The opinion of the court was delivered by: Marovitz, District Judge.
Cross-Motions for Summary Judgment
This is an action by a former probationary employee of the
United States Post Office for reinstatement, damages and
equitable relief. Plaintiff alleges that he was arbitrarily and
illegally discharged by postal officials for exercising
statutory and Constitutional rights, that he was denied due
process because of the refusal of the United States Civil
Service Commission (Commission) to review the merits of the
discharge, and that 5 U.S.C. § 7324, 7326 and 5 C.F.R. §§ 4.1,
4.2, 315.803, 315.806(b), and 713.401 are unconstitutional on
their face and as applied.
Cross-motions for summary judgment have been filed. The basic
historical facts are not in dispute. Effective September 22,
1969, plaintiff became employed as a substitute city carrier
with the United States Post Office Mount Prospect, Illinois.
His status was changed to that of a regular city carrier on
October 6, 1969. On November 14, 1970, plaintiff was informed
by postal officials that his employment was being terminated
Plaintiff contends that his discharge resulted from the fact
that he wore a black cloth arm band to work on November 14,
1970, in order to express his opinions regarding the Viet Nam
War and "Moratorium Day." Defendants contend that plaintiff was
discharged for inefficiency, noting that a job evaluation
report was prepared by plaintiff's supervisor on November 12,
1969, and reflected numerous patron complaints and other
deficiencies. The report concluded with a recommendation that
the plaintiff's employment should be terminated due to his
Plaintiff appealed his discharge to the Commission, Chicago
Regional Office, stating that he believed the true reason for
his discharge was political, specifically the wearing of a
black arm band on November 14, 1969. The Commission's Regional
Director, by letter dated December 31, 1969, advised
plaintiff's attorney that under applicable regulations the
Commission would review any claim by a probationary employee
that he was terminated for "political reasons," but that an
examination of plaintiff's claim did not demonstrate that the
termination resulted from "partisan political reasons." The
Director stated, "Support or opposition to `Moratorium Day'
which was designated by certain private groups is not
considered a partisan political issue within the meaning of the
Civil Service Regulations." Subsequently, plaintiff appealed
this decision which denied plaintiff's claim to the Board of
Appeals and Review of the Civil Service Commission (Board). On
March 18, 1970, the Board affirmed the decision of the Regional
Office. The Board held that the plaintiff's claim did not fall
within the meaning and intent of the applicable regulation,
5 C.F.R. § 315.806, which "deals with partisan political
activity," and so dismissed the appeal for lack of
There is no dispute that "probationary employees are subject
to the summary dismissal procedure described in"
5 C.F.R. § 315.804, Horne v. United States, 419 F.2d 416, 418, 190 Ct.Cl.
145 (1969). That regulation provides for the termination of a
probationer's services by notice to him, which notice indicates
the agency's view of his unsatisfactory performance.
A terminated probationary employee's appeal rights are
governed by 5 C.F.R. § 315.806. To the extent relevant to the
instant case, that section provides that a terminated
probationer may appeal "a termination not required by statute
which he alleges was based on political reasons * * *." C.F.R.
The Commission declined plaintiff's appeals on the ground
that the term "political" as used in Section 806(b)(2), really
means "partisan political." Such a construction is plainly
erroneous. First, an employee who engages in partisan political
activity would violate the Hatch Act, 5 U.S.C. § 7324(a). His
termination would then be required by statute, 5 U.S.C. § 7325.
If the Commission's construction were approved, then Section
806(b)(2) would become inoperative. Under the Commission's
logic, it would only have jurisdiction over partisan political
claims, but it could not consider even those claims since
termination in those situations are required by statute.
However, it is unreasonable to assert review jurisdiction in
cases where termination is statutorily required, but not in
cases where termination is not required. It is precisely in the
latter, not the former, area where review is necessary and can
Moreover, non-partisan political activity is permitted by
statute and regulation. A federal employee is entitled "to
express his opinion on political subjects," 5 U.S.C. § 7324(b),
in a non-campaign situation. The Hatch Act "does not prohibit
political activity in connection with * * * (2) a question
which is not specifically identified with a National or State
political party * *." 5 U.S.C. § 7326. See 5 C.F.R. § 4.1.
Not only is non-partisan political activity permitted, but
termination for political reasons or affiliations is prohibited
by regulation. Except as authorized or required by law (no such
exception being suggested here), "(n)o discrimination shall be
exercised, threatened, or promised * * * against * * * any * *
* applicant * * * because of his * * * political affiliation *
* *." 5 C.F.R. § 4.2. Moreover, "(a)n agency may not * * *
effect the termination of a probationer under Part 315 of this
chapter, (1) for political reasons, except when required by
statute. * * *." 5 C.F.R. § 713.401. This latter regulation
clearly indicates that termination may be effected for partisan
political activities as required by statute, but not for
non-partisan political activities which are permitted by
statutes and regulations. As was stated by the Supreme Court in
United Public Workers of America v. Mitchell, 330 U.S. 75, 100,
67 S.Ct. 556, 570, 91 L.Ed. 754 (1947):
"It is only partisan political activity that is
interdicted. It is active participation in
political management and political campaigns.
Expressions, public or private, on public affairs,
personalities and matters of public interest, not
an objective of party action, are unrestricted by
law so long as the government employee does not
direct his activities toward party success."
Recognizing that an agency's construction of relevant
administrative regulations is entitled to much deference, we
find that the Commission's interpretation of "political" to
mean "partisan political" was plainly erroneous and contrary to
the letter and spirit of the law, both statutory and in the
regulations. See Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct.
792, 13 L.Ed.2d 616
(1965). By so construing the term and refusing to entertain
plaintiff's claim, the Commission failed to substantially
comply with the required procedures for evaluating a claim of
a terminated probationer. See McGhee v. Johnson, 420 F.2d 445,
447 (10th Cir. 1969); Pauley v. United States, 419 F.2d 1061,
1065 (7th Cir. 1969). This failure, in turn, was not harmless,
Citizens to Preserve Overton Park, Inc. v. Volpe, 309 F. Supp. 1189,
1193 (W.D.Tenn. 1970), but, rather, was seriously
prejudicial to plaintiff's interest, N.L.R.B. v. Selwyn Shoe
Mfg. Corp., 428 F.2d 217, 224 (8th Cir. 1970).
Consequently, we find the Commission's decisions in this
matter to be unlawful and set them aside. 5 U.S.C. § 706(2);
Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97, 102
(2d Cir. 1970). The matter will be remanded to the Commission
for consideration on the merits of plaintiff's claim. Except so
far as this Court has found that the Commission ...