Correspondence from Lee to Samuels Re: Children's Advocacy Institute Proposal

    IN THE
UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA 

No. 83-2121

DANIEL A. YOUNG,
Plaintiff-Appellant, 

-v-
JAMES J. BOOTH, et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
For the District of Columbia

BRIEF FOR PLAINTIFF-APPELLANT

ELIZABETH L. NEWMAN 
815 Fifteenth St. N.W.
Suite 938
Washington, D.C. 20005 
Attorney for Plaintiff-Appellant

2^ "  ? ?  5"  57



IN THE
UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA 

No. 83-2121

DANIEL A. YOUNG,
Plaintiff-Appellant, 

-v-
JAMES J. BOOTH, et al.,

Defendants-Appellees.

Certificate Required by Rule 8(c) 
of the General Rules of the United States Court of Appeals 

For the District of Columbia Circuit

The undersigned, counsel of record for plaintiff-appellant, 
certifies that the following listed parties appeared below:

Daniel A. Young, plaintiff,
James J. Booth, John Bischoff, and Lawrence 
Polansky, defendants.

These representations are made in order that judges of this 
Court inter alia may evaluate possible disqualification or recusal.

ciUuzi d ___
Elizabeth L. Newman,
Attorney of record for 
Plaintiff-Appellant

1



Table of Contents
page

Certificate.................................. . i
Table of cases..................................  3
Statement of the Issue Presented for Review__  4
Reference to Parties and Ruling............  4
STATEMENT OF THE CASE........................... 4
STATEMENT OF FACTS..............................  6
ARGUMENT....... .................................  17

1. Appellant was denied reasonable notice of 
the basis for his termination in violation
of the due process clause.................  18

2. There was no substantial evidence on
the record to support the factual findings 
of the administrative body................  21

3. The penalty of termination was arbitrary
and capricious.............................  25

4. The district court erred in considering 
evidence that had not been relied on
by the administrative body................  29

CONCLUSION....................................... 31
Record Excerpts...................... ..........  bound

separately

2



TABLE OF CASES
page

American Thread Co. v. NLRB, 631 F.2d 316
(4th Cir. 1980).............................................  28
Board of Regents v. Roth, 408 U.S. 564 (1972).............  19
Boyce v. United States, 543 F.2d 1290 (Ct. Cl. 1976)......  26
Connelly v. Nitze, 401 F.2d 415 (D.C. Cir. 1968)..........  20
Doe v. Hampton, 566 F.2d 265 (D.C. Cir. 1977)............. 17
★ /— Hoska v. U.S. Department of the Army,
6 7 7 F . 2 d 131 (D.C. Cir. 1 9 8 2)..................... 2 1 , 2 5
Jolly v. Listerman, 672 F.2d 935 (D.C. Cir. 1982),
cert, denied ___U.S._ ( 1983); 103 S. C. 450 (1983)....... 28
-/Lead Industries v. EPA, 647 F.2d 1130 (D.C. Cir. 1980).. 18
Mazaleski v. Treusdell, 562 F.2d 701 (D.C. Cir. 1977)..... 19
Mervin v. FTC, 591 F.2d 821 (D.C. Cir. 1978).............. 19
Motor and Equipment Mfg. v. EPA, 627 F.2d 1095
(D.C. Cir. 1979); cert, denied 446 U.S. 952 (1980).......  30
NLRB v. General Warehouse Corp., 643 F.2d 965 (3d
Cir. 1981)................................................... 27
Norfolk Shipbuilding v. Local 684, 671 F.2d 797
(4th Cir. 1982).............................................  28
Powell v. Zuckert, 366 F.2d 634 (D.C. Cir. 1966).......... 27
-/power v. United States, 531 F.2d 505
(Ct. Cl. 1976)..............................................  27
Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977)............. 21
Razik v. United States, 525 F.2d 1028 (Ct. Cl. 1975).....  22
Service v. Dulles, 354 U.S. 363 (1957)....................  19 , 26
Solem v. Helm, ___U.S.___ (1983); 77 L. Ed. 2d 637 (1983). 26
-/Tygrett v. Barry, 627 F.2d 12 79 (D.C. Cir. (1980)..... 21, 22

— 1 Cases chiefly relied upon are marked with an asterisk.

3



STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
Did a tenured public employee's dismissal from employment 

violate his rights to due process in that he was deprived of 
reasonable notice, there was no substantial evidence to support 
the factual findings of the administrative body, and the penalty 
was arbitrary and capricious? In granting summary judgment on 
behalf of the public employer, did the district court err in 
considering evidence that was not a part of the administrative 
record of the body whose decision was under review?

This case has not previously been before this court, nor any 
other court, and there are no related cases pending or expected.

REFERENCE TO PARTIES AND RULING
On June 8, 1981, Judge June Green issed a Memorandum Opinion 

and Order in Young v. Booth, Civil Action No. 79-2372, which is 
reproduced in the Record Excerpts at #1 (hereafter referred to as
R.E. #__). The parties are Daniel A. Young, plaintiff-appellant;
and James Booth, John Bischoff, and Lawrence Polansky, 
defendants-appellees.

On July 15, 1981, Judge June Green issued an order denying
plaintiff's motion for certification (R.E. # 2 ).

STATEMENT OF THE CASE
This is an action for the unlawful termination of a tenured 

public employee in violation of the Due Process Clause of the 
U.S. Constitution, Fifth and Fourteenth amendments.

The employee, Daniel Young, pursued his administrative reme­

4



dies as provided by the Grievance and Appeals regulations of his 
employer, the Superior Court of the District of Columbia (R.E. # 
3). He received a final administrative decision dated May 9, 
1979, sustaining the decision to remove him from employment. 
(R.E. # 4).

Through counsel, Young filed a complaint in district court 
on September 7, 1979, (R.E. # 5 ) in which he alleged that his 
termination was in violation of his due process rights (Count 
Two) and in violation of Title VII of the Civil Rights Act of 
1964 , 42 U.S.C. Section 2000e et seg. (Count One). Young moved 
for summary judgment as to Count Two. Appellees filed a cross 
motion for summary judgment, in which they included as exhibits 
certain documents that had been denied admittance into evidence 
by the administrative body whose decision was the subject of the 
court action. Young moved to strike appellees' inclusion of the 
non-record documents and defendants' reference to those documents 
in its statement of material facts and argument.

On June 8, 1981, the District Court denied Young's motion 
for partial summary judgment, denied Young's motion to strike, 
and granted defendants' motion for partial summary judgment. In 
so doing, the Court noted that it had reviewed the extra-record 
material and had "found it helpful." (R.E. # 1 at p. 2)

On July 15, 1981, the District Court denied Young's motion 
to certify an interlocutory appeal of the denial of his motion 
for partial summary judgment and the granting of defendants' 
motion for partial summary judgment (R.E. #2). Thereafter, upon 
settlement of the remaining count, the case was dismissed by

5



order dated September 29, 1983 (R.E. #6). This appeal followed 
by timely notice of appeal (R.E. #7).

STATEMENT OF FACTS
Daniel Young was a permanent employee of the Superior Court 

of the District of Columbia for almost twelve years, from 1965 
through 1976. Beginning as a clerk-typist, he was promoted to 
Docket Clerk in 1966, to Courtroom Clerk in 1968, and to Assis­
tant Assignment Commissioner for the Family Division in 1971. He 
remained in this last position until his termination in 1976. At 
the time of his dismissal, Young had risen to the GS-11 level, 
under the supervision of appellee James Booth, Assignment Commis­
sioner, and appellee John Bischoff, Chief Deputy Clerk. Appellee 
Lawrence Polansky was the Executive Officer of the District of 
Columbia Courts.

The Assignment Office, where Young and his supervisor 
worked, was an entity of the Family Division responsible for the 
arrangement of the calendar of domestic relations and juvenile 
cases to be tried by the Superior Court judges.

During his tenure at the Superior Court, through December of 
1975, Young received all scheduled within-grade increases, pay 
raises, and satisfactory performance ratings. (Transcript of 
administrative hearing (hereafter cited as Tr.) March 28, 1977 at
p. 99).

In a memorandum dated January 18,, 1976, Young was given the 
first written indication of his supervisor's dissatisfaction with 
him (R.E. #8). In that memorandum, appellee Bischoff notified

6



Young that he would be denied his scheduled step increase. In
that memorandum, appellee Bischoff stated the following as his
entire basis for the action he was taking:

There apparently has been no positive 
change in your work performance over 
the last year, nor any salutory (sic) 
results of our conference on January 25,
1975.

Young received no further clarification of this statement, 
although he met with Bischoff soon thereafter (Tr. March 4, 1977 
at pp. 132, 135).

On March 29, 1976, Young received from Booth a "Warning That 
An Unsatisfactory Performance Rating Will Issue" (R.E. #9). This
warning notice contained no specific instances of unsatisfactory 
performance, but rather made general allegations. It was divided 
into two subparts. The first dealt with alleged "Deficiencies in 
Elements Important in the Position," and the second dealt with 
alleged "Deficiencies in Other Elements Pertinent to the 
Position." In this second category, two of the items were as 
follows^

While there is an appearance of industry, 
minimal observation generally discloses 
that most of it is related to personal 
business and outside activities. In this 
regard, too, it appears that much of your 
resources are directed toward matters which, 
while possibly commendable somewhere, are 
not really germane to our operation.

* * ★

The remainder of the memorandum concerned allegations of 
incompetence which were later to be found unsubstantiated by the 
appeals committee, and thus are not the subject of this appeal.

7



Little or no efforts are made to instruct, 
train or develop subordinates in the work 
of this office. Any which have been made 
prove to be completely ineffectual. There 
appears to be a total lack of rapport with 
the staff which forecloses any positive 
results in this area.

(R.E. #9 at p. 2).
The notice contained no indications of how Young's 
performance could improve.

In response to Booth's indication in the warning notice that 
Young's performance was deficient in not developing subordinates 
and having rapport with staff, Young on April 12, 1976 suggested
to Booth that he circulate a questionnaire to his subordinates 
asking them about the morale in the office and requesting their 
suggestions as to improvements and training they were interested 
in (R.E. #10). On that same date, Booth approved the suggestion, 
noting, "After this survey is completed, I believe we should 
confer before any action is taken" (R.E. #10).

During this same time period, Young, through counsel, was 
attempting to receive clarification of the charges in the warning 
notice. By letter's dated April 6, 1976; April 19 , 1976; May 4, 
1976; May 1 1 , 1 976 ; and June 15 , 1976, counsel for Young sought 
further information about the charges in the warning notice. 
(R.E. ## 11, 12, 14, 15, 16). She received no response, other
than a letter from Booth indicating that since the action was 
only in the "proposal" stage, it would be inappropriate for him 
to respond to her (R.E. #13).

During the six week period following Young's receipt of the

8



warning notice, Booth observed that Young's performance improved 
appreciably (Tr. March 9, 1977 at p. 74). Young had been
involved for several years outside of his Court job as a tennis 
player and instructor, and prior to the warning notice had re­
ceived telephone calls at the office regarding tennis. After 
Young received the warning notice, however, he made a good faith 
effort to discourage these telephone calls (R.E.#17). Whereas 
before the notice he had chatted casually with court personnel, 
lawyers and judges about tennis, once he received the warning 
notice he declined to discuss tennis with anyone. Judge Norma 
Holloway Johnson was later to testify at the administrative 
hearing that when she called him on the day after a tournament to 
find out how he had done, he indicated to her that he could not 
discuss his tennis activities (Tr. May 10, 1977 at p. 83).

A further aspect of Young's tennis activities concerned his 
having, on several occasions, asked for and received permission 
to change into his tennis outfit prior to the close of the busi­
ness day. Prior to the March warning notice, Booth had permitted 
Young to leave early at the end of the day in order to change 
into his tennis outfit (R.E. #27 at p. 20 and Tr. March 9, 1977 
at p. 26). Even after Booth issued the warning notice, Young was 
still authorized by Booth to change into his tennis outfit before 
the close of the business day if Young had asked for and received 
approval from Booth (Tr. March 9, 1977 at p. 38). Indeed, Booth 
had approved other employees to leave early as well (R.E. #27 at
p. 20).

A meeting was held on May 18 , 1 976 between Booth and Young's

9



attorney, during which Young's counsel requested but received no 
further documentation from appellee as to the nature of the 
allegations against Young (Tr. March 11, 1975 at pp. 4-5). In 
fact, the only written documentation Booth possessed to substan­
tiate the charges in the notice were some of his own handwritten 
notes. These notes related solely to several telephone calls he 
had allegedly received regarding Young's handling of some calen­
daring matters (Id.). However, Booth did not inform Young or his 
attorney that he had such notes, and did not share them with 
Young or his counsel at that time (Id.) .

During this same time period, the questionnaire had been 
circulated to Young's subordinates in the Family Division. 
In a memorandum to Young dated June 25, 1976, Booth stated, 
"Regarding job training questionaire(sic): Please submit to me 
the information obtained from your survey so that we may discuss 
and evaluate the results" (R.E.#18). Young drafted a summary of 
the information he had obtained from the responses to the ques­
tionnaire, and provided that information to Booth on July 1, 1976 
(R.E. #19 ). At no time thereafter did Booth make any follow-up 
request, neither orally nor in writing, for any additional 
information regarding the questionnaires, nor did he mention the 
questionnaires with Young in any way whatsoever, because, as he 
was later to state, he believed that "It was obvious... that he 
was not going to give it to me" (R.E.#27 at p. 18).

By letter dated June 29, 1976, Young through counsel 
informed Bischoff that the charges in the warning notice were too 
vague for him to be able to respond in a meaningful fashion (R.E.

10



#20). Without providing to Young any further information, 
Bischoff on July 9, 1976, issued to Young an unsatisfactory 
rating (R.E. #21). This rating reiterated the same charges that 
had been contained in the March 29 , 1976 warning, with no further 
details or clarifications.

Shortly after four p.m. on August 6, 1976, Young requested 
from Booth permission to leave his office several minutes early 
in order to go to the personnel office to obtain some informa­
tion. The personnel office was located at 410 E Street, N.W., 
whereas the office where Young worked was located at 613 G 
Street, N.W. (Tr. March 9, 1977 at p. 38). Young went to the 
personnel office, was told that the director of personnel was not 
in but would return in several minutes. While waiting for the 
director of personnel to return, Young went into the men's room 
and changed into his tennis outfit. He then returned to the 
personnel office, requested and received the Superior Court's 
regulations on filing employee complaints, and then left for the 
day (Id.).

Booth meanwhile called the personnel office to ask the 
Director of Personnel what documents Young had asked for. He was 
informed that Young had changed into his tennis outfit before 
leaving. Booth therefore placed Young on one hour of annual 
leave. Booth did not believe that Young's conduct in having 
changed into his tennis outfit was severe enough to justify 
placing him in leave without pay or absent without leave status, 
rather than annual leave. (Tr. March 4 , 1 977 at p. 75).

On September 7, 1976, appellee Bischoff notified Young that

11



his employment would be terminated on October 7, 1976, but that 
he would be placed on administrative leave immediately (R.E. 
#22). The notice was divided into two categories, entitled 
"incompetence" and "insubordination."

The Penalty and Adverse Action Guidelines (R.E.#23) of 
the Superior Court, promulgated in June, 1974, provide that 
insubordination is defined as "deliberate and willful refusal to 
perform assigned work." Under the category of "insubordination," 
the notice of Young's proposed termination read, in pertinent 
p a r t ^

your relationship to your immediate 
supervisor has been such as to completely 
frustrate him in his capacity as 
the chief of the branch regarding day-to- 
day personnel operations. Most recently, I 
refer to his direction to you to provide 
him with certain material generated by your 
survey of employees in the branch which he 
had approved. Even after a direct request, 
there has still been no response other than 
the expression of your own opinions 
regarding the survey.

★ ★ ★
you have been advised from time to time 
that your outside interests have been in 
conflict with your work, however, you have 
seen fit to flaunt these interests before 
all who would have occasion to be near even 
to the extent of a recent display in the 
Court's offices at 613 G Street, N.W. Your 
actions in this regard, and many others are 
taken to mean that you place your personal 
interest ahead of those of the Court when 
in a duty status, and as such further 
identifies your insubordinate attitude.

By letter dated September 9, 1976, Young's counsel asked

? /
—  Only the portions of the notice that relate to charges that 
were sustained by the administrative body are reproduced below.

12



Bischoff to provide details concerning the allegations in the 
termination notice (R.E.#24). Bischoff replied by letter dated 
September 9, 1976 only that the information could be reviewed in 
Booth's office (R.E.#25), and five days later he wrote to Young 
informing him that the decision to terminate his employment had 
become a "final decision" (R.E. #26).

On September 28, 1976, Young appealed his dismissal 
according to the "Grievance and Appeals" regulations adopted by 
the Superior Court of the District of Columbia on March 25, 1975 
(R.E. # 3). A three member panel, consisting of Thomas Ducken- 
field, then Chief Deputy Register of Wills as Chairman; James A. 
Morris, then Supervisor of the Probate Division; and Robert T. 
Nash, then Deputy Clerk of the Marriage Division, conducted a 
hearing.

On November 15, 1977, the appeals committee issued its 
decision (R.E. #27). Whereas the original notice of proposed 
termination had been divided into two categories, "incompetence" 
and "insubordination," the appeals committee in rendering its 
decision apparently found it necessary to divide the charges into 
nine separate "counts." It overturned seven of the nine counts, 
finding that none of the charges of incompetence could be sus­
tained. However, a majority of the panel sustained Young's 
termination based upon the two remaining counts of alleged in­
subordination. In a dissenting opinion, Chairman Duckenfield 
indicated that a one-month suspension was the greatest penalty he 
would assess in the case. (R.E. #27 at p.27).

The decision of the appeals committee was replete with

13



references to the failure of Young's supervisors to provide him 
with due process. The committee found that "the absence of a 
reasonable level of specificity as to the grounds for the 
termination...places an onerous burden on the Young and renders 
him incapable of responding to the charges." In this regard, the 
committee stated:

Although notice was given in this case, it 
was artfully imprecise and violative of due 
process...Because management accorded a 
certain dignity and formality to the 
alleged grounds for the proposed 
termination, any specific
incidents and documents supportive and 
e x p l a n a t o r y  of t h e  c h a r g e s  
ought to have been accorded the same 
dignity and formality as the charges 
themselves. Notwithstanding several 
demands from counsel for the appellant, 
management took no action to include the 
alleged corroborative documents formally 
in the official record of the appellant 
prior to the hearing.

Management attempted to cure the 
defect by introducing as evidence a folder 
of xeroxed copies of the fronts of file 
jackets selectively compiled. Evidence 
was adduced at the hearing which indicated 
that these documents were collected, 
allegedly representive, and suppportive of 
the incompetence of the appellant. The 
app e l l a n t  was not advised that the 
documents were collected. This smacks of 
overreaching and abuse of management 
prerogatives and suggests infidelity to 
fair play and due process. Figuratively 
speaking, management chose to keep a "shoe 
box" on the appellant. It follows that if 
management's action to terminate the 
appellant was precipitated by certain 
incidents and events reflective of the 
appellant's behavior and performance as 
being deleterious to the promotion of the 
efficiency of the Court, then, management 
was obliged to articulate formally and 
unequivocally those incidents supportive of 
the charges. Moreover, had the official 
personnel records of the appellant revealed 
a progression of counseling, letters, and

14



reprimands with respect to incidents that 
preceded and ultimately led to the notice 
of the proposed termination, the Panel 
would have had no difficulty with the 
sufficiency of the notice. It is precisely 
the abysmal absence of concrete, specific 
incidents that compels the conclusion that 
notice was insufficient and indefinite.

(RoE. #27 at pp. 4-5)
Because Young had not been provided the proper "notice" of 

the charges within the meaning of the Penalty and Adverse Action 
Guidelines, the appeals committee did not admit into evidence a 
substantial portion of the documents appellee sought to 
introduce.

The documents that were not admitted into evidence at the 
hearing consisted of what were apparently drafts of performance 
evaluations of Young that had been filled out by Booth but never 
completed, never signed, and never shown to Young; and sets of 
handwritten notes.

With regard to the his denial of the introduction of these
documents into evidence at the hearing, the Chairman of the
Appeals commitee stated:

Let me advise you, I have been in supervision 
since 1966 and have had the responsibility of 
reviewing the performance of persons under me, 
and it was made perfectly clear to me that I 
had the responsibility of personally sitting 
down and going over the performance rating of 
each person and this person had the 
responsibility to initial that performance 
rating, or sign it. This is consistent with 
good management practices. One has to be on 
notice as to his p e r f o r m a n c e  rating.

★ ★ ★
My position__is that there are certain
management procedures established that the 
personnel records are kept in this court, and

15



I have before me the official personnel folder 
of Mr. Daniel Young and there is absolutely 
nothing in here that seems to document that 
the information was put in here.

★ ★ ★

There is no indication on these documents that 
said performance rating has been reviewed by 
the supervisor or Mr. Daniel A. Young, and the 
record will reflect that these Exhibits...have 
been denied, as only being incorporated to 
indicate that they were offered but denied.

(Transcript, March 9, 1977 at 62, 65, 67-68.)
Similarly, as to the handwritten notes, the appeals

committee denied their admittance into evidence as follows:
[I]f you've been keeping notes on the side 
and you've not informed your employee, you 
have problems. Because, that will be in 
violation of due process. If you're going 
to keep notes on an employee which will be 
ultimately used for his removal... you are 
to give information. So, I think we'd 
better not open that Pandora's box.

(Tr. February 28, 1977 at p. 131).
Moving to the specific charges, the committee in its deci­

sion redrafted and reworded the charges that Bischoff had in­
cluded in the proposed termination notice. With regard to the 
portion of the notice that related to the survey, the committee 
in its decision reworded the charge to state:

Acted in a manner so as to frustrate 
completely your immediate supervisor in his 
capacity as Chief of Branch regarding day- 
to-day personnel operations, including your 
failure to provide him, after direction to 
do so, with certain materials generated by 
a survey.

In this regard, the committee decision specifically found 
that "the ambiguity of the language in the letter is apparent on 
its face" (R.E. #27 at p. 17). Nevertheless, the majority found

16



that the charge of insubordination had been sustained.
The second charge that was sustained by the committee 

was derived from the portion of the notice regarding Young's 
alleged outside interests. As redrafted by the appeals committee, 
this charge reads:

Advised from time to time that your outside 
interests had been in conflict with your 
work, however, you have flaunted these 
interests in the Court's offices in an 
insubordinate manner.

The committee sustained this charge.
Young exercised his right to appeal the committee decision,

as provided by the Grievance and Appeals regulations, to Acting
Chief Judge Kelly, who on May 2, 1979 issued a written decision.
In it, she found that Young's termination would be sustained
based upon the following two charges:

he failed to turn over to his Supervisor 
certain surveys that he had distributed;
his activities outside of his employment 
interferred (sic) with the performance of 
his duties.

(R.E. #4 at p. 5).

ARGUMENT

Introduction
It is the duty of this court in reviewing challenged adminis­

trative action:
to assure that the action challenged (1) is not 
arbitrary or capricious; (2) was reached in con­
formity with with relevant procedural requirements; 
and (3) was not otherwise unconstitutional.

Doe v. Hampton, 566 F.2d 265, 271-272, (D.C. Cir. 1977).

17



Although the scope of review is "narrow" (Id.) ;
a reviewing court does not serve as a mere rubber 
stamp for agency decisions. Rather the function 
of judicial review is to ensure that agency de­
cisions are "based on consideration of the rele­
vant factors."

Lead Industries Association v. E.P.A., 647 F.2d 1130, 1145 (D.C. 
Cir.1980) (quoting Citizens to Preserve Overton Park v. Volpe, 
401 U.S. 402, 416 (1971) .

In this case, the action of the officials of the Superior 
Court in terminating Young's employment deprived him of due 
process in that the notice he received was not specific and did 
not provide him with an opportunity to respond to the charges 
(section one); the decision was not based on substantial evidence 
in that there was no factual basis for the finding, (section 
two); and that the penalty of termination was so disproportion­
ately harsh as to amount to an abuse of discretion (section 
three).

Moreover, the district court erred in having considered 
documents that were not a part of the administrative record 
(section four).

1. Plaintiff-appellant was not provided the notice of the 
charges to which he was entitled, and thus his 
termination was unlawful

At the time of his dismissal, Young had been an employee of 
the Superior Court for more than eleven years. The appeals 
committee found that he had the status of a "permanent" employee 
(R.E. #27 at p. 4). This established for him a legitimate claim 
of entitlement to continued employment; his interest in his job 
was thus a property interest protected by the due process clause.

18



see Board of Regents v Roth, 408 U.S. 564, 577 (1972).
The fundamental principle of due process is a public 

employer's obligation to follow its own rules and regulations 
when it acts so as to impair this property interest. see Ser­
vice v. Dulles, 354 U.S. 363 (1957). This court has held consis­
tently that a discharge that violates a public employer's regula­
tions is unlawful. For example, in Mazaleski v. Treusdell, 562 
F.2d 701 (D.C. Cir. 1977), a discharged employee of the U.S. 
Public Health Service sought review of his dismissal on the 
grounds that, inter alia, the dismissal violated the procedural 
rules of the agency in that it failed to specify the precise 
basis of the action. This Court held that "scrupulous compli­
ance with those regulations is reguired to avoid any injustice." 
Id. at 719. Moreover, the obligation to follow these procedural 
rules "is an obligation to follow their spirit as well as their 
letter." Mervin v. FTC, 591 F.2d 821 (D.C. Cir. 1978).

In this case, the Superior Court has promulgated two sets of 
rules that provide procedural protections to its permanent 
employees. The first, "Grievances and Appeals," (R.E.# 3), 
establishes the procedures for review of adverse personnel ac­
tions, such as employee dismissals. The second, "Penalty and 
Adverse Action Guidelines," (R.E. #23) outlines the procedures to 
be followed in order to initiate, and sustain on review, an 
employee's dismissal. These rules also enumerate the types of 
conduct that constitute "cause" justifying disciplinary action, 
define each type of conduct in terms of its essential elements, 
and establish a standardized system for determining the proper

19



degree of discipline for the misconduct demonstrated.
The adverse action rules of the Superior Court required

appellee Bischoff, in proposing Young's dismissal, to "state the
reasons, in detail, for the proposed action" (R.E. #23 at 4).
The appeals committee construed this rules this way:

there must be written notice stating the reasons 
specifically and in detail for the proposed action. 
Without specific enumeration of the grounds for 
the proposed adverse action, the appellant's 
opportunity to confront the charges and articulate 
his defense is diminished.

(R.E. #27 at 4). The appeals committee found that the notice 
given to Young was "artfully imprecise and violative of due 
process" (R.E. #27 at 4). The committee decision found that
Booth and Bischoff possessed documents allegedly corroborating 
the charges against Young but withheld these documents, thus 
denying Young the opportunity to understand the nature of the 
charges against him. Booth failed to provide these documents to 
counsel for Young in their meeting on May 18, 1976; Superior
Court officials failed to submit copies in response to Young's 
counsel's request, and failed to make the documents a part of the 
record prior to the convening of the hearing of the appeals 
committee. For these reasons, the committee did not allow into 
evidence many potential management exhibits.

The notice that is required in this constitutional inquiry 
is whether the employee is "adequately apprised of what he will 
be called upon to defend against" Connelly v. Nitze, 401 F.2d 
415, 424 n.10 (D.C. Cir. 1968). As this Court more recently
stated:

An opportunity to meet and rebut evidence

20



utilized by an administrative agency has 
long been regarded as a primary requisite 
of due process.

Ralpho v. Bell, 569 F.2d 607, 628 (D.C. Cir. 1977).
In this case, the administrative body conducting the hearing 

found this standard to have been violated. A simple comparison 
between the vague, general allegations in the notice of proposed 
termination, and the specificity required in the Superior 
Court's own regulations, demonstrates the clear merit of this 
conclusion.

3. There was no substantial evidence to prove
the two charges upon which Young's termination 
was based.

As stated in the final administrative appeal, the two bases 
for Young's termination were "that he failed to turn over to his 
supervisor certain surveys that he had distributed, and that his 
activities outside of his employment interferred (sic) with the 
performance of his duties." (R.E. #4 at p. 5).

The constitutional inquiry focuses upon whether the adminis­
trative finding was supported by substantial evidence. The term 
"substantial evidence" has been interpreted to mean "such rele­
vant evidence as a reasonable mind might accept as adequate to 
support a conclusion." Hoska v. United States Department of the 
Army, 677 F.2d 131, 135 (D.C. Cir. 1982).

In making this inquiry, the reviewing body may not "rum­
mage [] through the record" to reconstruct for what reason the 
employer might have fired the employee. Tygrett v. Barry, 627 F. 
2d 1279, 1286 (D.C. Cir. 1980). Nor may it sustain the

21



employee's discharge for charges that were different from the 
charges in the original notice of termination, see Razik v. U.S., 
525 F.2d 1028 , 10 3 3-34 (Ct. Cl. 1975) ("Deviations between an
agency's putative charges for proposed adverse personnel actions 
and the grounds advanced by a hearing examiner as supportive of 
the adverse personnel action are not to be cavalierly tolerated").

The unlawful action of appellees in its handling of these 
charges is perhaps best viewed in light of this court's decision 
in Tygrett, supra. In overturning the discharge of a probationary 
police officer, this Court stated:

...any kind of reconstruction of the reasoning 
behind the discharge that provides the employer 
with a post hoc justification for its action 
cannot be allowed. Therefore, it is essential, 
as Judge Leventhal said in an analogous case, 
that the court reviewing the discharge restrict 
its focus to "the reasons given by the 
[employer] and not on reasons that may come to 
light if and when a court rummages throughout 
the record in an effort to reconstruct on what 
basis the [employer] might have decided the 
matter." United States ex rel. Checkm an v.
Laird, 469 F. 2d 773 , 783 (2d Cir. 1972). This 
principle is particularly appropriate in the 
present case, for there is a statutory 
reguirement that the governmental agency give 
written reasons for the decision under review.

★ ★ ★

In effect, the appellees would invite this 
court to "rummage[] throughout the record" to 
reconstruct a rationale for the firing that the 
Department never actually entertained. This we 
cannot do.

(Id. at 1286) .
There, as here, there was no substantial evidence to form 

the basis for the administrative decision. With regard the "sur­
vey" charge, in order to find insubordination, it would be

22



necessary for there to be substantial evidence that Young had 
committed a "deliberate and willful refusal to perform assigned 
work." (R.E. 23 at attachment 1). There would have to be sub­
stantial evidence that the work was "assigned," that Young had 
"refused" to do it, and that the refusal was both "deliberate" 
and "wilful."

The evidence was shockingly absent as to any of these 
factors. First, there was no showing whatsover that the survey 
had anything to do with Young's assigned work as the assistant 
assignment commissioner. The testimony taken at the hearing 
showed that Young only suggested the polling of his employees to 
demonstrate the lack of foundation for the allegation in the 
unsatisfactory performance warning regarding his ability to fos­
ter office morale and properly train his own subordinates.

Second, there was no showing that Young had been "assigned" 
the task of giving to Booth the questionnaires once they were 
completed. The evidence taken shows only that upon approving the 
idea of generating the questionnaire, Booth noted that Young 
should "confer" with Booth "before any action is taken." Upon 
completion of the surveys, Booth only asked that Young "submit to 
[him] the information obtained from your survey."

Third, there was no showing that Young refused to do any­
thing. In fact, the evidence is to the contrary. Booth 
explicitly did not make a direct request for the questionnaires.

Fourth, there was no showing whatever that Young's failure 
to provide the underlying questionnaires was wilful or 
deliberate. The committee in its decision found that Booth's

23



request was "ambiguous," and Chairman Duckenfield correctly noted 
that Young could have reasonably assumed that he had responded to 
whatever the request was (R.E. #27 at pp. 17-19).

The second example of insubordination that formed the basis 
for Young's dismissal related to his tennis activities. As to 
this charge, the change in language between the original proposed 
notice and the final decision demonstrates the clear violation of 
Young's due process rights. First, there was no showing that his 
tennis-related activities involved the wilful failure to perform 
assigned work. Where the original charge places its emphasis on 
the allegation that Young "flaunted" his outside interests, only 
after the hearing, upon review, did this charge turn into a 
charge that his "activities outside of his employment interferred 
(sic) with the performance of his duties." There had been no 
finding whatsoever that Young's tennis interests interfered with 
his work; to the contrary, all of the charges regarding the 
performance of Young's duties were not sustained by the appeals 
committee.

The definition of insubordination, as specifically contained 
in the Superior Court regulation, moreover, is on its face wholly 
inapplicable to the conduct allegedly addressed by the proposed 
termination notice. This precise regulation is what is at issue 
here, because it is this precise regulation that put Superior 
Court employees on notice as to conduct that could lead to 
dismissal. There was no evidence whatsoever that there was "work" 
that had been "assigned" to Young, and that he "refused" to 
"perform" it in a manner that was "wilful" and "deliberate."

24



Lastly, there was no demonstration of substantial evidence
that there was a rational nexus between Young's dismissal and the
basis for the action. In this regard, it is clear that:

[i]n those cases where court review is sanc­
tioned, it is well established that an adverse 
personnel action cannot withstand judicial scru­
tiny unless there is some rational nexus between 
the adverse action taken and the government's 
articulated reasons for the action.

Hoska, supra p. 21 at p. 137.
The appeals panel articulated precisely that this standard 

was the "promotion of the efficiency of the Court" (R.E. #27 at 
p. 5). It is thus noteworthy that the administrative body did 
not sustain any of the charges of Young's alleged incompetence. 
What was left, therefore, were the two most trivial charges in 
the entire notice. As to those charges, there was a complete 
absence of any evidence that there was no less severe method of 
promoting the efficiency of the court; nor that terminating 
Young's employment would promote the efficiency of the Court.

In sum, there was not "such relevant evidence as a 
reasonable mind might accept as adequate to support a conclusion" 
(Id. at 137) that Young's failure to submit the survey results 
was insubordination, nor that his outside interests interfered 
with his performance of his duties.

Accordingly, Young's termination cannot stand.

3 .The penalty of removal w as arbitrary and 
capricious.

Given the conduct sustained by the administrative body, the 
penalty of removal was an abuse of discretion. In determining

25



the appropriate penalty to assess a tenured public employee for 
conduct that has been proven by substantial evidence, the admin­
istrative body is bound by its own procedural rules, see Ser­
vice v. Dulles, 354 U.S. 363 (1957).

There are two sets of provisions of the Superior Court's 
Penalty and Adverse Action Guidelines (R.E. #23) that are rele­
vant here. First, the guidelines provide that:

1. employees may not be penalized out of proportion to the 
seriousness of the offense;

2. the minimum penalty most likely to correct the situation 
should be assessed;

3. consideration must be given for such factors as past 
record of conduct, and mitigating circumstances.

(R.E. #23 at p. 20).
Second, the rules incorporate a "Standard Table of Offenses 

and Penalties" which provides:
Na t u r e  of Offense Suggested Pena l t y  For

First Second Third
Offense Offense Offense

I n s u b o r d i n a t i o n Reprimand Five to Ten remo­
(deliberate or one to three day suspen­ val
and willful 
refusal to 
perform assigned 
work)

day suspension sion or 
removal

Reviewing courts are called upon, in assessing the propor­
tionality of punishment, to draw (the) lines in a variety of
contexts, see Solem v. Helm , ___U.S. ___  , 77 L.Ed 2d 637 (1983).
Where the court finds the penalty disproportionate to the 
offense, it will find the result so unconscionable as to be an 
abuse of discretion. see Boyce v. U.S., 543 F.2d 1290 (Ct. Cl. 
1976) (where two I.R.S. employees were dismissed for having

26



failed to file their tax returns in a timely manner, the penalty 
was so harsh that it amounts to an abuse of discretion).

In Power v. United States, 531 F.2d 505 (Ct. Cl. 1976), an 
inspector was dismissed for allegedly submitting false travel and 
moving expense claims. On review, the most serious of the the 
charges were not sustained, leaving the less severe charge that 
the inspector had overstated his reimbursable expenses and had 
claimed an expense for his wife's meals to which he was not 
entitled. The court held that the remaining charges were de 
m inimus and the penalty of dismissal was set aside. In so doing, 
the court stated:

After failing to sustain the serious charge, 
the government continued to advocate dismissal 
on the basis of the two relatively insignificant 
charges.

(I ,d at p. 508-509). In overturning the dismissal, the court 
noted that even where a penalty appears to conform to the 
administrative guidelines, it may be set aside if it is unduly 
harsh. Id. at 507; see Pow ell v. Zuckert, 366 F.2d 634, 639-641 
(D.C. Cir. 1966).

Similarly here, all of the serious charges of inadequate work 
performance were overturned. What remained were two charges 
regarding Young's conduct -- charges that related to elements 
that Booth admitted were not "important" to Young's position 
(R.E. #9 at p. 1 and 2). There had been no progressive disci­
plinary actions imposed; actions that have as their purpose 
making "employees more secure in their jobs" NLRB v. General 
W arehouse Corp., 643 F.2d 965, 970 n. 18 (3d Cir. 1981). To achieve 
this goal, progressive discipline requires that "progressively

27



more severe penalties for successive violations" be administered. 
Norfolk Shipbuilding v. Local 684, 671 F.2d 797 (4th Cir. 1982).
Discharge from employment should thus be used only as a "last 
resort" American Thread Co. v. NLRB, 631 F.2d 316, 319 n. 3 (4th 
Cir. 1980).

The appeals committee shared this view of the absence of any 
record that Young had been given progressive discipline. It 
stated:

Had the official personnel records of the 
appellant revealed a progression of coun­
seling, letters and reprimands with res­
pect to incidents that preceded and ul­
timately led to the notice of the proposed 
termination, the panel would have had no 
difficulty with the sufficiency of the 
notice.

(R.E. #27 at p. 5).
It was thus an abuse of discretion for the Superior Court to 

have assessed the penalty of dismissal in this case.— ' The rules, 
by which the agency was bound, provide that the "minimum penalty 
most likely to correct the situation should be assessed," and 
that "consideration must be given for such factors as past record 
of conduct." (R.E. #23 at p. 20). There was no showing that a 
less severe penalty would not have corrected the situation and 
thus would have promoted the efficiency of the service; and there 
was no past record of any adverse conduct.

Given this lack of progressive discipline, it was arbitrary

— t This conclusion is inescapable here, particularly because the 
administrative decision at issue was rendered not by an 
impartial, objective body, such as the Merit Systems Protection 
Board, but by an "in house" appellate process. C f . 
Jolly v. Listerman, 672 F.2d 935 (D.C. Cir. 1983), cert, denied 
___U.S. (1983); 103 S.Ct. 450 (1983).

28



and capricious to sustain Young's removal based upon two charges 
of insubordination. The first instance could have, but was not, 
penalized with some lesser disciplinary action before the two 
instances were grouped together to justify the most severe 
penalty that can be given to an employee.

Under all of the circumstances, then it was an abuse of 
discretion for the Superior Court to have assessed the penalty of 
dimsissal in this case. The decision of the administrative body 
must therefore be overturned.

4. The District Court erred in considering documents 
that were not a part of the administrative record

As is argued above, defendants-appe1 lees failed in their 
duty, in 1976 , to give Young the kind of specificity and detail 
in his notice of termination as required by law and regulation. 
The appeals committee agreed with this assertion by rejecting as 
evidence in the case certain documents that were offerred by 
counsel for the Superior Court in the administrative hearing. 
Those documents are not a part of the administrative record which 
is the proper subject of judicial review. Nevertheless, the 
district court reviewed this material in its consideration of 
defendants'-appel lees' successful motion for summary judgment. In 
so doing, the court noted that it had "found it helpful."

In this regard, it is well established that when a court 
reviews the action of an administrative body after a hearing upon 
the record, its consideration is limited to the administrative 
record created before that body. As this Court has succinctly 
stated:

It is basic that an agency action cannot be

29



sustained on the basis of information not 
relied upon by the agency or disclosed in 
its record of consideration. Gulf States 
Utilities Co. v. FPC, 411 U.S. 747, 764 
(1973) .

Motor & Equipment Manufacturers' Assn., Inc, v. EPA, 6 2 7 F.2d 
1095, 1105 n.18 (D.C. Cir. 1979), cert, denied, 446 U.S. 952 
(1980) .

It is clear that a party seeking to uphold the action of an 
administrative body may not introduce new evidence which was not 
considered nor is a part of the administrative record in order to 
bolster the conclusions of the administrative body. The adminis­
trative action must stand or fall on the actual record upon which 
the action was based.

Therefore, the documents considered by the District Court 
were not "admissible evidence" in the Court's review of the 
administrative determination. That the district court found them 
"helpful" is ironic: no doubt they would have also been "helpful" 
to Young in 1975 at the time these documents were drafted, in 
order to assist him in understanding how his supervisors felt his 
performance was deficient and how he could improve, and to 
Young's attorney in 1976 when she asked for clarification of the 
charges against her client in order to prepare his defense. The 
"helpful" nature of the documents is not the issue at the present 
juncture, however. Where the documents are not a part of the 
record on review, they may not be considered by the reviewing 
court. For the district court to have reviewed them in granting 
summary judgment for defendants-appe11ees was therefore 
reversible error.

30



CONCLUSION
For the foregoing reasons, the judgment of the district

court should be reversed.
Respectfully submitted,

Elizabeth L. Newman 
815 Fifteenth St. N.W. 
Suite 938
Washington, D.C. 20005 
202-393-5900 
Attorney of record for 
plaintiff-appellant.

CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief on 

Behalf of Appellant, and two copies of the separately bound 
record excerpts, were served upon defendants-appe1 lees by 
delivering them by hand to Mr. Charles Reischel, Corporation 
Counsel, Appellate Division, District Building, Washington, D.C. 
20004, this 31st day of January, 1984.

Elizabeth L. Newman

31