London v. Florida Department of Health and Rehabilitative Services, Division of Family Services Petition for Writ of Certiorari

    I

I n the

(Unurt uf tljp lluitPii States
O ctober T erm 1971 

No. 71-...LQ..*/ {

I saac L ondon,

v.
Petitioner,

F lorida D epartm ent  op H ealth  
and R ehabilitative  S ervices,
D ivision  of F a m il y  S ervices,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

J ack  G reenberg 
J ames M. N abrit , III 
C harles S teph en  R alston 
W illiam  R obinson

10 Columbus Circle 
New York, New York 10019

V ilm a  M artinez S inger 
80 Pine St.
New York, New York 10005

T heodore R . B owers 
P.O. Box 811 
Panama City, Florida

Attorneys for Petitioner
J on ath an  R. H arkavy  
J ohn  D . I skrant 
T heodore R. W agner 

2 Wall Street
New York, New York 10005 

Of Counsel



I N D E X

PAGE

Opinion Below ..................     1

Jurisdiction ..........................................................................  2

Question Presented .................   2

Constitutional and Statutory Provisions Involved.......  3

Statement .....      3

Statement of Facts ...........................   4

A. Petitioner’s Employment History Prior to
the Transfer ........................................................  4

B. The State’s Investigation of Complaints
Against Petitioner ............................................... 6

C. Events Following the Transfer of Petitioner 9

R easons eor Gran tin g  th e  "Writ—

The Decision Below Is in Conflict With This 
Court’s Decision in Stromberg v. California, Since 
Petitioner’s Discharge May Have Been Based on 
Either an Unconstitutional or a Constitutional
Ground, and the State Failed to Show the Latter 14

Conclusion  .......................................................................... 16

A ppendix—

Opinion of the Court of Appeals .........................  la

Order of the Court of Appeals Denying Petition 
for Rehearing  ........................................................ 7a



IX

PAGE

Memorandum Decision of the District Court .......  8a

Final Judgment of District Court .... ........ ...........  21a

T able of Cases

Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) ..... ..14,15

Pickering v. Board of Education, 391 TJ.S. 563 
(1968) .......... ..................... .......................... -...... ..2,13,14,16

16

.2,15

Street v. New York, 394 TJ.S. 576 (1969) -----

Stromberg v. California, 283 TJ.S. 359 (1931) 

Wright v. Georgia, 373 TJ.S. 284 (1963) ..... 16



I n  th e

0itpmtc (Enurt nt tlx? Inttzb States
O ctober T erm 1971 

No. 71-...........

I saac L ondon,

v.
Petitioner,

F lorida D epartm ent  of H ealth  
and R ehabilitative  S ervices,
D ivision of F am ily  S ervices,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Opinion Relow

The decision of the United States Court of Appeals 
for the Fifth Circuit is reported at 448 F.2d 655 and is 
reprinted infra pages la-6a. The memorandum decision 
of the federal District Court for the Northern District 
of Florida is reported at 313 F. Supp. 591 and it and 
the final judgment of that court are reported infra pages 
8a-21a.

Jurisdiction

The judgment and opinion of the Court of Appeals 
was entered on September 15, 1971. A  petition for re­
hearing was timely filed and was denied on October 19,1971.



2

Mr. Justice Powell extended the time for filing the peti­
tion for writ of certiorari herein to and including Feb­
ruary 16, 1972 in an order dated January 11, 1972 (No. 
A-708). The jurisdiction of this Court is invoked pur­
suant to 28 U.S.C. §1254(1).

Question Presented

The record demonstrates and the Court of Appeals held 
that petitioner was transferred from Okaloosa County to 
Escambia County in derogation of his First and Four­
teenth Amendment rights. The Court of Appeals, how­
ever, upheld the District Judge because “his conclusions 
and findings involved credibility choices” and that listening 
to the witnesses the trial court found “ sufficient emetics to 
sanitize the Escambia atmosphere, that the decision to 
dismiss London was based solely upon his work record, 
and that this latter decision was supported by the evi­
dence. We cannot demonstrate to the contrary.” Pursuant 
to Rule 52a, the Court of Appeals affirmed the Trial Court. 
In Escambia County, petitioner, despite nine years of ser­
vice, was treated as a “ trial” employee because of his 
unconstitutional transfer. He was under constant sur­
veillance, his work was reviewed, and his performance 
was not compared to other employees’ performance. It 
cannot be known whether if he were viewed as a tenured 
employee, he would have been discharged.

Since his discharge might have been based upon valid 
grounds (not meeting the standard of tenured employees), 
or unconstitutional grounds (not meeting the standard of 
trial employees), he may have been fired in violation of 
Pickering v. Board of Education, 391 IT.S. 563 (1968); or 
he may not have been discharged in violation thereof. 
Therefore, should not the judgment below be reversed 
under Stromberg v. California, 283 U.S. 359 (1931)?



3

Constitutional and Statutory Provisions Involved

This matter involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States which pro­
vides in pertinent part:

No State shall make or enforce any law which shall 
abridge the privileges and immunities of citizens of 
the United States; nor shall any State deprive any 
person of life, liberty, or property, without due pro­
cess of law; nor deny to any person within its juris­
diction the equal protection of the laws.

This matter also involves the First Amendment to the 
Constitution of the United States which provides in per­
tinent part:

Congress shall make no law . . . abridging the free­
dom of speech. . . .

Statement

This action was commenced in the United States Dis­
trict Court for the Northern District of Florida pursuant 
to 42 U.S.C. §1983, the claim being made that petitioner 
was deprived of “ rights, privileges, [and] immunities 
secured by the Constitution” of the United States. The 
jurisdiction of the district court was invoked under 28 
U.S.C. §1343(3). Petitioner alleged in his complaint that 
he had been discharged from his employment as a social 
worker under the jurisdiction of the predecessor of the 
respondent, the Florida Department of Health and Reha­
bilitative Services, Division of Family Services,1 because 1

1 The original state agency defendant was the Department of 
Public Welfare of the State of Florida. During the course of the 
litigation the name of that department was changed.



4

of Ms exercise of free speech and because of his race in 
violation of the First and Fourteenth Amendments to the 
Constitution of the United States. After a hearing the 
United States District Court issued its memorandum de­
cision, infra Appendix, pages 8a-20a, denying all relief 
and entered a final judgment dismissing the complaint 
Appendix, p. 21a. A  timely appeal was taken to the 
United States Court of Appeals for the Fifth Circuit 
which affirmed the decision of the court below on Sep­
tember 15, 1971. App. pp. la-6a. A  petition for rehearing 
in the Court of Appeals was denied without opinion on 
October 19, 1971. App. p. 7a.2

Statement of Facts

Petitioner was employed by the State of Florida as a 
social worker from June 15, 1956, until March 4, 1966. 
The events at issue here involve his employment in Oka­
loosa County beginning in 1956, the circumstances of his 
transfer to Escambia County in August, 1965, and his 
discharge from employment in March, 1966.

A. Petitioner’s Employment History 
Prior to the Transfer.

When petitioner was hired in 1956, he was the first 
black social worker to be employed by the state in Okaloosa 
County. The record clearly indicates that petitioner was 
a satisfactory employee throughout his tenure in Okaloosa 
County.

In September 1960, his superiors first reprimanded peti­
tioner for advocating views unpopular in the white com­

2 The time for filing this petition for writ of certiorari was ex­
tended by Mr. Justice Powell to and including February 16, 1972.



5

munity. A .3 57-58; Pre-trial Stipulation of Facts (here­
inafter referred to as “ St.” ) No. 7. Petitioner had criticized 
double sessions at one of the segregated public schools in 
the area in which he lived. Petitioner spoke as a member 
of the community and not as a state employee, but his 
advocacy resulted in a complaint to the District Welfare 
Board (hereinafter called the “Board” ) by the Superin­
tendent of Schools, Mr. Bichburg. Following that com­
plaint petitioner was “ counseled” by the Board that “it was 
contrary to the Board’s and the Department’s policy for 
social workers to become involved in controversial issues 
affecting the community. . . .” 313 F. Supp. 591, 594 (App., 
infra, p. 10a). In addition to “counseling” petitioner the 
Board required petitioner to sign a statement of understand­
ing that the “ repetition of such incidents will not be 
tolerated (we meant by this that we would not tolerate 
his creating a disturbance at a public meeting or exhibit­
ing negative attitudes to public officials, etc.).” A. 57-58; 
St. No. 7.

Following this incident petitioner, who was regarded as a 
spokesman for the Negro community due to his ability to 
articulate community views, performed his work in a satis­
factory manner. 313 F. Supp. at 594. A. 57; St. No. 6. 
Against this background the following events precipitated 
the personnel actions resulting in petitioner’s discharge.

In the Fall of 1964 Mr. Max Bruner, Superintendent of 
Public Instruction in Okaloosa County, made a speech at 
a PTA meeting at Escambia Farms School. A. 400. Peti­
tioner was on a panel and asked questions of Mr. Bruner 
who described these questions as follows: “ I remember 
questions that were raised there where insinuations were 
made that I had been a part of a system that had not

3 “A.” refers to the record appendix in the Court of Appeals.



6

done my duty toward adequately providing educational op­
portunities for youngsters because of their race . . . .”
A. 402.

Then in the Spring of 1965 petitioner, whose two children 
attended the local segregated public school, presided over 
a PTA meeting in his capacity as vice-president of the 
local PTA at that high school, the PTA president not being 
at the meeting. At the meeting plaintiff asked some seri­
ous and substantial questions of the guest speaker, Mr. 
Bruner. These questions related to alleged discrim­
inatory conditions in the Negro schools (apart from the 
obvious fact that the schools were part of a dual school 
system).4 As a result of Mr. London’s questions at these 
tow PTA meetings, complaints were made against him 
and the process of transferring him began. A. 59-60; St. 
Nos. 15-17, 19-20.

B. The State’s Investigation of Complaints 
Against Petitioner

Mr. Bruner, the man to whom plaintiff’s questions at 
the 1965 PTA meeting were directed, initiated the state’s 
surveillance of plaintiff’s official activities. However, in­
stead of processing the complaint through the proper chan­

4 The questions which “embarrassed” Superintendent Bruner 
were as follows:

“ 1. Why the first and second grade students did not take their 
text books home for study?

2. Why the supply of text books at Carver Hill School was 
not adequate?

3. How could a Negro teacher be transferred to an all white 
school ?

4. When was a Negro going to be employed in the office of 
County Superintendent ?

5. Why wasn’t a secretary available to each teacher in the 
school?”

A. 62; St. No. 28.



7

nels which, would have afforded plaintiff a fair defense to 
the charges levied against him, Mr. Bruner complained 
directly to state officials (including a representative of 
the Governor’s office, Mr. James Lee, and a Florida 
representative, Mr. James H. Wise) who, in the words of 
the district court, “ . . . passed these complaints on to 
officials of the Department, with either the suggestion or 
demand that plaintiff be transferred out of Okaloosa 
County.” 313 F. Supp. at 594, App., infra, p. 11a; A. 60, 
St. No. 17.

[“ Sjeveral of the local county officials . . .” also com­
plained about petitioner 313 F. Supp. at 594; App. infra, 
p. 11a. The district court, however, while noting the ex­
istence of such complaints, did not make any finding as to 
the source and nature of the complaints except to note as 
an aside that some of London’s superiors felt that the com­
plaints “ . . . may have been the result of racial prejudice on 
the part of those complaining. . . .” 313 F. Supp. at 595; 
App. infra, p. 14a.

An investigation of these complaints was immediately 
instituted under the direction of Mrs. Martha Horne, the 
Director of Personnel of the State Department, even though 
such personnel actions are usually handled by the local 
Board. A. 60-61; St. Nos. 20-21. The investigation turned 
up nothing more conclusive than statements of three or 
four public officials in Okaloosa County that did not like 
plaintiff’s attitude.5 There was no indication that peti­
tioner’s work was unsatisfactory.

5 For example, it was alleged that plaintiff refused to remove 
his hat while in a public building. It was later established that 
plaintiff was not asked to do so nor did other men do so. In 1963 
plaintiff complained about an over-assessment of real property 
owned by one of plaintiff’s welfare clients. It was later found that 
plaintiff’s complaint was just. Moreover, the tax assessor indicated 
he had worked amicably with plaintiff in the two years after the



8

Even prior to this investigation, the state personnel 
director had suggested to the local director that petitioner 
be transferred, which suggestion was prompted to some 
extent by political pressure (Defendant’s Ex. No. 28; A. 60, 
61; St. Nos. 17, 23). And despite the failure of the inves­
tigation to develop any specific detrimental information 
against petitioner, the state department insisted on the 
transfer.

Against this documented background of pressure from 
state officials possessing both executive and legislative au­
thority over the Department, the Board held a meeting in 
May, 1965, where plaintiff expressed his views of the com­
plaints about him. Then in June the Board met to consider 
disposition of the matter. The record clearly indicates that 
some members of the Board were not convinced that the 
charges against plaintiff were justified, and that at least 
some of the complaints against plaintiff were based on 
racial prejudice.6 But because Mrs. Horne was adamant 
in her belief that plaintiff had to be transferred, the Board

incident. _A. 62-64; St. 29-33. Other responses to Mrs. Horne’s 
investigation indicated that the local sheriff thought plaintiff was 
“arrogant” and that he might be a “civil rights worker.” A. 62; 
St. No. 29. A local judge said that petitioner’s clients could get 
what they wanted if they would “submit” to him. This charge was 
not substantiated. A. 75-76; St. Nos. 65, 67.

6 The local director, Mrs. Beardon, sent the following letter to 
the Vice Chairman of the District Welfare Board (A. 74-75; St. 
No. 64) :

“Neither Mrs. Edna Adams, Colonel Bichardson nor I felt 
that the charges against Mr. London were entirely justified, 
although undoubtedly there is some truth involved. We be­
lieve that some of the complaints from public officials were 
definitely based on racial prejudice. However, how do you 
prove this sort of thing?

It, was Colonel Bichardson’s thinking that with the Gover­
nor’s office demanding that Mr. London be transferred and 
our own State Personnel Director and State Welfare Director 
making the same demands, there was little to be gained in 
Mr. London’s behalf by refusing to make the transfer. Colonel



9

(composed of 17 people from Okaloosa and six other coun­
ties) finally approved her recommendations for a transfer.

The Court of Appeals held that the District Court was in 
error in concluding that the transfer was not tainted by 
racial and free speech factors:

While we affirm the judgment below, we first wish to 
make clear that we disassociate ourselves from the 
reasoning of the trial judge which led him to the con­
clusion that London’s transfer from Okaloosa County 
was tainted with neither racial nor free speech over­
tones. It is much too superficial to reason that even 
though some of the complaints registered against plain­
tiff were racially motivated, London’s rights were not 
impaired since the Welfare Board was not so motivated. 
Whatever the conscious motivations of the individual 
members of the Board, its decision to transfer London 
could remain discriminatory if founded upon testimony 
or evidence which was tainted by racial prejudice. 
448 F. 2d at 657; App. infra, p. 4a.

C. Events following the Transfer o f Petitioner

Petitioner appealed the transfer to the Florida Merit Sys­
tem Council which heard his appeal August 13, 1965 and 
rendered its decision upholding the transfer by order dated

Richardson felt the best strategy was to go ahead and recom­
mend the transfer which would give Mr. London the oppor­
tunity to appeal the matter to the Florida Merit System. I 
now have a copy of the statement prepared by Mrs. Martha 
Horne, State Personnel Director, which will constitute our 
Department’s defense of the appeal. I do wish you could 
come up here and read it. We still have no information as 
to when the appeal will be heard but surely it will be some­
time during July. There are so many factors involved in this 
whole matter that it would take considerable time for me to 
explain them to you. We are all of the opinion that much of 
it involves a controversy between Mr. London and the princi­
pal of the school where Mr. London’s wife is a teacher.”



10

August 27, 1965. Immediately following the decision of the 
Council Mrs. Reardon received orders from her superiors 
at the state level that the petitioner was to be placed “ on 
trial” for six months or until March 1, 1966. A. 76; St. No. 
70. On August 30, 1965, ten days before petitioner was to 
begin work in Escambia, Mrs. Reardon wrote petitioner, 
informing him that because of the controversy he had 
generated in Okaloosa County, he was to be put “ on trial” 
for six months at Escambia, despite petitioner’s nine year 
tenure as an employee in the Department. A. 76; St. No. 71; 
Plaintiffs Ex. No. 35. In this letter she also informed peti­
tioner that if his work during that period was not entirely 
satisfactory and if his relations with the community didn’t 
also improve, he would be expected to resign. Petitioner 
thus began work in Escambia on September 9, 1965, in a 
vulnerable status generated solely by his unconstitutional 
transfer.

Despite Mrs. Reardon’s plans, the District Welfare Board 
concluded on September 14 that it would not be necessary 
to place petitioner on trial status officially since it was 
felt that he was under a duty to perform “without further 
difficulties which might result in embarrassment to the 
agency.” A. 78; St. Nos. 79-80; Def. Ex. 54. Despite this 
lack of official action, Mrs. Reardon instructed petitioner’s 
new supervisor in Escambia that he was to be treated in 
the same manner as if he were on trial status. A. 78-79; 
St. Nos. 82, 83, 84; Def. Ex. No. 56. The supervisor was 
instructed to keep petitioner under close surveillance and 
to “keep a running record of everything concerning Mr. 
London’s performance.” Id.1 Thus whether petitioner was *

7 Mrs. Horne, the State Personnel Director, kept constant pres­
sure on Mrs. Reardon to maintain surveillance on petitioner:

Q. Mrs. Reardon, you have testified that Mrs. Horne took 
over the investigation of this case in chief and was constantly 
on you about the investigation and et cetera?

A. In Okaloosa County; yes, sir.



11

on trial status officially or not, the effect was the same: 
he was singled out and, unlike most other workers, his 
habits and work product were scrupulously monitored. In 
fact, the task of monitoring petitioner’s work was so ex­
tensive the supervisor spent a good deal of her spare 
time at nights scrutinizing his records, looking for errors. 
A. 305-06. Petitioner was immediately informed by the 
supervisor that his work was unsatisfactory. A. 78; St. No. 
78.

As a result of this close monitoring of petitioner’s work, 
the District Welfare Board officially placed him on trial 
status for one month on November 16, 1965. A. 81; St. No. 
90. The evaluation recommending this action cited poor 
work production and excessive use of sick leave as factors 
involved. Other reasons included playing a radio in the 
office, remaining seated when visitors entered his office, and 
other breaches of “courtesy.” Def. Ex. No. 63.

On December 14, the District Welfare Board noted im­
provement in petitioner’s work and attendance. However,

Q. When Mr. London was transferred did Mrs. Horne con­
tinue her pressure on district one?

A. We were required to report constantly on the happen­
ings, the occurrences, the volume of work, the daily attendance 
and non attendance, and that sort of thing.

Q. Were you required to report in detail all the activities 
of Mr. London while he was there?

A. Yes.
Q. Did you file these reports with Mrs. Horne ?
A. Some were written and some were by telephone.
Q. How often did she phone you on this?
A. Frequently. Sometimes daily.
Q. Did you spend—strike that question—were you required 

to spend time even off duty to prepare these reports that she 
wanted to have on Mr. London?

A. I did in order to keep my daily job going. I had to do 
a good bit of this work at home, on the weekends and at night, 
and away from the office. . . . this affair did require an un­
ending amount of time away from the office as well as in the 
office.

(A. 523-524)



12

the Board felt that the previous month had not been a good 
test period due to the holidays and an excessive amount of 
desk rather than field work. Accordingly, petitioner’s trial 
period was extended another month. A. 82; St. No. 95. 
The Board did not meet in January, but on February 15, 
1966, the Board requested petitioner’s resignation “ due to 
your inefficiency, inability or unwillingness to perform the 
duties of your position in a satisfactory manner, your 
tardiness, and your excessive use of sick leave.” A. 83; St. 
No. 103. Upon refusal to resign, petitioner was dismissed 
in a letter dated March 3, effective March 4. A. 83; St. No. 
104; Def. Ex. 126.

Petitioner immediately appealed his dismissal to the 
Merit System Council. A. 84; St. No. 105. It was only after 
the dismissal that Mrs. Jacks, from the State Welfare 
Office, prepared an evaluation of petitioner’s case records 
to justify his dismissal before the Council. She evaluated 
22 of petitioner’s 155 cases. She reviewed no cases of other 
workers in the unit and had no basis for objective compari­
son. A. 479, 488.

It should be pointed out that at no time did petitioner 
take more sick leave than he had legitimately accumulated 
in accordance with Department regulations. A. 95-96; St. 
No. 124. In fact, petitioner took less sick leave time than 
several other social workers, none of whom were subjected 
to disciplinary action. Ibid. It should also be noted that 
petitioner’s work production during his service at Escam­
bia was equal to and often greater than that of his fellow 
workers. A. 96-98; St. No. 125.

The state Merit System Council upheld petitioner’s dis­
charge, and this action followed. The district court, after 
hearing the matter de novo, held against petitioner. With 
regard to the transfer, the court held that it did not violate



13

petitioner’s First Amendment rights because he had no 
right to government employ and the imposition of restric­
tions on his free speech activities was reasonable. 313 
F. Supp. at 596. With regard to the discharge of peti­
tioner, the court, held that there was no proof that the 
defendants had abused their discretion, that the dismissal 
was not tainted by any racial prejudice that may have 
existed in the first county, and that the dismissal wms based 
on the petitioner’s work record. 313 F. Supp. at 596-97.

The Court of Appeals specifically held that the district 
court had applied an erroneous rule of law with regard 
to the transfer, noting’ the failure of the lower court to 
cite Pickering v. Board of Education, 391 U.S. 563 (1968). 
Nevertheless, the appellate court refused to reverse, on 
the ground that the trial court’s finding that the discharge 
was not tainted by the constitutional violations in the first 
county that led to the transfer was not clearly erroneous 
within the meaning of Rule 52(a), Fed. R. Civ. Proc., 
448 F.2d 657-68.

A  petition for rehearing was filed, urging that because 
the district court decided the case on the basis of an 
erroneous view of the law, the decision should be at least 
vacated and remanded. The petition was denied, occa­
sioning this petition for writ of certiorari.



14

REASONS FOR GRANTING THE WRIT

The Decision Below Is in Conflict With This Court’s 
Decision in Stromberg v. California, Since Petitioner’ s 
Discharge May Have Been Based on Either an Uncon­
stitutional or a Constitutional Ground, and the State 
Failed to Show the Latter.

Petitioner was a dissident in Okaloosa County who spoke 
out in defense of Fourteenth Amendment rights of Negro 
school children and in order to secure a better education 
for them. As such, he was a thorn in the side of politically 
powerful opponents who sought to suppress him. While he 
acted in a constitutional and legal manner in defense of 
constitutional ends, he nevertheless was transferred from 
Okaloosa County to Escambia County in violation of his 
First and Fourteenth Amendment rights and the Court of 
Appeals for the Fifth Circuit so held.

Once in Escambia he was not treated as a tenured em­
ployee of nine years standing, which he was, but as a trial 
employee. As such he was subjected to surveillance and 
comparisons never visited upon tenured employees. His 
work was reviewed in isolation and not compared to the 
work of others in his department as the Fourth Circuit 
would have required in Johnson v. Branch, 364 F.2d 177 
(4th Cir. 1966). Following this review, his work was held 
to be not up to standard and he was discharged. We have 
urged and the Court of Appeals found (solely as to Oka­
loosa but not as to Escambia County) that in this sorry 
persecution of an outspoken citizen, petitioner was exer­
cising rights secured by this Court in Pickering v. Board 
of Education, 391 U.S. 563 (1968).

The Fifth Circuit in agreeing with petitioner so far as 
Okaloosa County was concerned, held that the trial judge 
was nevertheless not clearly erroneous in coming to a con­



15

trary conclusion with regard to Escambia County to which 
petitioner had been transferred. The trial court believed 
that there were no racial nor free speech grounds for the 
firing in Escambia and the Court of Appeals held there was 
enough evidence, so that this conclusion was not clearly 
erroneous.

The fact is, however, that in Okaloosa petitioner was de­
nied constitutional rights which led directly to his being 
placed on trial status in Escambia. This was done by the 
same state and local officials responsible for the unconsti­
tutional transfer.* In such trial status he was subjected to 
surveillance and evaluation, again by the same officials who 
transferred him, which he would not have been subjected to 
but for the Okaloosa experience. Moreover, his work was 
not compared to the work of other employees, as the Fourth 
Circuit would have required in Johnson v. Branch, supra.

Therefore, while it is possible that his work may have 
been so bad in Escambia that he would have been fired no 
matter who he was and whatever his background, it is also 
true that but for his trial status his work would not have 
been reviewed, and if reviewed he may have been compared 
to others, and whether compared to others or not, his work 
might have been held to be up to the standards of a tenured 
employee. His discharge therefore may have been based 
upon constitutional as readily as upon unconstitutional 
grounds.

However, neither the District Court nor the Court of 
Appeals recognized this to be the case. Therefore, they 
failed to apply the rule established by this Court in Strom- 
berg v. California, 283 H.S. 359 (1931); that is, when an

8 The two counties, Okaloosa and Escambia, were in the same 
welfare district, with the same director, Mrs. Reardon. Mrs. Rear­
don acted throughout pursuant to the orders of the state personnel 
director, Mrs. Horne.



16

action may be based on two grounds, one constitutional 
and one unconstitutional, it must be clear that only the 
constitutional ground was used. See also, Street v. Neiv 
York, 394 U.S. 576 (1969); Cf., Wright v. Georgia, 373 U.S. 
284 (1963). Thus, the decisions below conflict with holdings 
of this Court and present important issues relating to the 
legal standards to be applied in cases raising questions 
under Pickering.

CONCLUSION

For the foregoing reasons, the Petition for Writ of 
Certiorari should be granted and the decision below re­
versed.

Respectfully submitted,

J ack  G reenberg 
J ames M . N abbit , III 
C harles S teph en  R alston 
W illiam  R obinson

10 Columbus Circle 
New York, New York 10019

V ilm a  M artinez S inger.
80 Pine St.
New York, New York 10005

T heodore R. B owers 
P.O. Box 811 
Panama City, Florida

Attorneys for Petitioner

J o nathan  R . H arkavy 
J ohn  D . I skrant  
T heodore R . W agner 

2 Wall Street
New York, New York 10005 

Of Counsel



APPENDIX



I n  th e

UNITED STATES COURT OF APPEALS 

F ob th e  F if t h  C ircuit  

No. 30180

Opinion of the Court of Appeals

I saac L ondon,

versus
Plaintiff-A ppellant,

F lorida D epartm ent  of H ealth  and R ehabilitative  
S ervices, D ivision  of F am ily  S ervices,

Defendant-Appellee.

A PPE A L FRO M  T H E  U N IT E D  STATES DISTRICT COURT 

FROM  T H E  N O R T H E R N  DISTRICT OF FLORIDA

(September 15, 1971)

Before W isdom , Circuit Judge, D avis,* Judge, and 
G oldberg, Circuit Judge.

P er  C uriam  : I f  we were not buckled by Fed. R. Civ. P. 
52(a) and if the trial court were not shielded by that Rule’s 
“clearly erroneous” fiat,* 1 we might very well reverse. While

* Honorable Oscar H. Davis, U. S. Court of Claims, sitting by 
Designation.

1 See Horton v. United States Steel Corp., 5 Cir. 1961, 286 F.2d 
710, 713 ( “District Court . . . fact findings ; . . come here well 
armed with the buckler and shield of F.R.Civ.P. 52(a), 28 U.S. 
C.A.” ).

la



2a

our diligent search through over a thousand pages of 
record gives us an intimation that the trial court’s rulings 
may have been wrong, our perquisition nevertheless leaves 
us unconvinced that on the crucial issues the judge was 
clearly erroneous. The probability of his error simply does 
not reach the egregious stage required by United States v. 
United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 
525, 92 L.Ed. 746.2 Bound by that standard of review, we 
affirm the judgment below.

Plaintiff, Isaac London, was employed by the State of 
Florida as a social worker from June 15, 1956, until his 
dismissal on March 4, 1966. All but a few months of this 
employment period were spent in Okaloosa County, Florida, 
where London was the only black social worker. In the 
summer of 1965, plaintiff was transferred by the District 
Welfare Board from Okaloosa County to Escambia County, 
Florida. This transfer grew out of complaints registered 
by numerous Okaloosa County public officials who felt that 
plaintiff was so “belligerent,” “ antagonistic,”  and “ rude” 
that they could not work with him in his capacity as a social 
worker. It is clear that at least a portion of these com­
plaints were engendered by the activities of plaintiff on 
behalf of various civil rights causes in the County.

While protesting his transfer, plaintiff reported for work 
in Escambia County. After several months, and following 
numerous warnings that his work was deficient, plaintiff 
was permanently dismissed on March 4, 1966, “ [d]ue to . . . 
[his] inefficiency, inability, or unwillingness to perform

Opinion of the Court of Appeals

2 In the Gypsum Company case the Supreme Court held that a 
finding may be found clearly erroneous, within the meaning of 
Rule 52(a), only when “the reviewing court on the entire evidence 
is left with the definite and firm conviction that a mistake has 
been committed.” 333 U.S. at 395.



3a

the duties of . . . [his] position in a satisfactory manner, 
. . . [his] tardiness and excessive use of sick leave.”

Following a de novo hearing before an Appeals Council 
in which his dismissal was upheld, plaintiff filed an action 
in federal district court alleging that his transfer and sub­
sequent dismissal were based upon racial discrimination 
and political considerations in violation of his rights under 
the First and Fourteenth Amendments. After lengthy pre­
trial maneuverings, an essentially de novo hearing was 
conducted by the trial court,3 and judgment was rendered 
against the plaintiff.4

The district court first concluded that while racial prej­
udice might have generated some of the complaints of 
Okaloosa officials concerning London’s conduct and attitude, 
the decision by the Board to transfer him was not motivated 
by racial considerations. Bather, the court found that the 
Board transferred plaintiff in good faith “ for his own effi­
ciency and that of the Department.” 313 F. Supp. at 596. 
Finding that London’s political activity and mannerisms 
antagonized public officials and thereby interfered with the 
proper performance of his job, the district court held that 
the transfer did not violate plaintiff’ s First Amendment 
rights. Secondly, the district court held that even if plain­
tiff’s rights had been violated by the transfer, his subse­
quent dismissal was based upon his poor work performance 
in Escambia and was in no way tainted by the events occur­
ring in Okaloosa. Since this termination did not violate

Opinion of the Court of Appeals

3 With regard to the proper procedure to be followed by a dis­
trict court in reviewing a dismissal of a state employee, compare 
Ferguson v. Thomas, 5 Cir. 1970, 430 F.2d 852, 858-59, with Fluker 
v. Alabama State Bd. of Educ., 5 Cir. 1971, 441 F.2d 201, 208 & 
n.15.

4 The district court’s opinion is reported at 313 F.Supp. 591.



4a

plaintiff’s constitutional rights, the court accordingly held 
that London could not now demand that he he given re­
instatement or hack pay.

While we affirm the judgment below, we first wish to make 
clear that we disassociate ourselves from the reasoning of 
the trial judge which led him to the conclusion that Lon­
don’s transfer from Okaloosa County was tainted with 
neither racial nor free speech overtones. It is much too 
superficial to reason that even though some of the com­
plaints registered against plaintiff were racially motivated, 
London’s rights were not impaired since the Welfare Board 
was not so motivated. Whatever the conscious motivations 
of the individual members of the Board, its decision to 
transfer London could remain discriminatory if founded 
upon testimony or evidence which was tainted by racial 
prejudice. Moreover, we cannot agree with the reasoning 
of the district which seems to hold that since government 
employment is a mere privilege granted by the state, public 
employees are of a lesser breed when it comes to the pro­
tection of their First Amendment rights. In Pickering v. 
Board of Educ., 1968, 391 U.S. 563, 88 S. Ct. 1731, 20 
L.Ed.2d 811, a case not cited by the court below, the Su­
preme Court completely put to rest such outgrown shib­
boleths to which even Justice Oliver Wendell Holmes, not 
a jurisprudential dovecote, once ascribed.5 Precursive as 
he generally was, Justice Holmes simply did not anticipate 
the First Amendment’s coalescent embrace of all citizens.

5 Justice Holmes saw a dichotomous absolutism in applying First 
Amendment rights to government employees and private citizens, 
as revealed in the following epigram while speaking for the Massa­
chusetts Supreme Judicial Court:

“ The petitioner may have a constitutional right to talk politics, 
but he has no constitutional right to be a policeman.” Mc- 
Auliffe v. New Bedford, Mass., 1892, 29 N.E. 517.

Opinion of the Court of Appeals



5a

The district court was also in error in disregarding this 
embrace. See generally Hobbs v. Thompson, 5 Cir. 1971,
—— F .2d------ [No. 30704, ] ;  Fred v. Board of Public
Instruction, 5 Cirj 1969, 415 F.2d 851; Van Alstyne, The 
Demise of the Bight-Privilege Distinction in Constitutional 
Law, 81 Harv. L. Rev. 1439 (1968).

Having said this much, we nevertheless conclude that the 
district court’s finding that no taint from Okaloosa carried 
over to the dismissal proceedings in Escambia is not clearly 
erroneous.6 I f  we had been sitting as the trial court, we 
would have been reminded that a page of history is more 
significant than a volume of logic. But as an appellate 
court, we cannot necessarily decree in the historian’s role. 
It seems to us, perhaps because of a lack of naivety in these 
matters, that the inequities visited upon London in Oka­
loosa could not have been purged while he worked for a 
few months in the neighboring county of Escambia. But 
the trial judge, who is also sophisticated in these matters, 
concluded otherwise; and his conclusions and findings in­
volved credibility choices. Listening to the witnesses, he 
found that there were sufficient emitics to sanitize the 
Escambia atmosphere, that the decision to dismiss London 
was based solely upon his work record, and that this latter 
decision was supported by the evidence. We cannot demon­
strate clearly to the contrary. See Fluker v. Alabama State 
Bd. of Educ., supra; United States v. LeFlore County, 5

6 Since we affirm the district court’s conclusion that London’s 
Escambia discharge was untainted, we must also affirm the court’s 
denial of plaintiff’s requested relief—reinstatement and back pay. 
Even though the Okaloosa transfer may have been unjustified, 
plaintiff cannot be reinstated since his ultimate discharge from an 
employment position he chose to accept is upheld. Nor is back pay 
warranted, for the Okaloosa transfer, even if improper, did not 
reduce or affect London’s salary.

Opinion of the Court of Appeals



6a

Opinion of the Court of Appeals

Cir. 1967, 371 F.2d 368; Chaney v. City of Galveston, 5 Cir. 
1966, 368 F.2d 774. Therefore, in obedience and obeisance 
to the mandate of Rule 52(a), we affirm the trial court’s 
judgment.

A ffirm ed .



7a

Order of the Court of Appeals Denying 
Petition for Rehearing

October 19, 1971

To A ll  P arties L isted B elow

R e : No. 30180—London v. Fla. Dept, of Health 
and Rehabilitative Serv., etc.

Gentlemen:

Yon are hereby advised that the Court has today entered 
an order denying the Petition ( ) for Rehearing in the
above case. No opinion was rendered in connection there­
with. See Rule 41, Federal Rules of Appellate Procedure 
for issuance and stay of the mandate.

Very truly yours,

E dward W . W adsworth ,
Clerk

By / s /  F rances W olff 
Deputy Clerk



Memorandum Decision of the District Court

[dated May 12, 1970]

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA

P ensacola D ivision

PCA 1764

I saac L ondon ,

vs.
Plaintiff,

F lorida D epartm ent  oe H ealth  and R ehabilitative  
S ervices, D ivision  oe F a m il y  S ervices,

Defendant.

M em orandum  D ecision

Involved here is a complaint of Plaintiff, I saac L ondon, 
attacking his transfer and subsequent dismissal as a case 
worker with the Department of Health and Rehabilitative 
Services of the State of Florida. The case has been tried 
before the Court without a jury. All evidence has been 
taken, arguments of counsel for the respective parties 
heard, and briefs filed by the parties considered.

Plaintiff brings suit under 42 U.S.C. Sections 1981 and 
1983, alleging civil rights and First and Fourteenth Amend­
ment violations. Initially, Plaintiff also sought to bring the 
action as a class suit, but during the progress of the litiga­
tion, that attempt of Plaintiff’s was abandoned and was 
withdrawn, with no evidence proffered to justify such re­
lief, and so such need not be considered by the Court.



9a

Plaintiff was employed by the Department as a case 
worker from June 15, 1956, to March 4, 1966.

Under Florida law, determination respecting transfer or 
dismissal of a case worker such as Plaintiff is made initially 
by the District Welfare Board. A case worker dissatisfied 
with this determination may appeal to the State Merit 
System Council which, under the law, gives him, in effect, 
a trial de novo, making its own findings and determination. 
(Names o f these respective state agencies have, since this 
suit commenced, been changed; the reference here is to the 
names as they existed at the time of the events in question 
and as they were referred to in arguments and briefs before 
the Court. For brevity, the District Welfare Board is 
referred to as Board, the State Merit System as Council, 
and the overall State Welfare Department as Department.)

In the summer of 1965, Plaintiff was transferred, against 
his desire, from. Okaloosa County, Florida, to Escambia 
County, Florida, by the Board. Being dissatisfied, he ap­
pealed to the Council, and it approved and directed the 
transfer. Thereafter, he commenced working as a case 
worker in Escambia County. He was, on March 4, 1966, 
permanently dismissed as a case worker, by the Board. 
Again, he took an appeal to the Council, and his dismissal 
was sustained, with it also finding he should be dismissed, 
and he was dismissed. Following that, this suit in this 
'Court was brought.

Plaintiff charges that both his transfer and dismissal 
were motivated by racial prejudice, that they were in viola­
tion of his First Amendment right of freedom of speech, 
association and assembly, and that the actions of the Board 
and the Council in transferring and later dismissing him 
were arbitrary, capricious and unreasonable.

Memorandum Decision of the District Court



10a

In addition, Plaintiff contends that, on his dismissal or­
der, he was, by the Council, denied the right of discovery, 
with such denial being a denial of the right adequately 
to prepare a defense, in violation of the due process and 
equal protection clauses of the Fourteenth Amendment.

With reference to Plaintiff’s contentions of transfer be­
cause of racial prejudice and in violation of First Amend­
ment rights, the record shows he was the first Negro social 
worker employed by the Defendant in Okaloosa County, 
Florida. In September, 1960, he became the center of 
controversy for the first time. From the record, he became 
involved in a school affair involving double sessions at one 
of the elementary schools that was then attended solely by 
Negro children. His activities resulted in a complaint to 
the Board from the County Superintendent of Public In­
struction, and it conducted an investigation. As a result of 
the incidents and the investigation that followed, Plaintiff 
was counseled by his supervisors and advised by them that 
it was contrary to the Board’s and the Department’s policy 
for social workers to become involved in controversial is­
sues affecting the community and that might impair the 
effectiveness with which a social worker performed his 
duties. Plaintiff signed a statement of understanding at 
that time, that “ repetition of such incidents will not be 
tolerated (we mean by this that we would not tolerate his 
creating a disturbance at a public meeting or exhibit a 
negative attitude toward public officials, and so forth . . . ” , 
and no other action was taken by the Board. From the rec­
ord, it appears any controversy resulting from this inci­
dent soon died down. Except for this minor incident, the 
Department’s evaluation of his work from 1956 through 
1964 indicates satisfactory performance by him, with his 
working satisfactorily with fellow employees and county 
officials with whom his work brought him in contact.

Memorandum Decision of the District Court



11a

In the spring of 1965, however, several of the local county 
officials lodged complaint about Plaintiff with Mr. Lee, a 
representative of the Governor’s office and a member of 
the state legislature. Mr, Lee, in turn, passed these com­
plaints on to officials of the Department, with either the 
suggestion or demand that Plaintiff be transferred out of 
Okaloosa County. An investigation of these complaints im­
mediately resulted through the offices of Mrs. Reardon, 
Director of the Board, and Mrs. Horne, State Personnel 
Director.

Various Okaloosa County officials were interviewed con­
cerning their objections to Mr. London. Each of them re­
sponded to the inquiry, and each, in effect, advised he felt 
the Plaintiff was belligerent, antagonistic and rude, and 
that his attitude made it difficult for them to work with 
him. Each of them also stated under oath that their opinion 
regarding him was not motivated by racial prejudice. One 
of them so interviewed was, himself, the Negro principal 
of a high school; at least two of them who are white, in 
evidence and testimony before this Court, indicated or 
stated they have Negroes working in their offices, at least 
at the present time.

Mrs. Horne interviewed Plaintiff personally in her office 
in Jacksonville, and reached the personal conclusion that 
if Plaintiff acted, in Okaloosa County, as he acted before 
her, he would, indeed, be obnoxious to the local officials. 
She particularly objected to what she felt was his attitude 
that he could do no wrong, and that any criticism of him 
was motivated by race or politics. On the basis of her 
inquiries and interviews, she concluded Plaintiff’s effective­
ness in Okaloosa County as a case worker was impaired, 
that Escambia County was a larger county, and that he 
might be able to work effectively in a new and larger county.

Memorandum Decision of the District Court



12 a

Additional investigation of the complaints concerning 
Mr. London was conducted through Mrs. Reardon’s office. 
Involved in this investigation were Mrs. Reardon, Mr. 
Mahan (Plaintiff’s supervisor), and Miss Stokes, Okaloosa 
County Supervisor of the employees of the Board. An 
informal meeting was held in the latter part of May, 1965, 
to permit Plaintiff an opportunity to give his view of the 
controversy. Present at such meeting were Mrs. Reardon, 
Mr. Mahan, Col. Richardson (the Board Chairman), one 
member of the personnel committee, and the Plaintiff. Com­
plete transcript of this meeting was not made, but a sum­
mary of the meeting was preserved and is in the record 
before the Court. Following that informal meeting, the 
Board met, on June 15, 1965, to consider disposition of the 
matter. The record indicates that while at least one or 
more of the members of the Board, at that meeting, were 
not completely convinced the charges against Plaintiff were 
justified, Mrs. Horne was adamant in her belief he had 
to be transferred in order to preserve the continued effec­
tiveness of the Department’s work in Okaloosa County. It 
also indicates the Board, by a fifteen-to-two vote, approved 
Mrs. Horne’s recommendation that Plaintiff be transferred.

There is evidence in the record that one or more of those 
involved, from the Board’s standpoint, felt that complaints 
of county officials may have been based on racial prejudice, 
but that proof was lacking* that such complaints were, in 
fact, based on racial prejudice.

'Col. Richardson, Chairman of the Board at the time of 
this incident, testified at the hearing before this Court, and 
discussed circumstances surrounding the transfer. Appar­
ently, he believed that the county officials were not com­
pletely justified in their complaints against Plaintiff, but

Memorandum Decision of the District Court



13a

he also felt that Plaintiff had lost his effectiveness as a 
social worker in Okaloosa County because of the feeling of 
the people regarding him. He went so far as to say he 
felt that the basis for transferring him might have been 
not only to insure his future effectiveness as a case worker 
in the Department, but for his personal protection. He 
denied, however, that he was ever under any political pres­
sure to transfer London.

On the appeal to the Council from the transfer, its opin­
ion, rendered on August 22, 1965, contained the finding that 
“Mr. London’s personal effectiveness as a social worker in 
Okaloosa County has been materially impaired to the de­
gree that his ability to carry out the primary duties and 
responsibilities of a social worker in Okaloosa County has 
been greatly diminished.”

The testimony and evidence before the Court fails to 
establish by its greater weight, or preponderance, that 
Plaintiff’s transfer resulted from racial prejudice. That 
there may have been overtones of racial prejudice in the 
complaints against him does not, of course, establish on 
the part of those transferring him motivation of racial 
prejudice, and no such motivation here appears. It seems 
clear from the record that those of the Board, Department 
and Council involved in his transfer were motivated solely 
and simply by consideration of effectiveness and concern 
for the effectiveness and efficiency of the Department’s 
operations, and nothing else.

This Court recognizes the difficulty inherent in attempt­
ing to prove subjective elements of racial prejudice or 
motivation, but this Court finds no basis, in the evidence 
and testimony before it, that the officials involved in the 
transfer were so motivated. To the contrary, it seems clear 
that some of them, at least, were concerned that the com­

Memorandum Decision of the District Court



14a

plaints of Plaintiff’s effectiveness may have been the result 
of racial prejudice on the part of those complaining, and 
that, because they were concerned, they reached, almost 
reluctantly, the conclusion that, for the efficiency and effec­
tiveness of the system, as well as his own effectiveness, he 
must be transferred. And the record does establish that 
his actions engendered, properly or improperly, the com­
plaints against him.

This Court finds and concludes that on the record before 
it, Plaintiff has not carried the burden of proving the 
Board, in transferring Plaintiff was motivated by racial 
prejudice, and that such transfer was in violation of his 
civil rights. In fact, and as evidence to the contrary, the 
record indicates a Negro case worker was by the Board 
hired to replace Plaintiff when he was transferred.

Let this decision be not misunderstood. There is distinct 
impression, from the evidence, that both the county officials 
making complaints and Plaintiff may have borne their race 
like chips upon their shoulders. Such, if true, is less under­
standable in public officials elected to serve and represent 
all of the people of their county than it is in a public em­
ployee the first of his race to be employed in his capacity 
in his county. But it is to be condoned in neither. Because 
of this Court’s holding the Board, Council and their em­
ployees acted without regard for race, this Court need not, 
and does not, give that facet of this case further considera­
tion.

Plaintiff also charges transfer in violation of his First 
Amendment rights of freedom of speech, assembly and 
association. It is uncontradicted the complaints concern­
ing Plaintiff arose both because of his manner and his 
speech while engaged in activities unrelated to his work. 
This Court finds and holds that, even though Plaintiff’s

Memorandum Decision of the District Court



15a

transfer resulted, in large part, from complaints respecting 
such, his transfer did not violate his First Amendment 
rights. Jensen v. Olson, 353 F.2d 825 (8 Cir. 1965), held that 
“ The First Amendment guarantees free speech and assem­
bly, but it does not guarantee Government employ. * * * 
There is no basic right to Government employ, any more 
than there is to employment by any other particular em­
ployer.” Accord, Adler v. Board of Education of The City of 
New York, 342 U.'S. 485 (1952). Plaintiff, as an employee, 
had the duty to comply with the reasonable requirements 
and regulations established by the Department. One of these 
requirements was that employees not engage in community 
controversies that might disrupt the effective perfor­
mance of their duty. Such requirement is reasonable. Here, 
from the record, the Board in good faith believed that 
London’s conduct had adversely affected his effectiveness, 
and impaired the work of the Board. Again, as stated in 
Jenson v. Olson, supra, “When his speech is disruptive of 
the proper functioning of the public’s business the privilege 
of governmental employment may be withdrawn without it 
being said that he was denied his freedom of speech.”

The record here presents a picture of public officials 
concerned about activities of one of their employees and 
complaints against him and in good faith concluding, for 
his own efficiency and that of the Department, he must be 
transferred. That they, or some of them, were concerned 
about the possibility1 of racial overtones in the complaints 
against him bolsters rather than detracts from the conclu­
sion of good faith by them.

Memorandum Decision of the District Court

1 That possibility was present in connection with his Okaloosa 
employment; on the record, complaints regarding his work in 
Escambia County resulted in no wise from racial prejudice.



16a

Presented also is the picture of a public employee who 
pursues, as he has the right to pursue, his constitutional 
rights of freedom of speech, assembly, and association; but 
does so without regard to its effect on his public employ­
ment. He has no right of public employment; where, as 
here, his exercise of his rights reduces and impairs his 
effectiveness and that of his public employer, he is subject 
to good faith transfer or dismissal.

Here, neither the Board nor the Council, on the appeal, 
dismissed the Plaintiff from employment. Instead, they 
transferred him, believing that he might be able to work 
effectively and efficiently in another county. There is simply 
no basis here for holding this transfer to be in violation of 
his First Amendment rights.

Plaintiff also contends the transfer by the Board and the 
Council was arbitrary, capricious and unreasonable. On 
this aspect of the case, a court may not substitute its 
judgment for that of the Board, or the Council. It is not 
the Court’s function to review the wisdom or good judg­
ment of these state officials in the exercise of their discre­
tion in matters of employee transfer or removal. Johnson 
v. Branch, 364 F.2d 177 (4 Cir. 1966). On the record before 
the Court, it is concluded, and the Court finds, the action 
of these state officials in accomplishing Plaintiff’s transfer 
was based on substantial and sufficient evidence, and may 
not be held to be arbitrary, capricious or unreasonable.

Moreover, even assuming, arguendo, his transfer was in 
violation of his First and Fourteenth Amendment rights, 
it would not follow he could now obtain the relief he seeks. 
He did not have to accept the transfer; he could then have 
refused it, and brought court action concerning it. Instead, 
he chose, finally, to accept the transfer and to undertake

Memorandum Decision of the District Court



17a

the performance of Ms duties as case worker in Escambia 
County. Having done so, he was required to perform prop­
erly his employment in Escambia County. If he was prop­
erly dismissed from that employment because of inefficiency 
or other valid reasons, he may not now demand or be given 
reinstatement and back pay on any charge that his initial 
transfer violated any constitutional rights he may have had.

Going now to his employment in Escambia County fol­
lowing his transfer, the record shows he was permanently 
dismissed on March 4, 1966, by action taken by the Board 
at its meeting on February 15, 1966. The reasons for such 
dismissal were stated as follows: “Due to your inefficiency, 
inability, or unwillingess to perform the duties of your 
position in a satisfactory manner, your tardiness and ex­
cessive use of sick leave . . . ”

Plaintiff appealed the dismissal to the Council and a trial 
de novo on the issue of his dismissal was held. The Coun­
cil, by order dated June 24, 1966, sustained the decision of 
the Board in dismissing Plaintiff from his position.

The state officials here involved must be given wide dis­
cretion in exercising their judgment in the dismissal of 
employees, but the exercise of such power cannot be done 
in an arbitrary and unreasonable manner, nor in such a 
way as to infringe on the First Amendment rights of free­
dom of expression and association, nor in a racially dis­
criminatory manner. Johnson v. Branch, supra. I f  none of 
this is shown before this Court, the discretion vested in 
the state officials regarding the dismissal should not be 
disturbed by this Court; it cannot and should not substitute 
its judgment for theirs. Johnson v. Branch, supra. The 
transcript of the proceedings held before the Council May 
27 and 28, 1966, and the written opinion and order of the

Memorandum Decision of the District Court



18a

Council relative to that hearing are before this Court, as 
is the testimony and evidence taken at the trial before this 
court. From the record, this court concludes and finds that 
the findings of the Merit System Council were not arbi­
trary or unreasonable and were based on substantial evi­
dence sufficient to support its conclusions. [In addition, 
this Court holds and finds there was not sufficient evidence 
presented before the Council or before this Court to sub­
stantiate Plaintiff’s allegation that he was dismissed be­
cause of racial prejudice or in violation of his freedoms 
of expression or association.2]

There remains one final contention of Plaintiff—that the 
Council denied him a subpoena duces tecum requiring the 
production of certain documents. In Plaintiff’s post-trial 
brief this contention is not pursued, but it was presented in 
the pleadings and was the subject of testimony at the trial.

The record is not entirely clear. As best this Court can 
determine, Plaintiff, before employing an attorney, made 
a request that certain documents be “ subpoenaed” . His 
request was entirely overbroad. Presumably recognizing 
this, his counsel thereafter by letter made a narrower re­
quest, stating that he wished to “ subpoena” Plaintiff’s case 
load at Unit 6, Pensacola, Florida, and at Unit 14, Crest- 
view, Florida.

It also was overbroad—at the hearing the Council was 
concerned only with the quality of Plaintiff’s work after he

2 There were no racial overtones in the charges before the Coun­
cil at the dismissal hearing. Plaintiff, apparently recognizing such, 
took the position racial prejudice from his Okaloosa County em­
ployment followed him to Escambia County and, in effect, tainted 
the dismissal charges. But the evidence fell far short of establish­
ing such. The Council made its position clear—it was deciding the 
dismissal charges on the quality and character of Plaintiff’s work 
in Escambia County alone, and without any regard to his prior 
employment in Okaloosa County.

Memorandum Decision of the District Court



19a

was transferred to Escambia County. Before it, at the hear­
ing then were the files on only twenty-two of the Escambia 
County cases on which Plaintiff had worked.

Counsel for Plaintiff testified before this Court Plaintiff 
wanted the case load to review before hearing, with his 
request denied because they were privileged. He did not 
place before the Court any other evidence of denial, or 
reason for denial. According to the sworn complaint, signed 
by him and Plaintiff, the application of Plaintiff was not 
denied on that ground. It is not clear, however, on the 
record, whether the allegation in the sworn complaint refers 
to the application by Plaintiff or the later application by 
counsel. Moreover, Florida’s Administrative Act (Ch. 120, 
Florida Statues) contains agency authority for subpoenaes 
and discovery—had Plaintiff wanted them before trial, it 
would appear effort should have been made through an 
attempt by way of pre-trial subpoena duces tecum and 
deposition.

Be that as it may, the request for the entire Escambia 
County case load was overbroad and, respecting those por­
tions of it not brought before the Council, may have been 
privileged.

At the hearing, Plaintiff did complain he had not been 
given opportunity to review the files being then con­
sidered by the Council, but at no time did he ask for 
recess, continuance, or adjournment to afford him oppor­
tunity to review. To the contrary, he testified fully re­
garding the files discussed before the Council—at one 
time he stated “I know these records backwards and for­
ward, these are mine.” The transcript of the hearing- 
before the Council also indicates five files Plaintiff had 
specifically requested were included in the twenty-two 
brought to the hearing.

Memorandum Decision of the District Court



At the trial before this Court, Plaintiff’s testimony re­
specting these files was taken after he had been given 
opportunity to review them. Comparison of his testi­
mony before this Court and before the Council reveals 
striking similarity.

The record before this Court falls far short of estab­
lishing that, before the Council, Plaintiff was deprived 
of opportunity to test, explain or refute the testimony 
before the Council, or that he was not given a full and 
fair hearing. No due process or equal protection viola­
tion is shown, and this contention of Plaintiff fails.

This decision incorporates both findings of fact and 
conclusions of law. On the record before the Court, Plain­
tiff has not carried his burden, and he must be denied 
the requested relief, with this cause being dismissed at 
Plaintiff’s cost. Judgment to that effect will be entered.

Dated this 12th day of May, 1970.

s / W inston  E. A know

Winston E. Arnow 
Chief Judge

Memorandum Decision of the District Court



21a

Final Judgment of District Court

[dated May 12, 1970]

F in a l  J udgment

Pursuant to and in accordance with memorandum de­
cision of this Court filed this day, it is

O rdered and adjudged :

1. Judgment should be and is hereby entered in favor 
of Defendants and against Plaintiff.

2. The relief requested by Plaintiff is denied, and this 
cause is hereby dismissed at Plaintiff’s cost.

D one and ordered this 12th day of May, 1970.

s / 'W in ston  E. A rnow

Winston E. Arnow 
Chief Judge



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