Lead Opinion
This civilian pay case is before the court on defendant’s motion for summary judgment. Plaintiff alleges that he was unlawfully terminated as a civilian aircraft mechanic for first offense attempted theft, after his case had previously been disposed of by recommendation of a 30-day suspension. Accordingly, he seeks reinstatement to his former position, back pay, and other damages.
Plaintiff, Jack Ross, has served the United States government for nearly 30 years. His military service included combat duty in both World War II and the Korean War. For the eighteen years prior to his termination on January 21, 1977, plaintiff was employed in the Combat Maintenance Squadron, 507th Tactical Air Command Fighter Group (Air Force Reserve) at Tinker Air Force Base, Oklahoma. Until his dismissal, plaintiff apparently had no prior record of incidents of misconduct.
On June 4, 1976, plaintiff was apprehended by security guards while attempting to remove from the Air Force Base certain government property, including two bags of fertilizer and one of wood chips, valued at around $23. Plaintiff admitted taking the fertilizer and wood chips and signed a statement to that effect. He was later issued a Notice of Proposed Termination for this misconduct but prayed for leniency because of his long and unblemished service record and the small value of the property taken. Captain John L. Hopper, who was designated reviewing officer for the purposes of receiving replies and making a recommendation or final determination of punishment, recommended by letter of September 9, 1976, that the penalty be reduced from termination to a thirty-day suspension because of the nature and circumstances surrounding the violation. This recommendation was never implemented, however, and on December 7, 1976, plaintiff was notified that Captain Hopper had been replaced as reviewing officer by Brigadier General Leighton R. Palmerton. General Palmerton’s subsequent recommendation of termination was accepted, and plaintiff was dismissed.
Thereafter, plaintiff pursued formal appeals procedures through the Federal Employee Appeals Authority and the Office of Appeals Review, Merit Systems Protection Board, both of which affirmed the agency’s termination decision. Having exhausted his administrative remedies, plaintiff filed his petition in this court on November 18,1980.
Plaintiff contends that Captain Hopper’s recommendation was a final decision that was improperly replaced by General Palmerton’s decision to terminate. This decision,
The government moves us to dismiss plaintiffs petition on the basis that the agency made no procedural error in substituting General Palmerton for Captain Hopper as reviewing officer, and that its decision to terminate was based on substantial, uncontroverted evidence in the record. Defendant points out that plaintiffs removal from his job was simply one of several penalties available to the agency to deal with his admitted attempted theft. Consequently, defendant argues, the agency’s decision is entitled to deference by this court.
In general, this court’s review of administrative determinations is limited to a finding of substantial evidence supporting the decision. Boyce v. United States,
There is a great reluctance on the part of this court to become involved in the discipline process of government agencies, and thus the penalty for misconduct is usually left to the discretion of the agency. Power v. United States,
The second exception to this court’s rule of deference to agency action occurs when the penalty assessed is so harsh and unconscionably disproportionate to the offense committed that it amounts to an abuse of agency discretion. Power v. United States, supra; Heffron v. United States,
In Power, an army ammunition inspector was dismissed for allegedly submitting false information in a claim for his travel voucher. The fraudulent claim amounted to some $250, but the cost to defendant came to, at most, about $66, none of which was ever paid to plaintiff. Power, supra, 133, n.5;
In the present case, plaintiff, a veteran employee with a combined military and civil service of almost 30 years and an otherwise unblemished record, was terminated for a first-offense attempt to convert government property worth about $23. He alleges facts which indicate that his punishment may have been assessed in accordance with general, quasi-automatic personnel policy at Tinkers AFB,
As we said in Power, supra, "We reemphasize that this suit is unique because of its peculiar facts. The general rule remains that the penalty imposed by the agency will be viewed as a matter within agency discretion unless such discretion is abused. Such discretion has been abused in the case at bar.” Power,
Accordingly, after consideration of the submissions of the parties, without oral argument of counsel, defendant’s motion for summary judgment is denied. This case is hereby suspended for thirty days in order to give plaintiff
April 2, 1982
Notes
General Palmerton testified in plaintiffs hearing before the Federal Employee Appeals Authority that "certainly the events as far as the situation itself is concerned and all the mitigating circumstances that would be associated therewith” were taken into account. Appeal of Jack Ross. F.E.A.A. No. DA752B70281 at 6 (June 8,1977).
The Air Force has utterly failed to offer any evidence of an urgent reason (such as the outbreak of an overwhelming wave of pilfering at Tinkers AFB) that would justify said general personnel policy. In any event, such a policy might conflict with defendant’s own personnel regulation, supra at757-58.
Rehearing
on defendant’s motion for rehearing
Much of defendant’s motion for rehearing reads the court’s order of January 8,1982, too broadly. That order rests on (1) the Air Force’s own "Guide to Disciplinary Actions” (ante at 757-58); (2) the insufficiently rebutted assertion of a "general, quasi-automatic policy” of termination in theft cases at plaintiffs post (ante at 759); (3) plaintiffs long and unblemished record before the incident in question, plus the other facts in the case. The court’s determination that removal was a disproportionate penalty in the circumstances of this case rests on those factors. On that view, the defendant’s motion for summary judgment was denied.
Point II of defendant’s motion for rehearing requests, in any event, a remand to the Merit Systems Protection Board (MSPB) for determination of an appropriate lesser sanction. That course was not considered in the order of January 8, 1982 because plaintiff had not filed his own motion for summary judgment, and therefore the court did not have before it the issue of the proper disposition to be made of this case. Now that plaintiff has filed his own motion for summary judgment, the court will be able to determine, in proper proceedings and in proper course, what disposition to make — including whether to remand to the MSPB for consideration of a lesser sanction. If defendant wishes to present that point, it should do so in a response to plaintiffs motion.
Defendant’s motion for rehearing is denied.
on plaintiff’s cross-motion for summary judgment
This is a civilian pay case and comes before the court on plaintiffs cross-motion for summary judgment. The case has been before us previously on defendant’s motion for summary judgment, which motion we denied in an order entered January 8, 1982, ante at 759. Defendant’s motion for rehearing was denied by order entered April 2, 1982, ante at 760.
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For reasons set forth in detail in our orders of January 8, 1982, and April 2, 1982, we determined that in the circumstances of this case removal was a disproportionate penalty, and we gave plaintiff 30 days within which to file a motion for summary judgment on his own account, which he has done.
We have considered all of the contentions advanced by defendant in opposition to plaintiffs motion. With the exception of defendant’s alternative argument that the court should remand the case to the Merit Systems Protection Board for determination of whether some lessor penalty is appropriate, we find defendant’s arguments to have been fully considered previously and determined to be without merit. We have already held, in our January 8, 1982, order that, given the specific facts of this case, termination as a penalty was so unconscionably disproportionate to the offense committed by plaintiff as to constitute an abuse of discretion. That holding was reaffirmed in our order of April 2, 1982, and is no longer open to debate here.
Nevertheless, we see no useful purpose for us to determine what lesser penalty, or whether any, should be imposed in this case. The Merit Systems Protection Board has full power to redetermine a penalty found to be excessive, and possesses the independence and expertise to make an objective determination.
it is therefore ordered, without oral argument, that plaintiffs motion for summary judgment is granted to the extent that he is reinstated to his former position, with
Judge Kunzig authored the order of January 8,1982, which defendant now seeks to have reconsidered, but died before the filing of the motion for rehearing.