Thomas Henry Carter v. United States of America

Henry CARTER, Appellant, Thomas al., STATES of

UNITED et America Appellees.

No. 20694. Appeals

United States Court of

District of Columbia Circuit.

Argued Sept. 20,1967. July

Decided Rehearing

Petition for Denied Dec. completing his mili- After

Air Force. tary reinstated in 1965 he service August job. his old In complain- anonymous letter received young “sleeping ing that Carter was carrying ques- girls When on.”1 super- by his the matter tioned about visor, a female admitted Carter overnight stayed at his twice friend had they slept apartment. He admitted nude, although together, same in the not they bed, did not have but insisted supervisor He told his relations. sexual Washing- visiting lady the had been period for a from of town ton out going they days, three had Millman, Washington, Mr. Richard M. years, together he and that for several Burnett, Mary C., M. D. whom with Miss considering marriage. seriously On was brief, C., Washington, on was D. home at his one occasion she had visited appellant. stayed Kentucky his brother with in and Lumbard, U. S. Asst. Mr. Thomas sister-in-law. and Atty., G. Messrs. David with whom separately questioned supervisor Q. Atty., Bress, Frank Nebeker U. S. FBI of the three other each Hannon, Joseph S. Asst. U. and M. apartment. appellant’s One who shared brief, appellees. Attys., were on the stayed lady had know whether did not Ralph Temple Lawrence J. Messrs. overnight apartment. The other at their Washington, Speiser, C., filed a brief D. stayed overnight, but had. knew she two Capital Area on behalf The National knowledge taken had had no what Civil Union the American Liberties appellant’s place When in bedroom. urg- Civil Liberties Union as amici curiae they they questioned, had not heard said ing reversal. relations. indicative of sexual noises they They had reason doubt said no Danaher, Before Leventhal and Rob- they told were the account Judges. inson, Circuit given put them had FBI. As one person it, a “I consider [Carter] LEVENTHAL, Judge: Circuit high quality.” brought Appellant an action Carter (cid:127) discharge asserting his from Gov- FBI for Carter was dismissed deprived ernment service him of statu- unbecoming employee of this “conduct tory rights. ap- He constitutional- Through petitioned he counsel Bureau.” ground peals to this on court that the permitted resign, rather to be granted District Court when it erred employment record marred have his judgment in favor of the Government FBI, a on recon- dismissal. The a trial. sideration, prior action. adhered its Carter for reinstatement and back sued facts shown before on the record interrogatories. pay, With- and served us are these. hired Carter was answering, pressed a Investigation (FBI) the Government Federal Bureau judgment, summary motion for in 1960 as clerk identification di- its holding ap- granted, employment District Court vision. His with the Bureau pellant interrupted by not to a trial. enlistment entitled young girls apts; sleeping full, with “Dear House 1. In the letter reads: Sirs: on; annoys terrible; carrying complaint me make about & like to Would you something working FBI, about it. I wish can do a fellow for the name you.” Thank Tom H. Carter who lives Kennebeck right affirm the District We Court’s veteran: to reinstatement statutory- ruling job military had prior that Carter civilian held service; employment right rights Civil free in the first year resumption or the laws Veterans Preference Service life of civilian discharge agree However we cannot Act.3 for other than “cause.” District Court’s conclusion that Car giving returning The law vet to a trial to deter ter was entitled right eran a discharge free of ex mine whether violated Sec cept puts employer for “cause” on 9(c) Military tion Universal coming the burden of forward with a Training Act, App. Service U.S.C. discharge. justify cause sufficient 459(c) ap We do not rule right We think Carter has a trial pellant’s claim of unconstitutional arbit claim, on issues of fact involved rariness.4 court determination of that exemption Because of the light claim the of evidence adduced in laws, civil service the courtroom. now set We forth generally discharge free Bureau is to its analysis underlying our conclusions. any chooses, employees for reasons put Carter does not before this subject only to constitutional limitations. any prayer embracing court for relief Obviously, however, discretion employment by future the FBI. There subject any specific limitations that is, however, jurisdiction in the District Congress impose. chosen This Court consider whether by Thus, appellee. much is conceded entitled to clearance of his record from any employer, other like the FBI is sub stigma discharge of the and to dam ject provisions 9(c) to the of of the § ages. We see valid basis for dis Military Training Universal and Service claiming jurisdiction by Congress granted special either in Act the Dis rights protections returning to the trict Court or in this court.5 discharge, 9(c) arbitrary 2. time of At of federal if it § were so un- process. in the civil “classified service reasonable as to violate due We protected of the United States” were therefore need not reach constitutional discharge “except questions from such cause as in this case. promote efficiency will of said serv- 5. Jurisdiction lies the District Court 6, August 1912, 24, ice.” Act of § 37 pursuant 1346(a) (2). to 28 U.S.C. § slight 555. With Stat. guage, variations lan- App. 459(d) provides 50 U.S.C. § by the same rule is stated judicial express remedy for violation of statute, present 5 § U.S.C. 7501. Em- reemployment provisions only ployees FBI, however, of the had been “private” employer, there is a but service, held be outside the classified implied repealer is not an of the tradi- of an basis administrative con- jurisdiction tional of the District Court providing, struction of statute “None and the Court of Claims to award dam- appropriated of funds for the Federal ages against Kephart the Government. Investigation Bureau of shall be used to States, F.Supp. 1020, v. United 75 109 compensation pay of civil-service 646 Ct.Cl. The House version of employee.” 28, 5, July Act of § the 1948 reenactment of selective service 64 Stat. That administrative 380. con- reemployment rights, H.R. by struction has since been affirmed Con- provided expressly remedy for a gress, (Supp. II, 28 U.S.C. 1965- § protect District Courts federal em- 66). ployees’ reemployment rights. See 94 Cong.Rec. Bill, 3. The Veterans Preference limits to Act 8696. The Senate S. efficiency promote scheme, “such cause will had a different and that grounds discharge accepted service” version was at conference. Ab- “preference eligible” legislative aof federal em- sent some indication in the his- ployee, tory, At time imputing U.S.C. § we see no reason for however, discharge, judicial Carter was not dislike remedies into the choice eligible. preference of the better drafted measure. discharge plain argument, that no appel- It seems to us At oral counsel meaning could be for “cause” within the lant conceded that Carter has no desire Background writing private Statutory labor new terms into The A. beyond normal reach contracts right reinstate- of veterans Congress. Cong.Rec. hon- employment after in civilian ment profound problem This social forces from armed orable returning partially reme serviceman legislation.6 by 1940 established provision died reinstatement without provisions reenacted were These right 9(c). That reinstatement § change in 9 the Universal substantial provision that buttressed further Training Military Act.7 and Service * * * year reemployment a vet for one They “to offer reflect an effort right protects eran has Federal protection respect re- as much against discharge regained from his him employ- employment retention job gives except for “cause.” ment as is within reasonable benefits designed “provide period reasonable bounds,” (1940) Cong.Rec. returning for the rehabilitation (Remarks Sheppard). law Sen. might equipped to so that he veteran widespread responded to the difficulties highly job competitive enter a world of in read- I had World War veterans long finding handicap justing Peo- themselves civilian lives. work, provide absence as well ple war- into the labor force drawn stability period for his financial for the kept production their often time needs following year of at least one his dis shutting jobs, veterans newfound charge Kay service.” General their who needed time to reestablish Corp., (D.N.J. Cable Thus, stability. skills as well as their 1945).10 200,000 more one time or another than jobless up World War I ended veterans 2. The FBI it had asserts that enrolled in Civilian Conservation Essentially “cause” to dismiss Carter.11 losing worry Corps camps.8 That over any the contention FBI is that might joba im- substantial adverse have conduct, would fired for this be pact on the of the armed services morale application general personnel of FBI a plain.9 Indeed, problem the morale is policy which does not discriminate Congression- against upheld was viewed as of the source be veterans must unless arbitrary process. power so due reemployment al to enact laws violate * * * again. 459(b)] with § to work FBI accord shall not for Conse- quently, discharged position without we need from such not consider whether re- year appropriate remedy within such cause one restora- instatement an is agency tion.” where the FBI is the involved. 459(g) (1) pro- Section makes these 8, Training 6. Section Selective and Service applicable visions to enlistees. 1940, (1940). Act of 54 Stat. 885 Andrews, Re-employment See and Post 459(b) per- 7. “§ In the case of such Planning, war The Annals 186 who, perform son in service, train- order to such ing Thus, present regulations has left or leaves a civil service position posi- (other temporary require than a that be told of their tion) employ any employer reemployment rights of the time of en- (1) certificate, tering military and who receives such 5 C.F.R. service. discharge] (2) makes [honorable 353.105 reemployment application for within F.Supp. Marque Stern, 88 See also ninety days after he is relieved (M.D.Pa.1950); Niemiec v. * * * training such and service Club, Inc., 67 Ranier Baseball Seattle (A) position if em- such was in the (W.D.Wash.1946); F.Supp. 705, 707-708 Government, ploy of States the United Co., Daeey v. Bethlehem Steel * * * (i) person if such shall-— (D.Mass.1946). qualified perform of still the duties posi- position, it has not contend 11. The does be restored to such operation exempted seniority, position from the or tion to a of like * * Indeed, status, pay is Government counsel statute. calling “any per- 459(c) provides it to the for to be commended Section position Court. District a attention [in who restored to son is employer may present private A law the Government cannot in right, private or con voke the in the absence statute defense available to a contrary, employer an tract fire make reem circumstances reasons, job ployment Supreme personal for unrelated unreasonable. function, appeal employer, explicitly Court that the held Gov smoke, hair, ernment-employer greater color a dislike men who re under tattoo, private employer.14 etc. That does not strictions than a have a employer requirement fire return The mean that the ing can a that there be “cause” higher discharge imposes for the reason as con for same veteran duties stituting merely Government-as-employer “cause.” abstaining from violation constitution concerning Moreover, policy rights, requirement gives al grounds discharge cannot invoked statute, content substantive justification firing veteran with merely refraining from discrimination one-year period, even acts that against veterans or the veteran. ordinary lead civil employees, provision ian if the veteran was not 3. The “cause” given Congress provide fair notice the acts consti was inserted discharge. reemployed protection tuted cause veteran enjoyed reasonableness similar to that It settled veterans protected by provisions union member protections con under the Act should be agreement bargaining in a collective lim liberally strued “for benefit those iting discharge to cause.15 The ultimate private who try their left life serve coun criterion,, employer whether the acted Fishgold great in its hour of need.” reasonably, generally applied one is the Drydock Corp., Repair v. Sullivan & employment contract is termi 275, 285, U.S. L. S.Ct. employer nated because em (1946).12 A rights Ed. 1230 veteran’s ployee misconduct,16 and that standard especially stand firm is the fed when appropriate Federal statute. government employer. eral Congress Kemp Sons, v. John F. Chattillon & particularly concerned 1948). (3rd 2d 203 Cir. We think a dis government way that the federal lead the charge may upheld one as for “cause” smoothing reintegration of veter only if it meets two criteria reason of life, carry poli ans into civilian ableness; one, it that is reasonable to example cies that serve for as an em discharge employees because of certain ployers generally. approach ger conduct, other, employee that the I, minated in World War when federal notice, express fairly implied, had fair or employees serving civil service ground such that conduct would guaranteed reemploy armed forces were discharge. by Congress ment ofAct at a time when right against provided pri Most of the cases decided under Moreover, employers.13 vate discharges under the law have involved for vio Inc., by 12. Turnbull-Novak, private employer See also Rix v. such acts a 785, (8th 1958); discharge. 260 F.2d 789 Cir. not constitute a Publishing Co., Mann v. Crowell-Collier Scoles, Re-Employment— 15. See Veterans 699, (6th 1956); 239 F.2d 701 Cir. Decisions, Statute Iowa 31 L.Rev. Ry., Boone v. Fort Worth & D. 223 F.2d 155, (1946); Hoyer 181 see also v. 766, (5th 1955); 770 Cir. Travis v. Dressing Co., Beef United 67 Co., 448, Schwartz Manuf. 216 F.2d 730, (S.D.Cal.1946). (7th 1954). Cir. Am.Jur., Servant, & 45 at Master 13. 41 Stat. 142 (1941); Dufour v. Continental South- Sullivan, Lines, Inc., See Hilton v. 334 U.S. ern So.2d Miss. (1948), (1953); Dressing Hoyer 68 S.Ct. 92 L.Ed. 1416 v. United holding “discharge” Co., supra. a that results Beef Government-employer though acts of even instructions, only judgment a con- trial. The or employer of lation rules warning.17 limited While duct this record was before us on usually specific occasions, in Carter’s own “cause” two held to constitute have been these suggestion statute, apartment. here discharge There is no discharge notoriously promiscuous, grounds that that do Carter was clear that anything prostitutes applied to an or with consorted law when not violate Certainly em that admitted unprotected employee say, that sort. Carter’s — gen- equated (without conduct cannot be with ployer dislikes intuition, likely erally having any “loose” to become than conduct reason other only public notoriety. not con personality preference) matter The or —do statutory re to fire a for inferences as to basis extent “cause” stitute goes turning employer which was known out- Carter’s conduct veteran unless subjec asserting side the circle of roommates —also his own further feelings employed by anonymous meets the burden the FBI —is tive and also part showing objective how on the letter. letter indicate conduct does not ob some came to know of Carter’s acts. that satisfies writer might known, jective For all that the letter See Cord standard cause. Works, employee.18 Cleaning Dye 88 F. have been written New York & outside, (D.Conn.1948). Supp. Even if someone written person voyeur may snoop, been a Appellant’s B. Conduct crank, in- event it would be tending prove substantial the con- as whether consider issue We now knowledge," “public came duct to be on his claim to a trial Carter was entitled objectionably discharge much less notorious. cause. We was not for good problem There is sense as fairness' immediately as well run into being chary anonymous letter.19 exact make clear record does not discharge. District “cause” in- The FBI made an well have judgment Judge granted summary investigation, appraisal, formed ground regardless Car- of whether permitted it so to ascertain that Carter immoral, he moral or ter’s action was private himself to turn a conducted carrying on his had been indiscreet relationship public But into affront. relationship. al- brief The Government’s question fact and Carter includ- the case as so treats the nexus entitled to trial of fact. ing: appellant’s misad- sexual “that 2. We turn to the issue whether sufficiently public ventures become had “cause” was established knowledge anonymous com- cause an admitted matter of law Carter’s 15). plaint (p. to the FBI” “necking” overnight “petting” young apartment lady his in on two his theory on the is maintainable That not summary occasions.20 support present record so as to likely Pennsylvania R., have therefore observed See, e. and g. R. Fries v. 17. unlikely going, coming Cavanagh 1952); it is (7th Carter’s Cir. F.2d 445 195 misspelled name Agency, that he would have Nat’l Detective Pinkerton’s v. Inc., building. apartment of own F.Supp. (D.Mass.1961); 50 198 (M.D. F.Supp. Schott, 474, 981 McElroy, v. 70 Pelot 360 U.S. 19. Greene v. Cf. Penn.1947); (1959); Einhorn Whole 1400, Manowitz v. L.Ed.2d 1377 79 S.Ct. 3 (E.D.N.Y. Grocery, F.Supp. Texas, 907 Aguilar sale 68 of 378 U.S. v. State Co., Brewing Virginia 1946).; (1964). Basham L.Ed.2d 723 84 S.Ct. 12 (W.D.Va.1946). Burke, P.2d 169 In re 87 Ariz. enough the letter knew The writer of summary judgment, for motion to the On letter to send about allegations inter- Division, no sexual Carter’s FBI’s Identification place true. as took be taken worked, course must main than to the rather .Carter FBI however, Nothing, FBI indicates Moreover, . he been office. had. persistent house, denials apartment disbelieved the same resident man not immoral clear that an unmarried does is Behavior pur- discharge. have an “immoral” character Veterans can be “cause” poses citizenship “ordinarily expected even exclusion from conform to the must beyond engages goes necking in if he personal conduct.” standards of Judge “ordinarily Learned heterosexual relations. question the content of as to out, pointed in a Hand “we answered expected have of conduct is of standards” fact, negative question un- whether an normally to the trier left kind completely rightly married man must bate, celi- live one on which evidence here, ‘good forfeit moral his claim to ultimate issue be tendered. The ” States, questions character.’ Schmidt v. United which is interwoven with such (2d 1949).25 fact, 177 F.2d was or Cir. is whether the conduct known to should put 3. The Government’s motion be- prohibited by employer.22 to be court, exhibit, fore the as an the Hand- Employees, book for distributed to course, knowledge may, That employees. all FBI We consider whether though implication, rest fair even put that Handbook shows that Carter was express, job-re made as the kind on notice that his admitted conduct lated is inconsistent misbehavior prohibited. descrip- The Handbook is a proper proper with loyalty attention work work, tion of the FBI and its as well as a relationship.23 employment to the “guide” you doing “help refrain from But case to what was known Carter’s anything any way which would in detract prohibited do not think conduct? We reputation from the Bureau’s or em- it can be said as matter of law without giving barrass it in manner.” The sole rele- opportunity Carter an to ventilate passage vant stating- -“personal is one (including facts at trial the facts — misbehavior of Bureau reflect- community FBI stand- standards and ing unfavorably upon or the them Bu- arts), that a man know reasonable reau, neglect duty cannot toler- that Carter’s trary con admitted conduct was ated.” employer’s rules, to his consti tuting “unbecoming conduct The Government invokes the of this Bureau.” lady Dubuque standard of the Appellant’s point counsel Car- argues that FBI relies on the co “bundling” nothing ter did more than the operation citizenry it is reasonable England. As condoned Puritan New compel to ployees moral standards all em precedent, for more the law is modern agents as well as —clerks —that occasions, had relations on these Mc- making cf. to do.” Since Carter denies even States, Guire v. United Ct.Cl. ambiguous statement, this somewhat clearly triable issue of fact raised. alleges: “Throughout Carter also language 21. This the Handbook preparation interview and the Program Veterans Assistance memorandum, conveyed Mr. Whitwam System, Selective Service § 306.3. impression theme that he did not care jurisprudence prin- Basic our is the particular aspect job, for this of his i. e. ciple rules must be That known. investigating alleged improper conduct of principle fully applicable where the employees. conveyed He also im- employer reasonableness of action is chal- pression up that he would write the re- lenged. Love, Hamilton v. 152 Ind. port light in the most favorable to me (1899). N.E. probably nothing and that would come Assuming of the incident.” that Carter Macy, U.S.App.D.C. 23. See Meehan v. him, made the statement attributed to (1968). 392 F.2d 822 show, he be able from the cir- Appellee (Br. p. 6) that claims Carter cumstances, that it was intended as a agent investigating admitted to the that gesture help smooth the matter over. regula- his conduct the violated rules and agent’s Edgar, tions of the Bureau. That 25. See also In state- re only (E.D.Mich.1966); O, ment was that Carter had said he In the matter of wrong thing “had realized it was the I & N lady.26 is not even answer is so clear that Carter upright satisfy most would Pretermitting to a trial. the entitled issue whether Dubuque lady from standard question 5. A should further announced, if reasonable have been requested explored be Carter at trial. problem, whether is a threshold there given permission that he to tender adequate of such notice employees have resignation, and this was refused. Even employees ex- are FBI The a standard. if it a fact should be found as that Car- legal pressly told in Handbook provided for ter’s admitted conduct cause off-duty use gambling permitted, as is terminating employment, that his FBI poorly intoxicants, yet these with sit of many upright necessarily would not mean that not think do citizens. We rejec- “cause” was sufficient warrant deny employee trial of a court can an resignation proposed in- tion of his and ground Hand- on the the issue “discharge” stigma of a sistence on the clearly employees puts on no- FBI book FBI, especially from if Carter estab- gen- only they meet tice that must not subjective he lished that had aware- no community, eral of their own standards ness that his conduct FBI stand- violated lady special also the standards of but employment is ards. Where Government Dubuque. It underscored from should be involved, the label as the which serves was that the Handbook not written leaving may important reason for it obtaining agents alone, FBI but addressed to all consequences for future em- g. employees, including finger- FBI e. ployment. At least we cannot hold as print classifiers file clerks. on matter of this record that it law consequence,27 no such and that the com- short, In burden of plaint rea- must be dismissed justifying a veteran resign employee’s son. The readiness to employer, required cause is is on the considering into must be taken account Cleaning Dye Cord v. York New & whether his so offensive as conduct was supra. Works, question The is whether give Government “cause” private the limitation on life now assert resignation reject 9(c) section and. apply employees ed to all FBI some formally discharged. he insist thing average employee clerical FBI language is consistent with contemplated should and does know as statute, furtherance of its by “ordinarily expected per standards purpose protecting the veteran. say sonal conduct.” We cannot that the why roboratíng his account he cannot “[The FBI] lady allow the little old They discharged from FBI. furnished Dubuque, from for whom Harold statements, subsequently and were Yorker, Ross did not edit the New thereby they * * * the FBI that had advised withhold information because regulation FBI which forbids violated the organization will she not trust whose commenting to an FBI from agents allowed are ” concerning other em- outside source ‘sleep young girls carry with on.’ present. ployee FBI, past One Appellee citing Thurber, Brief for days. resigned in a few other was The Years Ross With as file clerk transferred his work 27. The FBI contends that its polishing file room. cabinets very standards high; are well known to be days assignment, ten- at that he After 13 persons dismissed resignation. dered unbecoming FBI will be conduct Obviously that Carter fact employers, hired other most whom job get finally local with a able to expect much. do establishes bank stigma means that an dismissal is not fact not be harmful will impedi- of dismissal fatal does not mean not an op- by depriving him of to him either ten- record ment. The affidavits employ- potential portunities other of Carter when dered behalf state oppor- depriving ers, of better job him applied a local bank for bank, or in the fu- provide this now personnel tunities with asked him director ture. his roommates cor- statements 1248 Judge unimpressed, of District Court is va- The order District was just remanded for further

cated the case as had been the officials. Bureau range proceedings. myself I them. To the extent suggested it is that we exercise So ordered. deny discretion in matter I would just happened. relief. us see DANAHER, Judge (dissent Let what Circuit ing) : Following service, appel military this eligible lant he immediately was notified that was Let be observed clerk, fingerprint sitting for reinstatement in con- division unanimous GS-4, in the Divi cluding Grade Identification appellant not en- this Investigat sion of Federal Bureau procedural protections titled August 26, 1965, ion.2 he was against As Pref- Veterans being dropped from Act, informed that he amended, erence 5 U.S.C. § your (1964), the rolls of the Bureau “in Lloyd-LaFollette view or the Act as unbecoming amended, conduct this had U.S.C. 652. He never § Bureau.” Civil status.1 Service noted, Next, let it be he seek does not many court rec occasions has position; reinstatement former his ognized principle power although complaint in his he stated that remove inferior Government “irreparably he had in harmed all power appoint incident of the job opportunities” his future because of following them, Myers the statement in allegedly discharge, unlawful his own States, 52, 161, v. United 272 U.S. S. affidavit he time shows that lost scant Ct. 71 L.Ed. 160 an Put securing position in with a local bank. way other the interest of a Government Rather, asking place retaining job court in his can be sum imprimatur conduct, arguing marily its on his denied. “It has become a settled through appellant principle government employment, counsel can engaging “perfectly not be legislation, faulted for in in the absence of re can be * * * normal appointing sexual activities voked at the will of the offi Kinsey Report Mr. in cer.” has calculated Cafeteria and Restaurant Workers per 886, 896, population McElroy, about 90 cent of the male etc. v. 367 U.S. engages 1743, 1749, supports (1961); in.” He conten- S.Ct. 6 L.Ed.2d 1230 by supplying Chapter Seaton, tion 16 of Vitarelli v. 359 U.S. Sexual Behavior Human Male S.Ct. No L.Ed.2d Kinsey, law, Pomeroy matter and Martin entitled who has stated the no one Petting,” “Heterosexual said it Mr. an exhibit in better Reed Justice speaking the District Court. the Court Claims pursuant Military 22,196Q, 1. As of March lie the Universal had been offered probationary appointment Training Act, App. Service 50 U.S.C. § the Bureau seq. (1964), as a clerk. He “be then was informed that et and was not to discharged employment position his continued “would be con- from such tingent” upon year “maintaining cause within restora- a satis- one after such factory tion,” 459(c) (1). record. Positions Fed- Investigation eral Bureau of are ex- Employees 3. The Handbook for FBI from, cepted by competitive law Civil (1964) provides: Service, your acceptance view which “Personal misbehavior of Bureau em- n appointment automatically of this will unfavorably ployees reflecting upon relinquishment your during constitute neglect Bureau, them or any competitive tenure such status Any duty cannot be tolerated. you may acquired.” any neglect duty misconduct May 22, May 21, 1965, allegations 2. Between 1961 and of such nature must be promptly reported served in United had to the Bureau employee learning Air States Force. became en- of it.” He thus position titled to restoration to his former they States, “ventilate”? Ct.Cl. What facts would v. United Batchelor they denied, as observe that the conduct 180, 183, Even 382 U.S. cert. (1965), question was “admitted” ? 15 L.Ed.2d S.Ct. we read: were to that conduct The “facts” as Obviously, supplied by appellant. the United Keim v. Supreme Court in

“The superiors entitled draw his were (1900), States, considered 177 U.S. 290 facts of “admitted conduct” not question whether naturally flow reasonable inferences as an supervise the may acts courts suggest I from such facts. venture to in dis department head executive cases, month scores charging employee. Court’s an month, throughout of this land the courts clearly placed the in that ease decision give rise “admitted” here the facts department em of executive removal culminating judicial in a decree action executive ployees ambit of within divorce, conse- with its attendant discretion, until Con ruled and quences. Cause? legislation gress, by ‘special direct and contrary,’ the provisions Here, shows, em- makes FBI the record four or ployees soundness apartment courts cannot review the two shared an with depart propriety Usually, appellant the exercise bedrooms. shared case discretion. ment a bedroom with one of his fellow head’s long arrange- shifting employees. as solid milestone stands Some holding menage authorities of unbroken ments neces- line within became evening August 15, sary there are established that where on 1965. followed, procedures give up employee or statutes be his At least one had to solely join quar- within removal an and the other two as the bed agency reassigned. and discretion officials All three knew ters were brought lady accordingly young appellant effected giving stayed apartment.6 Workers there all reason. See Cafeteria to the She night August night again McElroy, 896-97 367 U.S. 15th all (1961) August nights, therein.” those in Car- and cases cited 17th. On handwriting, words, in ter’s own his own more, ac- Were there no Bureau’s slept bed- he “We in the same stated: compre- clearly tion would have been appel- room same bed.” principles thus stated. hended within the Agent inquiring Special lant told an say Here, however, would some night night girl each had worn “cause,” “personal misbehavior” and clothes, night on he had worn while one to in the Hand- “misconduct” referred Bermuda shirt on the shorts and tee Employees for FBI book other, and a had worn Bermuda shorts equated adequate with or deemed sport inter- shirt. He added that on the measuring specified in sec- “cause” 16th, vening night August per- with 459(c) (1) tion of the Act.5 Some apparently complacent mission an say given op- “an Carter must be relative, apart- slept at he had a different trial,” portunity to ventilate facts ment, lady young a couch taking colleagues my position appar- slept he while on the floor. ently only it be determined thus can It that a “reasonable man would know that has been the dis- contended charge contrary arbitrary Carter’s conduct” admitted constituting pri- employer’s his rules unlawful as “invasion of argues right vacy.” “unbecoming conduct of this On brief that his life, liberty pur- protected “the Bureau.” Agent Special Supra, note 6. The statements supplied by fellow FBI em- Carter’s ployees, roommates, Supra, usual substantial- note 2. ly corroborated his own version of events discussion. suggested guarantees happiness are It has been the Hand- which suit society.” Employees book for FBI ciently specific suffi- our free But is not in fundamental pointing that our in the for me out that difficult to assume it is “pur- personal society or Bureau can not misbe- that such tolerate is that “free” “reflecting employees private occasions havior of its un- suit” remains when favorably upon of his three them or the It the collaboration Bureau.” involved say perfecting in that the Handbook does not fellow FBI true arrangements. employee may pro- Then rela- an not there was use denouncing language apartment provided the fane locale and obscene in whose tive superiors presence his And some other others. another instance.7 in fingerprint enjoined person A those mentioned— clerk not not one of —if touching against mocking vilifying police wrote a letter upon the Bureau situation, brings finger- explanation re- officer who a “lifted” in by print supplied specting in detail which classification in furtherance cooperation Myriad ex- Carter himself. I would not have with Bureau. pected “privacy” examples unspecified the term to have been so will misbehavior suggest expansive. Something And the extent Bu- lack- themselves. ing, finally argued, Director reau officials in Handbook unbecoming, particularize respect deemed the conduct Car- did not with illustration, way provided ter —not the FBI—had such ing of denounc- very dismissal. cause his conduct under discussion here, admitted Carter who exact- “told It has intimated that Carter ly happened.” what If an could not “unbecoming known the conduct deemed have the Bureau did not know that he was employee” improp- expected comply satisfactorily writing attorney er. His to the Bureau “ordinarily accepted per- standards of September in his behalf on conduct,” suppose sonal I he would did misappre- seems to been under no belong not place.9 in in Bureau the first stated, part: in hension. Counsel’sletter so, required IWere to do I ‘unbecoming’ ap- “The conduct deemed ample would rule Director had parently was due to fact Mr. dismissing cause for Carter. young lady, Carter had whom had Taking the facts disclosed on this rec- known for some time who had roommates, ord Carter and his even flown in from ington, Texas visit in Wash- present purposes without recourse for apartment night. over to the affidavits of other Bureau em- questioned Mr. Carter was about this ployees, agree I do appellant, that this immediately occurred, after it and he told, whether or (as not “red blooded” happened. exactly what himself His own it), puts counsel is entitled to reversal. statements, however, were He does not seek reinstatement. against used him as on the basis court should decline relief rather discharged them he was without notice opinion award the being given opportu- and nity that his resign.” (Emphasis added.) subject admitted conduct is to be the of a Shortly thereafter, anonymously Program someone Handbook Veterans Assistance tendering System wrote to the Bureau com- Selective Service ref- plaint expressing annoyance Kemp con- erenced in v. John Chatillon & cerning appellant’s Sons, (3 1948); conduct. 169 F.2d Such was Cir. Special Agent Judge quoting the situation when a inter- and see id. Minton defining viewed Carter the course “cause” a fair such “as upon,” person present- Carter “ventilated” facts minded act n. 6 ly explana- pointing Judge wrote out and submitted his Minton when a managers tion which X have summarized. Senator had been one of the very legislation here considered. gets News circumstances around, may fairly Perhaps we assume. is what the Director con- cluded, too. returning community for the judged by manifested veter- stand- trial an, put permissible hetero- and its efforts limits of Govern- ards as ap- ment-employer foreground of those activity. I dismiss sexual contention, sound, efforts. if would peal. confront all of the Government returning military True, service. Opinion Supplemental 29) (§ provides the statute that the Civil jurisdic- Service Commission shall have Judge: LEVENTHAL, Circuit a tion to order veteran’s reinstatement public sphere, and does not refer points made Two of possibility judicial of a But order. rehearing merit appellees’ petition for judicial appropriateness aof order request is the additional First an word. veteran, for of a reinstatement not or- ruling juris on reconsider our that we by Commission, certainly agree dered rais- Appellees apparently that diction. employ any special issues, clogging possible other is like es the Government Congress being by prohibited er in government. the wheels of But so far as discharging except for cause veteran damages, declaratory for actions year Appel his return. within relief, concerned, equitable are we see however, argue, there is no lees concluding Congress no basis jurisdiction Court in the District custom- intended override and remove discharge by wrongful case Gov judicial ary The contention remedies.3 argu appellees are In essence ernment. right Congress without intended Congress ing provide a meant any judicial remedy expressed is neither right judicial remedy. It leg- statute, supported by the nor language express us to lead would take by history4 cited or cases islative Congress intended conclude that We think contention Government.5 would be con an anomalous result.1 It Congress trary the extreme solicitude is unsound. v, Mayer Co., 409, Congress decided, may 392 U.S. Jones well be that It Cf. 13, 2186, reflection, 20 L.Ed.2d so un- 414 n. S.Ct. 88 on further defy (1968). agency likely 1189 unnecessary to to make it Commission as require explicit 459(e) provision U.S.C.App. (1964). for that contin- 50 gency. have wished The conferees Kephart States, F. to determine whether 3. See 75 it to courts v. United leave equity Supp. 1020, should 109 Ct.Cl. 646 in what circumstances jurisdiction in furtherance take interest, public failure enforce Commis- adverts to the 4. The Government long Congress since courts had the House version of of 9(c). to enact sion’s award. establishing 6401, provided doctrine I-I.R. which announced equitable jurisdiction government employee aggrieved furtherance of should remedy— initially public interest, an adminis- seek an administrative enforce ju- compensation in the absence ex- even restoration —with trative award press statutory provision See, therefor. available when an dicial “agency relief System Virginian Ry. g., v. Fed’n Co. refuse[d] to take corrective e. 549-551, 552, 515, 57 No. U.S. action recommended the Commission.” 300 L.Ed., ju- Cong.Rec. bill conferred 81 789 8696. The S.Ct. “require specific compliance risdiction to Deviny, Campbell v. enter a In both with the recommendation” and to judgment U.S.App.D.C. 176, (1949), aff’d, damages. The fact (1952); rejected Police Insular F.2d version was the conference Cir.), Lopez, (1st provides v. F.2d in favor of the Senate version Comm’n meaningful appellees’ denied, support 67 S.Ct. ar- 331 U.S. cert. (1947), gument. provided in con the amount House had 91 L.Ed. 1863 troversy What juris $3000.00 not meet the was a the Government’s did suit to enforce Congress determination, has since it—and that dictional minimum. to vacate jurisdic- wholly district courts different considerations.. vested the involves urge Appellees for the also first rehearing,

time, petition for that the PRESS, al., INC., Petitioners, RODALE et factual issues aris determination ing remand case in this must COMMISSION, FEDERAL TRADE instance be made in first Respondent. Civil Commission. This is Service No. 21259. prior switch from the Government’s sub Appeals United States Court of mission, sought emphasize District of Columbia Circuit. independence of the Civil Service FBI’s Commission. Government relies Argued Feb. 9(e) Commis section which refers Decided Oct. where an sion cases seeks res position section 9 toration to (b). 9(e) precisely the Section involves placement in the fed

determination —of agree eral lies outside service—which we judicial These remedies. determina expertise require

tions executive developed Commission administering

course of its other statu

tory original 2 to duties. See footnote distinguish opinion. They plainly are damages equita able from actions relief, especially agency

ble cog normally

involved is within the

nizance of Civil Service Commission. rehearing

Petition denied. Judge

DANAHER, (dissent- Circuit

ing): original my opin-

In from the dissent

ion, already sought I had to make clear

my being that the case view decided

erroneously. only I now observe

nothing presently said seems establish position

a firmer foundation for the Rather, majority.

reached

Supplemental Opinion reempha- serves respecting

size the existence of areas oral

which we should have the benefit of

argument. grant peti-

I would the Government’s rehearing.

tion for judicial against employee’s prayer action for a tion in suits the Government placing $10,000. 1346(a) Our him the federal service. less U.S.C. § opinion (2) (1964). reme- careful to exclude that dy permissible scope of the liti- from the of mandamus these discussion gation us. cases is rooted their context of the before

Case Details

Case Name: Thomas Henry Carter v. United States of America

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 13, 1968

Citation: 407 F.2d 1238

Docket Number: 20694

Court Abbreviation: D.C. Cir.