Richard D. Meehan v. John W. MacY Jr., Chairman, Civil Service Commission
425 F.2d 469
D.C. Cir.
1968
Check Treatment

*1 Washington, Merrigan, L. Mr. Edward C., appellant. D. MEEHAN, Appellant, Richard D. Finkelstein, S.U. Asst. Mr. Joel M. Atty., David G. Messrs. with whom Chairman, Jr., MACY, Q. Bress, Atty., Frank Nebeker U. S. Civil Service Commission Attys., Park, S. Mrs. Ellen Lee Ásst. U. brief, appellees. Mr. on the were Atty., Schoenfeld, Asst. U. Scott R. S. Court United States appellee. appearance for entered Columbia Circuit. District of Judge, Before Circuit Senior Edgerton, Aug. Judg- Circuit Leventhal, Tamm On Petition for Reconsideration es. Judge: LEVENTHAL, Circuit 18, 1968, de- On reversed had Court which cision of granted summary judgment appellee brought by appellant, for- in an action seeking mer of the Canal allegedly remedy dis- for his unlawful charge held that from the service.1 actions, personnel both the Government stage agency re- employing view in the Civil Service two could not be sustained since grounds appellant was for which three discharged impermissible the Veterans’ for adverse action under third Preference Statute.2 With standing isolation, un- we were count conclude that able to impermissible its ac- relied on bases tion, and we remanded instructions agencies to reconsider be allowed discharge appellant.3 the decision to decision, June Subsequent to our the case Court decided Education, v. Board rehearing, petition In a pellant contends applicable the circum- requires case and stances this decision, upholding the previous of dis- Although petition- charge, be reversed. seeks, given the relief he er will not be granted rehearing petition ordering granted to the extent relief U.S.App.D.C. at 836-839. Meehan v. 392 F.2d 822 *2 immunity by that the be conducted on zone in of created enlarged of his case so that doctrine of New York Times v. Sullivan.6 Pickering implication analysis controlling the issue of the The of Court’s of in appellant’s brought out, however, for case will be considered terests as certain pects Pickering’s may of case which dis tinguish Commission. it from Meehan’s. The Court public relied on the rule officials We think it to state the public comment matters even grant why we do not forthwith though their directed requested by appellant'and why the relief 7 superiors.” noted, “nominal however, The Court implication think positions public that some appellant’s subject free case is from not employment might involve inter difficulty and warrants further consid- confidentiality, loyalty, ests of or main begin eration on with the remand. working tenance of harmonious relation proposition, set in forth our Meehan ships. Thus the Court stated: opinion, that in of the view interests of sovereign employer, a Government possible “It is some conceive of employee necessarily does not have the positions public employment in in speech, same discipline, fear freedom without confidentiality which the need for is under the of New great so that even correct belongs private person York Times to a public might per- statements furnish a without fear of a defamation action.4 ground missible Like- dismissal. Pickermg require repudiation does wise, positions public employment in in this statement.5 supe- relationship which the “general sets lines” for rior subordinate “analysis controlling sonal and interests.” intimate nature that certain pre It holds public supe- circumstances forms criticism the sented, involving off-duty a teacher’s ut rior ly the subordinate would serious- system terances on how a school should undermine effectiveness of resources, allocate its can between them retaliatory imagined. free of the fear of dismissal also be no We intimate right speak any exercise his at least views as to how we would resolve specific situations, extent that come his remarks with instances of such agree ciency public performs “On the other hand we do not of the it services employee may, employees.” (391 an its U.S. ** * say anything 568, p. 1734) without fear of 88 S.Ct. “We anywhere private per- already whatever noted our disinclination may say equation son fear of libel without make across-the-board action, public employment the doctrine of York New dismissal from 254, Times v. Sullivan [376 U.S. 84 remarks critical of with award 710, (1964)]. ing damages public 11 L.Ed.2d 686 The in libel suit sovereign added (391 interests of the as em- official for similar criticism.” ployer p. 1737) in factors to be considered 88 S.Ct. adjusting balancing constitutional 254, 710, 6. 376 U.S. 84 S.Ct. 11 L.Ed.2d concerns.” 392 F.2d at 833. (1964). progeny 686 of New To the gain- 5. “At the same it cannot be time York Times cited in Meehan v. said that the State has interests as an 831-832, 24, 392 F.2d at employer regulating speech in of its Thompson, St. added Amant 390 U.S. significantly that differ from 88 20 L.Ed.2d 262 possesses those connection regulation speech citizenry general. problem any The 391 U.S. 88 S.Ct. is to appears arrive a balance between the rule in Garrison v. State teacher, citizen, Louisiana, interests 379 U.S. 85 S.Ct. commenting upon (1964); matters L.Ed.2d Wood State, Georgia, concern 375, 393-394, and the interest of employer, as an promoting the effi- force, significantly merely is such dif- as chief of the note that but flouting loyalty to his in- elemental would be ferent considerations enterprise ployer common volved in such cases.” discharge, except provide cause very like the interests Considerations employee’s may be neces- acts inapplicable Picker- side as sary protected preserve own analysis ing’s core of facts were the rights.”11 *3 opinion April af- of our Meehan firming say, then, to It is fair the recog- essentially to discharge. rests on considerations also Our Pickering. likewise side in It is fair one interest in nized there was a that however, say, did set policeman to that we Mee- the access views' point the departure, a han,10 keystone to cover in the basic that a was a general government employees, in opinion. terms the enunciated in standard later spe- set of confronted with Pickering. the New Thus we referred to place, circumstances, the Canal both a cial having ap- York Times doctrine full time, tense, and and a that were plication government employees mak- signifi- fraught with with situation superiors chan- diplomatic cant overtones—circumstanc- nels.12 We did not state that arrange a es led which the Governor government general, application, in special request confiden- conference and public. employees appeals plan disclosed he tial treatment nothing contrary, it is said to the We true, yet es- that This context advance. was signifi- at the we cannot blink special tablished articulated cance of a difference in indeed, is, It and the Governor. proach. disposition of a mat- Often the contention, worthy of note Meehan’s that aspect essentially ter on which turns be only that American nationals complex doctrine is considered to eligible policemen, rested to serve as rule, exception. which security and considerations appropriate question A arises as to the loyalty applicable to need for open Our 18 decision left course. primarily police Zone. force of the a matter of discretion discharge said, penalty was —whether It in this that context only concerning of the three defama- noted was a where what we tory lampoon alleged discharge and his Governor reasons for could policies: interest of sustained. We think it remand, the order to continue policeman, by a “This invective though change in the nature with a

charged with under the circumstances change posture reflect the requirements special responsibility and Pickering. against official rank- To the extent due superintendent kind are not 8. 1735. relationships close 9. See also persuasively be claimed it can which personal loyalty and confidence way in no di- “The statements proper necessary func- any person whom rected towards tioning.” normally be in contact would daily and see n. 40. the course of his work question teacher. Thus no of main- 11. 392 F.2d at 833-834. discipline by taining either immediate Swaaley among holding harmony This was or coworkers (Ct.Cl. States, presented Appellant’s United here. 1967). relationships ployment with the Board extent, and, lesser somewhat remains, controversy we think it Commission, Civil Service MEEHAN,Appellant, Richard D. key agency concerned with evolu- employees of the tion of standards for MACY,Jr., Chairman, government, give federal principles in the first instance to the Pick- announced Court in ering their sound this court and United States Court of application to like Re- a ease Meehan’s. District of Columbia Circuit. mand to Civil Commission Reargued Dec. permit introduction of additional argument May 12, points Decided evidence and significance have a previously only dimly *4 discerned. Re- mand Commission would also disposition

mit an to set- administrative case, effect,

tle this Commis- arrangements

sion as further

and action Zone Canal Govern-

ment. is remanded to the District proceedings further accord- including opinion,

ance with this

framing retaining jurisdic- of an order staying pro- complaint

tion of

ceedings pending further consideration

by the Civil Commission.13

So qrdered. Judge (dissenting):

TAMM, Circuit

My position as I remains stated it

part original issued April 18, Despite

court

revision of this effectuated May pres- order court’s and the proposed opinion,

ent I believe adequately sup-

record

ports findings, and the District Court’s stated, previously I I

therefore affirm the District Court. now a of the Dis- resident in the District Court and —both trict Columbia and raises the administrative nature level. The hardship required if he would face of further administra- stay to proceedings. return the Canal Zone for further tive level must within ambit legitimate permitted by Court, con- This is what jurisdiction cern must taken into account which will retain over the justice. complaint merely stay pro- the interest This court’s court contemplates ceedings pending order further further administrative proceedings that consideration. interest