On Rehearing: Bazelon, Chief Judge, Wright, McGowan, Edwards,** U.S. Circuit Judge for the Sixth Circuit, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wilkey, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Rehearing En Banc April 3, 1975.
Appeal from the United States District Court for the District of Columbia.
Edwards,* United States Circuit Judge for the Sixth Circuit, Tamm and Wilkey, Circuit Judges. Opinion for the Court filed by Circuit Judge Tamm.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
Appellee Gueory filed an action for a declaratory judgment in the district court seeking a determination that his removal from employment with the United States Postal Service violated section 752.104(a) of the Civil Service Regulations. The district court granted plaintiff's motion for summary judgment, concluding that as a matter of law there must be a specific showing as to how plaintiff's criminal conduct, which was the asserted justification for his removal, deleteriously affected Gueory's suitability for employment within the meaning of the Civil Service Regulations. The court then ordered the case remanded to the Civil Service Commission for further findings. Appellants seek review of that order, and for the reasons stated below, we reverse the decision of the district court. I
On January 25, 1970, Mr. Gueory was arrested and charged with homicide arising out of a late night street incident. Indicted for second degree murder, Gueory went to trial in the district court on August 26, 1970. After two days of trial, he pleaded guilty to a reduced charge of manslaughter and was given a suspended sentence of two to seven years and placed on probation for five years. United States v. Gueory, Crim. No. 835-70 (D.D.C. Nov. 23, 1970). Appellee admits that he shot and killed a man. Appellee's Br. at 4.
On September 24, 1970, Gueory was sent notice of his proposed removal from his position as Foreman, Laborers and Janitors, United States Post Office at Washington, D.C., based upon his conviction for manslaughter. *fn1 Gueory, a veterans preference eligible employee, could be removed "only for such cause as will promote the efficiency of the Service." 5 U.S.C. § 7512(a). The regulation, 5 C.F.R. § 752.104(a), promulgated under the statute, tracks the statutory standard and then continues that among the reasons that would constitute cause are the reasons listed for the disqualification of a prospective applicant in section 731.201. Section 731.201 provides that the Commission, inter alia, could instruct an agency to remove an appointee for:
(b) Criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct,
On October 16, 1970, the Postal Service Regional Director notified him that the charges were "fully supported by the evidence" which warrant "your removal to promote the efficiency of the service." J.A. at 26. Gueory appealed his removal to the Assistant Postmaster General. On December 17, 1970, Gueory appeared at a hearing, represented by counsel, where he was allowed to testify and to confront and cross-examine management's witness, J.A. 28-35. On April 14, 1971, the Assistant Postmaster General sustained Gueory's removal, finding that "the charge is supported by substantial evidence of record" and that the arguments advanced in favor of leniency did not mitigate the seriousness of Gueory's actions. J.A. at 38.
Gueory next appealed to the Civil Service Commission Examining Office. He received a full hearing on July 16, 1971, where he again testified and was represented by counsel. J.A. at 40-60. While admitting his manslaughter conviction, he argued that in view of his work record, background, and reputation, his removal would not promote the efficiency of the Service. Moreover, he asserted that the Postal Service must demonstrate specifically the relationship between his criminal conduct and the efficiency of the Service. Tr. at 46-47, J.A. at 57-58.
Plaintiff, however, gave conflicting testimony about the circumstances surrounding the fatal incident. In his argument during the December 17th hearing, Gueory's attorney had admitted that his client had a few beers with his wife before returning home the evening of the shooting. According to his attorney, Gueory then left home at 3:00 A.M. after a domestic quarrel, and the shooting occurred outside his home thereafter. J.A. at 31. During his testimony before the Civil Service Appeals Examining Office, however, Gueory did not mention stopping off for beers nor the domestic quarrel, but testified he had merely left to get a cup of coffee immediately after arriving home with his wife. Tr. at 17, J.A. at 41.
On August 11, 1971, the Appeals Examining Office upheld plaintiff's removal. The appeal examiners found "reason to question Mr. Gueory's credibility," J.A. at 71, and concluded that "Gueory's did kill a fellow human being when there was no necessity for the killing to have occurred." J.A. at 72. Holding that "there is no requirement in the law or the Civil Service regulations that an agency must state in what way a proposed removal will promote the efficiency of the service," the appeal examiners found "nothing improper in an agency's proposing the removal of one of its employees because he resorted to an act of such violence that he deprived another human being of his life." Hence, the agency's action "was not arbitrary, unreasonable or capricious, but was for such cause as will promote the efficiency of the service." Id.
Gueory appealed to the Civil Service Board of Appeals and Review. On December 3, 1971, the Board affirmed, noting the contradictions in Gueory's testimony, and concluded that "the removal action was for such cause as will promote the efficiency of the service within the meaning of that language in Section 752.104(a) of the Civil Service Regulations." J.A. at 101.
Plaintiff then initiated this present action in district court to review the Civil Service Commission's final decision. The district court granted Plaintiff's summary judgment motion and found as a matter of law that there must be a specific showing of how the manslaughter conviction adversely affected Gueory's suitability for employment under Civil Service Regulations. The court remanded the case to the Civil Service Commission so that it could make a finding as to whether the United States Postal Service met its burden ...