The
American
University
Law Review
VOLUME 19
JUNE-AUGUST,
1970
NUMBER
3-4
THE DEVELOPMENT AND EXERCISE OF
APPELLATE POWERS IN ADVERSE ACTION
APPEALS
ProfessorEgon Guttman*
I
MANAGEMENT-EMPLOYEE RELATIONS
THE CIVIL SERVICE, THE LEGISLATURE, AND THE COURTS
A question often raised but rarely analysed is: What is the relationship
between the executive branch of the federal government and the civil
servant? Article II, § 2, of the United States Constitution provides that
"the Congress may by Law vest the Appointment of such inferior
officers, as they think proper, in the President alone, in the Courts of
Law, or in the Heads of Departments." Historically, by leaving these
matters to the Executive Branch, Congress in effect practiced a "hands
off" policy which naturally resulted in the "spoils system." ' To
counteract the abuses inherent in the "spoils system", Congress enacted
the Pendleton Act, 2 which introduced a "merit system" to the Civil
* Professor of Law, Washington College of Law, The American University. During the summer
of 1969 Prof. Guttman served as a Staff-Adviser with the Board of Appeals and Review of the Civil
Service Commission. The views expressed herein are those of the author and do not necessarily
reflect the views of the Commission or its staff.
1.See P. VAN RIPER, HISTORY OF THE UNITED STATES CIVIL SERVICE (1958), for an excellent
history of the Civil Commission; some of the conclusions in the final chapter are of lesser value,
however.
2. C 27, 22 Stat. 403 (Jan. 16, 1883).
324
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
Service. That Act, however, left the President in complete control of
hirings and firings. Not until President McKinley's Executive Order of
July 27, 1897, 3 did there exist regulations covering removals from the
competitive classified service, by requiring a "just cause" for removal
and providing that the employee be given a writing setting forth the
reasons for the removal so as to defend himself against the charges.
"[A]nd the person sought to be removed shall have notice and be
furnished a copy of such reasons, and be allowed a reasonable time for
personally answering the same in writing."
This Executive Order made no provision for a hearing or
confrontation; it merely required that an employee be afforded an
opportunity to refute an allegation in writing. It can not even be deemed
the starting point of commissioners hearing appeals from "adverse
actions" by agencies, for cases other than removal for political or
religious grounds were not made appealable. The Executive Order
underwent the vagaries of changes in presidential policies under
President Theodore Roosevelt.' Not until Congress threatened
legislation did President Taft return to the approach embodied in
President McKinley's Executive Order.5
It is clear that long before the presidential appointees in charge of
executive departments accepted the policy of "relative job security" for
employees who had entered the competitive civil service, Congress had
reached the conclusion that job security is essential for an efficient civil
service. This policy was expressed mainly in the Lloyd-LaFollette Act of
19126 and the Veterans' Preference Act of 1944. 7 Various congressional
reports8 further emphasized thejob security aspect of employment in the
executive branch and appear to have been instrumental in leading to
President Kennedy's Executive Order 10988 of January 17, 1962, which
by § 14 extended the appeal rights of veterans under the Veterans'
Preference Act of 19441 to all employees in the competitive civil service.
It is apparent from the reactions of the various agencies that the
3. See also 15 USCSC ANNUAL REP. 51 (1898).
4. President T. Roosevelt was a former Commissioner, May 13, 1889 to May 5, 1895.
5. Executive orders July 27, 1897; May 29, 1902; October 17, 1905; December4, 1911; February
8, 1912.
6. C 389, 37 Stat. 539 (Aug. 24, 1912).
7. 58 Stat. 387 (1944) as amended. Prior legislation giving veterans job preference dates back to
13 Stat. 571 (1805). For a historical development of veteran preference see USCSC History of
Veteran?' Preference in Federal Employment 1865-1955 (Oct. 1955).
8. S. Doc. No. 33, 83d Cong., Sess. (1953). H.R. Doc. No. 1759, Cong., Sess. (1954). H.R.
Doc. No. 1844, Cong. Sess. (1956).
9. Exec. Order No. 10988, 3 CFR § 14 (1962); 58 Stat. 387 (1944) as amended.
19701
ADVERSE ACTION PROCEDURES
congressional policy of "relative job security", was opposed by what
can be termed "management". For example, in Edge v. Civilian
Production Administration,10 the agency insisted that a successful
appellant under the Veterans' Preference Act was only entitled to a new
appointment and not to retroactive reinstatement." Other actions of a
similar rear-guard nature led to the amendment of the Veterans'
Preference Act to provide that the decisions of the Civil Service
Commissioners are not to be regarded as merely advisory,' 2 but "The
administrative authority shall take the corrective action that the
Commission finally recommends."'1 3 The enactment of other legislation,
such as the Back Pay Act of 1966,'14 were found necessary to implement
the policies of the Congress and to protect the employee from what
appeared to be a studied opposition on the part of the executive branch.
The policy of "relative job security" did not achieve immediate
acceptance in the Courts, which at first refused to interfere with
"management's personnel policies." As recently as 1950 Judge
m
Prettyman expressed this "hands off" theory in Bailey v. Richardson:
In terms the due process clause does not apply to the holding of a
Government office .. . Never in our history has a Government
administrative employee been entitled to a hearing of the quasi-judicial type
upon his dismissal from Government service . . .The controversy
concerning the removal power began when the First Congress considered
the establishment of the first executive department. Since then the subject
has involved many colorful events and personalities over the years,
including such as Presidents Jefferson, Jackson, Lincoln, Cleveland, Hayes,
Theodore Roosevelt and Woodrow Wilson. The effort to establish a degree
of stability in Government exployment, tempestuous though that effort has
been at times, has been made in the Congress and before the Presidents and
10. Civil Action No. 26160, (D.D.C. 1946). See STAFF OF SENATE COMM. ON CIVIL SERVICE,
CONG., 2d SESS., EXAMINATION OF LEGISLATIVE INTENT AND DECISION CONCERNING THE
VETERANS' PREFERENCE AcT OF 1944 AND THE AT OF AUGUST 24, 1912, SECTION Six (1947).
11. It was not always an agency which was at fault, the Comptroller General had held that an
employee could not recover back pay for the period of time during which he had been "off the
rolls," even though he had been improperly dismissed. There are also cases in which the
Comptroller General purported to distinguish between a successful appellant who obtained a
reversal on procedural grounds as opposed to one whose adverse action appeal succeeded by reason
of substantive error-i.e., on merit. Only in the latter type of decision would the Comptroller
General permit payment of back-pay. See also H.R. Doc. No. 1759, 83d Cong., 2d Sess. 2 (1954).
12. Born v. Allen, Director U.S.I.A., 291 F.2d 345 (D.C. Cir. 1960).
13. 80 Stat. 530; 5 USC § 7701 (Supp. 11 1965-67). See also PL80-741 (June 22, 1948) and 41
Op. Att. Gen. 51 (1949). Requests for such legislation can be found at 49 USCSC ANNUAL REP. 44
(1932), 50 USCSC ANNUAL REP. 11 (1933) and 51 USCSC ANNUAL REP 9 (1934).
14. Act of March 30, 1966, PUB. L. No. 89-380,80 Stat. 95.
15. 182 F.2d46 at56 (D.C. Cir. 1950) affd341 U.S. 918 (1951).
79
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
their advisors, as a legislative and executive problem 6 . . .No function is
more completely internal to a branch of government than the selection and
retention or dismissal of its employees . . .In the absence of statute or
ancient custom to the contrary, executive offices are held at the will of the
appointingauthority, not for life orforfixed terms. If removal be at will, of
what purpose would process be? To hold office at the will of a superior and
to be removable therefrom only by constitutional due process of law are
opposite and inherently conflicting ideas. Due process of law is not
applicable unless one is being deprived of something to which he has a
right.17 (emphasis added)
The vigorous dissent, however, by Judge Edgerton presaged a change
of approach. "Freedoms that may not be abridged by law may not be
abridged by executive order. Exectuve power to control public
employment stands on no higher constitutional ground than legislative
power to tax."'"
It is now clear that employment by the Federal Government does not
involve an abnegation of constitutional rights. As the Supreme Court
stated in Keyishian v. Board ofRegents,9
Constitutional doctrine which has emerged since that decision20 has rejected
its major premise. That premise was that public employment may be
conditioned upon the surrender of constitutional rights which could not be
abridged by direct Government action.
This was reemphasized with regard to Federal employees by Powell v.
Zuckert2 ' and Saylor v. United States 2 which indicated that an
employee of the Federal Government does not lose his constitutional
rights under the fourth amendment by virtue of his employment and thus
cannot be dismissed on charges which are substantiated only with
evidence obtained by an unconstitutional search and seizurep These
cases make it clear that the courts will not take jurisdiction, will no
16. Id. at 51.
17. Id. at 58. See also Justice Holmes in McAuliffe v. Mayor of New Bedford, 155 Mass. 216,
220 (1892). "The petitioner may have a constitutional right to talk politics but he has no
constitutional right to be a policeman." But see the strong criticism of this dictum, which appears
to have received great respect through age, by Judge Edgarton dissenting in Bailey v. Richardson,
182 F.2d 46 (D.C. Cir. 1950), who called this "greatly over simplified."
18. 182 F.2d at73.
19. 385 U.S. 589, 605 (1967).
20. See Adler v. Board of Education of the City of New York, 342 U.S. 485 (1952).
21. 366 F.2d 634 (D.C. Cir. 1966).
22. 374 F.2d 894 (Ct. Cl. 1967).
23. Recent cases have indicated that a federal employee retains his first amendment rights,
Swaaly v. United States, 376 F.2d 857 (Ct. Cl. 1967); Meehan v. Macy, 392 F.2d 822 (D.C.
Cir. 1968) amended May 12, 1969.
19701
ADVERSE ACTION PROCEDURES
longer consider an employee as holding office only at "the will of a
superior", and will question whether a superior has accorded the
employee his constitutional rights. Courts have also recognized that a
removal following an adverse action brands the employee with a "badge
of infamy." 4 Thus they are beginning to question deeper and are no
longer satisfied with a mere review of whether "there has been
substantial compliance with all applicable procedural and statutory
requirements."' 2
More recently, the courts, after determining whether procedural
requirements have been met, have reviewed the administrative record to
determine whether substantial evidence supports a Federal agency's
action in disciplining a Federal employee 6 For example, in Charlton v.
United States,' the majority of the court remanded stating that "the
scope of judicial review of a Federal agency's action with respect to the
dismissal or discipline of a Civil Service employee extends to the
determination whether procedural requirements have been satisfied in
the administrative proceedings, and whether the administrative record
establishes that substantive evidence supports the agency's action and
that it was not arbitrary, capricious or an abuse of discretion. 28 Thus it
is no longer possible to avoid judicial review by the use of vague
statements evidencing no specific reasons for the administrative action.
Such statements would indicate an incomplete record and require that
the case be remanded. For example, in Hoppe v. United States, 29 the
following statement had been provided the dismissed employee:
Your representations that your removal was made for political reasons
have been carefully investigated. The report of investigation, together with
your statements, have been thoroughly studied by the Commissioners.
Based on all of the evidence, it is our conclusion that you were removed
24. Wieman v. Updegraff, 344 U.S. 183, 191 (1952) and cf.Judge Edgerton's dissent in Bailey v.
Richardson, 182 F.2d 46 (D.C. Cir. 1950). See also Norton v. Macy, No. 21,625 (Ct. Cl. July 1,
1969).
25. Baum v. Zuckert, 342 F.2d 145, 147 (6th Cir. 1965); Hargett v. Summerfield, 243 F2d 29
(D.C. Cir. 1959).
26. Meehan v. Macy, 392 F.2d 822 (D.C. Cir. 1968) amended May 12, 1969; Halsey v. Nitze,
390 F.2d 142 (4th Cir. 1968) cert. den. 392 U.S. 939 (1968).
27. 372 F.2d 663 (6th Cir. 1967), cert. denied, 387 U.S. 936 (1969).
28. Id. In his concurring opinion Judge Stahl would limit the remand to a determination
"whether applicable procedural requirements have been met and whether apency action was
arbitrary, capricious or an abuse of discretion," but would not raise the question whether there was
"substantive evidence to support the agency's action." The way the circuit court phrased the issue,
it is immaterial whether or not the Administrative-Practice Act, 5 USC § 551 (Supp. 111 1965-67)
applies. The court used the Act only to determine the test to get to the merits.
29. 136 Ct. Cl. 559,567 (1955) Judge Madden dissenting and quoting Government brief at 47-48
(October 2, 1955).
328
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
because officials of the Treasury Department considered that you were
deficient in the performance of your duties; neither your affidavit of
September 10, 1953, nor the Commission's investigation support your
contention that your removal was politically motivated. Accordingly, your
appeal on this point is denied ...
Judge Madden, dissenting, remarked:
This letter contains no statement that anyone, in the course of the unilateral
investigation made by the Civil Service Commission, had denied the truth
of the plaintiff's sworn statement. .
.
. What the Commission's
investigation showed neither we nor the plaintiff knows?
How did the executive branch of the Federal Government react to
these court decisions? Unfortunately, there was no difference in the
approach of the executive to court decisions from that of legislative
enactments. It often required very strong language by the courts before
the executive branch would amend its procedures to bring them into line
with the court decisions. Although the courts had indicated that the
Veterans' Preference Act of 1944 was to be construed wherever possible
in favor of the veteran,3 ' this was not always done. Thus, it required a
court decision to demonstrate that the statutory language "at least thirty
days advance written notice" means what it says, i.e., thirty full days. 2
The case of Paroczay v. Hodges,33 in its peregrinations through the
courts illustrates the difficulty of defining what is "voluntariness" in a
resignation. Yet not until approximately two years after the Court of
Appeals had handed down its decision did the executive branch move to
amend its regulations to bring them in line with the court's decision? 4 It
is this type of dilatoriness which resulted in strong language by Lett, J.
The Civil Service Commission has held that the [Plaintiff] was wrongfully
and illegally discharged and has directed that he be restored to duty. It
requires restoration to all rights then existing, including pay status, annual
leave, and retirement. To hold otherwise and to say that no remedy is
provided in law makes a mockery of the legislative remedy which afforded
the veteran the right to appeal to the Civil Service Commission. Such
remedy was not without substance. It was not merely sounding brass and
tinkling cymbals.
30. Id. at 568. See also Blackmar v. United States, 120 F. Supp. 408 (Ct. CI. 1954) which held a
decision defective which merely stated that the Commissioners "have found that the charges against
Mr. Blackmar are sustained by a preponderance of the evidence and that Mr. Blackmar's discharge
was for such cause as will promote the efficiency of the service."
31. Flanagan v. Young, 228 F.2d 466 (D.C. Cir. 1955).
32. Stringer v. United States, 90 F. Supp. 375 (Ct. Ci. 1950).
33. 297 F.2d 439 (D.C. Cir. 1961).
34. See FPM Letter 772-2, September 23, 1963.
35. Edge v. Civilian Production Administration, Civil No. 26160 (D.D.C. 1946).
ADVERSE ACTION PROCEDURES
1970]
From the foregoing discussion two main points emerge: First, an
employee of the executive branch has no contractual rights to
employment but he can no longer be considered as employed at the mere
will of a superior. His position can best be described as one of "status"
protected by the Constitution, legislative enactments, and internal
regulations which may be termed the "customs of the executive
branch." Secondly, this status is one which the judicial branch of the
government will now protect if interfered with in contravention of
established procedures or in an arbitrary or capricious manner. On the
other hand, it is now apparent, that without regard to any specific
agency, the overall approach of the executive branch is that of
''management", i.e., a reluctant grudging acknowledgement of the
employee's right to the protection appurtenant to his "status". The
conflict emerges as one between management's need to achieve
"maximum benefit for the promotion of the efficiency of the service"
and the employee's natural desire for "job security." Though both
management and employee will strive to "promote the efficiency of the
service", management, taking an overall view, may find itself in
disagreement with the employee in the steps necessary to achieve this
objective. As a result, although the executive branch can under no test be
deemed deliberately anti-employee, it has not yet fully recognized that
"job security" is an effective tool in obtaining an efficient and effective
worker. Too often only lip service is paid to this concept and decisions
are reached on a managerial policy of achieving results; thus a just
solution of the problem may not be achieved due to a failure to consider
the right to "job security" in the employee.
II
HISTORICAL DEVELOPMENT OF APPELLATE FUNCTIONS
As a result of the "hands off" policy which placed control over
Federal employment in the President and his immediate advisors, neither
Congress nor the courts were prepared to step in and regulate the
relationship between federal employees and the Executive Branch.
Internal regulations thus became, of necessity, an obligation of the Civil
Service Commission. As stated by the Commission in 1884:36
The Commission is a Board of Final Appeal from all examinations, and as
to all complaints covering working and grading, or other matters coming
within the sphere of its duties. (Emphasis added)
36. i USCSC
ANNUAL REP.
17 (1884).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
Soon thereafter it became a common belief that the Commission had the
power and the duty to investigate charges of removal without good
cause. 7 The Commission in 1886 clairified its position by indicating that
the power to remove an employee was unrestrained by Congress and the
law, unless the removal was for a refusal to pay political assessments, to
perform political services, or to be coerced into political activities3 8 A
removal for any other reason could not be investigated by the
Commission 9 That the Commission desired supervisory control over
the procedure in removal cases can be seen from its 10th Annual Report
in 1893:
The Commission firmly believes that the cause for removal should always
be stated in writing, that the accused should be given an opportunity to be
heard in his own defense, and that whenever the accused demands it, the
cause of removal should be published in full. We think the Commission
should have the power to investigate and report upon all removals
President McKinley's Executive Order of July 27, 1897 supported this
policy. Unfortunately, however, the courts continued their "hands off"
policy and regarded the Executive Order as an internal rule not creating
a legal interest. It could not be invoked before the courts,4 ' being a mere
authoritative expression by the President of his desires and a command
to his subordinates with respect to the removal from office of those
coming within the scope of Civil Service Rules.
In 1898 the Commission asked that copies of charges be filed with the
42
Commission:
Not so that the Commission may review the findings of the department
upon the charges and answers, for it is not believed that such action by the
Commission would be either authorized or advisable, but this copy of the
record of the action taken is desired merely to enable the Commission more
readily to ascertain whether a person, before his removal, is furnished with
the reasons for his removal and given an opportunity to make answers in
accordance with the terms of the rule.
Subsequently the rules were amended to provide for the filing of such
documents. 3 But before such amendment, when investigating appeals on
37. 3 USCSC ANNUAL REP. 56 (1886).
38. See also various Annual Reports [1st through 29th] repeatedly haveing to indicate this.
39. 3 USCSC ANNUAL REP. 56 (1886); 9 USCSC
40. 10 USCSC ANNUAL REP. 11 (1893).
ANNUAL REP. 77
(1892).
41. Carr v. Gordon, 82 F. 373 (N.D. 11. 1897).
42. 15 USCSC ANNUAL REP. 20 (1898).
43. Executive Order of October 13, 1905. The rule was again amended on Nov. 17, 1905 and the
earlier rule reinstated by Executive Order of Feb. 8, 1912.
1970]
ADVERSE ACTION PROCEDURES
the basis of non-compliance with Civil Service Rules, the Commission
did receive a copy of the record. 44 During such investigation the
Commission could not inquire into the existence of "just cause 4 for a
removal unless there was an allegation, supported with some proof, that
the removal was not for the cause alleged, but for political or religious
reasons, or that a penalty greater than usual had been imposed."
In 1912 the Lloyd-LaFollette Act 47 extended and gave statutory
authority to the Civil Service Rules relating (i) to notice of charges (ii)
to a grant of reasonable time to file a written reply and (iii) to the giving
of a written decision on the answers to the charged. Though innovations
were made by the Act there still was no examination of witnesses, nor
any trial or hearing, but the officer ordering a removal had discretion to
grant a request for a confrontation. By making a copy of the reasons and
answers and of the order of removal a part of the record, and by having
the record available for the Commission, it was possible to prevent
removal upon secret charges and for policial reasons. There Was no
interference, however, with the free exercise of removal powers in the
appointing officer. Appeals to the Commission show that, although
appointing officers often did have sufficient cause for a removal, the
statutory procedures and removal rules were not always explicitly
followed!'
In the exercise of its limited appeals and review powers, the
Commission was assisted by an employee of the Examination Division
and later by the Chief Examiner. In 1920, the amount of work involved
resulted in the delegation to the Division of Investigation and Review of
the appeals and reviews undertaken by the Commission. Although many
complaints continued to be decided by the Commissioners personally,5
it is clear that appeals and review were considered as a part of the
personnel administration of the Civil Service. It is thus understandable
that there was no attempt to go beyond review for procedural
compliance, so that there was no review on the merits, even though a
44. The rule of November 17, 1905 was considered declaratory only. See 22 USCSC ANNUAL
REP. 145 (1904).
45. "Just cause" was intended to mean "any cause other than one merely political or religious",
Executive Order of May 29, 1902. Compare with "such cause as will promote the efficiency of the
service" under the Lloyd-La Follette Act of 1912, Sec. 6, 37 Stat. 539, Aug. 24, 1912, and the
Veterans' Preference Act of 1944, Sec. 14, C 287, 58 Stat. 387, June 27, 1944.
46. Rule XII, Sec. 1, after July 28, 1914 Rule XII Sec. 2.
47. Act of Aug. 24, 1912,37 Stat. 539.
48. RuleXIl.
49. 43 USCSC ANNUAL REP. XXXVI (1926).
50. See 56 USCSC ANNUAL REP.29 (1939).
332
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
removal of an employee might violate the spirit of the rules and the Civil
Service Act.5
In adopting this approach the Commission failed to live up to its
responsibility to maintain a balance between employee and management
rights. The Annual Reports abound with explanations and excuses.
Explanations that such fundamental principles of justice as that an
employee be given a copy of the charges against him and be allowed to
give answers thereto are not intended to limit the power to discipline or
to remove,52 and excuses that the Commission had no statutory power to
review the findings of a removing officer 3 were often given. Though
alleging that the Commission approached employment in public service
on the same theory as that applied by the private sector, i.e., tenure on
good behavior and efficiency, the Commission failed to recognize that
employment in the private sector is delineated by contract and by
statutory law. As a result the scales are more evenly balanced in the
private sector to prevent an arbitrary termination of employment by
management or an arbitrary withholding by an employee of his services
during the existence of the contractual relationship.
Change began in the civil service as a result of changes in the private
sector and of new philosophies in labor-management relations during the
post World War I period. Change was stimulated further by theories of a
"fair deal" for veterans. In line with these changes the Commission
called for the creation,
under the direct supervision of the Civil Service Commission [of] a
statutory board or 'court of appeals' with power to hear and determine
finally appeals of employees in the classified service who have been reduced
in salary, rank, or grade, suspended from duty, or dismissed from the
service, under regulations to be promulgated by the President, a decision of
such board or court to be binding upon the department or office
concerned?'
Frustrated in its attempts to obtain a statutory court of appeals 5 the
Commission, by administrative action embodied in a Minute of
November 26, 1930, proceeded to create a Board of Appeals and Review
to which it delegated the following functions:
1. Appeals from ratings in all examinations including presidential
51. 3 USCSC ANNUAL REP. 56 (1886).
52. See 15 USCSC ANNUAL REP. 20 (1898); 20 USCSC ANNUAL REP. 19 (1904); 22 USCSC
ANNUAL REP. 145 (1905).
53. See Rule XII, Sec. 4 as amended July 28, 1914 which reemphasizes this point.
54. 48 USCSC ANNUAL REP.41 (1931).
55. See 50 USCSC ANNUAL REP. 11 (1933) and 51 USCSC ANNUAL REP. 9 (1934) for
additional cause for a statutory "court of appeals".
1970]
ADVERSE ACTION PROCEDURES
postmaster, and ratings on education, training, and/or experie.ice, and
those growing out of character investigations.
2. Appeals from cancellation of applications with respect to age, physical
qualifications, citizenship, residence, members of family, etc.
3. Appeals in debarment cases.
4. Appeals in service record and retirment cases.
5. Appeals in noncompetitive cases.
The Minute also described the authority of the Board of Appeals and
Review:
The Board of Appeals and Review is given authority in cooperation with
administrative officials and officers to establish from employees in other
divisions of the office or from other branches of the Government service,
special boards of appeal or review to handle individual cases or groups of
cases, or to call on individual employees in other divisions of the office to
act on individual cases. Of course, as is now done by the Division of
Investigation and Review, the new Board of Appeals and Review can call
on qualified persons in the Government service or elsewhere to pass upon
the merits of individual cases of appeal whenever considered necessary; but
where such action involves probable expenditure of public funds, the
employment of such persons shall be handled thru the Personnel Office and
the Commission.
The present Division of Investigation and Review acts on a case and
renders final decision in the same manner in which the Examining Division
rates a set of papers finally, an appeal case being submitted either to the
Chief Examiner or Commission only when such action is considered
necessary or is desired. The new Board is likewise to render its final decision
in a case and transmit such action for consideration of the Commission in
important cases thru the Chief Examiner or Secretary for their information
and comments, depending upon the office in which the case originated.
It is submitted that a reading of the Minute does not show the true intent
of the Commission, for the Minute does not indicate that the
Commission intended to create an independent adjudicatory body
responsible to the Commission. This Minute, on the other hand,
supports the theory, unfortunately still prevalent in the Commission,
that the Board of Appeals and Review is "a mere extension of the
personnel office". As such, the method of adjudication prescribed is
conducive to management oriented decisions in which the "job security"
of the employee may not be given equal emphasis. This is apparent from
the reference to the creation of ad hoc adjudicatory bodies from
administrative officials and the channelling of decisions to the
Commissioners "through the Chief Examiner or Secretary for their
334
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
information and comments," [emphasis added] albeit only in
"important cases".
In its Annual Reports for 193156 and 193251 however, the
Commission's policy in creating the Board of Appeals and Review is
clarified. As the Commission stated:
The right, within reasonable limits, of an individual adjudgedguilty to have
his case reviewed on appeal by a tribunal independent of the one which
rendered the original judgment is an American principle. The extension of
the doctrine to removals and bther disciplinary actions in the competitive
classified service would make for more effective personnel management and
would, as well, promote the general welfare of employees. 58
Thus the Commission, after establishing the Board of Appeals and
Review, indicated in its Annual Reports that it was under the
Commissioners'
direct supervision, separated in the exercise of its functions from the control
of any subordinate official. The Commission's purpose was to assure
impartial consideration of the many and- diverse questions raised with
respect to the rights of individuals to examination, their eligibility, and their
civil service status generally. . . . The Board's primary function is to
determine whether the facts in any cases were* correctly interpreted or
applied ,when decision was made originally. . . . Upon his request, a
competitor is accorded a personal hearing before the Board, and his
testimony is recorded stenographically. Both oral testimony and
documentary evidence are accepted. The hearings are informal and are not
open to the public, but the appellant may have his relatives or friends
present, may produce witnesses and may be represented by attorney."
and that:
The appellants are assured that their cases will be considered by a body not
influenced by the official or reviewer who made the decision from which
appeal is taken.60
Within these conflicting statements, the Board of Appeals and Review,
as a practical matter, handles its work load as an extension of the
personnel office. 6' The methodology of reaching administrative
56. 48 USCSC ANNUAL REP. 19 (1931).
57. 49 USCSC ANNUAL REP. 22 (1932).
58. See 50 USCSC ANNUAL REP. 11 (1933).
59. 49 USCSC ANNUAL REP. 32 (1932).
60. 48 USCSC ANNUAL REP. 19 (1931).
61. There is considerable doubt whether the above reconciliation can actually be supported in the
light of the pervading philosophy. My suggested solution is preferable, however, to one of conflict
between the public and the internal position of the Commission.
1970]
ADVERSE ACTION PROCEDURES
conclusions as set forth in a Minute of the Commission 2 illustrates that
this personnel office approach goes beyond normal administrative
tribunal approaches0 3 This Minute indicates that the Board of Appeals
and Review is not confined to the limitations which are essential to
judicial procedure, nor bound by rules of evidence which govern the
conduct of judicial appellate tribunals, but "necessarily observes the
same latitude of action and, necessarily, is restricted only by such
limitations of procedure as are followed by the Commission in reaching
its administrative determinations." Although there is no power to
subpoena witnesses to testify, an agency cannot refuse to produce a
witness who is material to the prosecution or to the defense of an adverse
action, if such witness is still employed by the agency! 4 The evidence
adduced in support of an adverse action must be of such kind as to be
available for disclosure to the appellant and to the courts. As the
5
Supreme Court stated in Green v. McElroy:
Certain principles have remained relatively immutable in our jurisprudence.
One of these is that where governmental action seriously injures an
individual, and the reasonableness of the action depends on fact findings,
the evidence used to prove the Government's case must be disclosed to the
individual so that he has an opportunity to show that it is untrue. While this
is important in the case of documentary evidence, it is even more important
where the evidence consists of the testimony of individuals whose memory
might be faulty or who, in fact, might be perjurers or persons motivated by
malice, vindictiveness, intolerance, prejudice, or jealousy. We have
formalized these protections in the requirements of confrontation and
6
cross-examination. They have ancient roots
It is, therefore, no longer possible to claim that an adverse action was
based on statements made as confidential disclosures and that the
Commission is under a moral obligation to treat the evidence as
confidential information, which it need not disclose even to the courts
because such disclosure is contrary to the general public interest as
determined by the President or the head of the Department having legal
custody of the evidence6 7 On the other hand, it is not always possible for
the Commission to conform to judicial procedures to establish facts, e.g.
62. USCSC Minutes of Proceedings, March 28, 1940.
63. C. DAVIS, ADMINISTRATIVE LAW TREATISE (1958) § 8.01 et seq.
64. Williams v. Zucker, 372 U.S. 765 (1963). But cf.Goldwasser v. Brown, 97 Wash. Law Rep.
1713 (U.S. App. D.C. Oct. 8, 1969).
65. 360 U.S. 474 (1959).
66. Id. at 496.
67. See also Freedom of Information Act, 80 Stat. 383,81 Stat. 54,5 USCA Sec. 552 (1967) and
compare 20 Op. Att. Gen. 557, March 31, 1893 and 25 Op. Att. Gen. 326, Jan. 9, 1905.
336
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
by the introduction of direct oral testimony. The Commission has to rely
on such evidence as will, in its opinion, serve to affirmatively establish a
conclusive presumption of facts of the individual's fitness, suitability
and general reputation which will safeguard the public interest and the
reputation of the service. This does not mean, however, that the
administrative tribunal may reject court tested evidence in favor of an
affidavit which is in direct contradiction to such testimony. 8
The Veterans' Preference Act of 1944 signalled that the appellate
jurisdiction of the Commission was entering upon its embryonic stage.
Not only did that Act continue the requirements of the Lloyd-LaFollette
Act, but also it added thereto and applies to both the competitive service
and the excepted service. Both Acts apply to discharge or removal, but
furlough without pay and reduction in rank or in compensation are
covered only by the Veterans' Preference Act. While a suspension
without pay for any period is covered by the Lloyd-LaFollette Act, it
must exceed a period of thirty days to fall within the Veterans'
Preference Act.
The real extension of the protection of an employee lies in the
procedural area: (i) there has to be a thirty-day advance written notice
stating any and all reasons for the adverse action, specifically and in
detail; (ii) the employee must be given a reasonable time to prepare his
answer "personally and in writing"; (iii) he is also given a right to
appeal in writing to the Civil Service Commission from an adverse
decision by the administrative officer; (iv) he is given the right to a
personal appearance; and (v) the decision of the Civil Service
Commission is mandatory on the administrative officer."
As a consequence of Congressional pressure,70 Executive Order 10988
of January 17, 1962, extended the application of Section 14 of the
Veterans' Preference Act to all federal employees in the competitive
service and not just to those who qualify as veterans. At the same time
President Kennedy issued Executive Order 10987 authorizing an appeals
system within federal agencies in accordance with regulations issued by
the Civil Service Commission "to protect employees against arbitrary
and unjust adverse actions, and . . . to . . . further the objective of
improving employee-management relations, and insure timely correction
68. Kowal v. United States, No. 1-68, (Ct. C1. July 16, 1969).
69. See note 45 supra. See 19, as amended by PL 80-741, June 22, 1948. This was not always the
case. See 49 USCSC ANNUAL REP. 44 (1932); 50 USCSC ANNUAL REP. 11 (1933); 51 USCSC
ANNUAL REP. 9 (1934).
70. See S. Doc. No. 33, 83d Cong. 1st Sess. (1953); H.R. Doc. No. 1759, 83d Cong. 2d Sess
(1953); H.R. Doc. No. 1844,84th Cong. 2d Sess. (1956).
1970]
ADVERSE ACTION PROCEDURES
of improper adverse actions."'7 To give effect to the states and Executive
2
Orders, regulations were passed to govern appeals procedures.!
The enactment of the Veterans' Preference Act extended the
jurisdiction of the Commission to cover not only appeals and review of
procedural requirements in adverse actions, but also the merits of the
case beyond the question of any possible political or religious biases
underlying the decision of the agency. As a result of Executive Order
10988 all persons in the competitive service are covered by this
protection, which is denied only to probationers and to non-veterans in
the excepted services. The intention of the Congress and of the President
was clear. It now became a question of performance by the Civil Service
Commission.
The Civil Service Commissioners reacted in a Minute by delegating to
the Board of Appeals and Review the necessary authority to render
"final administrative decisions on appeals to the Commission by
individuals and agencies from decisions of the various divisions and
regional offices of the Commission regarding matters arising under laws,
rules or regulations administered by the Commission [subject to
exceptions] 3 . . . ." A further Minute directed "responsibility includes
the conduct of hearings, if necessary. Decisions are reviewed for the
Commissioners and are subject to review by the Commissioners only. '74
This Minute indicates the continuation of the expressed intention that
the Board of Appeals and Review be an independent adjudicating body
responsible only to the Commissioners. Unfortunately, however, a
statement in the 75th Annual Report of the U.S. Civil Service
Commission, by attempting to clarify the relationship of the Executive
Director with the Board of Appeals and Review, cast doubt upon the
reality of such independence.
The Executive Director has administrative responsibility for the operations
of the Board of Appeals and Review, but does not participate in appeals
decisions . . . .The Executive Director, as an aid in the execution of his
responsibilities for overall administration of Commission programs, is
informed of significant appeals cases as follows:-Cases which the Board of Appeals and Review refer to the
Commissioners for decision because of apparent conflicts or absence of
applicable regulations and policies, are routed through the Executive
Director for a review and report on policy or regulatory implications.
[Emphasis added]
71.
72.
73.
74.
See Preamble to Executive Order 10987, 3 CFR § (1962).
See CFR §§ 752.101 etseq.,754.101 etseq.771.209 etseq., and 772.301 etseq.
USCSC Minutes of Proceedings, March 30, 1954, January 20, 1960; August 26, 1960.
USCSC Minutes of Proceedings, August 26, 1960.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
-Cases which the Board of Appeals and Review finds may have a major
impact on Commission regulations, standards or programs are referred to
the Executive Director before release to determine, after consultation with
the Chairman of the Board, whether they should be referred to the
Commissioners for final adjudication. [Emphasis added]
The problem is not the possibility of input by Executive Director when
called upon by the Commissioners to comment; provided, of course,
such input is available for further comment by the employee or his
representative. Rather, the problem lies in the channel of communication
between the Board of Appeals and Review and the Commissioners. It
enables the Executive Director to interpose himself between the
adjudicatory process and the decision making powers of the
Commissioners. As a result, although justice may still be done, it no
longer is fully "seen to be done".
This interposition of what I would call "the personnel office"
becomes more apparent when we look at the first level appeals
examiners' position in the Civil Service structure.
In the present structure, the regional Appeals Examiner is not
rendering decisions in the cases which come before him. Hierarchically,
the decision is that of the Regional Director, even though some Regional
Directors delegate the right to sign the decision to the appeals examiner,
while others will insist that such signature will have to indicate that it is
the appeals examiner signing for the Regional Director and in some
instances the name appearing on the decision is only that of the Regional
Director. This is indicative that the adjudication in the region, in
appearance, is not by an independent adjudicator but by the "personnel
office".
Emphasis is given to this conclusion by the fact that ultimate
responsibility of the appeals examiner is to the Executive Director either
directly, as is the case with the appeals examiner in Washington, D.C.,
or indirectly, through the Regional Director, who is responsible to the
Executive Director i.e., the chief executive officer of the Commission in
its position of personnel office to the President. It should be noted,
however, that the Appeals Program Management, which formerly was
within the Bureau of Policies and Standards, has now become part of the
Board of Appeals and Review.75 The Program Manager reports through
the Chairman of the Board of Appeals and Review except as regards
petitions for reopenings addressed to the Commissioners. These are now
reviewed by him and reported on directly to the Commissioners
75. USCSC Minutes of Proceedings November 29, 1968.
76. It was finally realized that the same body which adjudicates appeals should not participate in
19701
ADVERSE ACTION PROCEDURES
It should be noted that the need for regional appeals examiners
developed out of theprovisions of Section 14 of the Veterans' Preference
Act which granted the right to a personal appearance. The Commission
has interpreted this to include the right to a hearing when such has been
requested by the appellant. 7 An appeal can be taken from the appeals
examiner to the Board of Appeals and Review 7 8 with power to order a
reopening being retained by the Commissioners.79
That this hierarchical structure indicates some doubt as to the
independence of appeals examiners is apparent from the fact that the
ultimate responsibility for the decision rests with the Regional Director.
The Regional Director would be entirely within his power were he to call
for consultation and retain final determinative authority on the ground
that the appeals examiner's decision is likely to have wider iftiplications,
e.g., it would affect personnel management in the region.
The confused nature of the situation can be discerned from the opinion
of the Court of Claims in Heffron v. UnitedStates!'
Plaintiff argues that the Regional Office exonerated him, and as it had the
opportunity to assess the credibility of witnesses who appeared before it, the
BAR [Board of Appeals and Review] was arbitrary and capricious in
substituting its own judgment of whom to believe. The argument would
have more force if we had in the record fact findings signed by any person
who heard the testimony. We do not. The Regional Office decision is signed
by Mr. L.H. Baer, Regional Director, who is not listed in the transcript as
one of those present at the hearing. The hearing examiner was Mr. Charles
J. Dullea. On the lower left hand corner of the last page of Mr. Baer's
decision appears the following: "NY:A:CJD:dmh". From this we may
conclude that Mr. Dullea had something to do with drafting the decision,
but that is a far cry from establishing that it necessarily reflects Mr.
Dullea's assessment of the credibility of any witnesses. For all we know,
Mr. Baer may have read the transcriptand then directed Mr. Dullea to
a consideration of the question for reopening. A similar attack can be made on the existing "Pilot
Program". The sooner that is abolished the better. Appeals Examiners ought not to review their
own decisions for the BAR, neither should the adviser to the Appeals Examiners be involved in the
question of a reopening.
77. See Memorandum from General Counsel to Executive Director dated May 1, 1969, "Does
the statutory entitlement of an appellant before the Commission in an adverse action case to a
'personal appearance' entitle him to a trial-type hearing?" See also Part V et seq. of the
Memorandum regarding procedure.
78. 5 CFR § 772.307. Note also USCSC Minutes of Proceedings January 20, 1960 and August
26, 1960 reaffirming the Board of Appeals and Review's authority to render a final decision.
79. The involvement of the Appeals Program Manager, even in advisory capacity, in the
determination of whether to reopen is to be regretted. He is still too closely involved as adviser to
Appeals Examiners.
80. No. 430-67 (Ct. Cl. Jan. 24, 1969).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
write up a decision coming to the result it did come to. Moreover, the only
person whose credibility might have been considered at issue was plaintiff's. The Baer decision summarizes this testimony but it appears to rest,
not on acceptance of it as true, but on omissions and gaps Mr. Baer deemed
to exist in the prosecution case. The record affords no solid evidence that
any CSC official differed from any other in appraisal of plaintiffs
credibility. The facts therefore do not require us to consider plaintiff's
argument on the law as to this point."' [emphasis added]
The position of the Executive Director in relation to the Board of
Appeals and Review, though equally anomalous, is not as direct. The
Executive Director has the power to review and report to the
Commissioners on decisions which are in conflict with applicable
regulations and policies. He is also to be consulted prior to the release of
such decision regarding whether such decision should not be referred to
the Commissioners for determination. He has no power, however, to
invoke a final determination on an issue. Unfortunately, it is not possible
to state that the Executive Director or the Regional Directors have never
interfered with the adjudicatory process .of the appeals examiner. The
problem exists and should be resolved. The fact that there has been no
regular exercise of these powers is merely indicative that the men who
have occupied the position of appeals examiners have performed their
functions in spite of a system which tends to prevent truly independent
adjudication.
III
THE APPEALS OFFICER
A PRODUCT OF His TRAINING
The preceding section traced the historical developments leading to the
creation of a Board of Appeals and Review and outlined the conflicting
expressions of policy between "an independent court of appeals" as
expressed in the Annual Reports and the extention of the personnel
management office functions for which the Civil Service Commission
was established. I discussed the problem caused by an attempt to
reconcile the two conflicting interests and indicated that the problem is
created by the failure to show that justice is done, though great pains are
taken to achieve what is just. The question is raised of the effect of this
conflict on the appeals function. Has the provision of an appeals and
review procedure merely resulted in a personnel management approach
81. I understand, on the authority of Mr. Dullea himself, that Mr. Baer did not give any directive
to him, but that the decision in Heffron was reached by him immediately.
1970]
ADVERSE ACTION PROCEDURES
to the solution of the problems caused by an employee objecting to
actions affecting his livelihood and job security, i.e., securing to
"management the right to manage," or was it not to secure to the
employee his protection from management and preservation of basic
rights that the Board of Appeals and Review was created?
To answer this question we must look to those engaged in the
adjudicatory process, the methodology by which they are selected and
the background training they receive. It is submitted that the desirable
qualifications of an Appeals Examiner or member of the Board of
Appeals and Review are experience in drafting regulations; legal training
and practice; and adjudicatory experience. Required are men and women
of excellent character who possess ajudicial temperament, i.e., an ability
to each
through training and experience to realize that there are two sides
5 2
dispute, and to analyze facts and to separate fact from opinion
Unfortunately, there is at present a major stumbling block to the
selection of such individuals. The positions of Appeals Examiner or
member of the Board of Appeals and Review are within the general
hierarchy of the competitive service and as a result, the adjudication of
appeals is not a separate career. Thus, participation in these appellate
functions is considered merely a milestone in the career of a member of
the competitive service, instead of a progressive development to the
pinacle of a career. Those involved in the appellate program have been
chosen for their diversity of civil service experience which has
familiarized them with the rules and regulations as well as with the
overall functions of the Civil Service. Experience in the field of personnel
administration is the most highly regarded qualification and a tour of
duty in the Bureau of Inspection is recognized as most desirable.
Although in recent times a law degree appears to have become a
prerequisite, legal experience whether in the Office of the General
Counsel or elsewhere is not widespread, though management experience
is.
The fallacy that there is a need for a background in personnel
management which cannot be supplied as merely one input in the
decision making process has been pointed out by Prof. Louis L. Jaffe
". .. let us rid ourselves of illusion that 'expertise' will produce
82. It is clear that the training and environment of those engaged in the adjudicatory process has
not always helped them to be as objective as is desirable, though the sense of fairness and the desire
to give a just solution has invariably permeated all actions of this group. Though my remarks are of
necessity phrased in generalities rather than in specifics, I do not wish to imply that all, or even a
majority, of those working in appeals system can be accused of having possessed those traits which I
am here attacking.
342
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
formulas of demonstrable objectivity for resolving the conflict of
interests involved in regulatory problems".P The danger of a personnel
management approach in the adjudicatory process was recognized in a
report to the House of Representatives' Committee on Post Office and
Civil Service.P
There is an inherent impediment to complete independence and impartiality
on the part of even the best and most fairminded members of a personnel
department. The personnel department and its members are representatives
of management, not employees, and certainly the interests of a personnel
department or unit are management and not employee interests. It is,
therefore, a mistake to assume that referral of an unsettled appeals or
grievance matter to a personnel department, at however high a level,
automatically assures an absolutely fair or impartial determination or that
it is a satisfactory substitute for referral to a truly independent or impartial
agency.
The practice of establishing a career in appeals examining interrupted
by periods of service in the personnel management office produces
examiners who regard personnel management as their field of
development. They cannot help but be management oriented however
hard they may try to hold the balance between management and
employee, especially when their contact with the appeals process may
only be for a limited time.!' It is a logical conclusion that management
and hence management oriented appeals examiners, would place greater
reliance on the views, opinions and conclusions of personnel supervisors
than it would place on the views of individual employees. The
management approach may have merit in relation to management
purposes, but it hinders the process of achieving completely impartial
and objective decisions in appeals from management actions.
No procedures devised by man will result in striking a balance
between management and employee if the mental attitude of the
adjudicator is sub-consciously slanted in one or the other direction. Two
fundamental principles must be satisfied. First, justice must be realized
and that is not assured by a complex system of pleadings, hearings and
reviews. Second, the needs of management must be considered. The
interest of management generally parallels the interest of the employee,
because good management and satisfied employees go hand in hand.
83. L. JAFFI, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 25 (1965).
84. H.R. Doc. No. 1759, 83rd Cong., 2d Sess. (1954).
85. Id. at 8. Note that this point arose out of discussion by "public spirited businessmen and
representatives of civil groups." Id. at 7.
86. The suggestion had been made that there be rotation every 3-5 years.
19701
ADVERSE ACTION PROCEDURES
What is needed is the appointment of men with the judicial temperament
and training to keep the balance.
These problems of management orientation, subconscious lack of
impartiality and absence of legal training are magnified and made more
troublesome by other practices prevalent in the Commission which are
related to the adjudcatory process. The first of these practices to be
discussed I identify as the "iceberg' theory". It is argued that the case
which is presented in an appeal is viewed as merely the top of the iceberg
which appears above the surface of the water. Below the surface of the
personnel case is assumed to be a long series of continuous irritations,
for the appeals examiners know that only when the "last straw" has
been reached will management undertake the serious procedure of
"adverse action". Thus, it is thought-ft-at the charges should not be
looked at in isolation. This is not, however, what an adjudicator is called
upon to do.
In discussing the iceberg theory, one must distinguish the case in
which a series of specific actions are alleged, from the case in which the
change is "based on the employee's performance of a nonacceptable
level of competence predicated primarily on the employee's deficiency in
personnel relationship and attitude toward co-workers and supervisors,
and his ability to bend or work for group results.""7 In the former
instance the charge may be of an offense not fully substantiated and
subject to some doubt, but by employing the iceberg theory, the
adjudicator may be inclined to uphold the adverse decision. In the case in
which general incompetence or incompatibility is charged, however, the
decision is necessarily and justifiably based on the cumulative effect of
all of the circumstances.
The second practice enhancing the problems of management
orientation in the adjudicatory process is that of Appeals Examiners
rendering technical assistance on matters of procedure to the agencies.
This practice of rendering technical assistance is prompted in part by the
haunting fear of agencies that their case will be reversed on procedural
grounds. The fears are justified by the experience of rather high rates of
reversals on procedural grounds, 20% in 1965, 17% in 1966, and 22% in
1967, many of which result from poor drafting, inefficiency, and lack of
attention to procedure in compiling charges, i.e. from an incompetence
in pointing to the inefficiency of the employee. The need for greater
procedural accuracy promises to increase in the future, for recent casesss
87. Creamer v. United States, 174 Ct. CI. 408, 416 (1966), cert. denied 385 U.S. 819 (1966). See
also Ruderer v. United States, No. 85-67 (Ct. CI. July 16, 1969).
88. Charlton v. United States, 372 F.2d 663 (6th Cir. 1967), cert. denied, 387 U.S. 936 (1969).
THE AMERICAN UNIVERSITY LAW REVIEW
[[Vol. 19
have indicated that the courts are prepared to apply some of the
provisions of the Administrative Procedure Act89 to the appellate
procedures of the Commission. This will necessitate a more stringent
examination by the Board of Appeals and Review in compliance with
procedural requirements especially in those cases where such compliance
is the only safeguard against arbitrary actions.
Many Appeals Examiners see themselves in an institutional role and
thus can see nothing wrong with adjudicating an appeal after having
given technical assistance, in the form of advice on procedural matters,
to the agency concerned. There is a need to designate a person other than
the Appeals Examiner to provide technical assistance to agencies on
appeal matters. It should be noted that an appeals examiner who
provides such information may be accused of holding an ex parte
conversation. On the other hand, there is a need for someone to provide
the expertise. Although the Commission is "unaware of any complaints
about the advice furnished to agencies and appellants", and although
appeals examiners are acutely aware of the areas in which it would be
improper to give advice, there is concern about the lack of qualified
personnel in the Regional Offices to perform this service. The Veterans
Federal Employment Representative (VFER).probably could provide
this technical assistance but then it should be noted that he too is
involved in the adverse action procedures. Thus if it is wrong for the
appeals examiner to represent the Regional Director and give advice on
appellate matters concerned with procedure, it would be equally wrong
for any other member of the adjudicatory staff, including the VFER, to
render such a service.
Underlying this whole question of technical assistance is of course the
question of who is an appeals examiner? Is he an adjudicator or is he a
regular member of the competitive civil service by training and
psychology considering himself a member of the "personnel office"?
The view has been expressed that:
The appeals program is a personnel management program. The
Commission is not an extension or arm of Congress; nor is it a regulatory
agency. The Commission is the central personnel agency of the President of
the United States and for that reason the appellate role of the Commission
differs from that of the regulatory agencies. The Commission's appellate
program is not subject to the provisions of the Administrative Procedure
Act. The Commission's appeals examiners are not hearing officers or
hearing examiners, they are appeals examiners.
It is this approach to the appeals program which has led to a call to pay
89. 5 U.S.C. § 551 (Supp. I11 1965-67).
1970l
ADVERSE ACTION PROCEDURES
"more attention to philosophies and principles and give less attention to
mechanics and procedures in handling appeals."
Although I acknowledge the eminence of the authorities which made
these remarks, my analysis leads me to a different conclusion. The
purpose for appeals examiners and for the BAR program was not to
create such "personnel management program", but to hold the balance
between management and employee. It is my view that the Civil Service
Commission is a regulatory agency whose purpose it is to regulate the
employment of personnel by the various agencies of the United States
Government. The mere fact that its area of jurisdiction is restricted to
personnel does not lead me to a different conclusion. The courts have
indicated that they are going to apply the provisions of the
Administrative Procedure Act 0 to the appellate procedures of the
Commission, 9 and most importantly, it must be realized that
irrespective of what label we attach to those appointed to hear appeals,
the conferring of adjudicatory functions upon them clothes them with an
authority and requires that they be properly isolated from influences
which could sway their judgment.
Recent cases have demonstrated the danger of a "personnel office
approach" to an adjudication between employee and management.
Shadrick v. United States9 2 illustrated the danger of adding a further
seven charges and findings to the original two contained in the letter of
proposed adverse action; Stringer v. United States,9 3 illustrated that
when the statute requires a thirty days' notice no lesser period is
sufficient, even if only by one day; Norton v. Macy,94 called for a nexus
between the alleged immoral act and the efficiency of the service affected
thereby; Burkett v. United States,15 illustrated that the requirement for
specificity and detail means exactly that and not some vague generalities;
and Meehan v. Macy,"6 indicated that an employee's first amendment
rights are sacrosanct. These are but a few of the recent cases which have
interstices of
reached the courts. Many more cases hidden in the
97
point.
this
illustrate
to
shown
be
could
Commission files
90. Id.
91. Charlton v. United States, 372 F.2d 663 (6th Cir. 1967), cert. denied, 387 U.S. 936 (1969).
92. 151 Ct. Cl. 408 (1960).
93. 90 F. Supp. 375 (1950).
94. No. 21,625 (D.C. Cir. July 1, 1969).
95. No. 288-66 (Ct. CL. Nov. 15, 1968).
96. No. 20,812 (D.C. Cir. May 12, 1969).
97. I am aware of a number of cases, such as that of a probationer removed for admitted
association with homosexuals though he was never accused of being one, who found his petition to
the Commissioners dismissed on additional grounds relating to falsification of answers on his
application (Form 57) with which he was never charged; I have also come across a case in which the
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
In some instances the problem spills over into the substantive area; the
automatic rejection of appellants' testimony in Hemby v. United
States,9 the attempted moralization in Norton v. Macy,99 the vagueness
of the decision in Blackmar v. UnitedStates, ® and the insufficiency of a
factual basis for an adverse decision in Burkett v. United States,'° are
some illustration of this.
Another area in which the results of the personnel office approach
becomes apparent is in relation to constitutional questions. Whether the
reason for the present approach is due to inadequate training or to
incomplete regulatory directives, the decision in Norton v. Macy,'
should never have been affirmed by the Appeals Examiner and the Board
of Appeals and Review when we note the means by which the "evidence"
was obtained. The "special performance" of an "interrogation", the
persistent questioning, etc. are all indicative of a possible illegal arrest,
an illegal detention and a third degree inquisition, and may constitute a
possible violation of the Fourth Amendment. The approach of the
Appeals Examiner and of the Board of Appeals and Review appears to
be, however, that it is not the business of the Civil Service Commission
to ferret out evidentiary problems involving possible constitutional
questions; the issue must first be raisedby the appellant.
It would be possible for me to go on and on substantiating my thesis
that there has been a divergence from the original purpose which the
appellate function of the Civil Service was to serve, especially in the light
of the Congress and courts maintaining a predominant "hands off"
policy. Appeals Examiners and the Board of Appeals and Review have
now come to regard themselves as an adjunct to the personnel
management functions of the Civil Service Commission. Thus they feel a
duty to assist in securing the decision which conforms closest with justice
and fairness while assisting management in achieving its objectives. I do
BAR altered the date of service of notice of adverse decision to make it comply with the
requirements of procedural rules. My discussions with various Appeals Examiners disclosed that
some of them on-receiving an appeal file and seeing that the charge is in a letter of proposed adverse
action is deficient in showing no cause of action or insufficient specificity and detail, will so inform
the agency concerned and thus ask for amendment or indicate that the procedures be started anew
by a withdrawing of the agency's adverse decision. The desired effect is to leave the agency free to
start anew without raising the issue whether the defect was such as to call for a decision on the merits
by the Appeals Examiners, it is clear an amendment would call for the period of thirty days to
commence again, though this is not invariably the procedure followed. Suddeth v. Macy, No. 341862 (D.D.C. July 2, 1963).
98. 185 Ct. Cl. 140 (1968).
99. No. 21,625 (D.C. Cir. July 1, 1969).
100. 120 F. Supp. 408 (Ct. Cl. 1954).
101. No. 288-66 (Ct. Cl. Nov. 15, 1968).
102. No. 21,625 (D.C. Cir. July 1, 1969).
1970]
ADVERSE ACTION PROCEDURES
not wish to imply that this approach is apparent in all or even a majority
of cases. But the approach to technical assistance before the case comes
for adjudication on appeal and the apparent tendency in difficult cases to
support management is the natural outcome of the adjudicatory process
being considered a part of the personnel management program. Clearly
technical assistance is not a function of the appellate body. In the
absence of properly trained line officials such help should be sought from
legal counsel within an agency. As a final source of information the
General Counsel's office of the Civil Service Commission should be
available for guidance, not the Appeals Examiner nor the Board of
Appeals and Review. Once an Agency has decided to commence an
adverse action, its decision must be reached without assistance from the
adjudicating branch of the Commission.
A system has to be devised which will not condition those involved in
the appeals process to determine a doubtful situation in favor of
management rather than the employee, by reason of predilection and
participation in the personnel management program. Thus, before we
can consider some improvements in procedures on first and second level
appeals we must change the structure of the appeals system. Hearings
and reviews ad infinitum are useless if the final decision is more or less a
foregone conclusion and may even be opposed to the clear weight of
evidence. Suspicion arises that all the fine high sounding appeals
procedures are only a facade which is not worth the cost; a sort of self
hypnosis to pretend that any practice which has the trappings of a
hearing and consideration of the facts answers the needs ofjustice. What
°3
is needed has been well stated by Judge Prettyman:1
To the mind of the man on the street the idea of the administration of law14
is akin to his idea of justice. The elements it embodies are impartiality,
certainty, accuracy, patience, adherence to the right . . . Judges ought
never to forget the requisites of office . . . when it [the Administrative
Agency] makes orders, which are decrees, it should abide by the
requirements of the law for adjudication. All else in the way of guide or
standards or measurements ought to be discarded, forgotten, avoided, put
103. Prettyman, The NatureofAdministrative Law, 44 U. VA. L. REv. 685, 694 (1958).
104. Note that the term "law" is given broad meaning here. As Judge Prettyman states in a
footnote: "The law includes the constitution and acts of Congress and regulations duly and yalidly
adopted. But there is also in our case law and in our minds an additional great body of ideals
wrought out over the centuries by ideals and hopes and striving for a better world. Accepted by us as
requirements for human conduct, they are embodied in our concept of laws and expressed through
the medium of such terms as 'practice', 'due process' and 'fair play.' These ideals are well known to
us. I mean to include these when I say 'the law'. 44 U. VA. L. REv. at 690. See also Nevada
Legislature Council Bureau, A Study of Administrative Rule Making; The Conduct of
Administrative Hearings and Judicial Review Thereof, Bulletin 37 (Dec. 1958).
348
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
away, save only the simple idiom that the sole functions of an agency is to
05
administer law.
IV
CONCLUSION AND RECOMMENDATION
A complete re-evaluation of the appeals structure of the Civil Service
Commission is called for. The unions have called for great "objectivity"
and they are finding support not only in the Courts'00 but also in the
Congress. 0
7
It is now a question of how soon the Courts and the
Congress will act if the internal system of the Civil Service Commission
does not alter to take account of the changes in labor-management
relations. Unions have been pressing for binding arbitration to solve
disputes"' and have led the way in the call for independent adjudication
of appeals. Agencies are also beginning to realize that an adjudication
should be by an independent appeals examiner. Some have supported the
call for examiners from installations other than the one where the
adverse action arose, while others have indicated that they want the
Commission's Appeals Examiners to hold the hearings. In EEO cases
the regulations already call for a hearing by an official from outside the
agency involved;'0 ' generally, this will mean an employee of the
Commission. Adverse action procedures must follow this lead and
105. It is submitted that it is not possible to draw upon any existence of a law-policy dichotomy
to distinguish between Courts and Administrative agencies. Judges have been for centuries and still
are makers of policy. Both courts and administrative agency exercise the same type of adjudicatory
authority. Of course, the degree of latitude possessed in particular cases will vary from tribunal to
tribunal and from case to case. See W. ROBSON, JUSTICE AND ADMINISTRATIVE LAW (3d ed. 1951).
B. SCHWARTZ; AN INTRODUCTION TO AMERICAN ADMINISTRATIVE LAW
(1958).
106. 412 F.2d 390 (1969).
107. S. Doc. No. 33, 83d Cong., 1st Sess. (1953); H.R. Doc. No. 1759, 83d Cong. 2d Sess.
(1954); H.R. Doc. No. 1844, 84th Cong., 2d Sess. (1956). See also S. 782, especially Section 5,
formerly S. 1035, introduced by Senator Ervin and 53 other senators on January 31, 1969.
Commenting on a proposal to locate a new Board on Employees' Rights as contained in S. 1035,
and S. 782 Chairman Macy stated to the House Subcommittee on Manpower and Civil Service,
H.R. Doc. HEARING No. 90-49, p. 30,90 Cong., 2 Sess. (1968): "we think it would be a mistake to
locate a new agency having jurisdiction limited to appeals concerning a relative few specific
employee rights, and having no responsibility for other basic elements of employee-management
relations." Unfortunately the Commission did not indicate its support for an independent
adjudicatory body within the Executive Branch, a need which Sess. 30 (1968): "we supply, for it
encourages recourse to the courts without prior exhaustion of administrative remedies. The bill is
indicative of the loss of confidence in the present Commission and Agency appeals and grievance
system.
108. See Exec. Order No. 40988, 3 C.F.R. § 8b making the decisions and recommendations of
an arbitrator merely "advisory".
109. This may require the provision of a special section in BPS to which the other divisions of I
BPS submit their decisions on policies and theoried for drafting in regulation form, Compare to
"Legislative draftsman" of the Congress. It is further suggested that this section could be placed in
the General Counsel's office. See discussion infra p. 351.
1970]
ADVERSE ACTION PROCEDURES
return to the policy originally expressed in 1931 ,11oe.i., the establishment
of an independent appeals program. As one agency stated when
commenting on the proposed new adverse action procedures: "The
system employing full time examiners would correct the defects under
the old ad hoc system and further provide a more professional approach
to the examination, review or adjudication of both employee appeals and
grievances. With this in mind, greater employee confidence is
anticipated."
It is submitted that full-time examiners will have to be supplied by the
Civil Service Commission as a part of its duty to supervise the
employment relationship of federal agencies. The financial cost of the
suggested scheme should not be excessive. It can be recouped by (i) a
lower cost in hiring full-time examiners; (ii) making the services of the
examiner a reimbursable item to the Commission-thereby saving
valuable man hours for agencies; (iii) savings from lowering the present
percentage of reversible procedural errors. Above all other
considerations is the fact that justice has no price. We must also
compare cost with the benefit to be attained in employee confidence and
resultant employee competence.
I would suggest the creation of a new career service within the Civil
Service Commission: that of Legal and Appeals Officer. This career
should be separate from and not subject to the jurisdiction of the
Executive Director and Regional Directors other than "for
administrative purposes." Essentially this career would comprise service
in the present General Counsel Office, the Board of Appeals and Review,
the Appeals Examining Office, the Office of Hearing Examiners and
that part of the Bureau of Policies and Standards most involved in the
drafting of regulations, proposed statutes and executive orders.
Qualification for entry into this career would be a law degree and
membership of the bar [in the case of Hearing Examiners the present
qualifications would be continued]. The young entrant would be
assigned to work for six months in the General Counsel's Office, six
months in the Board of Appeals and Review and three months with the
Appeals Examiner and three months with the drafting section.
After an initial training period, allocation to the field should occur
with the individual serving both as hearing officer in adverse action cases
and as EEO hearing officers. Once an initial tour of duty is completed
additional moves to the Office of the General Counsel as Staff Counsel,
or as Appeals Examiner in the Board of Appeals had Review, or to the
110. 48 USCSC ANNUAL REP. 41 (1931).
350
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
drafting division would be possible."' While in this level, various tours of
duty with the Appeals Examining Office for the Washington, D.C.,
metropolitan area would be arranged under the guidance of the Appeals
Program Manager in the Board of Appeals and Review. From this
source the Regional Appeals Examiners would be chosen to hear first
level appeals to the Civil Service Commission. Assistant General
Counsel and Members of the Board of Appeals and Review [as well as
the Appeals Program Manager] would be chosen from Regional
Appeals Examiners and Staff Counsel. Hearing Examiners under the
Hatch Political Activity Act"i 2 could move laterally into the positions of
Assistant General Counsel or Member of the Board of Appeals and
Review. The final steps available in this career would be the positions of
General Counsel and that of Chairman of the Board of Appeals and
Review.
This scheme will take the appeals program completely out of the
personnel line of administration. It will free the individual from any
pressure exerted on a personnel management basis and enable him to
look towards a career appropriate to his training and ability. The
development of a professional approach and the consequent efficiency
should go far to create a system which will have the respect and support
of agency and employee alike. If there should be the need for input by
other branches of the Civil Service the present approach, permitting such
input, could be continued. But such input, subject to comment by the
other side, must remain just that, input, and not decision making.
Difficulties in recruitment should not arise from the fact that
attorneys fall within the excepted services. To my knowledge this has not
hindered recruitment of attorneys in the past, and it should not have such
an effect in the future. Although there may be good arguments for
including attorneys within the competitive service, I cannot see what
effect this would have on the proposed scheme. The main distinction
between attorneys and those within the competitive service is the job
security extended to non-verterans within the competitive service by
Executive Order 10988, Section 14, of 1962. The addition of the words
and to all attorneys would have the desired effect without raising the
difficulties constantly placed in the way of making attorneys a part of
3
the competitive service."
111. The extreme shortage of adequately trained draftsman had been decried by Federal, State
and local legislative bodies as well as by various agencies. This would create a useful pool of
manpower and act as an incentive to future developments.
112. 53 Stat. 1148 (1939) as amended by 80 St-at. 525 (1966).
113. "'(S)hall extend to all employees in the competitive civil service and to all attorneys rights
identical ....
Each employee in the competitive civil service andeach attorney shall have the right
...by an employee in the competitive civil service and by an attorney shall be complied with."
19701
ADVERSE ACTION PROCEDURES
Placing the drafting office in the General Counsel's Office would
assure the use of proper legal language in the regulations.' Members of
the new "Legal and Appeals Officer Service" would be able to help
other branches of the Civil Service Commission as training officers and
as inspectors to see how far agencies are complying with the regulations.
It is clear that an officer will have to disqualify himself if he has had
prior contact with the situation he is called upon to adjudicate.
I am not maintaining that the decisions of the adjudicators will be free
from policy influences. One can distinguish "policy" from "law" only
in theory, and even then the distinction is doubtful. In practice, judges
have been for centuries and still are makers of policy." 5 In reality, the
judge, like an administrator, decides in accordance with policy
considerations, and in accordance with his notions regarding the ends his
decision seeks to further." 6 However, the judge, by virtue of his
independence should not be swayed by any unexpressed underlying
policy in favor of one or the other party before him. Thus, if the
adjudicator's interpretation of the rules and regulations does not
coincide with that of the Commission, the power to amend and clarify
Commission policy is not affected thereby. What is important is that
clarification or change is only possible after the decision has become
public and determinative on the issues adjudicated," 7 i.e., by appeal or
change in the applicable regulations. The Commissioners would retain,
l8
of course, their powers of clemency and the right to order a reopening."
V
APPEALS TO THE COMMISSION
1. Trial Type Hearing,Review or Appeal
The question whether an appeal to the Civil Service Commission
entitles the appellant to a "trial type hearing" has vexed the
Commission for a considerable time. The basic revision suggested by the
"Pellerzi Plan""' called for Commission examiners to hear cases in the
114. At present General Counsel's Office has power to comment on drafts but the final wording
is not always that of General Counsel but often that of BPS. It is suggested that BPS continue to
formulate policies and draft explanations and back ground materials for the regulations as drafted
by the proposed new section of the General Counsel's Office. Such background materials and policy
letters would act as legislative history and help, if necessary, in the interpretation of the regulations.
115. Compare W. ROBSON, JUSTICE AND ADMINISTRATIVE LAW 432 (3d ed. 1951).
116. Compare B. SCHWARTZ, AN INTRODUCTION TO AMERICAN ADMINISTRATIVE LAW 77
(1958).
117. See discussion supra Section III and 75 USCSC ANNUAL REP. § 1 (1958).
1-18. 5C.F.R. § 772,308.
119. A plan for reorganizing adverse action procedure, prepared under the former General
Counsel of the Civil Service Commission, Mr. Pellerzi.
352
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
agencies. It was, therefore, suggested that such hearings by a
Commission hearing officer would suffice to satisfy the requirements of
the Veterans' Preference Act 2 ' Section 14, which calls for an appearance
"personally or through a representative under regulations prescribed by
the Commission,'' which is called upon to determine the case "after
' 22
investigation and consideration of the evidence submitted.'
This suggestion was rejected only recently, in a very ably researched
memorandum by the General Counsel of the Civil Service Commission
entitled "Does the statutory entitlement of an appellant before the
Commission in an adverse action case to a 'personal appearance' entitle
him to a trial-type hearing?". 2 3 The General Counsel reached the
conclusion that by reason of "administrative interpretation" as opposed
to "administrative policy" application, the courts will now hold that the
provision of a "personal appearance" in the statute requires a trial-type
hearing before the Commission. Thus legislation would be required to
provide for a Commission review of the record made at the agency
hearing or for an appellate-type hearing in lieu of the trial-type hearing
presently granted by the Commission.
The question of a multiplicity of trial-type hearings could be solved
from a different starting point. Is there a need for a trial-type hearing in
the agency? The basis of an agency trial-type hearing can be found in
Executive Order 10987 of January 17, 1962 Section 3(5) and 5 CFR
Section 771.213. These regulations require that an employee be notified
of his right to a hearinig.'- They have been interpreted to mean that an
employee must specifically ask for a hearing. The courts have not
determined what form this personal hearing ought to take, except to
indicate that there is no right to a trial-type hearing, nor to an adversiiry
2
type hearing.
Since less than 50% of the appellants seem to have asked for a hearing
at the agency level, the question arises whether the right to such hearing
is really one sought by employees.1i In many instances employees have
120.
121.
122.
123.
124.
125.
C 287,58 Stat. 387 (1944) as amended, See 5 U.S.C. § 7701 et seq. (Supp. If1 1965-67).
Id.
Id.
Memorandum to Executive Director, May 1, 1969.
See McTiernan v. Grononski, 337 F.2d 31,35 (2d Cir. 1964).
5 C.F.R. § 771.213(c)(1). The hearing can be denied on limited grounds. 5
C.F.R. § 771.213(b).
126. Hart v. United States, 284 F.2d 682 (Ct. CI. 1960).
127. This "guestimate" was made by various appeals examiners, the appeal program manager,
the Chairman of the BAR and by union representatives who indicated that it depends on the agency
concerned and the appeals examiner for that region whether they will call for a trial-type hearing in
the agency, i.e. forum shopping.
1970]
ADVERSE ACTION PROCEDURES
engaged in "forum shopping" and have rejected this right at the agency
level reserving it for a future time when they may wish to appeal to the
Commission. The reason for this practice is the uncertainty of obtaining
a fair and unbiased hearing in the agency which is both accuser and
judge. Recent proposals that agency appeals be held by an officer from
an installation other than the one where the adverse action was taken,'28
are indicative of these suspicions, which have some factual support.12 1
From the personnel management point of view, the decision is an
adverse action is not the determination or adjudication of an adversary
proceeding. It is a determination on policy grounds made on the basis of
investigation and explanation in which management is the accuser and
judge; though the employee is entitled to state his defense and
extenuating arguments. It is in the appellate level that we have an
adversary adjudication to determine whether (1) applicable procedures
had been followed and (2) the decision is one reached on the merits.
I am fully aware, however, that a suggestion to-abolish trial-type
hearings at the agency level is going to arouse great emotional reactions.
The savings in cost to the agencies and the fact that this suggestion does
not interfere with agency review procedures, should help to assuage the
hurt. There would still be a right within the agency to review the record
with the concomitant power to reverse, to reduce penalties or to affirm.
On appeal to the Commission, the hearing officer would come into the
picture and a proper adjudication by an independent "appeals officer"
would be available to the appellant-employee.
If this suggestion is rejected, however, and it is decided that trial-type
hearings shall continue to be made available at the agency level, then it
may be worth while to re-examine the question whether the Commission
could not delegate to the agency its duty to hold a trial-type hearing
whenever such agency is prepared to make use of the Commission's
hearing officer.33 There is precedent for this approach. The present
regulations 3 1 provide that where an employee, whose agency has a
second appellate level, appeals to such second appellate level, he forfeits
his right of appeal to the Commission. Although such second appellate
levels are subject to review,' 32 there has been no assertion in the courts
128. See proposals for new adverse action procedures infra p. 415.
129. See discussion supra Section I.
130. 1 realize that this is very close to the suggestions contained in the "Pellerzi Plan."
131. 5C.F.R. § 771.219(d).
132. It is proposed to abolish all second appellate levels within the agencies. The methodology
suggested is, however, most unfair. In effect it will result in the abolition of a further appeal only by
the employee, for the management representative who finds the recommendations of the hearing
officer unacceptable, i.e., in favor of the employee, can "refer the file to a higher level of authority
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
that the present regulations are contrary to the provisions of the
Veterans' Preference Act Section 14, in denying veterans their statutory
right to appeal to the Commission. 33 It appears to me that such an
attack could be made and would be on more secure ground than would
an attack based on the distinction between "administrative
interpretation" and "administrative policy."'3
Let us examine the question whether there really is such
"administrative interpretation" requiring a "trial-type hearing" by the
Commission. Accepting the proposition that when an attempt is made to
proceed adversely against an employee, a right to confrontation and to
cross-examination is immutable in American jurisprudence,' one must
question the logic of the considerations which led to the regulatory
provision that an employee must ask for a hearing in the agency, but
must expressly reject his right to a hearing in his appeal to the
Commission. 3 1 Until 1962137 the Commission had no control over the
adverse action proceedings in the agencies. Thus, until that time the
requirement for a trial-type hearing in the Commission could be deemed
an administrative interpretation of the statute. Once the availability of a
trial-type hearing at the agency level was established, however, the only
reason for enabling an additional trial-type hearing in the Commission is
either that none was held at the agency level or that further evidence is
available and has not been considered at the agency hearing. Whatever
the reason, this is a shift in the "administrative interpretation" or, more
specifically, what had been "administrative interpretation" up to 1962
has since become mere "administrative policy" or changed
"interpretation."
In support of this contention we can examine what has been the
practice at the first level Commission appeals. My investigations have
shown that where there has already been a trial-type hearing at the
agency level such "appellate hearings" are not de novo hearings. When
the file is received by the appeals examiner he will inform the appellant
and the agency that it is available for examination. The appellant will at
for decision with specific statement of his reasons for considering them unacceptable." See new
adverse action proposal (B7) and grievance procedure (B 14) infra p. 415. No such appeal is open to
the employee.
133. The right of a non-veteran to appeal is based on an Executive Order, not on statute. See
Exec. Order No. 10988,3 CFR § 3(c)(l) (1962).
134. See Memorandum supra note 123.
135. See Green v. McElroy, 360 U.S. 474 (1959); Garrot v. United States, 169 Ct. Cl. 186
(1965).
136. See5 CFR § 772.305(b).
137. Exec. Order No. 19987, 3 CFR § 3 (1962).
1970]
ADVERSE ACTION PROCEDURES
that time be informed of his right to a hearing. Unfortunately the
procedure diverges after this. While most regional appeals examiners
will hold a pre-hearing conference to determine issues and to determine
which witnesses will be needed for a trial-type hearing, some claim to
retain control to the extent that they will have a separate conference with
the appellant only. At such conference the appeals examiner will
determine whether the appellant can or cannot call the witnesses he
requests. If there has been a hearing at the agency level, witnesses who
would merely reiterate their testimony could not be called again. If it is
alleged that a witness will change his testimony, such witness is allowed
to testify only if the appellant can produce an affidavit from such witness
that he is changing his testimony or wishes to supplement it in order to
indicate what he really meant to say as opposed to what he was
understood to have said.
These preliminary conferences are used by most appeals examiners to
delineate the issues and to indicate that only new evidence will be
received at a subsequent trial-type hearing. If there has been no trial-type
hearing at the agency level, greater latitude will, of course, be given the
appellant. The Commission appeals examiner will, at the preliminary
hearing, try to obtain stipulations to as many facts as possible in order
to decrease the time and the expense of the hearing.'3
In practice, therefore, if there has been a trial-type hearing at the
agency level, there will be no de novo trial-type hearing in the
Commisssion. What is available is an appeals-type hearing at which the
appellant can present his case either orally or in writing, or orally and in
writing. If this is correct, then it is merely administrative policy to give a
trial-type hearing at Commission level, if none occurred at the agency
level, or if further evidence has become available. As such, there is no
reason why there should have to be more than one trial-type hearing
when a Commission hearing officer has held a trial-type hearing at the
agency level.
If some authority should be called for other than the regulations of the
Civil Service Commission, an Executive Order of the President should
suffice. Such executive order could either abolish all trial-type hearings
in the agencies or order that Commission Appeals Officers conduct trialtype hearings in the agencies and order that such hearings be held unless
expressly rejected by the employee.'39
138. The average hearing in Washington, D.C. takes approximately one day. At 200 pages of
testimony per day costing $1.50 per page to prepare, such hearing can become rather expensive.
139. Adoption of the union proposal that an employee be retained on the payroll until his appeals
are determined is recommended. It would speed the determination of cases.
356
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
Conclusion
It is my recommendation that the trial-type hearing should not be at
the agency level but should be on appeal to the Commission. This
practice would permit the agency to make personnel management
decisions with the power of internal review of the record to ensure that
proper personnel decisions have been reached in accordance with the
regulations. The appeal to the Commission would then be an adversary
proceeding in which the agency would seek to prove its case to an
independent adjudicator.
2.
Closing ofRecord
Since the adverse decision is a personnel decision reached on the basis
of an investigation by the personnel office and any presentations made
by the employee in his behalf, the decision must be one which is justified
on the facts so disclosed and not arbitrary, capricious or unreasonable.
The decision reached must be based therefore, on the record compiled by
the personnel officer. Surely there can then be no reason whatever why
there should be an opportunity to add to, elaborate on, or explain the
basis on which the adverse decision has been reached.
In its review through the agency, further representations by the
employee will have been considered. Thus, on an appeal to the
Commission the agency should be able to present its case as originally
documented. Any attempt by the agency to add to its evidence or to
produce further explanation would be indicative that either the original
decision was reached on insufficient evidence and thus was unreasonable,
arbitrary or capricious, or that the agency itself feels that it should not
have reached the decision on the evidence and arguments then before it,
in which case once more it could not have made a proper personnel
management decision.
As a result, the letter of charge should contain all charges and should
set forth all the evidence and reasons upon which the agency is relying."'
The present approach which appears to permit an appeals examiner to
call on the agency to give an explanation of the charges, should be
discontinued. What is unclear to an appeals examiner is surely lacking in
specificity and detail. Similarly, if the agency feels that further
explanation is needed, this would be indicative of a lack of clarity in the
charges as submitted. Thirty days notice, commencing from receipt of
the clarifying letter, should be required before action on the charges as
clarified can be considered. 4 ' The only new evidence which should be
140. See5 CFR § 752.209(a) and Robert B. McGuire, 145 Ct. CI. 17 (1959).
141. See Suddeth v. Macy, No. 3418-62 (D.D.C. July 2, 1963).
1970]
ADVERSE ACTION PROCEDURES
admissible at the appeals hearing should be such as would contradict the
defense testimony, for example a charge relating to AWOL alleging that
the employee had absented himself by not returning from a permitted
visit to his physician, but had gone home. Should the employee defend
on the ground that he was indisposed, evidence that he went to a local
ball game would be admissible to contradict his defense. Here such
evidence would tend not to prove the charge of absence without leave,
but would tend to disprove the defense, the evidence would deny cogency
to the evidence adduced by the employee. Unless those facts were
originally alleged in the letter of charge with specificity and detail, they
should not be admissible as evidence to prove the charge itself.
It is not necessary to have so strict a rule governing the presentation of
the employee's defense. This is his first opportunity to adduce the
evidence to contradict the charges against him. He will have made his
answer and presumably the agency will have checked out his story before
reaching its adverse decision. It must be remembered that it is the
validity or invalididty of the agency's adverse decision which is to be
1 2
adjudicated in the appeals hearing. 1
3.
The Hearings
(a) Procedure:
The agency should be required to present its case first whether or not a
trial-type hearing is involved. As previously indicated, it is the validity of
the agency's action that is under review. At present, appeals examiners
distinguish between appeals requiring a "trial-type hearing" and those
calling for a review of the agency action. In the latter, the appellant is
called upon to make his presentation first. Of course, this question will
become moot if my suggestion is adopted that all trial-type hearing be
held in the Commission.
In many instances the appeal will be based on the procedure adopted
by the agency. When we remember that procedure is a safeguard of the
employee from arbitrariness, the importance of adherence to procedure
cannot be underestimated. There must be due process both at the agency
level and at the appellate level in the Civil Service. Thus, if it is clear that
there has been a procedural violation, the decision on appeal can only be
a reversal. The appeals examiners or the Board of Appeals and Review
should not attempt to cure a procedural error of the agency. To do so
would be to approve an incompetent allegation of incompetence by an
142. On this argument, the exclusion of probationers from the right to appeal will be hard to
justify.
358
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 19
incompetent official against another employee. Such incompetence
makes the whole transaction suspect and can hardly be said to "promote
the efficiency of the service." Nor can it be argued at this level that the
procedural error is not a fatal one. In many instances the only basis of
appeal is that there had been a "procedural error.'1 3 This is like calling
a young lady "only slightly pregnant."
The courts have repeatedly indicated that there must be strict
adherence to procedural requirements. Thus in Stringer v. United
States44 the fact that only twenty-nine days had elapsed when the
Veterans' Preference Act Section 14 calls for a thirty days notice, was
held to warrant reversal; and in Watson v. UnitedStates"' the Court of
Claims granted summary judgment to a probationer when the agency
failed to follow its own regulations in discharging her."' It is, therefore,
disconcerting to find the Board of Appeals and Review amending the
effective date of an action so as to make it comply with the provisions of
an agency regulation requiring that such notice be given at or before the
effective date.14 7 Other examples can be cited in which the issue of
procedure, instead of being made paramount for the protection of the
employee, was not put in issue on the basis of its "not being a serious
error." Since there may beno way of attacking the merits of a
decision,' 48 and since agencies often exert strict compliance with
procedures from the employee, such an approach cannot be supported.
Finally, it is clear that there is need for publication of the procedures
to advise those involved in civil service appeals. As was stated by the
Court of Claims in Ruderer v. UnitedStates,149
It is evident that, from the beginning, plaintiff's handling of his disputes
with his employers has not always been rational or in his own best interests.
As often with pro se plaintiffs, we have strained our proper role in adversary
proceedings to the limit, searching this lengthy record to see if plaintiff has
a cause of action somewhere displayed. It would appear that one invoking
the appeal procedures of the Civil Service Commission, and suing in the
courts, is like one sitting down at an organ. He needs some understanding
of the instrument before he can expect to elicit anything but a discordant
noise. One lawsuit, conducted with understanding of the judicial process,
143. e.g., appeals by probations or appeals under 5 CFR § 752.301 et. seq.
144. 90 F. Supp. 375 (Ct. Cl. 1950).
145. 162 F. Supp. 755 (Ct. Cl. 1958).
146. See also Service v. Dulles, 354 U.S. 363 (1957).
147. 5 CFR § 752.302(c) requires that such notice be given "at or before the time the action will
be made effective."
148. See5 CFR § 752.304(b).
149. No. 85-67, 12 (Ct. Cl. July 16, 1969).
19701
ADVERSE ACTION PROCEDURES
would possibly be more fruitful for plaintiff than twenty-five conducted as
this lawsuit has been. Plaintiff clearly is animated by a vast indignation, but
one needs more than that to manage litigation with success. Indignation,
unaccompanied by clear and logical exposition of relevant facts, is likely to
impress as mere vindictive malice, as it did the administrative fact finders
whose decisions are before us here.
It is to be hoped that the Board of Appeals and Review will soon publish
a proper guide to its procedures. For such a guide to be of value,
however, there is a need for clarification of existing procedures"
(b)
The Admissibility of Evidence
The admissibility of evidence should be tested on the ground of
relevancy and whether the evidence has been obtained legitimately. It is
in this area that hearings at present leave much to be desired. Only rarely
will an appeals examiner make an immediate ruling of the admissibility
of evidence. In most instances he will accept the evidence subject to a
later determination of its admissibility. Unfortunately it is only in rare
cases that such an admissibility determination is actually made prior to
the decision. As a result, the effect of the objection to the admissibility of
the evidence can only be guessed at from a subsequent reading of the
decision, and only if such decision outlines the facts on which it is based.
Unfortunately, decisions do not always indicate the facts but merely set
out conclusions reached on "facts in this case, as shown by the record."
This issue is more serious where an objection is based on
constitutional grounds. Referring such question to the General Counsel
might prevent error-but the fact that appeals examiners feel the need to
do so is indicative (i) of their realization of the existence of the problem
and their desire to do what is proper and (ii) of the fact that appeals
examiners are not versed in the resolution of such issues. Once competent
and properly trained adjudicators are involved in appeals proceedings
these matters can be resolved promptly.
A further problem arises from the fact that an administrative tribunal
is not bound by the strict rules of evidence as applied in actions at law.
Thus there is a more lax application of the hearsay rule, for example with
the result that "evidence" may be considered in an administrative
proceeding which would be excluded in an action in the courts. The
cogency of such evidence is severely diminished, however, the further
away from direct evidence we get. But if there should be evidence
available which has been tested in the courts as opposed to "secondary
150. New agency adverse action and grievance procedures are presently under consideration.
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
evidence," such secondary evidence cannot be preferred over that which
has been properly tested and should be excluded.-"
Conclusion:Questions of admissibility of evidence should be ruled on
immediately on being raised. Where evidence is admitted subject to a
subsequent showing of relevancy, a ruling on the admissibility of such
evidence should be made at the conclusion of the hearing, prior to the
decision on the general issues. In all cases, the best possible evidence
available should be admitted and untested conflicting evidence should be
rejected.
4.
The Decision
(a) Decision writing:
We have seen that the letter of proposed adverse action should require
evidence of the charges, and reasons. Similarly, the decision should
outline the charges, the facts as substantiated by the evidence, the
defense arguments, and the reasons for the decision. It is only when this
is done that it will be possible properly to review the decision and develop
argument for an appeal. A good format would be:
Nameofcase
Nature of action
Statement ofjurisdiction
Statement of fact [with reference to record of hearing]
Reason for decision
(i) consideration of answer to letter of charges
(ii) consideration of evidence and argument
6. Decision
7. Instruction to agency [if needed for implementation of decision]
Decisions should refer to the material facts in detail. The courts have
held that a decision is defective when it merely states conclusions on
facts: when the Commissioners "have found that the charges against
Mr. Blackmar are sustained by a preponderance of the evidence and that
Mr. Blackmar's discharge was for such cause as will promote the
efficiency of the service. ' 15 2 Although the BAR no longer issues
decisions which do not comply with this requirement, I have been
informed by union representatives that such decisions are not
uncommon in the various regions.
The decision also should relate purely to the charges made against the
employee and should not contain reference to alleged offenses as to
1.
2.
3.
4.
5.
151. See Kowalv. United States, No. 1-68 (Ct. C1. July 16,1969).
152. Blackmar v. United States, 120 F. Supp. 408 (Ct. Cl. 1954).
ADVERSE ACTION PROCEDURES
19701
which the employee has had no notice and to which, therefore, he was not
able to prepare a defense.153 It is difficult to accept the statement of the
Court of Claims that "The mere fact that other improprieties by
plaintiff were mentioned at some point in the inquiry into his conduct
does not mean that the removing officer considered those other
instances."''5 If this is so, why were they mentioned in the decision? Is
this another illustration of the "iceberg theory"?
Underlying this problem is, of course, the fact that the record is never
considered closed and further representations can be made not only to
the appeals examiners, but also to the BAR. These include
representations which are not purely argument on established facts but
also range over a wider area. In addition, further investigations of facts
can be ordered by the Commission's appellate bodies. These
representations are not necessarily disclosed for comment by the parties.
Thus the whole proceedings at Commission level take on an air of
secrecy resulting in a lack of confidence that there is fair play. I f the
suggestion that the record be closed at the agency level is adopted, a
great step forward will have been achieved to preclude recourse to the
courts and to improve employee-management relations.
(b)
Power to vary agency penalty
A further problem confronting the Commission's appeals examiners
and the BAR is the lack of power to vary the agency imposed penalty.
This power is inherent in the Civil Service Commission but is only rarely
delegated by the Commissioners to the BAR and then only on an ad hoc
basis. It is submitted that this inability to vary the imposed penalty has a
deleterious effect on the appeals examiner who may feel that though
there are grounds for proceeding adversely against the employee, the
imposed penalty is not appropriate in the circumstances. It is
recommended, therefore, that if we have appeals examiners with the
background and training suggested, that the power to vary the penalty
be delegated to the appeals examiner where a trial-type hearing has been
held by him. Not only will such confrontation enable the appeals
examiner to determine the facts, but also it will enable him to assess a
punishment suitable to the offense and to the offender. In many cases
this will save a valuable employee whose training has been costly, both in
time and money."' It is further recommended that this power should not
153. Shadrick v. United States, 151 Ct. Cl. 408 (1960).
154. Monahan v. United States, No. 243-62 (Ct. CI. Dec. 17, 1965); O'Brien v. United States,
284 F.2d 692 (Ct. CI. 1960).
155. See E. Guttman, Crime, Cause, and Treatment, 1958 (available at Howard University Law
Library).
362
THE AMERICAN
UNIVERSITY LA W REVIEW
[Vol. 19
be delegated to the BAR which, however, should have the power to
remand the case to the hearing official for consideration of an adequate
punishment. This approach does not prevent an adjudication that the
adverse action was unreasonble, arbitrary and capricious as evidenced
by the penalty imposed.
(c)
PrecedentDecisions
Although prior decisions of the Commission are not binding,
decisions should refer to authorities, be they courts, statutes, regulations
or prior Commission decisions. It is submitted that unless a prior
Commission decision is properly distinguished or overruled, a failure to
follow the decision may be indicative that the decision is unreasonable,
arbitrary or capricious. This does not mean that I am recommending the
application of staredecisis to the decisions of an administrative tribunal.
I am merely indicating that prior decisions may properly serve as guides
for action in the future.
Many Appeals Examiners, attorneys and union representatives have
voiced the opinion that a dissemination of prior decisions would assist
them in their work. In a recent memorandum,' the Executive Director
supports such distribution as guides to personnel policies and programs
and as a means of improving the appellate operations and program
management. It is submitted that distribution of decisions will be
effective in improving the quality of decisions and will lead to greater
uniformity of decisions. The preparation of an index of Commission
cases and the preparation of a case book for training and for reference
are priority items which should be undertaken at the earliest moment.
5.
Appeals
(a) Appeal or review:
It is important to bear in mind the distinction between review and
appeal. In a review there is a reconsideration of the closed record without
any further input; in an appeal the record is also closed, but there can be
further input in the form of argument or comment on the record.
Unfortunately, the present procedure of the BAR is neither. The BAR
will allow further input in the form of additional fact finding as well as in
the form of internal comments by other Bureaus and may even go so far
as to attempt to have the matter "adjusted" outside the record. There is
therefore no chance by either party to comment on the facts so
156. FPM Letter (Int. No. 772-16 of July 11, 1969).
ADVERSE ACTION PROCEDURES
1970]
discovered or on opinions expressed by another branch of the
Commission even though such facts or opinions may form the basis of a
decision by the BAR.
If the Commission requires further facts to reach a decision, then
clearly there was insufficient evidence to sustain the adverse action. I f the
employee was unable to present his case fully, then the adverse action
cannot be sustained. If the evidence was not available at the time of the
adverse action, then, it should not have influenced the agency in reaching
its decision. If the employee was unable to produce the evidence in his
defense at the time he was charged and can adduce reasonable argument
to this effect, a different situation exists. The employee should be able to
adduce such argument before the BAR which should then remand the
case to have the evidence placed in the record. Of course, ifthe trial-type
hearing is at the first Commission level, such cases would be extremely
rare.
The comment on the record by other Bureaus are input which should
not only continue to be available to the BAR, but which should also be
made available to the adversary parties so that they may comment
thereon. The final type of "input", the adjustment outside the record,
has no legitimate place in an adjudicatory process.
Conclusion:Cases before the Board of Appeals and Review should be
determined on the record and on argument submitted in written briefs.
There is little that can be gained by a further personal appearance to
present oral argument based on the record.
(b)
Procedure:
The present workload of the members of the BAR is a heavy one and
the number of board members is insufficient to give proper care in the
preparation of decisions. The present procedure calls for cases to be
referred to an appeals examiner who has the right to consult with
members of the BAR when preparing his analysis and suggested solution
of the case. Board members will then read the file and will adopt or reject
the appeals examiner's determination. If there is a split vote, a Board
meeting will be called at which the Chairman will orally summarize the
facts of the case and formulate the issue(s) on which the members differ.
The matter will then be discussed by the Board which will determine how
it might best be handled to resolve the differences of opinion.
The present practice is, in effect, an adjudication on the facts and
issues as presented by the "appeals examiner." Only rarely do members
of the BAR write their own decision. This makes it appearas if their
total output is a reading of the file in the places indicated for them and a
364
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
rendering of an affirmance or a reversal of the decision as prepared by
the appeals examiner. I have no reason to suppose this to be the case. On
the contrary, members do adjudicate with the help of the appeals
examiners.
Conclusion: I would suggest the following change in the practice of the
BAR:
The complete record of a case presented to the BAR should be
examined for procedural errors by an "appeals examiner." The case
should then be allocated to two members of the BAR who are to read the
file and to reach an independent decision by indicating their reasons in
writing not attached to the file.
(i) If they agree on the decision, there should then be a conference
with an "appeals examiner" [really an "opinion writer"] who will
prepare the draft decision.'5 7 The two members should review the draft
and together with the opinion writer prepare the final decision.
(ii) If there is a divergence of views, then a third member should read
the file and declare his decision. After a conference of the three members,
or even of the whole Board, at which an opinion writer is present, the
decision would be prepared to reflect the majority view. There should
then be a final conference at which the dissenting member may agree to
adopt the majority view or may indicate his dissent to the extent of
submitting a dissenting opinion which would be attached to the file, but
which would not be a part of the decision of the Board. The majority
decision would be signed by those agreeing therewith. 5 '
(e)
Petitions to the Commissioners
Petitions to the Commissioners ask either for clemency or for a
reopening. At present, such petitions are referred to the Appeails
Program Manager. It is submitted that these petitions should not be
referred to the Appeals Program Manager but to the General Counsel in
his capacity as adviser to the Commissioners. The Appeals Program
Manager should be a training officer and an adviser to the appeals
examiners. As such his present job description properly indicates that he
should not advise agencies and should not participate in the decision
making process of the BAR. But it is equally clear that he should not be
157. The "pilot program" should not be resurrected and should be dropped immediately.
158. It is clear that the Commission can only speak with one voice and the decisions of the BAR
are those of the Commission. See Minute of Proceedings USCSC March 30, 1954 "In order to fully
convey to all parties that the Board is designed by the Commissioners to adjudicate appeals from
lower level decisions, the Board should be authorized to close its letters of decision with the phrase
'For the Commissioners' . ..
19701
ADVERSE ACTION PROCEDURES
the adviser of the Commissioners with regard to a petition for reopening.
As an adviser to the appeals examiners he is too closely associated with
the decision being appealed. The General Counsel when considering a
petition for a reopening will, of course, consider a dissenting opinion
where such exists.
VI
Finale
I have attempted to show the need for an independent adjudicatory
body within the Civil Service Commission. It is my conclusion that such
independent body is the ideal sought by those who originally intended to
provide for the protection of the employee in a period of "hip pocket"
control of the Civil Service. It must now be realized that such protection
was essential not only so long as the Courts and the legislature continued
its "hands off' policy but also now when the theory of "job security"
producing a more competent employee has become accepted.
The implementation of this latter theory has met with opposition from
those who felt that it endangered their powers of determining the
"efficiency of the service." The error was made in staffing the
"adjudicatory" body with individuals trained in personnel management
who could not always maintain the balance between management and
employee. As a result, the employee did not always get the protection he
was entitled to. The reaction by the Court and by the Congress has been
slow, but is now reaching the stage where there will have to be internal
reorganization in order to give effect to the original theory. Otherwise,
there will be an external imposition of a new system for the resolution of
employee-management disputes.
I have, to resolve this dilemma, suggested the creation of a service
within the Civil Service Commission, a Legal and Appeals Officers
Service, which will provide the necessary staff for an independent nonmanagement and non-employee orientated adjudicatory and advisory
body. I have also indicated how properly qualified officers will be able to
satisfy the requirements of due process and of statutory demands, within
the existing structures, so that the Civil Service Commission need not go
to Congress for legislative fiat, and thereby expose itself in public to
what has been shown to be justified criticism.
The Civil Service Commission can point with pride to competent and
devoted employees who have served well and who have been the saving
device of an "adjudicatory" system that is obviously suspect by reason
of its recruitment, training, position within the Commission hierarchy
and method of operation. However, it is self-delusion to point to the low
366
THE AMERICAN UNIVERSITY LA W REVIEW
[Vol. 19
percentage of cases appealed to the Courts and to the still lower
percentage of successful appeals. There are many factors which influence
the decision whether to continue a battle into the Courts or to seek anew
life by closing the door on an unpleasant experience. There has been,
herein, no criticism of individuals, but only criticism of the system.
Recent developments have enabled such criticism by employees in the
Civil Service to become vocal without fear of loss of job security and
promotional advancement. Thus, the time is ripe for change while
change can occur in an atmosphere free from the distortions of external
pressures.