Nevin v. Hepner, Appellant, v. District of Columbia, Appellee, 351 F.2d 203 (D.C. Cir. 1965)

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U.S. Court of Appeals for the District of Columbia Circuit - 351 F.2d 203 (D.C. Cir. 1965) Argued August 11, 1965
Decided September 8, 1965

Mr. Edward L. Merrigan, Washington, D. C., for appellant.

Mr. Richard W. Barton, Asst. Corp. Counsel for District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and BURGER and TAMM, Circuit Judges.


Appellant, a Revenue Officer in the District of Columbia Government, was dismissed by the Board of Commissioners on the basis of a finding that he had falsified his 1957 District income tax return. He appeals from the District Court's summary affirmance of the dismissal.

Although the Commissioners had before them the report of the Central Grievance Committee concerning Appellant's removal from office, the record does not make clear whether they considered, in relation to its impact on his pension rights, the Committee's recommendation that Appellant be employed in some capacity other than in the assessment and collection of taxes. The Commissioners stated that they were not adopting this recommendation because they believed Appellant "had the right to apply for any vacant position for which he may be qualified and eligible." Since Appellant was then 59 years of age and nearing retirement the likelihood of his securing a new appointment was rather remote. While the recommendations of the Grievance Committee are not binding, we are unable to read this record as showing that the recommendation received adequate consideration in relation to the unlikelihood of a new and independant appointment which would enable Appellant to complete the few years needed to become eligible for retirement benefits. In light of this we do not reach the question whether in all the circumstances the action of the Board of Commissioners was arbitrary and capricious.

The record will be remanded to the District Court for entry of an order returning the record to the Board of Commissioners to reconsider, in light of the Committee's recommendation, their decision not to transfer Appellant to another position. Jurisdiction will continue in this Court pending final disposition. If Appellant is transferred to another position as recommended by the Committee, a motion to dismiss the appeal will be entertained.

Reversed and remanded for further proceedings.