The opinion of the court was delivered by: HIGGINBOTHAM
The plaintiff, Thomas Iannarelli, instituted this action to obtain review of his discharge as a civil service employee of the United States Government.
As an employee of the National Park Service in the Department of the Interior, the plaintiff at various times made charges of racial and religious discrimination against certain officials of the National Park Service, and also encouraged employees of the National Park Service to file complaints making such charges.
In April of 1967, Mr. Iannarelli was removed from his position with the National Park Service, based in part on the charge that he had "repeatedly used" his position with the National Park Service "to foment disaffection and dissension among * * * fellow employees by falsely stating that officials of the Northeast Region, National Park Service, were prejudiced against minority groups and practiced racial and religious discrimination * * *"
The Regional Director and the Board of Appeals and Review of the Civil Service Commission approved the agency's action dismissing Mr. Iannarelli from his position.
The present action raises, inter alia, the ultimate issue of whether the Government may discipline a civil service employee for making allegedly false and unfounded charges of racial discrimination on the part of his superiors, without proof that such charges were made either with knowledge of their falsity or with reckless disregard of their truth, or with the specific intent to foment disaffection and discord or otherwise obstruct the efficient functioning of government. The preliminary issue before the Court, however, is the validity of the Civil Service Commission's affirmance of the action taken by the National Park Service in dismissing the plaintiff from government employment. For reasons set forth herein, I have concluded that although the plaintiff is not now entitled to relief, this action should be remanded to the Civil Service Commission for appropriate reconsideration. This remand is necessary because it appears that the Civil Service Commission misinterpreted the first charge relied on by the National Park Service as a basis for the plaintiff's dismissal, and that, because of this misinterpretation, the Civil Service Commission failed to determine whether substantial evidence supports the actual charge made against the plaintiff.
I. The present action was instituted on September 27, 1968. After the filing of the Government's answer and motion to dismiss, I initially granted the Government's motion to dismiss with prejudice on April 18, 1969. The basis for the Government's motion was that the dismissal of Mr. Iannarelli from the National Park Service "was neither arbitrary nor capricious but on the contrary all required procedures were complied with." Subsequent to my initial dismissal of Mr. Iannarelli's action, the Court of Appeals for the Third Circuit decided Charlton v. United States, 412 F.2d 390, on June 2, 1969 and held that the scope of judicial review of a federal agency's dismissal of a civil service employee extended to the question of "whether the administrative record establishes that substantial evidence supports the agency's action * * *" 412 F.2d at 395. Because I had not considered this action under the more liberal standard of review articulated in Charlton, the Court of Appeals remanded this action to this Court "for further proceedings in the light of Charlton v. United States."2a On July 29, 1970 Richard P. Brown, Jr. accepted appointment by this Court to file a brief generally on behalf of the plaintiff, even though Mr. Iannarelli had expressed his desire to represent himself. On August 7, 1970 the District Court ordered counsel for each party to brief two additional issues raised by Mr. Iannarelli's brief of July 26, 1970. These additional issues were: (1) may the Government use as a basis for removal from one's civil service position the allegation that the employee repeatedly used his position to foment disaffection and dissension among his fellow employees by "falsely" stating that officials are prejudiced against minority groups and practice racial and religious discrimination? and; (2) under the facts of this case, to what extent may the Government use as a ground for dismissal the fact or allegation that "false and defamatory statements" have been made against his superiors?
The background facts necessary for the proper determination of the present action may be summarized as follows: On March 31, 1967 the plaintiff received notice from the Regional Director of the National Park Service, Lemuel A. Garrison, of his proposed removal as an employee of the National Park Service. The proposed action of removal was stated to be "in order to promote the efficiency of the service" in accordance with 5 U.S.C. § 7501(a).
The "grounds, charges and reasons" for this proposed removal were certain alleged actions of the plaintiff during the period from November 1965 to, and including, August 1966, which actions "taken individually and together" were alleged to have "adversely affected and impaired the efficiency of the Service * * *." Three principal categories of allegedly improper and detrimental conduct by the plaintiff were listed. First, it was charged that the plaintiff had "repeatedly used" his position
as an employee of the division of Personnel Management and Manpower Development of the National Park Service "to foment disaffection and dissension among * * * fellow employees by falsely stating that officials of the Northeast Region, National Park Service, were prejudiced against minority groups and practiced racial and religious discrimination." Second, it was charged that the plaintiff, as a personnel classification specialist having access to the official files of the Personnel Division, "falsely represented" to employees of the Park Service that documents in the files bear notations evidencing discrimination against them. Third, it was charged that the plaintiff had made "false and defamatory" statements about officials of the Northeast Region, National Park Service. To properly evaluate the validity of the plaintiff's removal, based on these three general charges against him, the specific actions of the plaintiff on which the Regional Director of the National Park Service relied to support each charge against the plaintiff should first be examined in detail.
The first principal charge was that the plaintiff "repeatedly used" his position as an employee in the Personnel Division of the National Park Service "to foment disaffection and dissension among * * * fellow employees" by "falsely stating" that officials of the National Park Service, "were prejudiced against minority groups and practiced racial and religious discrimination." Three incidents were relied on in support of this charge. The first incident as set forth in the March 31, 1967 letter of proposed removal, was that on or about November 19, 1965 the plaintiff urged Samuel C. Moore, an employee of the Northeast Regional Office of the Park Service to file a complaint prepared by the plaintiff "falsely accusing his supervisors and fellow employees of discrimination on the basis of race." The charge further specified that in support of this complaint, the plaintiff "wrongfully and surreptitiously obtained and copied documents from the official files of the Personnel Division and sent them to Mr. Moore." In his affidavit submitted to the Civil Service Commission to justify Mr. Iannarelli's discharge, Lemuel A. Garrison, the Regional Director of the Park Service, asserted that Mr. Iannarelli urged Mr. Moore to submit the complaint charging racial discrimination not only to the United States Civil Service Commission but also to "Hon. Adam Clayton Powell and the National Association for the Advancement of Colored People."
Under the first charge of intentionally fomenting "disaffection and dissension" among employees of the National Park Service, the second instance relied on was that on April 1, 1966 at approximately 9:15 p.m. Mr. Iannarelli placed a long distance telephone call to Maurice E. Kowal, an employee of the National Park Service at Concord, Mass., and informed him that the files of the Northeast Region of the Park Service reflected that the agency was prejudiced against President Kennedy and that because Mr. Kowal had been appointed pursuant to executive order of President Kennedy, the Park Service was consequently prejudiced against Mr. Kowal and that Mr. Kowal, therefore, should not hope for promotions because of this alleged prejudice.
In reply to this charge Mr. Iannarelli admitted at a hearing conducted by the Civil Service Commission that he had telephoned Mr. Kowal on the date and at approximately at the time alleged. His explanation for the long distance telephone call, however, was that he wanted to notify Mr. Kowal that he was about to receive through the mail a "paint by number" set featuring a portrait of President Kennedy.
Mr. Iannarelli further stated that any other matters allegedly discussed in the long distance telephone call were raised by Mr. Kowal and not by Mr. Iannarelli.
The third specification under Charge I was that on or about August 15, 1966, "during official duty hours and in the offices of the Personnel Division" the plaintiff advised a new employee, Mrs. Betty Zeidman, "that her supervisors discriminated against Jews and that because she was Jewish, she should not expect promotion."
The second charge against Mr. Iannarelli was that he "falsely represented" to two employees of the Northeast Region "that documents in the files [of the National Park Service] bear notations evidencing discrimination against them." The first specification under this charge was that Mr. Iannarelli "falsely represented" that a notation on a letter in the personnel files of Samuel C. Moore, an employee of the Park Service, "reflected discrimination against him because of his race."
The second specification under this charge was a restatement of the allegation that Mr. Iannarelli had telephoned Mr. Maurice E. Kowal to inform him that the files of the Personnel Division of the Northeast Region of the National Park Service indicated that the Park Service was prejudiced against President Kennedy, and that Mr. Kowal, appointed by executive order of President Kennedy, therefore would not be considered fairly for promotion or within-grade increases in salary.
The third principal charge against Mr. Iannarelli was that he had made "false and defamatory statements" about officials of the Northeast Region of the National Park Service. The specific charges under this heading were that Mr. Iannarelli in June, 1966 had "falsely stated" to a reporter for the New York Times and to an agent of the Federal Bureau of Investigation, that Mr. "X",
a Regional Management official of the Park Service, had "threatened" his life. It was further charged that Mr. Iannarelli had "falsely stated" to officials of the Park Service and to officials of the Department of the Interior and to an agent of the F.B.I. that a "management official" of the Northeast Region of the National Park Service had "threatened his life". The final specification under this heading was that the plaintiff had "falsely stated" to Maurice E. Kowal (an employee of the National Park Service also referred to under Charges I and II,) that Edwin Small, then Project Coordinator of the Boston Group of the National Park Service, had recommended Mr. Kowal for promotion "but had privately advised his superiors to disregard such recommendation." This specification also repeated the allegation that the plaintiff had advised Mr. Kowal that because officials of the National Park Service were prejudiced against President Kennedy, Mr. Kowal should not expect a promotion.
II. After receiving the Regional Director's letter of March 31, 1967, informing the plaintiff of his proposed removal "to promote the efficiency of the service", Mr. Iannarelli wrote to the Regional Director on April 6, 1967, challenging the findings and conclusions stated in the letter of March 31, 1967. By letter dated April 13, 1967, the Regional Director informed Mr. Iannarelli that he had given "full consideration to your letter of April 6, 1967" but had found that the three charges in his letter of March 31, 1967 were "fully supported by the evidence and warrant your removal to promote the efficiency of the service." The Regional Director therefore informed Mr. Iannarelli that he would be removed from the Service as of May 9, 1967. The April 13th letter of the Regional Director also informed the plaintiff of his right to appeal this decision to the Director of the National Park Service or to the United States Civil Service Commission and outlined in detail the procedures necessary to effect an appeal.
Mr. Iannarelli subsequently filed an appeal to the Regional Director of the Civil Service Commission. In connection with this appeal, a hearing was held in the Regional Office of the Civil Service Commission in Philadelphia on June 15, 1967. The witnesses who appeared at the hearing, at the request of the plaintiff, included Maurice E. Kowal, Mrs. Betty Zeidman, Samuel E. Moore, Lemuel A. Garrison and Charles E. Arnold. On July 19, 1967, the Acting Regional Director of the Civil Service Commission filed a written opinion affirming the decision of removal. On July 21, 1967, the plaintiff appealed to the Board of Appeals and Review of the Civil Service Commission, which affirmed the decision of the Regional Director on September 29, 1967. On October 29, 1967 the plaintiff requested reconsideration of the decision of the Board of Appeals and Review. He was informed by letter of November 3, 1967 that the Board would not reopen the case. Subsequently, on September 27, 1968, the plaintiff filed this action in the United States District Court.
III. Preliminarily, after a complete review of the record, including the hearing before the Civil Service Commission, two conclusions seem clear. First, as to Counts II and III, it appears that the plaintiff's dismissal was not "arbitrary or capricious." The record before the Court, particularly the affidavit of Lemuel A. Garrison, the Regional Director of the National Park Service at the time of Mr. Iannarelli's removal, indicates a deliberate evaluation of the plaintiff's performance and a carefully considered decision to remove the plaintiff. In regard to Charges II and III the present record does not support a finding that the agency's action or the Civil Service Commission's approval thereof was "arbitrary or capricious."
Second, it further appears that the plaintiff was fully informed of his administrative rights at all stages of the proceedings regarding his removal, both before the National Park Service and the Civil Service Commission. The Regional Director of the Civil Service Commission found, in reviewing the decision to remove the plaintiff, that "appellant was given the required advance notice of at least thirty (30) full calendar days" and that "Mr. Iannarelli was afforded a reasonable length of time * * * to reply to the notice" of proposed removal; that he was retained in active duty status during the notice period; that the notice of decision, which indicates that consideration was given to the appellant's written reply to the charges, states acceptably the reasons relied upon by the agency for its decision; ...