Meehan v. Macy
D.C. Cir.
Richard D. MEEHAN, Appellant, v. John W. MACY, Jr., Chairman, et al., Civil Service Commission, et al., Appellees.
Judges
- Before Bazelon, Chief Judge, Edger-ton, Senior Circuit Judge, and Dana-her, Burger, Wright, McGowan, Tamm, Leventhal and Robinson, Circuit Judges, sitting en banc.
- I am authorized to say that Circuit Judges BURGER and TAMM join in this dissent.
- I am authorized to state that Judge DANAHER and Judge BURGER concur in this opinion.
Attorneys
- Mr. Edward L. Merrigan, Washington, D. C., for appellant.
- Mr. Norman Knopf, Attorney, Department of Justice, with whom Asst. Atty. Gen., Edwin L. Weisl, Jr. (at the time the brief was filed), Messrs. David G. Bress, U. S. Atty., and John C. Eldridge, Attorney, Department of Justice, were on the brief, for appellees. Messrs. Frank Q. Nebeker, Scott R. Schoenfeld, Joel M. Finkelstein and Mrs. Ellen Lee Park, Asst. U. S. Attys., also entered appearances for appellees.
majority
On April 18, 1968, a division of this court concluded that the agency which held the hearing on appellant’s proposed discharge was warranted in finding that Charge 1 (conduct unbecoming a police officer) was sustained, but that the record did not contain adequate support for discharge on Charge 2 (failure to obey instructions) or Charge 3 (failure to obtain clearance for publication). The division remanded to the District Court so as to permit agency reconsideration, in view of this court’s ruling, of the sanction to be imposed on appellant.
On August 23,1968, after the Supreme Court decided Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the same division of this court altered its order of remand so as to provide for reconsideration of appellant’s case, on the merits, in light of the Pickering decision, and provision was specifically made for opportunity on remand for the introduction of further evidence.
Appellant had filed a petition for rehearing en banc to request reconsideration of the division’s opinion in the light of Pickering. This court’s granting rehearing en banc, and its order, had the effect of vacating the opinions and orders of the division. After hearing argument en banc, this court is of the view that the result reached in the division’s orders was an appropriate disposition; it accordingly reinstates those orders to the extent that: (1) Charges 2 and 3 are dismissed; (2) Charge 1 is to be reconsidered in light of Pickering; and (3) if Charge 1, so reconsidered, is still found to be validly charged and proved, the penalty assessed is to be reconsidered in view of Charges 2 and 3 being dismissed.
Since proceedings on remand may result in additional evidence of record, and a different order entered by the executive authority, we see no occasion for a decision on the present record as to the implications of Pickering for Meehan.
The Commission may consider this an appropriate time to reconsider its precedents in view of Pickering and to establish general guidelines insofar as that may be feasible.
So ordered.
. Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822 (1968).
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