Petition for Rehearing In Banc Denied March 25, 1957.
PRETTYMAN, Circuit Judge.
This controversy is here for the third time. Upon the first appeal we held
Green was an attorney with the Federal National Mortgage Association, a corporate agency of the United States. He was a veteran preference eligible. In July, 1952, he was served with a statement of charges and a notice of proposed discharge. He replied at length. The charges were sustained by the head of the agency, and Green's discharge was ordered. He appealed to the Civil Service Commission. A hearing was held there, and the discharge was sustained by the hearing officer. Appeal was taken to the Board of Appeals and Review, and that tribunal affirmed. More of the facts need not now be stated, in view of the statements in our opinions upon the prior appeals.
Green filed a civil action seeking declaratory judgment that his dismissal was illegal, as in violation of the Veterans' Preference Act
Green makes twelve points. His first point is that his discharge by Baughman, President of the Association, was without authority and therefore null. But the record shows that the discharge was approved and directed by the Chairman of the Board of the Association after
The second point is that the decision in the letter of notification stated no reasons, simply saying "that the charges are sustained". The statute provides
The third point is that Green was entitled to a decision, not a mere recommendation, by Baughman. This point appears to be at variance with the first point, supra; but, however that may be, the record shows that Baughman made a recommendation, based upon long and detailed findings, to the Chairman of the Board, who had the authority to order discharge and who approved Baughman's recommendation, as we have said. This agency was a corporate entity. Its bylaws (Article 14) provided that the Chairman of the Board "may select, employ * * * such * * * employees * * * as shall be necessary for the transaction of the business of the Association". Thus he was the administrative officer in respect to employment. The decision to which Green was entitled under the Civil Service Manual (the statute is silent on the subject) was a decision by the Chairman. He received such a decision. Green relies upon our decision in Kutcher v. Gray,
Green's fourth point is that Baughman considered oral and written statements which he (Green) was given no opportunity to answer. Green was given the charges, which we have held to have been sufficiently specific.
The fifth point is that the dismissal was arbitrary, unreasonable and capricious. We have examined the record with some care and find no ground for that assertion.
The sixth, seventh and eighth points are that Baughman was biased, prejudiced, interested, and motivated by bad faith. We find no basis in the record for these assertions.
The ninth point is that the frequent performance of acts not per se criminal or immoral, openly in an office for twenty months, while under supervision and observation, establishes as a matter of law that the alleged acts were not offenses. The thrust of this point is that repeated offenses, accompanied by forbearance on the part of superior officers, or fear on the part of subordinates, or distaste on the part of either or both for disciplinary measures, afford immunity to the perpetrator. The fallacy of the position is evident in its statement.
Point ten is that the stenographers who filed statements against Green were
Point eleven is that the Chief Law Officer of the Civil Service Commission failed to decide the issue of the bias and interest of Baughman. The Chief Law Officer specifically found no support for Green's allegations that his superiors were ignorant of the law, lacked ethics, and were incompetent, and that Officer specifically found that the personnel action of the Association was not arbitrary, unreasonable or capricious. Moreover, as we have pointed out, Baughman was not the ultimate authority in the Association, and no charge of bias against the Chairman was made.
The twelfth and final point is that the Chief Law Officer of the Commission abused his discretion in failing to ask Government employees to appear at the hearing. We passed on this matter in Deviny v. Campbell.
We have commented upon all of appellant's points merely because of his persistent affirmations of arbitrary and capricious actions on the part of the officials dealing with his case and because some of the points suggest procedural infirmities. It is settled beyond peradventure of doubt that courts will not examine into the merits of the discharges of employees in the executive branch of the Government.