Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Delong v. Hampton

decided: January 20, 1970.

DAVID G. DELONG, APPELLANT,
v.
ROBERT E. HAMPTON, COMMISSIONER, U.S. CIVIL SERVICE COMMISSION, JOHN W. MACEY, JR., CHAIRMAN, OFFICE OF COMMISSIONERS, U.S. CIVIL SERVICE COMMISSION, STEWART L. UDALL, SECRETARY OF THE INTERIOR, AND UNITED STATES OF AMERICA



Staley, Seitz and Van Dusen, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

This is an appeal from an order of the district court granting defendants' motion for summary judgment in an action seeking review of a determination by the United States Civil Service Commission that plaintiff was properly dismissed from federal employment.

At the time of his removal on September 2, 1966, plaintiff was an employee of the Department of the Interior, Bureau of Outdoor Recreation, Philadelphia Region, occupying the position of Staff Assistant to the Regional Director. The Director of the Bureau of Outdoor Recreation asserted six grounds for plaintiff's dismissal: (1) submitting a false claim for travel expenses; (2) careless and inefficient actions in handling and accounting for streetcar tokens; (3) falsifying an application for employment to show he had completed all the course work for a Ph.D.; (4) submitting altered correspondence from Rutgers University to show that he had a law degree; (5) submitting altered correspondence relating to his ability to secure another position at a higher salary; and (6) making scurrilous, abusive and threatening remarks in writing against his supervisor and co-employees.

Plaintiff did not exercise his right to appeal his dismissal under the agency appellate system but on August 19, 1966, appealed directly to the Civil Service Commission's Philadelphia Region. Pursuant to the regulations, the Region began investigating the appeal by requesting each party to submit documentary evidence, and by making that evidence available for comment by the other party. 5 C.F.R. §§ 772.304, 772.306(a). On November 3, 1966, the Philadelphia Region notified plaintiff that a hearing would be held and that he would "be afforded an opportunity to introduce any additional or new evidence pertinent to the questions involved" and that "the parties must make their own arrangements for witnesses." A hearing was held at the Philadelphia Region on November 30, 1966, at which time plaintiff was represented by counsel and testified in his own behalf. The employing agency was represented by counsel and presented the testimony of four witnesses who were employees of the Bureau of Outdoor Recreation. A former Regional Director of the Bureau, a Mr. Sullivan (who had been plaintiff's immediate superior), was sworn but did not testify.

The Philadelphia Region on May 4, 1967, sustained the agency's action. It noted that the evidence against plaintiff established "a pattern of deliberate, unprincipled acts over a period of years, cumulatively demonstrating a lack of integrity requisite to retention in the service." It further concluded that plaintiff's dismissal was "for such cause as will promote the efficiency of the service, within the meaning of the language in [5 C.F.R. § 752.104(a)]," the relevant standard.

Plaintiff appealed to the Board of Appeals and Review of the Civil Service Commission, which on August 4, 1967, sustained the action of the Philadelphia Region.

On December 12, 1967, plaintiff filed the instant action in the district court seeking injunctive and declaratory relief. The court granted defendants' motion for summary judgment and this appeal followed.*fn1

Plaintiff makes five attacks on the district court's grant of summary judgment: (1) the district court erred when it held that it was irrelevant whether the charges brought against plaintiff were made maliciously or in bad faith so long as there was legal cause to justify the discharge; (2) plaintiff was denied a fair hearing at the Philadelphia Region because a witness called by the agency did not testify; (3) plaintiff was denied a fair hearing because he could not subpoena witnesses; (4) plaintiff was denied due process because no hearing was held on the issue whether his discharge was due to political discrimination; (5) plaintiff was denied due process because the Civil Service Commission considered "secret evidence" in deciding the political discrimination issue.

I

Relying primarily on Knotts v. United States, 121 F. Supp. 630, 128 Ct.Cl. 489 (1954), plaintiff asserts that his discharge was motivated by malice and thus not "for such cause as will promote the efficiency of the service" as required by 5 C.F.R. § 752.104(a). The district court stated that its analysis of the evidence compelled the conclusion that plaintiff's dismissal was not arbitrary and capricious. It further stated that in light of substantial offenses committed by plaintiff the motive of plaintiff's superiors was irrelevant.

At the outset, it should be noted that our decision in Charlton v. United States, 412 F.2d 390 (3d Cir. 1969), holding that the Administrative Procedure Act requires the district court in these cases to decide if the Commission's findings on the merits of the dismissal are supported by substantial evidence, was handed down after the decision of the district court here. Plaintiff has not requested that we remand the case to the district court for a wider scope of review. In any case, we have reviewed the entire record and are convinced that there is substantial evidence to support the findings of the Commission.

With this in mind, we turn to an evaluation of plaintiff's assertion that his discharge was illegal because motivated by malice. In essence, this argument attacks the Civil Service Commission's finding that plaintiff's discharge was for such cause as will promote the efficiency of the service. This finding we have pointed out is compelled by the record and clearly supported by substantial evidence. Plaintiff's reliance on Knotts v. United States, supra, is unwarranted. In that case the court concluded that most of the charges brought against the employee were trivial and that the real reason for the discharge was the employee's supervisor's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.