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DONOVAN v. UNITED STATES

March 4, 1969

Donald E. DONOVAN, Plaintiff,
v.
UNITED STATES of America, Alan S. Boyd, Individually and as Secretary of Transportation of the United States of America, David D. Thomas, Individually and as Acting Administrator, Federal Aviation Administration, Defendants



The opinion of the court was delivered by: GASCH

 GASCH, District Judge.

 This matter was heard on cross motions for summary judgment on plaintiff's complaint for a declaratory judgment and mandatory judgment ordering the Secretary of Transportation to reinstate plaintiff in his position as General Business Industry Officer, GS-13, in the Federal Aviation Administration and for back pay. There are no material facts in dispute. *fn1"

 On September 25, 1967, plaintiff was hired under a career conditional appointment as a General Business Industry Officer of the Federal Aviation Administration. The appointment was subject to a one year probationary period. Plaintiff's duties during this period involved the drafting of guidelines and procedures for the supervision of Concessionaires at the Capital Airports. During his first three weeks on the job, he was assigned to rewrite the ponderous Federal Aviation Procurement Manual. Plaintiff states in his affidavit that he was given approximately one hour's instruction on the operation of the Concessionaires at the Capital Airports and none at all on the style or content of government reports.

 Plaintiff's superior, David Davenport, was absent from the office for 89 days between September 25, 1967, and July 26, 1968. Mr. Davenport did, however, recommend that the plaintiff be enrolled in the official Federal Aviation writing course. The recommendation was denied and no other training recommendations were made. On April 17, 1968, plaintiff's superiors expressed dissatisfaction with his work product and indicated they doubted he possessed the requisite writing skills for the position. They held two conferences with the plaintiff ostensibly to discuss his performance and to suggest means of improvement. Excerpts from the formal memoranda of these conferences, written by plaintiff's editors, are revealing.

 The memorandum of the April 17, 1968, meeting relates the following discussion of plaintiff's writing ability:

 
"He [the plaintiff] felt that the matter had been 'blown up out of proportion,' although he was not able to explain too well as to what, specifically, he meant by this. Mr. Ormsbee stated that in his own view the matter was quite serious and had not been blown up out of proportion. Mr. Donovan attributed some of his evident problems to lack of communication by Mr. Davenport with him."

 In a memorandum dated April 24, 1968, describing a meeting held the previous day, Mr. David Davenport states:

 
"He failed to provide for a quarterly inspection other than one that consolidated the bi-weekly findings, thereby eliminating any surveillance other than that of a walk-through nature with no analyses of performance made, statements submitted, insurance expiration, submission of capital improvements costs and other matters of importance that require more time and study than week-to-week surveillance indicated. In addition, there was no procedure established for the follow-up of deficiencies noted and reports."
 
"Mr. Donovan, at this point indicated he could see what I meant regarding clarity and detail. I stated that I had started to re-do this procedure and would turn over to him my recommendations as far as I had progressed for him to study and complete the procedure relative to contract surveillance."

 In July, 1968, plaintiff's supervisors reported that he "lacks the ability to plan, develop, and express himself in sufficient depth, detail and completeness to develop procedures to be followed by others and to evaluate their performance." The Chief of the financial management staff advised plaintiff on July 5, 1968, that he would be separated from his position on July 26, 1968.

 There is no dispute over the procedural propriety of his dismissal after this point. Rather, plaintiff argues that the agency failed initially to follow its regulations providing for the supervision and training of employees and that in denying him these rights, it acted capriciously and arbitrarily. The decision of his superiors to discharge rather than to train him, he argues, was not lawful for the reason that it was in violation of the agency's regulations. The Court agrees.

 The FAA, pursuant to executive direction and congressional authorization has established an elaborate network of procedures for the supervision and training of its personnel. *fn2" 49 U.S.C. § 1354(d) empowers the agency "to conduct a school or schools for the purpose of training employees of the agency." 5 U.S.C. § 41 provides ...


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