross-motion for sum-

mary judgment,

IT IS HEREBY ORDERED that defendants’ cross-

motion for summary judgment is granted, and plaintiff's

motion for summary judgment is denied; judgment is en-

tered in favor of defendants dismissing the plaintiff's com-

plaint; see this Court’s memorandum of even date.

/s/ Ben C. GREEN

United States District Judge

Al2

OPINION OF THE COURT OF APPEALS

(Filed October 2, 1975)

No. 74-2377

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

JAMES F. SEXTON,

Plaintiff-Appellant,

VS.

DAVID M. KENNEDY, Secretary of the Treasury, et al.,

Defendants-Appellees.

ApPEAL from the United States District Court for the

Northern District of Ohio, Eastern Division.

Before: Epwarps and Peck, Circuit Judges, and

FEIKENS,* District Judge.

Epwarps, Circuit Judge. Appellant Sexton appeals

from the judgment of the United States District Court

for the Northern District of Ohio, Eastern Division, denying

his motion for a summary judgment and granting the sum-

mary judgment motion of the government. The effect of

the judgment was to sustain his discharge from govern-

ment employment.

Sexton had been an IRS agent for some ten years be-

fore his continuing commentary about the quality of his

*Honorable John Feikens, United States District Judge for

the Eastern District of Michigan, Southern Division, sitting by

designation.

Al3

supervision resulted in his transfer (on grounds of in-

compatibility) from the Cleveland IRS office to that in

Dayton. Sexton refused to go and was fired for refusing

to report at the Dayton office. He then appealed to the

Civil Service Commission and was restored to his job on

procedural grounds, but was again ordered to report to

Dayton. Again he refused and again he was fired. No

back pay was paid him for the period between the first

and the second discharge.

The District Judge who heard this case on affidavits

and the lengthy administrative record provided an accurate

summary of the factual details:

Plaintiff was originally separated from the Internal

Revenue Service on November 4, 1966 for failing to

report for reassignment from Cleveland, Ohio to Day-

ton, Ohio. No change in plaintiff’s rank or compensa-

tion was involved in the reassignment.

This reassignment, based on the Regional Com-

missioner’s finding of an inability to conform to proper

supervision in the Cleveland office, went through the

available appeals procedures, and was confirmed upon

administrative appeal.

Plaintiff then refused to report for duty to Dayton,

and was thereafter separated for refusal to report as

directed. Plaintiff then appealed his separation to the

Civil Service Commission, Chicago Region, and finally

to the Board of Appeals and Review, where his dis-

missal was reversed and he was ordered restored to the

Internal Revenue Service rolls in Dayton, Ohio. The

reversal was based on a finding that “the agency had

unduly limited [plaintiff’s] right of oral reply to the

removal charge.”

Al4

Plaintiff again failed to report for duty in Dayton,

and on July 6, 1967, he was informed by the Regional

Commissioner that, under 5 C.F.R. Part 752:

In order to promote the efficiency o; the service,

it is proposed to remove you from the Service or

otherwise discipline you at any time after thirty

(30) calendar days from the date you receive this

letter.

This same letter informed plaintiff of the procedural

rights available to him for review of this new adverse

action, as well as the charges and supporting specifica-

tions.

Thereafter, plaintiff made several written replies,

and on November 3, 1967, an oral reply. On December

14, 1967, plaintiff was notified that the Regional Com-

missioner found the charge and supporting specifi-

cations to be sustained, and that in order to promote

the efficiency of the service, he was to be removed on

December 29, 1967. Plaintiff was also advised of his

appeal rights, which he perfected through the Civil

Service Commission and Board of Appeals and Review.

Both reviewing agencies upheld the Regional Com-

missioner’s finding and fuwnd no error in the removal

proceeding.

Appellant Sexton’s first claim of substance is that his

transfer to the Dayton IRS office was pure pretext em-

ployed for the purpose of effecting his discharge. He claims

that IRS action was motivated by his criticism of his su-

perior officers’ “improper handling of tax cases” and as-

serts that his discharge violated his free speech rights and

his right to petition for redress of grievances under the

First Amendment.

Al5

The IRS’s position on this issue is stated thus in the

government’s brief:

As justification for the Appeliant’s removal, Mr.

Hunter stated that the record established that the Ap-

pellant was “feuding” with IRS District Officials as

far back as 1959, that he had the reputation as a

trouble-maker, and that his repeated accusations

against his supervisors in Cleveland, both oral and

written, clearly ‘evidenced his inability or refusal to

accept their supervision. Thereafter, the Regional

Commissioner directed the Appellant to a new post of

duty in an adjacent district in hopes that he could

apply himself in a new environment. Mr. Hunter

further stated that instead of viewing the reassign-

ment as an opportunity, the Appellant added this to

his list of “fancied” grievances. Therefore, when the

Appeliant refused to go to Dayton, as directed the

Regional Commissioner had no alternative but to re-

move him.

The other two issues which warrant comment are

Sexton’s claim that 46 documents were “missing” from his

administrative file when it was presented before the Civil

Service Commission and that he was improperly denied

back pay for the time between the first discharge and the

second.

As to appellant Sexton’s claim that the transfer to

Dayton was a pretext designed to force him to quit, the

District Judge found as follows:

There is no evidence in the record that plaintiff

wes transferred in order to induce his resignation or

in order to chill his First Amendment rights. In fact,

the Board of Appeals and Review specifically found

that:

Al6

The agency’s decision to effect the reassignment was

within its administrative prerogative and there is no

evidence that the reassignment was arbitrary, ca-

pricious or unreasonable. Since there was no reduc-

tion in rank or compensation, there was no violation

of adverse action procedures required by the Vet-

eran’s Preference Act. [5 U.S.C. § 7512].

x & oo

The preponderance of the evidence does not indicate

that appeliant’s reassignment was designed to “stifle

valid criticism directed to the handling of tax liabili-

ties.” Instead, it indicates inability of appellant to

get along with his supervisors because of an exag-

gerated idea of his own abilities.

In Arnett v. Kennedy, [416 U.S. 131] (1974), the

Supreme Court stated, in regards to the statutory

scheme for removing a competitive service employee:

Where the focus of legislation was this [sic] strongly

on the procedural mechanism for enforcing the sub-

stantive right which was simultaneously conferred,

we decline to conclude that the substantive right

may be viewed wholly apart from the procedure

provided for its enforcement. The employee's statu-

torily defined right is not a guarantee against re-

moval without cause in the abstract, but such a

guarantee as enforced by the procedures which Con-

gress has designated for the determination of cause.

Id. at [152].

While this decision deals with removal of competitive

service employees, the Court does not believe that the

difference is of any consequence. What is important

is the fact that the due process rights granted by Con-

gress are virtually the same for both preference eligi-

ble employees and competitive service employees.

Al7

This Court must, therefore, conclude that: (1)

plaintiff's transfer to Dayton, Ohio was not such an

adverse action as contemplated in 5 U.S.C. § 7512(b)

(3); (2) the record amply demonstrates that the re-

assignment was neither arbitrary, capricious nor un-

reasonable; and (3) all other procedural due process

rights granted under the Veteran’s Preference Act

were given to plaintiff during the appeal of his re-

moval from service.

We have read this record, including what appellant

had to say about his superiors, and agree that appellant’s

due process rights as spelled out by statute were observed.

Neither the District Court nor this court has the respon-

sibility or the power to act as a super Civil Service Com-

mission. This court has stated the principal subject of

judicial review on discharge of a federal Civil Service em-

ployee as follows:

The function of a reviewing court in cases in-

volving the discharge of civil service employees is a

limited one. Powell v. Brannan, 91 U.S.App.D.C. 16,

196 F.2d 871, 873. The judicial function is to determine

whether there has been substantial compliance with

applicable procedures and statutes, and not to review

the administrative determination as to the wisdom or

good judgment of the agency in exercising discretion.

Hargett v. Summerfield, 100 U.S.App.D.C. 85, 243 F.2d

29, 32, cert. denied, 353 U.S. 970, 77 S.Ct. 1060, 1 L.Ed.

2d 1137. Baum v. Zuckert, 342 F.2d 145, 147 (6th Cir.

1965).

We note, of course, that appellant relies upon the Vet-

erans Preference Act'—specifically upon 5 U.S.C. § 7512

1. Act of June 27, 1944, ch. 287, 58 Stat. 387, codified as

5 U.S.C. §§ 7511, 7512, 7701 (1970).

Al8

(b) (1970). But we also note that the procedures required

by this statute were carefully followed by the agency in

the last discharge which is under review here.

Clearly a transfer of a government employee to

another station without reduction of rank or pay is not per

se “adverse action” within the meaning of the Veterans

Preference Act. 5 U.S.C. § 7511(2) (1970). Even more

clearly, discharge of such an employee for failure to report

to work on such a reassignment is not “arbitrary and ca-

pricious” agency action. Pauley v. United States, 419 F.2d

1061 (7th Cir. 1969).

In this case Judge Hastie employed some reasoning

which we believe is applicable here:

Far from being without any rational basis, we find

the dismissal of plaintiff to be fully supported by the

record. It is clear that if the reassignment was proper,

the dismissal was proper. The Federal Personnel

Manual, Ch. 715-9, Subch. 3-1, provides that “when

any agency has found it necessary to assign an em-

ployee to a position in a different geographical or

organizational location, and an employee refuses to

accept the new assignment, his services may be termi-

nated.”

The transfer in this case was clearly proper. The

Department of Agriculture after an extensive investi-

gation of plaintiff’s performance in Chicago concluded

that he could not get along with the people working

under him. It has been held, and it seems indisputable,

that “strained personal relations” between an employee

and his co-workers “would appear to provide a per-

missible basis for a transfer * * *.” Kletschka v.

Driver, 2 Cir., 411 F.2d 436, 443 (1969).

Als

We have reviewed the record sufficier.tly to con-

clude that the Civil Service Commission could have

rationally found that this was the reason for the re-

assignment of plaintiff. Plaintiff's resulting dismissal

was not the consequence of an arbitrary or capricious

action. Pauley v. United States, supra at 1066-67.

This, however, does not fully dispose of plaintiff's

principal argument on this appeal. For no matter how fair

procedures may be on surface appearance, if in fact they

are employed to conceal a purpose violative of the federal

Constitution, there must be a remedy. Yick Wo v. Hop-

kins, 118 U.S. 356, 373-74 (1886); Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403 U.S.

388, 392 (1971). Thus if plaintiff had made his case that

his transfer was a mere pretext to suppress his First

Amendment rights, he might still prevail. See generally

Motto v. General Services Administration, 335 F. Supp.

694 (E.D. La. 1971), aff'd, 502 F.2d 1165 (5th Cir. 1974),

cert. denied, 420 U.S. 927 (1975).

In Arnett v. Kennedy, 416 U.S. 134 (1974), the plurality

opinion, discussing a similar federal employee protection

act,” said:

Since Congress when it enacted the Lloyd-La

Follette Act did so with the intention of conferring job

protection rights on federal employees which they had

not previously had, it obviously did not intend to au-

thorize discharge under the Act’s removal standard

for speech which is constitutionally protected. The

Act proscribes only that public speech which improp-

erly damages and impairs the reputation and effi-

ciency of the employing agency, and it thus imposes

2. The Lloyd-LaFollette Act, Act of August 24, 1912, ch.

389, § 6, 37 Stat. 555, codified as 5 U.S.C. § 7501 (1970).

A20

no greater controls on the behavior of federal em-

ployees than are necessary for the protection of the

Government as an employer. Indeed the Act is not

directed at speech as such, but at employee behavior,

including speech, which is detrimental to the ef-

ficiency of the employing agency. We hold that the

language “such cause as will promote the efficiency

of the service” in the Act excludes constitutionally

protected speech, and that the statute is therefore not

overbroad. Colten v. Kentucky, 407 U.S., at 111.

Arnett v. Kennedy, supra at 162.

On this aspect of the matter, however, we simply do

not find proofs in the administrative record or in the

District Court record which suggest reversal of the find-

ings adverse to appellant entered in both forums.

The Board of Appeals and Review found that the

criticisms indicated “inability of appellant to get along

with his supervisors because of an exaggerated idea of his

own abilities.” As to this issue the District Judge found

that the record amply demonstrates that the reassignment

was neither “arbitrary, capricious nor unreasonable”; and

we agree.

Appellant had an opportunity to present evidence on

this issue at the Civil Service hearing and failed to con-

vince the body designated by law to protect federal em-

ployees from unjust discharge. Before the District Court

appellant joined in cross-motions for summary judgment

under Rule 56, Federal Rules of Civil Procedure. He thus

chose to rest his case upon the administrative record, plus

exhibits. The written record presented to this court does

not support any finding by us that the agency discharge

was arbitrary and capricious or that the District Court’s

findings were clearly erroneous.

—-

A2l1

As to the other two issues which we believe merit com-

ment, we can be much more brief. Appellant argued orally

and by brief that his case had been materially prejudiced

by the absence of some 46 “missing” documents. Our in-

spection of this record and of the documents themselves

indicates that they were “missing” only in the sense that

they were not included in appellant’s administrative file.

They clearly were before the District Court in its considera-

tion of this case.

Further, we find nothing sinister in their omission from

the administrative file. The “missing” documents appear

to us to have had little, if anything, to do with the merits of

plaintiff's claims. Whether to include them or not was

clearly an administrative decision.

As to appellant’s contention that in any event he

should be paid back pay for the period between his first

and second discharge, the applicable statute provides as

follows:

(b) An employee of an agency who, on the basis

of an administrative determination or a timely appeal,

is found by appropriate authority under applicable law

or regulation to have undergone an unjustified or un-

warranted personnel action that has resulted in the

withdrawal or reduction of all or a part of the pay,

allowances, or differentials of the employee—

(1) is entitled, on correction of the personnel

action, to receive for the period for which the per-

sonnel action was in effect an amount equal to all

or any part of the pay, allowances, or differentials,

as applicable, that the employee normally would

have earned during that period if the personnel ac-

tion had not occurred, less any amounts earned by

him through other employment during that period;

and

A22

(2) for all purposes, is deemed to have per-

formed service for the agency during that period,

except that the employee may not be credited, under

this section, leave in an amount that would cause

the amount of leave to his credit to exceed the maxi-

mum amount of the leave authorized for the em-

ployee by law or regulation. 5 U.S.C. § 5596(b)

(1970).

The Civil Service Commission’s reversal of the first

discharge order was clearly upon procedural grounds, but

it might well be held to represent a finding that the first

discharge was “unwarranted.”

The statute, however, also authorizes the Civil Service

Commission to “prescribe regulations to carry out this sec-

tion.” 5 U.S.C. § 5596(c) (1970). Under that authority the

Civil Service Commission has adopted the following regula-

tion:

(d) In computing the amount of back pay under

this section and section 5596 of title 5, United States

Code, the agency may not . . .(2) include any period

during which the employee was unavailable for the

performance of his job and his unavailability was not

related to, or caused by, the unjustified or unwar-

ranted personnel action. 5 C.F.R. § 550.804(d) (2)

(1975).

Since we have already held that the IRS order trans-

ferring appellart to Dayton was within the agency’s ad-

ministrative discretion, appellant’s failure to report must

be held to be “unavailability .. . not related to or caused

by, the . . . unwarranted personnel action.” Under this

regulation appellani was not entitled to back pay.

The judgment of the District Court is affirmed.

ee a em ee te ee ee

ee ae

tn te

A23

ORDER OF THE COURT OF APPEALS

(Filed October 30, 1975)

No. 74-2377

UNITED STATES COURT APPEALS

For THE SIXTH CIRCUIT

JAMES F. SEXTON,

Plaintiff-Appellant,

VS.

DAVID M. KENNEDY, Secretary of the Treasury, et al.,

Defendants-Appellees.

ORDER

Before: Epwarps and Peck, Circuit Judges, and FEIKENS,*

District Judge.

On receipt and consideration of a petition for rehear-

ing in the above-styled case; and

For disqualification of all judges of the Sixth Circuit,

Said motions are hereby denied.

Entered by order of the Court

/s/ Joun P. HEHMAN

Clerk

*Honorable John Feikens, United States District Judge for

the Eastern District of Michigan, Southern Division, sitting by

designation.

A24

UNITED STATES CONSTITUTION AND STATUTES

Constitution of the United States, Amendment I

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

Constitution of the United States, Amendment V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual serv-

ice in time of War or public danger; nor shall any person

be subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just com-

pensation.

5 U.S.C. §706

§ 706. Scope of review

To the extent necessary to decision and when pre-

sented, the reviewing court shall decide all relevant ques-

tions of law, interpret constitutional and statutory pro-

visions, and determine the meaning or applicability of the

terms of an agency action. The reviewing court shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

es oe wes

——~

A25

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

ity, or limitations, or short of statutory right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title or

otherwise reviewed on the record of an agency hear-

ing provided by statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the court shall re-

view the whole record or those parts of it cited by a party,

and due account shall be taken of the rule of prejudicial

error. Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 393.

5 U.S.C. §7511

§ 7511. Definitions

For the purpose of this subchapter—

(1) “preference eligible employee” means a per-

manent or indefinite preference eligible who has com-

pleted a probationary or trial period as an employee

of an Executive agency or as an individual employed

by the government of the District of Columbia, but

A26

does not include an employee whose appointment is

required by Congress to be confirmed by, or made with

the advice and consent of, the Senate, except an em-

ployee whose appointment is made under section 3311

of title 39; and

(2) “adverse action” means a removal, suspension

for more than 30 days, furlough without pay, or reduc-

tion in rank or pay.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 528.

5 U.S.C. $7512

§ 7512. Cause; procedure; exception

(a) An agency may take adverse action against a

preference eligible employee, or debar him for future ap-

pointment, only for such cause as will promote the ef-

ficiency of the service.

(b) A preference eligible employee against whom

adverse action is proposed is entitled to—

(1) at least 30 days’ advance written notice, except

when there is reasonable cause to believe him guilty

of a crime for which a sentence of imprisonment can

be imposed, stating any and all reasons, specifically and

in detail, for the proposed action;

(2) a reasonable time for answering the notice per-

sonally and in writing and for furnishing affidavits in

support of the answer; and

(3) a notice of an adverse decision.

removal of a preference eligible employee under section

7532 of this title. Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 528.

8 eRe ene

ee eee re re

A27

5 U.S.C. g77ul

§ 7701. Appeals of preference eligibles

A preference eligible employee as defined by section

7511 of this title is entitled to appeal to the Civil Service

Commission from an adverse decision under section 7512

of this title of an administrative authority so acting. The

employee shall submit the appeal in writing within a rea-

sonable time after receipt of notice of the adverse decision,

and is entitled to appear personally or through a repre-

sentative under regulations prescribed by the Commission.

The Commission, after investigation and consideration of

the evidence submitted, shall submit its findings and

recommendations to the administrative authority and shall

send copies of the findings and recommendations to the

appellant or his representative. The administrative au-

thority shall take the corrective action that the Commis-

sion finally recommends. Pub.L. 89-554, Sept. 6, 1966, 80

Stat. 530.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.