Ryder v. United States , 585 F.2d 482 ( 1978 )

DAVIS, Judge,

delivered the opinion of the court:

Thomas J. Ryder was employed by the Department of the Army as a Supervisory General Engineer, GS-12, at Fort Campbell, Kentucky; he served there as chief of the Engineering Plans and Real Property Office of the Directorate of Facilities Engineering. At the instance of the then head of that Directorate, Col. Peach, Ryder was charged with inefficiency (in August 1973) and his removal sought on that ground. After a written reply from plaintiff, he was notified that the charge of inefficiency had been sustained and that he was to be removed on September 18, 1973.

Plaintiff chose to seek review under the Army grievance procedures and requested a hearing. This was held before an examiner of the United States Army Civilian Appellate Review Office ("USACARO”) and Col. Peach was an important witness against plaintiff.¹ On the basis of the hearing, the examiner determined in a lengthy and detailed report that several specifications of inefficiency were not sustained and that the nine specifications which the examiner upheld did not warrant separation. Accordingly, the examiner recommended that plaintiffs removal from federal service be cancelled, that he be restored to his former or a like position, and that he be given a letter of reprimand for the nine sustained incidents.

Under Civil Service Commission procedures governing agency grievance systems — as implemented by the Department of the Army — the first official to act on the USACARO examiner’s report was the post commander at Fort Campbell, General Berry. He was expressly empowered to accept the examiner’s recommendations and to issue the decision on the grievance (favorable to Mr. Ryder) pursuant to those recommendations² — but he could not finally reject the recommendations (if, as here, they were favorable to the employee); if he found them unacceptable he had to transmit the entire grievance record to the designated higher level of authority, with his own recommendation of unacceptability. See Federal Personnel Manual, Chapter 771, Subchapter 3 ("Grievance System”), § 3-13a (1971), currently found in Chapter 771, Subchapter 1, § 1-21 (1976), and implementing Department of the Army Civilian Personnel Regulations. In a word, General Berry could definitively decide in favor of Ryder but he had no final authority (since the examiner had recommended against separation) to uphold removal.

When the examiner’s report was received at Fort Campbell, the Civilian Personnel Officer sent it to the Director of Facilities Engineering (Col. Peach) for his concurrence or nonconcurrence, with the explicit recommendation that the local commander (Gen. Berry) accept the examiner’s recommendations. However, Col. Peach was strongly of the view that Gen. Berry should not accept the report or recommendations, and submitted a lengthy signed statement to that effect. The Office of the Staff Judge Advocate at Fort Campbell recommended, on the other hand, that the examiner’s recommendations be accepted by Gen. Berry.

Because of Col. Peach’s opposition, the Civilian Personnel Office changed its position and recommended to Gen. Berry that he refuse to accept the examiner’s report and forward the grievance to the next higher authority — the Commander, U.S. Army Forces Command ("FORSCOM”) at Fort McPherson, Georgia — with the request that plaintiffs grievance be denied. Col. Peach’s extensive written reasons for nonconcurrence were made available to Gen. Berry.³ The record does not clearly show whether Col. Peach also spoke with the General or his deputy.⁴ Very shortly, Gen. Berry forwarded the grievance to FORSCOM with the recommendation that that higher authority issue a decision to deny Mr. Ryder’s appeal. The short forwarding letter said that Gen. Berry disagreed with the examiner’s recommendations and believed that the evidence supported the charges of inefficiency and Ryder’s separation was justified; a detailed but unsigned "statements of the basis for determining appeal examiner’s recommendations are unacceptable” was appended to the letter. The defendant’s briefs concede that "this statment of reasons was similar in both format and content to the paper which Colonel Peach had prepared earlier in response to the Civilian Personnel Office’s request for views on the sufficiency of the USACARO report,” and also that this statement sent to FORSCOM "was basically the same as Colonel Peach’s memorandum and contained the identical charges and the same rationale against acceptance of the Examiner’s recommendations.”

Defendant does not affirmatively suggest, and there is no reason to believe, that plaintiff saw Col. Peach’s written statement (either the response to the Personnel Office’s request or the similar statement enclosed with Gen. Berry’s letter to FORSCOM) before Gen. Berry made his determination, or that plaintiff had any opportunity to answer that statement prior to Gen. Berry’s action.⁵ However, the detailed statement appended to Gen. Berry’s letter to FORSCOM was made available to plaintiff (after the Berry letter was sent), and he did have the chance to reply to it and send his reply to FORSCOM before the latter acted.

FORSCOM upheld the removal in a brief letter and plaintiff sought review, as was his right, in the Civil Service Commission (first before the Federal Employee Appeals Authority and then before the Appeals Review Board).⁶ Both levels of the Commission sustained the Army Department in separating him. Neither the’ Appeals Authority nor the Appeals Review Board mentioned the participation of Col. Peach in Gen. Berry’s decision, and it is very unlikely that it was known at all to the Commission.⁷ As we have noted, plaintiff does not appear to have learned about Col. Peach’s role in the Berry decision until after suit was begun.

This action for reinstatement and back pay, on the ground that the removal was improper, was first instituted in the United States District Court for the Middle District of Tennessee (where plaintiff resides) and later transferred to this court under 28 U.S.C. § 1406(c) (1970). Both sides have moved for summary judgment on the basis of the formal administrative record and other government documents obtained by plaintiff through discovery in the District Court.

The major issue is whether Col. Peach’s ex parte participation in Gen. Berry’s consideration of plaintiffs case invalidated the removal process. The leading decision in this court on ex parte communications by adversaries in personnel-removal cases is Camero v. United States, 179 Ct. Cl. 520, 375 F.2d 777 (1967). That was also an Army grievance proceeding in which an adversary, evidentiary hearing was held after separation of an Army civilian employee. The grievance committee — comparable to the USACARO examiner in the present instance — also recommended that the removal action be revoked and the employee restored to his position. The deciding official was a Gen. Anderson who overturned the grievance committee and upheld the removal; he relied in substantial part on ex parte views solicited, among others, from the Army lawyer who had represented management at the grievance hearing. The court held that this taint of ex parte communications from an adversary vitiated the entire removal proceeding; Camero was awarded back pay for the wrongful removal.⁸

Except in one respect, Camero is precisely the same as plaintiffs case. Both involved trial-type evidentiary hearings before a grievance tribunal which recommended favorably to the employee. Both involved ex parte communications by a prime adversary of the removed employee. In Camero that adversary was the lawyer who had presented management’s case to the grievance tribunal; here, the adversary was Ryder’s superior, the Director of Facilities Engineering (Col. Peach), who was (and is acknowledged to have been) the prime instigator of the charges and a chief witness against plaintiff at the grievance hearing.⁹ In both cases, too, the plaintiff-employee did not know (at the time) of the ex parte communication and had no opportunity to respond to it before the deciding official (here, Gen. Berry; there, Gen. Anderson) made his determination.¹⁰

The one difference between the cases is that Gen. Berry (in this instance) was not the final decider in all circumstances — in view of the USACARO examiner’s decision favorable to plaintiff, Gen. Berry could not himself decide against the employee but had to forward the matter to FORSCOM if he disagreed with the examiner. But Gen. Berry did have full and final authority to accept the examiner’s report and to find for Mr. Ryder; he could on his own have ordered the removal set aside and plaintiff reinstated — and the whole proceeding would have ended there without any participation by FORSCOM.

It is this power of Gen. Berry to end the case in Ryder’s favor, without referral to higher authority, which implicates the Camero principle of freedom from ex parte taints. An employee who has had a trial-type grievance hearing (or the equivalent), resulting in the recommendation that he be reinstated, is entitled to have the first official who can order his reinstatement make that choice, if he wishes to accept the recommendation, without infected ex parte communications. That was true of Camero, and it is just as true for Ryder. In the same way that Gen. Anderson could have restored Camero, so could Gen. Berry restore plaintiff. With respect to the ex parte intervention, the cases are on exactly the same plane. An official who could authoritatively and finally restore the employee failed to do so after the exertion of improper ex parte influence.

It makes no difference that, at the next level when the case reached FORSCOM, Ryder had the opportunity to answer the views which had stemmed from Col. Peach (later transformed into Gen. Berry’s own position). By then it was too late; plaintiff had irretrievably lost his valuable opportunity, explicitly given him by the regulations, to have Gen. Berry decide finally in his favor, untrammeled by improper ex parte approaches.¹¹ Under the regulations and established procedure, Mr. Ryder had a definite right, in these circumstances, to have Gen. Berry consider whether to restore him and only if that officer refused to do so would it be necessary for plaintiff to go further and seek vindication from FORSCOM.

What we said in Camero is squarely pertinent here: "Of course, one of the fundamental premises inherent in the concept of an adversary hearing, particularly if it is of the evidentiary type, is that neither adversary be permitted to engage in an ex parte communication concerning the merit of the case with those responsible for the decision. * * * It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his recommendations to the decision makers. To allow such activity would be to render the hearing virtually meaningless.” 179 Ct. Cl. at 527, 375 F.2d at 780-81.

Defendant then says that, even if all this be so, Mr. Ryder failed to present to the Civil Service Commission the point of ex parte adversary communications, and he is therefore barred from raising it in court.¹² The shortest answer is that plaintiff did not raise this issue because he did not know at that time of its existence and there was nothing to alert him in the formal administrative file which he was allowed to see. The indications of the ex parte contacts (before Gen. Berry made his determination to reject the examiner’s recommendation) all come to light through discovery proceedings in the District Court prior to the transfer of the litigation to the Court of Claims. See note 5 supra. Of course plaintiff is not required to raise points (during the administrative process) with factual components of which he was unaware and had no reason to suspect or know.¹³

As its last defense, the Government urges that plaintiff cannot have judgment — despite the fundamental procedural defect in his firing — if it be shown (as defendant believes to be the case) that he would have been removed on the merits of the inefficiency charge against him in the absence of any such procedural defect. However, where a serious procedural curtailment mars an adverse personnel action which deprives the employee of pay, the court has regularly taken the position that the defect divests the removal (or demotion) of legality, leaving the employee on the rolls of the employing agency and entitled to his pay until proper procedural steps are taken toward removing or disciplining him. In that situation, the merits of the adverse action are wholly disregarded. See, e.g., Garrott v. United States, 169 Ct. Cl. 186, 340 F.2d 615 (1965);¹⁴ Cunningham v. United States, 191 Ct. Cl. 471, 481, 423 F.2d 1379, 1385 (1970); Jones v. United States, 203 Ct. Cl. 544, 550 (1974); Gratehouse v. United States, 206 Ct. Cl. 288, 512 F.2d 1104 (1975), cert. denied, 434 U.S. 955;¹⁵ Shaposka v. United States, 215 Ct. Cl. 34, 43, 563 F. 2d 1013, 1018 (1977). The perfect illustration is Camero in which the court first held squarely against the employee on the merits of his separation, 170 Ct. Cl. 490, 345 F.2d 798 (1965), and later ruled that he could nevertheless recover back pay because of the same type of procedural defect we see in the present case. 179 Ct. Cl. 520, 375 F.2d 777 (1967).“¹⁶

Defendant suggests that we must or should change our rule because of the recent decision of the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). Doyle, an Ohio public school teacher, was refused continued employment by his local school board, in part because of communications he made which the Supreme Court held protected by the First and Fourteenth Amendments.¹⁷ He brought suit in federal district court and obtained compensatory damages as well as an order of reinstatement. Although it upheld the determination that Doyle’s rights of free speech had been violated, the Supreme Court remanded for a determination whether the school board "had shown by a preponderance of the evidence that it would have reached the same decision as to [Doyle’s] reemployment even in the absence of the protected conduct,” 429 U.S. at 287.

Mt. Healthy involved a state entity, a state employee, and an action against the state body under 28 U.S.C. § 1331 (1970) ("federal question” jurisdiction of the district courts). There is no indication in the opinion that the Court intended to alter our longstanding rule for federal employees suing the United States under the Tucker Act, 28 U.S.C. § 1491 (1970 & Supp. V 1975), for a procedural violation. The Supreme Court had itself applied that rule, automatically, in Greene v. United States, 376 U.S. 149, 164 (1964). The relationship between the Supreme Court and the management of state governments and subdivisions is different from and more delicate (particularly where the Constitution is involved) than that between this court and the Federal Government Cf. Bishop v. Wood, 426 U.S. 341, 349-50 (1976).

There are other significant differences between Mt. Healthy and the present case. The former concerned a substantive constitutional protection (the right of free speech), not a procedural violation going to the heart of the whole administrative process.¹⁸ The latter type of procedural deprivation means that the entire adverse action was illegal, not merely (as in Mt. Healthy) that one of several substantive grounds for removal was improper.¹⁹ We have also (in the absence of relevant procedural error) upheld removals where adequate substantive grounds appeared in the record together with some invalid reasons. See, e.g., Pascal v. United States, 211 Ct. Cl. 183, 185, 191, 543 F.2d 1284, 1285-86, 1289 (1976). That practice has been followed at the same time we have had a different rule for significant procedural lapses.

In addition, Mt. Healthy dealt only with constitutional issues, but procedural violations of the rights of federal employees frequently implicate no more than a statute or regulation. It would indeed be a peculiar reversal of values for us to extend the Mt. Healthy principle to violations of constitutionally protected procedural rights of federal personnel but not to those given by legislation or regulation²⁰ — and yet the Mt. Healthy opinion speaks only of the vindication of constitutional principles (see 429 U.S. at 284, 285, 285-86, 286-87).

We conclude, in sum, that the Mt. Healthy decision does not affect our established rule that a federal employee suffering a vitiating procedural deprivation can for that reason recover back pay and seek reinstatement because his removal was void. That does not mean, and it never has, that he would be immune from a new removal proceeding (on the same grounds) which was properly conducted.

For these reasons, plaintiffs motion for summary judgment is granted and the defendant’s is denied. Plaintiff is entitled to recover back pay, the amount to be determined under Rule 131(c). Plaintiff is also entitled to reinstatement in his former or a comparable position.

1 Plaintiff did not have an attorney but represented himself. The hearing took almost 3 days.

2 He could also grant, if he wished, the relief sought by the employee without regard to the examiner’s recommendations.

3 The contrary views of the Office of the Staff Judge Advocate were also sent to the general.

4 In forwarding the file to Gen. Berry (including the Peach memorandum), the general’s deputy wrote: "Since this case is so involved, I recommend, when you are ready to do so, that Mr. Browder [the Civilian Personnel Officer] and I be called in to discuss it with you. You may also wish to have Colonel Peach come in to give you background; however, since Colonel Peach is in an adversary position he should not be involved in discussions which will have a bearing upon your decision. To do so could well result in a complete refusal by FORSCOM to support our action” [emphasis in original]. In a deposition taken while this case was still in the District Court, Col. Peach replied, "not to my knowledge, I don’t ever recall ever discussing it with General Berry,” to a question whether he ever conferred with the general with respect to this matter. He also said later in the deposition that he had not discussed his memorandum with Gen. Berry and intimated that he did not himself talk to the deputy.

5 We have to take it that plaintiff had no inkling of the intervention of Col. Peach in the proceedings before Gen. Berry until after this suit was begun. Plaintiffs counsel flatly so represents and there is nothing of substance in the record before us to suggest otherwise (though defendant tries weakly at one point in its brief to raise some slight doubt).

6 Mr. Ryder, who continued to represent himself, did not desire a hearing before a representative of the Federal Employee Appeals Authority and none was held. At that time he did not know of Col. Peach's participation in the matter when it was before Gen. Berry.

7 The formal administrative record before the Commission does not contain Col. Peach’s signed memorandum and would not alert the Commission to this problem.

8 The Camero principle has continued to be accepted by this court. See Bethlehem Steel Corp. v. United States, 206 Ct. Cl. 122, 131, 511 F.2d 529, 534, cert. denied, 423 U.S. 840 (1975); Jarett v. United States, 195 Ct. Cl. 320, 331, 451 F.2d 623, 629 (1971); J.L. Simmons Co. v. United States, 188 Ct. Cl. 684, 727-28, 731-33, 734, 412 F.2d 1360, 1385, 1387-88, 1389 (1969); Moore-McCormack Lines, Inc. v. United States, 188 Ct. CL 644, 671-72, 413 F.2d 568, 584-85 (1969).

9 Defendant does not contend that Col. Peach was not an adversary in the same sense that the attorney was an adversary in Camero. The Fort Campbell command so viewed him. See note 4, supra. The notice to plaintiff of his proposed separation was signed by Robert Anderson, Col. Peach’s deputy. (Mr. Anderson was also a witness against plaintiff.) The request to the Civilian Personnel Office at Fort Campbell that removal proceedings be instituted against Mr. Ryder was signed by Mr. Anderson and strongly approved in writing by Col. Peach.

10 It is not certain that Gen. Anderson personally knew of the ex parte intervention of the management attorney in Camero, but it is quite clear on the record we have that Gen. Berry must have known, before he acted, that Col. Peach was involved and that he was a main adversary of Ryder’s. The general’s deputy so advised him (see note 4, supra); USACARO’s Atlanta region called the attention of Fort Campbell to the danger of participation by Col. Peach in any decision by Gen. Berry; and the Civilian Personnel Officer pointed out to Gen. Berry this position of USACARO (though he did not agree with USACARO that Col. Peach’s participation could be improper).

11 In fact, the record contains substantial evidence that Gen. Berry might well have restored plaintiff if Col. Peach’s views had not been interposed. The Civilian Personnel Office at Fort Campbell was at first favorable to accepting the grievance examiner’s recommendation of restoration, as was the Office of the Staff Judge Advocate. It was not until Col. Peach’s strong intervention that a contrary recommendation was put forward by the Civilian Personnel Office.

12 Citing such decisions as Pine v. United States, 178 Ct. Cl. 146, 371 F.2d 466 (1967); Indiviglio v. United States, 156 Ct. Cl. 241, 299 F.2d 266, cert. denied, 371 U.S. 913 (1962).

13 Defendant asks us, in any event, to remand so that the Civil Service Commission can consider for itself the issue of ex parte communication. It is neither necessary nor appropriate to take that course because, in our view, that issue can be decided only the way we have determined it; any other solution would either be without support in substantial evidence or incorrect as a matter of law.

14 "We apply the established rule for personnel and pay cases — that unlawful administrative action depriving a claimant of a procedural right voids the action and leaves the plaintiff entitled to his money otherwise due, until (at the least) proper procedural steps are completed * * 169 Ct. Cl. at 198, 340 F.2d at 622.

15 Pointing out that exceptions are made for harmless error, the Gratehouse opinion declared: "A prejudicial procedural error is not rendered harmless, however, because the merits of the dispute appear to be clearly against the employee.” 206 Ct. Cl. at 296 n. 3, 512 F.2d at 1108 n.3.

16 Under our long-standing, consistently applied rule, it is irrelevant that FORSCOM and both levels of the Civil Service Commission later sustained the merits of plaintiffs firing. (As already pointed out, there is insufficient evidence that any of these later deciding bodies knew of Col. Peach’s improper communication to Gen. Berry). See, e.g., note 14, supra, and the two Camero decisions.

17 There were also other accusations against Doyle of misconduct and improper attitude.

18 No procedural deprivation was before the Supreme Court in Mt. Healthy.

19 The Supreme Court stressed that there were permissible grounds for refusing to continue Doyle’s employment, and that it would not be unusual for proper grounds to exist along with an improper one.

20 In the present case plaintiffs procedural right can be thought to rest on the regulation establishing the grievance procedure, not on the Constitution itself. See Camero, supra, 179 Ct. Cl. at 526-27, 375 F.2d at 780-81.