443 F2d 899 Brown v. F Hirst

443 F.2d 899

Floyd P. BROWN, Jr., Appellant,
v.
Julian F. HIRST, individually and as City Manager, City of
Roanoke, Virginia, Appellee.

No. 71-1291.

United States Court of Appeals, Fourth Circuit.

June 8, 1971.

Kurt Berggren, John M. Levy, Roanoke, Va., Gerald G. Poindexter, Richmond, Va., on brief for appellant.

James M. Kincanon, City Atty., H. Ben. Jones, Jr., Edward A. Natt, Robert P. Geary, Asst. City Attys., for appellee.

Before BOREMAN, BRYAN and WINTER, Circuit Judges.

PER CURIAM:

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1

Appellee moved to dismiss this appeal for lack of jurisdiction and for failure to state a claim upon which relief can be granted. Appellant filed a response to the motion to dismiss, declined to discuss the merits of the appeal and instead indicated that he preferred to discuss these questions in his brief, which was scheduled to be filed on May 10, 1971. We determined to suspend consideration of the matters presented pending the filing of appellant's brief. The brief was filed on May 10, 1971.

2

Having considered appellee's motion to dismiss the appeal, appellant's response to the motion and appellant's brief, we conclude that this case is controlled by our decision in Hodgin v. Noland, 435 F.2d 859 (4 Cir. 1970). Appellant worked for the City of Roanoke, and the city charter gives appellee, as the city manager, the 'power to discipline and remove' any city employee. Thus, as in Hodgin, the appellant in the instant case was employed at the will and pleasure of the city and thus was subject to dismissal so long as it was not in retribution for an exercise of some constitutionally protected right. The district court, 322 F.Supp. 236 was clearly correct in relying upon Hodgin in dismissing appellant's complaint for failure to state a claim upon which relief could be granted.

3

We dispense with oral argument, the judgment below is affirmed and the appeal is dismissed.