297 F2d 434 O'Leary v. W Macy

297 F.2d 434

Joseph O'LEARY, Appellant
John W. MACY, Jr., Chairman, et al., Appellees.

No. 15717.

United States Court of Appeals District of Columbia Circuit.

Submitted November 1, 1961.

Decided November 16, 1961.

Petition for Rehearing En Banc Denied En Banc January 2, 1962.

Mr. Joseph O'Leary, appellant pro se, submitted on the brief.

Messrs. David C. Acheson, U. S. Atty., Charles T. Duncan, Principal Asst. U. S. Atty., Harold D. Rhynedance, Jr., and John R. Schmertz, Jr., Asst. U. S. Attys., submitted on the brief for appellees. Mr. Arnold T. Aikens, Asst. U. S. Atty., also entered an appearance for appellees. Mr. Oliver Gasch, U. S. Atty., at the time the record was filed and Mr. Carl W. Belcher, Asst. U. S. Atty., at the time the record was filed, also entered appearances for appellees.

Before FAHY, DANAHER and BURGER, Circuit Judges.


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The appellant, a non-veteran, was a career-conditional appointee in the Bureau of Aeronautics, Department of the Navy, at Akron, Ohio.1 The appointment was subject to Civil Service Commission investigation to determine appellant's suitability for appointment in the competitive service in accordance with appropriate regulations.2


After such investigation the Commission found that appellant failed to meet the proper standards of suitability for a competitive civil service appointment.3 His appointment was therefore disapproved, his removal from the service was directed, and he was barred for one year from employment in the competitive civil service and from competition in civil service examinations.4 The basis for the Commission's action was traceable primarily to appellant's drinking habits.


Appellant thereafter pursued his administrative remedies before the Commission. These being unsuccessful he sued in the District Court for reinstatement to his former position or to a position of comparable grade and tenure, and for related relief. The District Court, Judge McGarraghy sitting, granted summary judgment in favor of appellees, who were the Chairman and Members of the Civil Service Commission, and the Secretary of the Navy. The Judge explained his ruling in a memorandum from which we quote as follows:


"Upon consideration of all of the pleadings and exhibits, and the several memoranda and points and authorities in support of and in opposition to the motions, the Court is of the opinion that the administrative determination of which the plaintiff complains was in substantial compliance with the applicable procedures under valid regulations; that such action followed opportunity to the plaintiff for administrative review by way of appeal which was exercised by the plaintiff and no showing is made of an abuse of executive discretion by the Civil Service Commission. * * *"


We agree with this analysis of the situation, and accordingly the judgment is





5 C.F.R. § 2.301(a) (1961)

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5 C.F.R. § 2.107 (1961)


5 C.F.R. § 2.106 (1961)


5 C.F.R. § 2.106(b) (1961)