374 F. 2d 466 - Taylor v. United States Civil Service Commission

Before us is an appeal from a decision of the District Court granting, upon cross-motions for summary judgment, a judgment in favor of the appellees in a suit in the nature of a mandamus brought by appellant, a dismissed Civil Service employee employed by the United States Air Force, seeking reinstatement to the position he occupied at the time of his dismissal, and for damages arising out of his alleged wrongful dismissal.

The District Court had jurisdiction of the cause based on 28 U.S.C. 1361 and 1651. This Court has jurisdiction under 28 U.S.C. 1291-1294.

The removal or dismissal of the appellant, a career Civil Service employee in non-probationary status with veteran's preference is governed by Section 14 of the Veterans' Preference Act, 5 U.S.C. 863.1

On June 23, 1964, a notice of dismissal was sent to the appellant informing him that it was proposed to remove him 'for a major offense of misconduct.' The notice stated:

'The following incidents of your misconduct, which were recently brought to the attention of the undersigned, makes your proposed removal necessary to promote the efficiency of the service and for the best interest of the Air Force. Such misconduct is not consistent with continued employment as an Air Force employee as it not only affects your reputation but has an adverse effect upon other Air Force employees and the reputation of the Air Force.'

The notice specified four incidents of alleged misconduct. Two of these involved the arrest, leading to convictions, of appellant for violations of the Penal Code of the State of California. In respect to these two incidents the notice stated:

(a) On 10 July 1958 you were charged with violation of Section 647.5 of the Penal Code2 for vagrancy-lewd, fined $100 and placed on probation.

(b) On 9 April 1961 you were arrested by the Los Angeles Police Department for violation of Section 647.5 of the Penal Code for vagrancy-lewd. You pleaded guilty to the charge and were fined $105.

The other two incidents were the alleged failure of appellant to register as a sex offender within the San Bernardino area, and an alleged solicitation by appellant of a Naval Officer for immoral purposes, at an Air Force Base, on June 4, 1964.

The appellant was informed of his right to answer the charges, and was kept on active at full pay for the advance notice period.

On June 27, 1964, the appellant, by affidavit, through his attorneys, replied to the charges made in the notice of removal. He alleged that the two convictions under 647.5 of the Penal Code of California had been expunged pursuant to the provisions of Section 1203.4 of the Penal Code of California.3 Further appellant alleged he was not required to register as a sex offender under California law since his convictions had been expunged, and denied the charge of solicitation by appellant of the Naval officer for immoral purposes.

On July 16, 1964, the petitioner received a Notice of Final Decision-- Removal from Headquarters Ballistics System Division which informed him that he was to be removed effective July 27, 1964; the findings stated that even though the convictions had been expunged under state law, the fact of misconduct could still be properly considered in assessing petitioner's fitness to continue employment; the findings also concluded that the failure to register as a sex offender had occurred during the period prior to the expunging of the convictions and thus was a violation of California law; no further mention was made of the alleged solicitation; in reviewing everything it was concluded that the removal of the petitioner was in the best interest of the Air Force and would contribute to the efficiency of the Federal Service; petitioner was informed of his right to appeal the decision through either the Air Force or the Civil Service Commission;

On July 24, 1964, the petitioner appealed this decision to the United States Civil Service Commission for the 12th District pursuant to 5 C.F.R. 752 on the ground that the Air Force proceeded without jurisdiction and contrary to law and that its decision was not supported by the findings or the evidence; on October 16, 1964, the Civil Service Commission concluded that the removal had been based on the two arrests and convictions; it further concluded that the other two charges were not sustained by the evidence and dismissed them; the Commission decided that the arrests and convictions for offenses involving immoral conduct were sufficient by themselves to sustain the removal;

On October 19, 1964, the petitioner appealed this decision to the Board of Appeals and Review of the United States Civil Service Commission on the ground that the findings of the Commission that the petitioner had twice been found guilty of criminal charges based on immoral conduct were not supported by any evidence on the record and thus the removal was both arbitrary and capricious; on April 21, 1964, the Board of Appeals and Review sustained the decision of the Commission on the ground that the expungement of the convictions did not establish original innocence nor give rise to any other basis for setting aside the administrative action.

Appellant's specification of errors, in essence, charged:

(a) That since the offenses committed by appellant which constituted the basis of his removal could not, as a matter of law, be considered as grounds for removal, in that said convictions had been expunged pursuant to the provisions of Section 1203.4 of the California Penal Code; and

(b) That the District Court's determination that the removal of appellant was based on reasonable and substantial evidence, and was not arbitrary or capricious, was erroneous as a matter of law.

Before considering appellant's contentions we should note the limited permissible scope of judicial review in this type of case. As stated in McTiernan this type of case. As stated in McTiernan v Gronouski, 337 F.2d 31, at page

'The taking of disciplinary action against government employees, including the invocation of the sanction of dismissal, is a matter of executive discretion, and is subject to judicial supervision only to the extent required to insure 'substantial compliance with the pertinent statutory procedures provided by Congress,' Hargett v. Summerfield, 100 U.S.App.D.C. 85, 243 F.2d 29, 32 (D.C.Cir.1959), and to guard against arbitrary or capricious action, Pelicone v. Hodges, 116 U.S.App.D.C. 32, 320 F.2d 754, 755 (1963). See also Wallace v. Day (117 U.S.App.D.C. 264), 328 F.2d 565 (D.C.Cir.1964) (per curiam); Studemeyer v. Macy, 116 U.S.App.D.C. 120, 321 F.2d 386, 387, cert. denied, 375 U.S. 934, 84 S.Ct. 337, 11 L.Ed.2d 265 (1963).'

See also Brancadora v. Federal National Mortgage Association, 344 F.2d 933 (9th Cir. 1965); and Seebach v. Cullen, 338 F.2d 663 (9th Cir. 1964), cert. denied, 380 U.S. 972, 85 S.Ct. 1331, 14 L.Ed.2d 268.

In the instant case appellant made no claim in the District Court, and makes none in this court, of any procedural error in the record. Hence, we need only consider the case on its merits.

The real and only thrust of appellant's contentions is that the dismissal of appellant was arbitrary and capricious. This thrust, as phrased in appellant's brief is:

'that since the charges against Appellant were directed to the fact of conviction, rather than to any specific acts of misconduct, the findings by the Appeal's Examiner and the Director, which were affirmed by the court below, that 'in view of the fact that Appellant has twice been guilty of criminal charges based upon immoral conduct, the determination of the agency to effect his removal was not arbitrary, capricious or unwarranted,' is a finding of fact which is not supported by the laws of the State of California and the Regulations of the Civil Service Commission. In light of the foregoing, any legal conclusions based upon such finding are clearly erroneous.'

We are unable to agree with appellant that the charges of misconduct on which the appellant was dismissed were predicated on his having been twice convicted of violating Penal Code 647.5. The record discloses that the charges of misconduct upon which appellant was dismissed were predicated not on the convictions, but on the conduct of appellant which resulted in his being twice arrested and convicted of violating 647.5. As pointed out in appellee's brief:

'The Air Force, in removing him for a 'major offense of misconduct off duty', specifically found:

Notwithstanding that your record has been purged of the convictions noted under state law, the fact of your misconduct remains a matter properly considered in your fitness for continued employment. Similarly, the Civil Service Commission upheld the removal 'based upon misconduct demonstrated by the fact of Mr. Taylor's offenses shown committed in July 1958 and April 1961.' The 'Notice of Proposed Removal' stated that 'it is proposed to remove you * * * for a major offense of misconduct', and then listed the 'incidents of your misconduct'.

'It is thus of no consequence whether the plaintiff (appellant) is considered as having been convicted of violating California law, provided that there was a basis for concluding that the misconduct did in fact occur.'

That there is such basis is pointed out in In re Paoli, 49 F.Supp. 128, 130 (N.D.Calif.1943):

'The privileges provided for by the State in 1203.4 offer an inducement to the defendant to comply faithfully with the terms of his probation and thereby reinstate himself in the eyes of society. The section provides a worthwhile reward for reformation and good behavior, and thus aids the State in the prevention of crime. But so far as concerns the individual defendant, the act has been done, and no legal technicalities can change this fact.'

A strong inference arises from the filed charges that the appellant engaged in immoral conduct which violated the provisions of 647.5. Such inference remains even though the convictions of appellant on such charges are later expunged under Penal Code 1203.4, since no showing of innocence of the charges is required in order to qualify for expungement of former convictions.

We agree with the District Court that the determination of the Air Force to remove appellant from his supervisory position was not arbitrary, capricious or unwarranted, and that such finding is supported by substantial evidence.

In light of the views which we have expressed, we deem it unnecessary to consider or discuss the question as to the effect, if any, of the provisions of Penal Code 1203.4 on appellant's convictions on the filed charges.

We find no merit in appellant's contention that appellant's dismissal is contrary to the Federal Regulations promulgated by the Civil Service Commission, and particularly subchapter S1-5a(2) of the Federal Personnel Manual Supplement 752-1, effective January 14, 1964.

Affirmed.