Petition for Writ of Certiorari — McFarland v. United States

OCTOBER TERM, 1975

No. 75-479 {

GRACE K. McFARLAND,

Petitioner,

Vv.

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

JOHN I. HEISE, JR.

RICHARD F, STEFANELLI

861 Pershing Drive

Silver Spring, Maryland 20910

585-8400

Attorneys for Petitioner

THE CASILLAS PRESS, INC.-1717 K Street, N. W.—Washington, DO. C.-223-1220

(i)

TABLE OF CONTENTS

OPINION BELOW .

JURISDICTION .

QUESTION PRESENTED

STATUTES AND REGULATIONS INVOLVED .

STATEMENT OF THE CASE .

REASONS FOR GRANTING THE WRIT .

CONCLUSION

APPENDIX A.

APPENDIX B.

CASES CITED

Cases:

Anti-Fascist Committee v. McGrath,

341 U.S. 123 (1951) .

Armstrong v. Manzo,

389 U.S. 545 (1965) .

Amett v. Kennedy,

416 U.S. 134 (1974) .

Bell v. Burson,

402 U.S. 535 (1971) .

1Sa

9, 10

6, 7, 8, 10, 11, 12, 16, 18

uy seca Sot OR OE tT

A

4

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3

£

<

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i

=

7 $.%

(ii)

Board of Regents v. Roth,

408 U.S. 564 (1972) .

Bowles v. Willingham,

321 U.S. 503 (1944) .

Cafeteria Workers v. McElroy,

367 U.S. 554 (1921) .

Central Trust Co. v. Garvan,

254 U.S. 554 (1921) .

Connell v. Higginbotham,

403 U.S. 207 (1971) .

Corn Exchange Bank v. Coler,

280 U.S. 218 (1930) .

Dent v. West Virginia,

129 U.S. 114 (1889) .

Ewing v. Mytinger & Cassell Casselberry,

339 U.S. 594 (1950) .

Fahey v. Mallonee,

332 U.S. 245 (1947) .

Fuentes v. Shevin,

407 US. 67 (1972).

Goldberg v. Kelly,

397 U.S. 254 (1970) .

Grannis v. Ordean,

234 U.S. 385 (1914) .

7-8, 8

11

9, 12, 14

9-10

(iii)

Page

McFarland v, United States,

aT Dune Gee Cas Sa, ROD ss kk te l

Morrissey v. Brewer,

Oe Sa, Gen Geen ck 8 8 ee he Re we 7

North American Cold Storage Co. v. —

211 U.S. 306 (1908)... ... 7 ae ae ae 9

Perry v. Sinderman,

GO We ee CF) 0 kk hw te te we 8

Phillips v. Commissioner,

Ek ef | eer eS

Scroggins v. United States,

184 Ct. Cl. 530, 397 F.2d 295, cert. denied,

303 USB. S52 (ISSR) 2 ww kt ess

Snidach v. Famiiy Finance Corp.,

DUS TER, BOT Cheers 8 8 8 we es 8

Wolff v. McDonnell,

RR Re. i a re ee a 7

Statutes and Regulations:

United States Constitution, Fifth Amendment... . 2, 8

ae We RE ok 6 wk ee 2

S Ue. Bee ees kk kk ee kw 2

5 U.S.C. Section 7501, The Lioyd-LaFollette Act . . 2, 7, 10

Federal Personnel Manual, Supplement 831, teal

510-10, 33 Fed. Reg. 7715-7717. . . . : re

LES I A NN A

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No.

GRACE K. McFARLAND,

Petitioner,

v.

THE UNITED STATES,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF CLAIMS

Petitioner respectfully petitions that a Writ of Certiorari

issue to the United States Court of Claims to review the

judgment of that Court entered May 14, 1978, and its Onder

denying a rehearing en banc of said decision entered June

27, 1978.

OPINION BELOW

The Opinion on the case in the Court of Claims was a

Memorandum Opinion which will be reported in 207 Ct.

Cl.__—, 517 F.2d 938 (1975) and is printed in Appendix

A, infra The Order denying a rehearing of said Opinion

is printed in Appendix B, infra.

JURISDICTION

The Order of the Court of Claims was entered on June

27, 1975. The jurisdiction of this Court is invoked under

28, U.S.C. 1255(1) and the Rules of the Supreme Court

of the United Statc. "le 19(1)(b) and 2.

QUESTION PRESENTED

Were Petitioner’s rights of due process violated when she

was denied a hearing “‘at some stage of the proceedings”

before her involuntary disability separation became final?

STATUTES AND REGULATIONS INVOLVED

United States Constitution, Fifth Amendment.

§ U.S.C. 8337 (1970).

5 U.S.C. 7501, 80 Stat. 572 (The Lloyd-Lafollette Act)

Federal Personnel Manual, Supp. 831, Sub-Chapter 510-10.

(See also, 33 Fed. Reg. 7715-7717).

3

STATEMENT OF THE CASE

This case involves the involuntary disability separation

of a classified Civil Service employee in 1968, from her

position of Accounting Technician, GS-5 with the Depart-

ment of the Air Force at Patrick Air Force Base in Flori-

da. The opinion of the Court of Claims which appears as

Appendix A herein adopted the Trial Judge’s opinion which

adequately sets forth a chronological history of the events

leading up to this petition.

A review of the Trial Judge’s opinion will reveal that

the Petitioner had been employed at Patrick Air Force

Base, in the field of accounting since 1951. She began

her federal service in 1942 with the Department of the

Army.

The events which led up to her involuntary retirement

allegedly began in November of 1964 and concluded on

February of 1967. During this period of time the Peti-

tioner’s supervisor was 4 Mr. Clark, except for a short

period between June, 1966 to September 1966, when she

was under the direct supervision of a Mr. Lopez-Vega.

The incidents which these two supervisors considered to

be disruptive job behavior consisted of the following:

1. In November 1964, plaintiff requested authori-

zation of Mr. Clark to work overtime. She

was denied this and began to cry and accord-

ing to Mr. Clark, created a scene.

2. Between June 12, 1966, and September 12,

1966, Mr. Lopez-Vega recorded five incidents

concerning the Petitioner which in general

amounted to:

4

a her refusal to carry out his instructions

on three occasions

b. her use of hostile and insulting language

to a fellow worker

cc. refusal to comply with his written in-

structions.

3. On February 2, 1967, the Petitioner and her

Technical Supervisor, Miss Grice had an ex-

change regarding the Petitioner's mailing out

an original, rather than a duplicate of a re

port.

The above incidents are more fully detailed in the Trial

Judge's opinion. However, they constitute the totality of

events leading up to Mr. Clark’s reporting them to the

Chief, Accounting and Finance Branch. As a result of

this repert, the Chief Accounting and Finance Branch di-

rected the Petitioner “by reason of your disruptive job

behavior which has continued over the past three years”

to report to the Patrick Air Force Base Hospital for a

medical examination to determine whether she was physi

cally able to continue in her assigned tasks.

Thereafter, the Petitioner was seen by two psychiatrists,

the first at the request of the Chief, Accounting and Fi

nance Branch, and the second at the request of the Region-

al Medical Officer of the Civil Service Commission.

tach psychiatrist based his report on a single interview

of approximately one-half hour's duration. The first psy-

chiatrist, Dr. Adickes, concluded that the Petitioner “has

a persecution complex with paranoid delusions prominent

enough to create difficulty in maintaining reasonable be-

havior.” The second psychiatrist, Dr. James R. Parsons,

5

after reviewing the report of Dr. Adickes, rendered 3 diag-

nosis of “Schizophrenic reaction, paranoid type, with de-

pressive trend.” Dr. Parsons later testified in proceedings

below that his first opinion and diagnosis was “definitely

inaccurate” and that making a diagnosis of mental illness

on the basis of a single interview was unfair both to the

patient and the psychiatrist.

The Civil Service Commission acting upon the involun-

tary disability application filed by the Petitioner's superiors,

and the (now revealed “definitely inaccurate”) psychiatrist's

report then notified the Petitioner in July 29, 1967 of

her involuntary disability retirement.

Up to the time of this notification, the Petitioner was

not appraised of the specific charges contained in the re

ports of her superiors, was not given a copy of the psy chi-

atric reports, and above all was not afforded an opportu-

nity for any hearing or proceeding to defend the action

taken against her.

At all times during this procedure, the Petitioner assert-

ed her nghts to a hearing and specifically requested such

from the Civil Service Commission. She also requested

that she be confronted with the evidence submitted against

her contained in the reports of her superiors and in the

psychiatric evaluations. The Trial Judge's opinion will re

flect that the Petitioner made repeated requests upon the

Civil Service Commission for a hearing both prior to the

time the retirement became final and again at the appel-

late level of the Civil Service procedures.

The Civil Service Commission treated her requests as an

appeal, but did not grant her a hearing. The Petitioner

submitted to the Civil Service Commission evidence from

independent psychiatrists which she had consulted indicating

6

that she did not have a mental illness, and in addition, she

submitted a letter from the aforesaid Dr. Parsons who had

changed his original diagnosis of her and stated that “I see

no reason why Mrs. McFarland’s appeal should not be con-

sidered favorably.”

The Board of Appeals and Review of the Civil Service

Commission without a hearing, but with the new evidence

before it, affirmed the decision of the Bureau of Retire-

ment and Insurance to involuntarily retire Mrs. McFarland.

At no time throughout the proceedings was Petitioner,

Mrs. McFarland, granted any hearing either at the Agency

or Civil Service level. On September 30, 1971, the Peti-

tioner, through her present attorneys, filed a petition with

the United States Court of Claims from which decision

the Petitioner is hereby filing this petition for Writ of

Certiorari.

REASONS FOR GRANTING THE WRIT

This Court has ruled in the case of Arnett v. Kennedy,

416 U.S. 134, 40 L. Ed. 15, 94 S. Ct. 1633 (1974) that

a government job is a property interest which cannot be

taken away from an employee without a hearing “at some

stage of the proceedings” (emphasis added) because of the

due process guarantees of the United States Constitution.

The Petitioner’s rights to a due process hearing were vio-

lated when the Civil Service Commission terminated her

employment on an involuntary disability retirement with-

out affording her a due process hearing, such as mandated

in the case of Arnett v. Kennedy, supra.

This petitioner, a federal employee in the competitive

service was guaranteed continued employment absent “cause”

for discharge or suspension.! With such guarantee, the

property right of Petitioner in her government position re-

quired that she be accorded the minimal procedural guar-

antees of due process extended by the Fifth Amendment

of the Constitution. And so six of the Justices in the

case of Arnett v. Kennedy, supra, agreed.

These minimal guarantees are those of notice and a hear-

ing. The question of notice is not present here, but Pe-

titioner’s rights were violated when she was denied a hear-

ing at any stage of the proceedings.”

It has been Petitioner’s continual claim throughout the

proceedings that she was at some juncture entitled to a

hearing under the basic Constitutional guarantees of due

process.?

Prior to this Court’s opinions in Arnett v. Kennedy, supra,

the right of a citizen not to have his property taken with-

out a hearing was well established. Connell v. Higginbotham,

403 U.S. 207 (1971) (loss of a state job); Goldberg v. Keily,

397 U.S. 254 (1970) (loss of welfare payments); Morrissey

v. Brewer, 408 U.S. 471 (1972) (revocation of a parole);

Wolff v. McDonnell, 418 U.S. 539 (1974) (cancellation of

a prisoner’s good-time credits); Bell v. Burson, 402 U.S.

535 (1971) (cancellation of a driver’s license); Board of

Regents v. Roth, 408 U.S. 564 (1972) (damaged reputation

1 5 U.S.C. 7501, 80 Stat. 527.

2 No contention is made for entitlement to some hearing prior

to removal at the agency level as opposed to a hearing after removal

by the Civil Service Commission.

3 After June 30, 1968, Civil Service Regulations provided for a

hearing in instances of involuntary retirement discharges (33 Fed.

Reg. 7715-7717). Petitioner's discharge was effective June 11, 1968.

8

and standing); Sniadach v. Family Finance Corp., 395 U.S.

337 (1969) (garnishment of wages); Fuentes v. Shevin, 407

U.S. 67 (1972) (seizure of mortgaged property).

Six Justices in Arnett v. Kennedy, supra, reaffirmed the

constitutional guarantee in a federal employee to a hearing.

The plurality opinion by Justice Rehnquist allowed that

a hearing ‘“‘after the actual dismissal is a sufficient compli-

ance with the requirements of the Due Process Clause,” 416

U.S. at 157.

Relying upon the decisions of Board of Regents vy. Roth,

supra, and Perry v. Sindermann, 408 U.S. 593 (1972), Jus-

tice Powell in his opinion in Arnett v. Kennedy, supra,

concluded that termination of the employment of a federal

employee requires both notice and a hearing by reason of

the employee's property interest under the Fifth Amend-

ment, «16 U.S. at 166.

Justice White in his opinion in Arnett v. Kennedy, supra,

discussed at some length the decisional support for due

process entitlement for Civil Service employees facing sepa-

ration from the roles, and in 416 U.S. 178-179, states:

“The past cases of this Court uniformly indi-

cate that some kind of hearing is required at

some time before a person is finally deprived

of his property interests. The principles of

due process “‘come to us from the law of Eng

land . . . and their requirement was there de

signed to secure the subject against the arbi-

trary action of the crown and place him

under the protection of the law.” Dent y.

West Virginia, 129 U.S. 114, 123, 32 L.Ed.

623, 9 S. Ct. 231 (1889). The “right to be

| PR eo eter

heard before being condemned to suffer griev-

ous loss of any kind, even though it may not in-

volve the stigma and hardships of a criminal con-

viction, is a principle basic to our society.”

Anti-Fascist Committee v. McGrath, 341 U.S. 123,

168, 95 L. Ed. 817, 71 S. Ct. 624 (1951) (Frank-

furter, J., concurring).

This basic principle has unwaveringly been ap-

plied when private property has been taken by

the State. A fundamental requirement of due

process is “the opportunity to be heard.” Gran-

nis vy. Ordean, 234 U.S. 385, 394, 58 L.Ed.

1363, 34 S. Ct. 779 (1914). “It is an opportu-

nity which must be granted at a meaningful time

and in a meaningful manner.” Armstrong y.

Manzo, 389 U.S. 545, 552, 14 L. Ed.2d 62, 85

S. Ct. 1187 (1965). Where the Court has reject-

ed the need for a hearing prior to the initial

“taking,” a principal rationale has been that a

hearing would be provided before the taking be

came final. See North American Cold Storage

Co. v. Chicago, 211 U.S. 306, 53 L. Ed. 195,

29 S. Ct. 101 (1908) (seizure of food unfit for

consumption); Central Trust Co. v. Garvan, 254

U.S. 554, 65 L. Ed. 403, 41 S. Ct. 214 (1921)

(seizure of property under Trading with the

Enemy Act); Corn Exchange Bank y. Coler, 280

U.S. 218, 74 L. Ed. 378, 50 S. Ct. 94 (1930)

(seizure of assets of an absconding husband);

Phillips v. Commissioner, 283 U.S. 589, 75 L.

Ed. 1289, 51 S. Ct. 608 (1931) (collection of

a tax); Bowles vy. Willingham, 321 U.S. 503, 88

L. Ed. 892, 64 S. Ct. 641 (1944) (setting of

price regulations); Fahey v. Mallonee, 332 U.S.

10

245, 91 L. Ed. 2030, 67 S. Ct. 1552 (1947)

(appointment of conservator of assets of sav-

ings and loan association); Ewing v. Mytinger

& Casselberry, 339 U.S. 594, 94 L. Ed. 1088,

70 S. Ct. 870 (1950) (seizure of misbranded

articles in commerce). While these cases indi

cate that the particular interests involved might

not have demanded a hearing immediately, they

also reaffirm the principle that property may

not be taken without a hearing at some time.”

Justice White then concluded, 416 U.S. at 185-186:

“T conclude, therefore, that as a matter of due

process, a hearing must be held at some time

before a competitive civil service employee may

be finally terminated for misconduct. Here,

th: Constitution and the Lloyd-La Follette

Act converge, because a full trial-type hearing

is provided by statute before termination from

the service becomes final, by way of appeal

either through OEO, the Civil Service Commis-

sion or both.”

Justice Marshall with whom Justice Douglas and Justice

Brennan concurred, observed in his dissenting opinion (416

U.S. 212) that:

**. .. due process requires that a hearing be held “‘at

a meaningful time and in a meaningful manner,”

Armstrong v. Manzo, 380 U.S. 545, 552, 14 L.Ed.

2d 62, 85 S. Ct. 1187 (1965), but it remains for

us to give content to that general principle in this

case by balancing the Government'’s asserted in-

terests against those of the discharged employee.

Goldberg v. Kelly, 397 U.S. at 263, 25 L.Ed.2d

1]

287; see Cafeteria Workers v. McElroy, 367 U.S.

886, 395, 6 L.Ed2d 1230, 81 S. Ct. 1743 (1961).

The interests of a public employee in a secure

Government job are as weighty as other interests

which we have found to require at least the rudi-

mentary protection of an evidentiary hearing as

a precondition to termination.”

Justice Marshall further commented at 416 U.S. 226-

227 that:

“The decisions of this Court compel the conclu-

sion that a worker with a claim of entitlement

to public employment absent specified cause has

a property interest protected by the Due Process

Clause and therefore the right to an evidentiary

hearing before an impartial decision-maker prior

to dismissal.”

The decision of Arnett v. Kennedy, supra, was not over-

looked by the three-judge panel which reviewed Petitioner’s

case in the United States Court of Claims below. Judge

Skelton concurred in the opinion for the sole reason that

under the rules of the United States Court of Claims a

three-judge panel could not overrule an en banc decision

of that Court. Judge Skelton noted the decision of Scrog-

gins v. United States, 184 Ct. Cl. 530, 397 F.2d 295, cert.

denied, 393 U.S. 952 (1968) in which the Court of Claims

held that in an involuntary retirement case where physical

disability is the basis for the retirement, the employee is

not entitled to a hearing at any stage of the proceedings.

After acknowledging the fact that the panel could not

overrule such an en banc decision, Judge Skelton stated as

follows (page 13, Appendix A, infra):

12

;

}

:

4

“Were it not for our rule aforesaid, I would dis-

sent on the ground that the plaintiff was entitled

to a hearing before her involuntary retirement be-

came final because of the later decision of the

Supreme Court in Arnett v. Kennedy, supra, 416

U.S. 134 (1974), and other similar cases. In

that case the Supreme Court held that a govern-

ment job was property that could not be taken

away from an employee without a hearing at

some stage of the proceedings because of the

due process clause of the Constitution. While

it is true that case involved the discharge of an

employee for cause and not retirement for disa-

bility, I think the same basic rules should apply

and that a hearing is required by the due proc-

ess clause in both instances.”

The l'etitioner gave the Court of Claims the opportunity

to correct this procedural problem by requesting a rehear-

ing en banc, however, the Court denied this motion on

June 27, 1975.

The Court of Claims in its majority opinion below agreed

that Arnett v. Kennedy, supra, provided for a hearing at

“some time” but went on to erroneously conclude that

a trial before a Trial Judge of the Court of Claims satisfied

this requirement (Appendix p. 12).

In support of their position that the Court trial before

the Court of Claims Trial Judge satisfies the requirements

of Arnett v. Kennedy, supra, the majority of the Court

panel below cited the case of Phillips v. Commissioner,

283 U.S. 589, 75 L. Ed. 1289 (1931) and the case of Cen

tral Trust Co. vy. Garvan, 254 U.S. 554, 65 L. Ed. 403

(1921).

Ree

13

In the case of Phillips v. Commissioner, the Internal

Revenue Service sought the payment of back taxes of a

dissolved corporation from one of the stockholders. In

that case the Commissioner of the Internal Revenue had

made the defiency assessment, and thereafter the taxpayer

was given a right for a determination of his liability. The

taxpayer argued that the procedure violated due process

because it did not provide for a judicial termination of his

liability at the outset. Justice Brandis speaking for the

Court noted that the taxpayer had two alternatives for

contesting his liability. He could pay the tax and bring a

suit in the Courts for a refund or he could avail himself

of administrative remedies by seeking an immediate rede

termination of the liability by the Board of Tax Appeals.

With respect to the second alternative, Justice Brandis noted

in 283 U.S. at 598 as follows:

“Thus within sixty days after the Commissioner

determines that the transferee is liable for an un-

paid defiency and gives notice thereof, the latter

may file a petition with the Board of Tax Ap-

peals. Formal notice of the tax liability is thus

given; the Commissioner is required to answer:

and there is a complete hearing de novo accord-

ing to the rules of evidence applicable in Courts

of Equity of the District of Columbia. This

remedy may be had before payment, without

giving bond (unless the Commissioner in his dis-

cretion deems a jeopardy assessment necessary ).

The transferee has a right to a preliminary ex-

amination of the books, papers, and other evi-

dence of the taxpayers; and the burden of proof

is on the Commissioner to show that the appel-

lant is liable as the transferee of the property,

though not to show that the taxpayer was liable

MER wi SABE RS nd Seal SF ie

14

for the tax. A review by the Circuit Court of

Appeals of an adverse determination may be

had; and assessment and collection meanwhile

may be stayed by giving bond to secure payment.”

Thus it is believed that the Court of Claims misconstrued

the case of Phillips v. Commissioner, supra, since the tax-

payer there was in fact entitled to a hearing at the admin-

istrative level if he so elected.

The other case relied on by the Court of Claims, Central

Trust Co. v. Garvan, supra, involved the Trading with the

Enemy Act of 1917, which provided that the Alien Prop-

erty Custodian could make an administrative determination

that property belonged to the enemy and should be de

livered, conveyed, or transferred to him. The act also pro-

vided that the party whose property had been taken could

file a claim at the administrative level for its return, and

if denied, he had the right to bring suit in the District

Court. ‘

At no time in the Central Trust case did the claimants

assert a right to a hearing at the administrative level, and

the Constitutional question of their rights to a due process

hearing at any administrative level was never considered by

the Supreme Court. Thus the Court of Claims reliance

upon the Central Trust case is also misplaced in that it

never resolved the question of whether a subsequent court

trial can be the substitute for an administrative hearing.

It is further submitted that the hearing before a trial

Judge of the Court of Claims cannot be substituted for an

administrative hearing because the issues to be tried are not

the issues which were to be, or could be, decided in a

hearing at the Civil Service Commission or Agency level. If

the Petitioner had been afforded a hearing at the Civil Service

15

level, the issue would have been whether she was physical-

ly or mentally incapable of performing her duties on the

job and whether there was cause for her separation. On

the other hand, the issues to be determined by the Court

of Claims Trial Judge were developed as follows:

1. Did the action by Agency officials in prepar

ing an application for total disability and the

examination of Dr. Parsons constitute error

which went to the very heart of the adminis-

trative determination of disability?

Was the action by the Civil Service Commis

sion, after being placed on notice of the er-

roneous determination made by Dr. Parsons

arbitrary and capricious and, therefore, erro-

neous?

3. Was plaintiff guilty of laches?

ty

Thus, it is clear that the issues to be determined by the

Trial Judge were in no way similar to the issue for deter-

mination at the Civil Service Commission or Agency level.

This is of extreme importance since a hearing at the Civil

Service Commission level would have examined the actions

of the Petitioner whereas the hearing at the Court of Claims

level dealt with the actions of Agency and Civil Service of-

ficials in an effort to determine whether or not they acted

in good faith. As the Court of Claims Trial Judge himself

noted (page 8, Appendix A, infra):

“The presumption that government officials have

acted in good faith in making a decision can be

overcome only by a strong showing to the con-

trary .... While there is room for doubt that

Agency action in preparing the application is of

any relevance here, it is in any event clear that

Sicceeiaees |

Behe yee ACI Sag lente MeO Be

4

4

f

!

a

/

16

the presumption of good faith has not been

overcome.”

The Trial Judge further went on to comment (page 9,

Appendix A, infra) as follows:

“The duty of determining questions of disability

is imposed by statute on the Commission, and

only some error ‘going to the heart of the admin-

istrative determination’, as defined in Scroggins vy.

United States, supra, permits the setting aside by .

a Court of the administrative discharge of that

duty.”

Thus, the Trial Judge recognized that the issues before

him were entirely different than those which would have

been aired at a hearing at the Agency or Civil Service

Commission level.

To say that the trial before the Court of Claims in this

case satisfies the requirements of Arnett v. Kennedy, supra,

is to misinterpret the full import of that decision. It is

submitted that the hearing called for in Arnett v. Kennedy,

supra, should determine in the first instance whether or

not an employee can be removed from his or her job and

such a hearing should not be insulated by presumptions

that those who did the removing acted in good faith.

Certainly the hearing guarantee discussed by the Justices

in Arnett v. Kennedy, supra, was a hearing before the

termination process [either before or after cessation of

pay] was complete. This would embrace proceedings con-

ducted by either the Agency or Civil Service Commission.

A trial before the Court of Claims is not, and cannot be,

a substitute for such a hearing. Considerations of delay,

te ition

17

availability, funding, geographical location, etc., clearly

militate against any such concept of equivalency. The ad-

ministrative hearing is the due process arena. The consti-

tutional guarantee of administrative hearing hefore the ap-

pellate processing of the separation has been finalized is

the hearing of which this Court speaks when it addresses

itself to the property rights of Civil servants in their jobs.

Of course, secondary to the Constitutional question of

whether or not the Petitioner was entitled to a hearing, is

the question of whether or not the actions of the Civil

Service Commission, after being placed on notice of the

erroneous psychiatric diagnosis made by Dr. Parsons. con-

stituted reversible error.

The Trial Judge’s opinion shows that not only did the

Petitioner supply the Civil Service Commission with opin-

ions from independent psychiatrists indicating that she was

not mentally disabled, but in addition thereto, one of the

government’s own examining psychiatrists, Dr. Parsons, later

changed his opinion and concluded that his original diag-

nosis was “definitely inaccurate”. Thus the basic determi-

nation of disability made by the Civil Service Commission

was predicated upon an erroneous evaluation made by Dr.

Parsons. When apprised of such information, the Civil Service

Commission’s refusal to overturn its original determination

or to grant a hearing to the Petitioner was nothing less

than arbitrary.

There is every possibility that if the Petitioner in this

case had been afforded a hearing at the Civil Service level.

she would not have been involuntarily retired from her job.

She was removed based upon the statements of tvo psychi-

atrists, who examined her for a period of approximately

one-half hour each and one of whom later reversed his

2a Menon, Tt detutW Geo DR Oe ea ane *

18

diagnosis. The Petitioner’s case is a classic example of the

harsh abuse which can result from the omission of proper

due process guarantees. As Justice White said in the case

of Arnett v. Kennedy, supra, it is clear “that as a matter

of due process, a hearing must be held at some time be-

fore a competitive Civil Service employee may be finally

terminated for misconduct” (see: 416 U.S. 185). This

basic right under our Constitution was denied to this Pe

titioner.

CONCLUSION

This Court should accept this Petition for a Wnt of

Certiorari in order to right the wrongs which have been

inflicted upon the Petitioner and to further clarify any

confusion which may exist among the Bar and the Courts

as to ths true meaning of the decision in Arnett v. Ken-

nedy, supra.

Respectfully submitted,

John I. Heise, Jr.

Richard F. Stefanelli

861 Pershing Drive

Silver Spring, Maryland 20910

585-8400

Attorneys for Petitioner

September, 1975.

4 1 “Re aes

APPENDIX A

Jn the Wnited States Court of Claims

No. 746-71

(Decided May 14, 1975)

GRACE K. McFARLAND v. THE UNITED STATES

John J. Heise, Jr., attorney of record, for plaintiff. Heise

and Jorgensen, of counsel.

Raymond B. Benzinger, with whom was Acting Assistant

Attorney General Irving Jaffe, for defendant.

Before Sketron, Kasurwa, and Kunzic, Judges.

OPINION

Per Curtam: This case comes before the court on plain-

tiff’s exceptions to the recommended decision filed April 25,

1974, by Trial Judge Harry E. Wood pursuant to Rule

134(h). The court has considered the case on the briefs and

oral argument of counsel. Since the court agrees with the

trial judge’s recommended decision, with modifications by

the court, as hereinafter set forth,* it hereby affirms and

adopts the same, as modified, as the basis for its judgment in

this case.t Therefore, plaintiff is not entitled to recover and

the petition is dismissed.

OPINION OF TRIAL JUDGE

Woon, Trial Judge: In this action, plaintiff sues to recover

“back salary”, less appropriate offsets, from and after

*Whereas the court adopts the trial judge's separate findings of fact, which

are set forth in his report filed April 25, 1974, they are not printed herein

since such facts as are necessary to the decision are contained in his opinion.

¢The concurring opinion of SKELTON, Judge, follows the opinion of the trial

judge which has been adopted by the court.

573-844—75

te tt re cre ea oon sane 2 A ° ‘ oaeunae

App. 2a

June 12, 1968, on the ground that her involuntary retirement

for physical disability from her position as an accounting

technician, GS-5, at Patrick Air Force Base, Florida, effec-

tive June 11, 1968, was unlawful.

Plaintiff contends (1) that the agency application for

plaintiff's disability retirement, and a psychiatric evaluation

subsequent to the said application, but prior to action

by the Civil Service Commission on the agency ap-

plication, “constitute error which went to the very heart

of the administrative determination of disability”, and

(2) that both the Civil Service Commission’s “refusal to

overturn its original determination” and its refusal to grant

plaintiff a hearing in connection with her efforts to obtain

reversal of the Commission’s original determination, are

arbitrary and erroneous.

Defendant urges that there is no basis for setting aside

the Commission’s determination that plaintiff was totally

disabled for useful and efficient service in her position, and

that, its defense of this action having been prejudiced by

plaint*ff’s delay in commencing suit in this court, her claim

is in any event barred by the doctrine of laches.

For reasons hereinafter set forth, and without reaching

the question of laches, it is concluded that defendant’s posi-

tion on the merits is valid. Accordingly, plaintiff is not en-

titled to recover.

Plaintiff's employment at Patrick Air Force Base

(“AFB”) began in 1951. In 1958 she was separated by ad-

verse action from her position as an accounting technician,

GS-6, for inefficiency. On appeal, the separation was can-

celled as procedurally defective, and she was restored to duty

retroactively. Shortly thereafter, however, she was down-

graded from GS-6 to GS-5 pursuant to a reduction-in-force.

Insofar as the present record shows, plaintiff’s employment

at Patrick AFB from 1958 to mid-1966 was not only satis-

factory but seemingly not particularly eventful. The sole

recorded incident concerning her during this period occurred

in November 1964, when plaintiff’s request for authoriza-

tion to work overtime was denied by her then supervisor,

Mr. Clark. She became upset and began to cry, and, accord-

App. 3a

ing to the supervisor, created a scene.’ It is clear from the

record, however, that throughout her employment at Patrick

AFB plaintiff felt she was being intimidated, persecuted,

and subjected to “harassing pressures” by her superiors at

Patrick AFB.

Early in 1966, responsibility for aviation fuels accounting,

for some 4 years prior thereto a substantial part of plaintiff's

duties as an accounting technician, GS-6, was transferred to

another office. Plaintiff was not assigned any duties to re-

place those transferred, and her complaints about the loss of

duties met with no success.

In June 1966, plaintiff’s office (and plaintiff) came under

the supervision of Mr. Lopez-Vega, theretofore a GS-9 at

the Air Force Accounting and Finance Center. Plaintiff felt

that she was qualified for, and should have been promoted to,

the GS-7 supervisory position given to the new supervisor,

and it is fair to conclude that she was resentful of both the

appointment and the appointee.

Prior to his arrival at Patrick AFB, Mr. Lopez-Vega

had been told by the Chief, Accounting and Finance Branch,

Patrick AFB, that if he accepted the GS-7 position there

he would be working with plaintiff, and that she would be

very difficult to deal with. At Mr. Lopez-Vega’s initial intro-

duction to plaintiff, she made no response whatever to his

greeting to her, and in his opinion the initial meeting was

very unpleasant. Thereafter, whenever he had a problem

or a conflict with her, he made a memorandum for the record

describing the incident.

Between June 12, 1966 and September 12, 1966, Mr.

Lopez-Vega recorded five incidents concerning plaintiff: in

general terms, her failure or refusal to carry out his instruc-

tions on June 17, August 1, and August 12, 1966; her use

of hostile and insulting language to a fellow worker on

June 29, 1966; and, on September 8, 1966, her refusal to

comply with his written instructions, coupled with her sub-

sequent use of a vulgar word which created a very unpleasant

Mr. Clark noted the incident on a Patrick AFB form used by super-

visors for annotating some discussions with employees. Plaintiff? went to

higher authority with her request, and ultimately received the authorisation

she sought.

Sa aN ee FA ORE A I ROEM. a

App. 4a

situation in the office. There is no doubt that the several

incidents just mentioned in fact occurred substantially as

described.

In October 1966, plaintiff was reprimanded for failure to

carry out her assigned duties in a reasonable period of time

on August 12, 1966, and for disorderly conduct on Septem-

ber 8, 1966. In the meantime, effective September 12, 1966

(after a downgrading as a result of a position survey to ac-

counting technician, GS-5, with saved pay for 2 years), she

had been transferred to another section, where she again

came under the administrative supervision of Mr. Clark.

From September 12, 1966 to February 2, 1967, there was no

recorded incident of plaintiff’s attitude or conduct in her

new position.

On the morning of February 2, 1967, plaintiff and her

technical supervisor, a Miss Grice, engaged in a rather emo-

tional exchange over plaintiff’s mailing, contrary to Miss

Grice’s instructions, of an original, rather than a duplicate,

of a report. During the course of the exchange, Miss Grice

slamm:d a posting ledger on the desk in front of plaintiff.

Plaintiff went to Mr. Clark about the incident, stating

that she was being blamed for everything and asking when

she was going to get out of the section. During the discussion

with Mr. Clark, plaintiff began to cry and became very upset.

Mr. Clark made a record of the incident, and reported it

to the Chief, Accounting and Finance Branch.

Shortly thereafter, “by reason of your disruptive job be-

havior which has continued over the past 3 years”, the Chief.

Accounting and Finance Branch, directed plaintiff to report

to Patrick AFB Hospital for a medical examination to deter-

mine whether she was physically able to continue in her

assigned tasks. The report of that examination, conducted

February 20, 1967, by an Air Force medical officer, reflected

that plaintiff's emotional and mental stability were poor,

and contained a recommendation for “psychiatric workup

for existing personality disorder.”

By letter dated March 16, 1967, plaintiff was informed by

the Chief, Accounting and Finance Branch, of an appoint-

ment March 23, 1967, with Dr. Edward J. Adickes, of India-

lantic, Florida, near Patrick AFB. Plaintiff was advised that

government transportation to Dr. Adickes’ office had been

App. Sa

arranged for her, and that if she refused to be examined

or to have the results reported, she might be separated for

that reason.

Dr. Adickes’ March 24, 1967 report to the Civilian Per-

sonnel Office, Patrick AFB, of his psychiatric evaluation of

plaintiff reflected the opinion that she evidenced marked

difficulties in judgment when dealing with highly charged

emotional material, and inappropriate and hostile attitudes.

He concluded that plaintiff “has a persecution complex with

paranoid delusions prominent enough to create difficulty in

maintaining reasonable behavior.” ?

On April 6, 1967, Mr. Clark signed a Standard Form

2801-A, “Superior Officer’s Statement In Connection With

Application For Total Disability Retirement.” Among other

things, the said statement reflected that periodically plain-

tiff’s “tantrums and emotional upsets disrupted the office.”

Under the heading of “instances of emotional instability or

abnormal behavior”, Mr. Clark listed the November 1964

incident involving plaintiff and Mr. Clark, each of the five

June-September 1966 incidents described above, and the

February 1967 incident involving plaintiff and Mr. Clark.

On April 19, 1967, plaintiff was afforded an opportunity

to apply for disability retirement, but emphatically declined

to do so. On April 20, 1967, an agency application for her dis-

ability retirement, accompanied by Standard Form 2801-A,

the report of plaintiff’s February 20, 1967, examination at

Patrick AFB Hospital, Dr. Adickes’ March 24, 1967, report,

and a statement that plaintiff refused to execute an applica-

tion for disability retirement were transmitted to the At-

lanta Region, Civil Service Commission (“CSC”).

At the request of the Regional Medical Officer, Atlanta

Region, CSC, plaintiff was seen by Dr. James R. Parsons,

of Melbourne, Florida, also near Patrick AFB, on May 25,

1967. Dr. Parsons had never seen plaintiff prior to that date,

but he had received from Patrick AFB, and had read, a

copy of Dr. Adickes’ March 24, 1967, report concerning her.

Dr. Parsons’ understanding in 1967 was that only one ap-

pointment for plaintiff with him in connection with his

evaluation of her was possible.

2 Dr. Adickes died well prior to trial of this cause

| aaniel SN hen Loe er

App. 6a

By letter dated June 15, 1967, to the Regional Medical

Officer, Atlanta Region, CSC, Dr. Parsons reported plaintiff’s

sudden loss of courtesy and composure within less than 5

minutes, and her demonstration of “a very marked ‘push of

speech’ * * * interrupted by flashes of intense hostility in

her eyes, followed by inappropriate smiling, when tears

would well up and almost overflow.” He felt that on some

level of consciousness plaintiff knew she was very ill, stated

that he hoped she would be able to receive treatment, and

made a diagnosis of “Schizophrenic Reaction, Paranoid

Type, With Depressive Trend.”

In due course the agency application and supporting docu-

mentation reached the Bureau of Retirement and Insurance,

CSC, Washington, D.C., and on July 20, 1967, plaintiff was

notified that it had been determined that she should be

retired for disability, and was advised of her right of appeal.

In August 1967, plaintiff transmitted to the Bureau of

Retirement and Insurance the opinion of Dr. William H.

Geiger, a private psychiatrist who had examined her

August 10, 1967. Dr. Geiger’s impression was, in substance,

that plaintiff was intelligent, with no evidence of organic

brain damage or major mental illness. Treating plaintiff’s

correspondence as an appeal, the Medical Division, CSC, for-

warded the matter to the Board of Appeals and Review

(“BAR”). By decision dated October 31, 1967, the BAR,

after referring to the medical evidence in the record, includ-

ing Dr. Geiger’s opinion, upheld the determination of the

Bureau of Retirement and Insurance. In consequence, plain-

tiff’s disability retirement became effective June 11, 1968.

Thereafter, plaintiff (and others on her behalf) began an

extensive series of correspondence with the Commission, as

detailed in the accompanying findings. Among other things,

plaintiff sought, obtained, and submitted to the Commission

from time to time, reports from psychiatrists and psy-

chologists who had examined her, and in January 1969,

she requested, as she had prior thereto, that she be afforded

a hearing.

The 1969 request for hearing followed a second visit, on

September 23, 1968, to Dr. Parsons. During this visit, lasting

approximately 45 minutes, plaintiff presented to Dr. Par-

Py

FERED A ee a es cae eee oem focanchn . —

App. 7a

sons letters she had obtained from Dr. Geiger and other doc-

tors following May 1967.

By letter dated September 24, 1968, to the Commission,

Dr. Parsons stated that he felt that his earlier impression

of plaintiff was “not consistent with her present appearance,

as well as the fact that she has been able to impress other

psychiatrists favorably”, and that following plaintiff’s 1967

appointment with him he had instructed his secretary to re-

fuse further “single-visit-evaluations” since such evaluations

were “not fair to either patient or pschiatrist.” Dr. Parsons

concluded that:

In retrospect, I feel that [plaintiff] was under a strain

of presenting a tremendous amount of information to

me in a very limited time, so that she appeared much

more disorganized than she actually is. Again, that single

interview was not entirely equitable; I see no reason

why [plaintiff’s] appeal should not be considered

favorably.

Then and on several occasions thereafter, however, the

Commission has consistently adhered to its determination

that allowance of the agency’s application for plaintiff’s dis-

ability retirement was warranted. Nor was plaintiff ever

afforded a hearing by the Commission.

In the 1966 codification of Title 5, United States Code,

Congress provided that any federal employee “who com-

pletes 5 years of civilian service and is found by the Civil

Service Commission to have become disabled shall be retired

on his own application or on application by his agency”,

that the Commission should “determine questions of dis-

ability and dependency arising under this subchapter”, and

that “The decisions of the Commission concerning these

matters are final and conclusive and not subject to review.”

5 U.S.C. §§ 8337, 8347(c) (1970).

In Scroggins v. United States, 184 Ct. Cl. 530, 533-34, 397

F. 2d 295, 297, cert. denied, 393 U.S. 952 (1968), this court

held that the latter provision

* * * is a special and unusual restriction on judicial

examination, and under it courts are not as free to

review Commission retirement decisions as they would

be if the “finality” clause were not there. * * * at best,

a court can set aside the Commission’s determina-

App. 8a

tion “only where there has been a substantial departure

from important procedural rights, a misconstruction of

the governing legislation, or some like error ‘going to

the heart of the administrative determination.’ ” Gaines

v. United States, 158 Ct. Cl. 497, 502, cert. denied, 371

U.S. 936 (1962). * * *

See also Lech v. United States, 187 Ct. Cl. 471, 409 F. 2d

252 (1969) ; McGlasson v. United States, 184 Ct. Cl. 542, 397

F. 2d 303 (1968) ; Aleinfelter v. United States, 162 Ct. Cl.

88, 318 F. 2d 929 (1963).

One of plaintiff’s arguments is that the actions of officials

at Patrick AFB in preparing an application for disability

retirement constituted vitiating error. Focusing upon the

Standard Form 2801-A prepared concerning plaintiff, she

vigorously urges that Patrick AFB officials overzealously

magnified “isolated confrontations between plaintiff and her

supervisors * * * out of all proportion * * *”, that she was

neither emotionally unstable nor a disruptive influence in

her office, and that “The events do not support the conclu-

sion wh‘ch the Agency drew.”

The presumption that government officials have acted in

good faith in making a decision can be overcome only by a

strong showing to the contrary. Roski v. United States, 204

Ct. Cl. 40 (1974) ; Grover v. United States, 200 Ct. Cl. 337,

343-44 (1973). There is no room for doubt that the incidents

listed by Mr. Clark in the Standard Form 2801-A occurred,

nor is there any persuasive proof in this record of distortion,

magnification, or improper motivation by any agency of-

ficial in connection with Standard Form 2801-A. While there

is room for doubt that agency action in preparing the appli-

cation is of any relevance here, it is in any event clear that

the presumption of good faith has not been overcome. Lech

v. United States, supra; McGlasson v. United States, supra.

Moreover, the incidents listed in the Standard Form

2801-A were not the sole basis for the agency’s April 20,

1967, decision to apply for plaintiff’s involuntary retirement

for physical disability, as plaintiff seems to suggest. That

decision followed, and rested in large part upon, a Feb-

ruary 20, 1967, report of medical examination at Patrick

AFB Hospital, stating that plaintiff needed a psychiatric

App. 9a

workup for an existing mental disorder, and Dr. Adickes’

March 24, 1967, psychiatric report, stating that plaintiff had

& persecution complex with prominent paranoid delusions.

If, as plaintiff asserts, she might properly have been sub-

jected to disciplinary action in consequence of the incidents

listed in Standard Form 2801-A, the actual agency decision

in April 1967 to apply for plaintiff’s involuntary retirement

plainly affords no basis for granting any relief here. Scrog-

gins v. United States, supra; McGlasson v. United States,

supra; Gaines v. United States, 158 Ct. Cl. 497, cert. denied,

371 U.S. 936 (1962).

Plaintiff also contends that Dr. Parsons’ original evalua-

tion of plaintiff, in May 1967, was unfair, improper, and in-

accurate, that “once Dr. Parsons determined that his evalua-

tion of plaintiff was inaccurate and improper, then there

was an error which went to the very heart of the administra-

tive determination”, and that when Dr. Parsons “repudiated

his position and announced that he was wrong, the refusal

[of the Commission] to overturn its original determination

was arbitrary.”

Dr. Parsons’ September 1968 report to the Commission

concerning plaintiff was made, as was his June 1967 report,

after seeing her for about 45 minutes. His only other contact

with plaintiff between the two reports was very brief. On

careful reading, Dr. Parsons’ September 1968 report reflected

clearly his opinion that a “single-visit-evaluation” was in-

herently unfair, and that plaintiff's “present appearance”

was not consistent with his earlier impression of her, but

the argument that he “repudiated his position and announced

that he was wrong”, then or in later presentations to the

Commission, is not entirely accurate. That aside, however,

plaintiff’s position is not a tenable one.

The duty of determining questions of disability is imposed

by statute on the Commission, and only some error “going

to the heart of the administrative determination”, as defined

in Scroggins v. United States, supra, permits the setting

aside by a court of the administrative discharge of that duty.

Even repudiation of a medical evaluation adverse to an em-

ployee would not inexorably lead to such action. Cf. Roski v.

United States, supra.

App. 10a

Dr. Adickes’ psychiatric evaluation of plaintiff, which he

refused to reconsider, was adverse to her. Dr. Parsons did

reconsider, and at least at trial, he did testify that his first

opinion was definitely inaccurate. In any event, the Com-

mission had before it a mass of medical evidence, as de-

tailed in the findings, concerning plaintiff. In March 1971,

and again on April 1, 1971, the Commission reviewed all

of the medical evidence before it. On both occasions it con-

cluded that reopening its previous decision was unwarranted.

“There is plainly no error going to the ‘heart of the adminis-

trative determination’ when the Commission accepts one

medical view rather than another.” Scroggins v. United

States, supra, 184 Ct. Cl. at 537, 397 F. 2d at 300; see also

McGlasson v. United States, supra; Gaines v. United States,

supra; cf. Roskiv. United States, supra.

In her main brief, filed herein April 9, 1973, plaintiff con-

ceded that she was not entitled, under Commission regula-

tions, to a hearing “in the first instance”, but asserted that

the Commission’s failure to grant her request for a hearing

after 1)r. Parsons’ 1968 letter to the Commission was

arbitrary.

Putting considerations of due process aside for the

moment, the Commission was under no legal obligation to

grant plaintiff a hearing in connection with the application

for her retirement, nor, “even though that course might have

been wiser or more advisable”, was it under any legal obli-

gation to do so in connection with her repeated requests

for reconsideration. Scroggins v. United States, supra, 184

Ct. Cl. at 535, 397 F. 2d at 298. Indeed, plaintiff’s argument

in this connection is, on analysis, really no more than that

the circumstances warranted a hearing, and that the Commis-

sion had authority to hold one.

In plaintiff’s reply brief, however, a right to a “due process

hearing before the termination of her rights as a Civil Serv-

ice employee and her discharge from public employment” is

asserted. For this proposition, plaintiff cites Board of Re-

gents v. Roth, 408 U.S. 564 (1972) ; Morrissey v. Brewer, 408

US. 471 (1972) ; Goldberg v. Kelly, 397 U.S. 254 (1970) ; and

Kennedy v. Sanchez, 349 F. Supp. 863 (N.D. Ill. 1972), prob.

juris. noted sub nom., Phillips v. Kennedy, 411 U.S. 915

App. lla

(1973) (rev'd sub nom., Arnett v. Kenmedy, 416 U.S. 134

(1974).* While this claim of constitutional right is plainly

inconsistent with plaintiff’s earlier concession, it is none-

theless now to be considered. See Scroggins v. United States,

supra, 184 Ct. Cl. at 534, n. 4, 397 F. 2d at 298, n. 4; ef. Roski

v. United States, supra; Haynes v. United States, 190 Ct. Cl.

9,418 F. 2d 1380 (1969).

It is clear that the range of interests protected by pro-

cedural due process is not infinite. Board of Regents v.

Roth, supra, 408 U.S. at 570; ef. Sampson v. Murray, 415

U.S. 61 (1974). And, in light of Arnett v. Kennedy, supra,

it is equally clear that plaintiff’s claim of constitutional

right to a hearing prior to her disability retirement is

invalid.

While plaintiff has not urged a constitutional right to a

due process hearing following her disability retirement, the

several opinions in Arnett v. Kennedy, supra, strongly sug-

gest that this aspect of the matter too should be considered

and decided.

In Scroggins v. United States, supra, plaintiff asserted

both a statutory and a constitutional right to a “trial-type

hearing (or the prime elements of one) * * *” in connec-

tion with her involuntary retirement for disability. The

court, observing that it and other courts had “already de-

clared otherwise”, saw “no adequate reason to depart at this

time from that unanimous position.”

Neither Arnett v. Kennedy, supra, nor any of the cases

cited in plaintiff’s reply brief, involved the disability retire-

ment of a federal employee.‘ As late as December 1973, the

court held that the involuntary retirement for physical dis-

ability, without prior hearing, of a hearing examiner was

invalid on statutory, not constitutional, grounds. Benton v.

United States, 203 Ct. Cl. 263, 488 F. 2d 1017 (1973). In

light of the nature of this case, the decisions of this court

* Plaintiff's Reply Brief was filed herein November 15, 1973, some months

prior to the decision in Arnett v. Kennedy, supra.

* Justice White in Arnett v. Kennedy, supra, states at page 186:

“A different case might be put, of course, if the termination were for

reasons of pure inefficiency, assuming such a general reason could be given,

in which case it would be at least arguable that a hearing would serve no useful

Purpose and that judgments of this kind are best left to the discretion of

administrative officials. This is not such a case, however, since Kennedy

was terminated on specific charges of misconduct.”

tRee

App. I2a

in Scroggins and Benton, and the absence of any authority

contradicting the “unanimous position” taken by this and

other courts on this issue, no denial of plaintiff’s constitu-

tional rights can be perceived.

Furthermore, in Arnett v. Kennedy, supra, at 178-179,

with relation to the requirement of a hearing at “some time,”

Justice White stated as follows:

* * * Where the Court has rejected the need for a

hearing prior to the initial “taking,” a principal

rationale has been that a hearing would be provided

before the taking became final. See Vorth American Cold

Storage Co. v. Chicago, 211 U.S. 306 (1908) (seizure

of food unfit for consumption) ; Central Trust Co. v.

Garvan, 254 U.S. 554 (1921) (seizure of property under

Trading with the Enemy Act); Corn Bare ange Bank

v. Coler, 280 U.S. 218 (1930) (seizure of assets of an

absconding husband); Phillips v. Commissioner, 283

U.S. 589 (1931) (collection of a tax) ; Bowles v. Willing-

ham, 321 U.S. 503 (1944) (setting of price regulations) :

Fahey v. Mallonee, 332 U.S. 245 ony (appointment of

conservator of assets of savings and loan association) ;

Euing v. Mytinger & Casselberry, 339 U.S. 594 (1950)

(seizure of misbranded articles in commerce). While

these cases indicate that the particular interests involved

might not have demanded a hearing immediately, they

also reaffirm the principle that property may not be

taken without a hearing at some time.

In Phillips v. Commissioner, supra, a tax case, the hear-

ings mentioned in the case include hearings in courts; in

Central Trust Co. v. Garvan, supra, a trading with the enemy

case, the hearing referred to is also that in the courts after the

taking. An examination of the other cases cited indicates that

they contemplate a later court review. In other words, the due

process requirement is met where a later court proceeding is

allowed. In the present case, plaintiff was afforded a full

hearing before the trial judge of this court. The hearing

lasted two days. The transcript of testimony covers 436 pages,

and 13 witnesses were heard with full right of cross exami-

nation given plaintiff. Plaintiff herself testified. Plaintiff's

complaint that there was no hearing is certainly satisfied by

the hearing afforded before the trial judge. The requirement

in Arnett v. Kennedy of a hearing at “some time” is clearly

met.

ans ’ ‘dapat

App. 13a

See, also, Regional Rail Reorganization Act Cases, 43

U.S.L.W. 4031, 4045 (U.S. Dec. 16, 1974), where the Court

stated :

* * * Further, with the Tucker Act remedy, the pay-

ment of “fair and equitable consideration” in compliance

with the reorganization statutes is assured, and proce-

dural due process is satisfied.

Accordingly, and without reaching the possible impact of

the doctrine of laches on plaintiff’s claim, it is concluded

that she is not entitled to recover, and that the petition

should be dismissed.

SKExToN, Judge, concurring:

I concur in the decision of the court for the sole reason

that under our rules our panel cannot overrule the en banc

decision of the court in Scroggins v. United States, 184 Ct.

Cl. 530, 397 F. 2d 295, cert. denied, 393 U.S. 952 (1968) in

which the court held that in an involuntary retirement case

where physical disability is the basis for the retirement, the

retired employee is not entitled to a hearing at any stage

of the proceedings.

Were it not for our rule aforesaid, I would dissent on the

ground that the plaintiff was entitled to a hearing before her

involuntary retirement became final because of the later

decision of the Supreme Court in Arnett v. Kennedy, 416

U.S. 134 (1974), and other similar cases. In that case the

Supreme Court held that a government job was property

that could not be taken away from an employee without a

hearing at some stage of the proceedings because of the due

process clause of the Constitution. While it is true that case

involved the discharge of an employee for cause and not re-

tirement for disability, I think the same basic rules should

apply and that a hearing is required by the due process clause

in both instances. See also the following decisions of the Su-

preme Court in which the Court held that where property is

taken from a citizen the due process clause requires a hear-

ing: Conneil v. Higginbotham, 403 U.S. 207 (1971) (loss of

a state job); Goldberg v. Kelly, 397 U.S. 254 (1970) (loss

of welfare payments); Morrissey v. Brewer, 408 U.S. 471

(1972) (revocation of a parole); Wolff v. McDonald, 418

U.S. 539 (1974) (cancellation of a prisoner’s good-time

Bixtiss cress en it tx

App. l4a

credits) ; Bell v. Burson, 402 U.S. 535 (1971) (cancellation

of a driver’s license) ; Board of Regents v. Roth, 408 U.S.

564 (1972) (damaged reputation and standing) ; Sniadach

v. Family Finance Corp., 395 U.S. 337 (1969) (garnishment

of wages); Fuentes v. Shevin, 407 U.S. 67 (1972) (seizure

of mortgaged property) ; and Goss v. Lopez, 43 U.S.L.W.

4181 (U.S. Jan. 22, 1975) (suspension of school children).

CONCLUSION OF LAW

Upon the findings of fact and the foregoing opinion,

which are adopted by the court and made a part of the judg-

ment herein, the court concludes as a matter of law that

plaintiff is not entitled to recover and the petition is

dismissed.

U.S, GOVERNMENT PRINTING OFFICE, 1978

SQA Th AMUN Ge inks AP RROD 7 a

App. 15a

APPENDIX B

IN THE

UNITED STATES COURT OF CLAIMS

GRACE K. McFARLAND,

Petitioner,

V. : No. 746-71

THE UNITED STATES, :

Respondent.

Before SKELTON, Judge, Presiding, KASHIWA and

KUNZIG, Judges.

ORDER

This case comes before the court on plaintiff's motion,

filed May 22, 1975, for rehearing en banc pursuant to Rules

7(d) and 151(b). Upon consideration thereof, together

with the response in opposition thereto, without oral argu-

ment, by the six active Judges of the court (Judge Davis

not participating) as to the suggestion for rehearing en

banc under Rule 7(d), which suggestion is denied, and fur-

ther having been so considered by the panel listed above

as to the motion for rehearing under Rule 151(b),

IT IS ORDERED that plaintiff's said motion for rehear-

ing be and the same is denied.

App. 1|6a

BY THE COURT

June 27, 197

oe ‘I /s) SHIRO KASHIWA

Shiro Kashiwa

Judge, acting for the Presid-

ing Judge

SKELTON, Judge, would grant an en banc rehearing

under Rule 7(d).