Appeal from the United States District Court for the Northern District of Illinois. No. 76-C-4576 - Thomas R. McMillen, Judge.
Before Fairchild, Chief Judge, Castle, Senior Circuit Judge, and Swygert, Circuit Judge.
The issue in this appeal is whether plaintiff was properly discharged from his position as an auditor for the Internal Revenue Service (IRS). The district court upheld the discharge. We affirm.
On June 30, 1975, plaintiff Neil Ringquist received notice from the IRS of a proposed action to discharge him for making false statements in his audit reports. The notice listed seventeen specifications which detailed deductions on various tax returns which plaintiff had listed as verified or substantiated but for which inadequate or no documentation existed. All of the specifications concerned tax returns completed by a tax preparer who, as plaintiff was aware, was under investigation for possible tax fraud. Plaintiff responded to the notice by written answer and affidavits claiming his statements were true according to his view of the proper technical definitions and auditing techniques and that he relied upon representations made to him by the tax preparer. On September 22, 1975 the agency sustained fourteen of the seventeen specifications and Ringquist was removed from his position. On October 2, 1975, plaintiff appealed the IRS discharge to the United States Civil Service Commission which, after a hearing, upheld the agency action. Following the refusal of the Civil Service Commission Appeals Review Board to reopen the case, Ringquist brought suit in the federal district court seeking reinstatement and back pay. The district court granted defendants' motion for summary judgment. This appeal followed.
We must first address the issue raised as to the appropriate standard of review. In government employee discharge cases, the scope of review usually is limited to insuring that the proper procedures were followed and that the discharge was not arbitrary and capricious. Pauley v. United States, 419 F.2d 1061, 1065 (7th Cir. 1969). Normally, an agency discharge decision is not arbitrary or capricious where the record shows a "rational basis" for the action. Young v. Hampton, 568 F.2d 1253, 1257 (7th Cir. 1977); Wroblaski v. Hampton, 528 F.2d 852, 853 (7th Cir. 1976); Wood v. United States Post Office Department, 472 F.2d 96, 99 (7th Cir.), Cert. denied, 412 U.S. 939, 93 S. Ct. 2775, 37 L. Ed. 2d 399 (1973). However, in this case, plaintiff argues that the more demanding "substantial evidence" standard is mandated. As a basis for the claim, plaintiff states that he is a "preference eligible employee" under 5 U.S.C. § 7511 and, consequently, is entitled to appeal any "adverse action"*fn1 by an agency to the United States Civil Service Commission. 5 U.S.C. § 7701. Accordingly, Ringquist contends that since a termination hearing is "required by statute," 5 U.S.C. § 554, a reviewing court should set aside the agency action if it finds that the action is "unsupported by substantial evidence." 5 U.S.C. § 706(2)(E).
At first glance, there is some attractiveness to plaintiff's theory. In Wroblaski v. Hampton, supra at 853 n.1, this court noted that one reason for applying the rational basis standard over the substantial evidence standard was that § 706(2)(E) did not apply where an agency hearing was not required by statute. However, as pointed out in Wood v. United States Post Office Department, supra at 99 n.3, § 554(a)(2) exempts employee tenure decisions from the operation of §§ 556 and 557 and, therefore, from the substantial evidence standard of § 706(2)(E). In this context, § 7701 apparently was designed merely to give nonprobationary employees the right to have adverse actions reviewed by the Civil Service Commission and was not intended to trigger, ultimately, the provisions of § 706(2)(E). We therefore adhere to the standard enunciated in our prior decisions: reinstatement of a government employee will be ordered only where the discharge is not supportable on any rational basis.*fn2 Pauley v. United States, supra at 1066. See also Brown v. Zuckert, 349 F.2d 461, 463 (7th Cir. 1965), Cert. denied, 382 U.S. 998, 86 S. Ct. 588, 15 L. Ed. 2d 486 (1966) (discharge of veterans' preference eligible).
Following this standard of review, we must initially determine if the required procedures have been followed. Appellant does not appear to argue that he was denied the procedures required by the applicable statutes and regulations: notice of the reasons for the proposed adverse action by the agency; a reasonable opportunity to answer; notice of the actual adverse action; and an appeal to the Civil Service Commission. § 7512(b); § 7701; 5 C.F.R., Part 752B. Rather, his procedural arguments apparently are directed toward challenging the constitutional validity of using taxpayer affidavits in support of the charge and denying him access to the full investigative reports on the returns in question.
First, plaintiff argues that the government's use of seventeen taxpayer affidavits before the Commission to support the specifications against him violated his due process rights of confrontation and cross-examination. We note at the outset that the due process clause is flexible and requires only "such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). As stated in Arnett v. Kennedy, 416 U.S. 134, 157, 163, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974), the post-dismissal administrative procedures followed in government employee discharge cases are generally sufficient to protect the employee's interest in not having his reputation injured by a wrongful discharge and these do not require strictly applied rules of evidence.*fn3 While we agree with plaintiff that careful adherence to proper procedures is especially warranted where a government employee is charged with making false statements, See Board of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972), we find that goal was accomplished here. The Code of Federal Regulations provides for statements of witnesses to be by affidavit whenever practicable. 5 C.F.R. § 772.305(a). Reading that provision together with the right of cross-examination guaranteed in § 772.307(c)(3) shows that the regulations contemplate cross-examination of those witnesses who are actually called, rather than forcing all affiants to appear for cross-examination.*fn4 Under the circumstances of this case, we do not feel this procedure constituted a deprivation of due process.
Affiants were taxpayers and the Commission is not authorized to subpoena nonemployee witnesses. 5 C.F.R. § 772.307(c)(2). Also, although the reliability of the taxpayer affidavits was questioned by plaintiff, the affidavits do not contradict Ringquist's explanation of the audit discrepancies.*fn5 Plaintiff's theory of defense is that although the taxpayers did not have the documents to support the deductions which plaintiff found to be technically "verified," he innocently received the necessary verification from the tax preparer. (Appellant's brief at 22.) Thus, it was unnecessary for plaintiff, in this case, to test the reliability of the affiants by cross-examination.*fn6 In light of these facts, the cases cited by plaintiff are distinguishable. McNeill v. Butz, 480 F.2d 314, 317 (4th Cir. 1973) (no affidavits from unknown government informers); Hanifan v. United States, 354 F.2d 358, 363-64, 173 Ct.Cl. 1053 (1965) (affiants were agency employees); Henley v. United States, 379 F. Supp. 1044, 1052 (M.D.Pa.1974) (written statements permissible but lacking "rational probative force").
Plaintiff's second due process argument is that he was denied access to certain portions of relevant investigative reports. These reports apparently related to the tax returns in question and were part of the total investigation of the target tax preparer. 5 C.F.R. § 752.202(a)(2) states that the employee should be provided documents and investigative reports relied on to support the reasons given for the adverse action. As noted by the district court, the government certified by letter that plaintiff had received all material upon which his discharge was based. (Mem.Op. at 3.) It is not a violation of due process to withhold those portions of ...