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July 26, 1978

Joseph YACOVONE, Plaintiff,
Benjamin F. BAILAR et al., Defendants

The opinion of the court was delivered by: RICHEY



 Plaintiff Yavocone was employed by the defendant, United States Postal Service, as Postmaster of Morrisville, Vermont, from October 1968 until November 1975. Beginning in about 1973, plaintiff continually suffered from a depressive psychiatric condition. On April 20, 1975, plaintiff was arrested for shoplifting approximately ten dollars worth of food from a supermarket. After initially pleading not guilty to the charge, the plaintiff changed his plea to guilty. He claims that he changed his plea because he did not want to subject himself to confinement at the state hospital for thirty days of observation. This was the consequence, he was informed, of a plea of not guilty by reason of insanity. Based on his plea, the plaintiff was convicted, given a ninety-day suspended sentence and placed on probation.

 Thereafter, defendant informed plaintiff by letter that he would be separated from the Service "because of your conviction for a crime for which a ninety (90) day suspended sentence was imposed." Plaintiff was subsequently removed from his position. Three days prior to the oral hearing on his appeal, the Governor of the State of Vermont granted plaintiff a "Full and Unconditional Pardon." Plaintiff's appeal was unsuccessful, though he presented substantial testimony indicating that his actions had been the product of mental illness, from which he had completely recovered. Plaintiff further appealed to the Civil Service Commission Appeals Review Board (ARB) to reopen the earlier decision on the grounds that the officer below had misinterpreted the law respecting the effect of the pardon and that the removal decision was contrary to regulations and without any consideration of fairness or justice. The ARB reopened the case, but affirmed the removal decision, finding that

. . . While the State of Vermont may have forgiven appellant to the extent of a full pardon, this does not vitiate the agency's removal action or bind the Field Office.

 Having exhausted all his administrative remedies, the plaintiff seeks relief from this Court.


 Plaintiff brought this suit seeking judicial review of the defendants' removal of plaintiff from his position. As such, the scope of this Court's review is limited to the administrative record for a determination of whether the removal was arbitrary and capricious. *fn2" Haneke v. Secretary of Health, Education, and Welfare, 175 U.S.App.D.C. 329, 337, 535 F.2d 1291, 1299 (1976); Polcover v. Secretary of Treasury, 155 U.S.App.D.C. 338, 340, 477 F.2d 1223, 1225, Cert. denied, 414 U.S. 1001, 94 S. Ct. 356, 38 L. Ed. 2d 237 (1973). If, upon review of the administrative record, the removal decision is not found to be arbitrary and capricious, the agency's action must be affirmed. See Leefer v. Administrator, National Aeronautics and Space Administration, 177 U.S.App.D.C. 62, 66, 543 F.2d 209, 213 (1976); Gueory v. Hampton, 167 U.S.App.D.C. 1, 4, 510 F.2d 1222, 1225 (1974).

  Specifically, plaintiff argues that the agency failed to establish that the removal of plaintiff will "promote the efficiency of the service," within the meaning of 5 U.S.C. ยง 7512(a) *fn3" This has been interpreted to require the agency to establish a "rational basis" for its conclusion that the discharge will promote the efficiency of the service. Norton v. Macy, 135 U.S.App.D.C. 214, 217-18, 417 F.2d 1161, 1164-65 (1969). Plaintiff therefore argues that the mere fact of conviction is insufficient to establish this "rational basis" requirement because of the subsequent pardon.

 Defendants argue that the case of Gueory v. Hampton, 167 U.S.App.D.C. 1, 510 F.2d 1222 (1974), is controlling. There, the Court rejected the requirement that the agency must establish a rational basis when the person removed had been convicted; the conviction itself, in essence, established the rational basis. Because plaintiff herein has been convicted of shoplifting, the defendants assert that no further nexus between the plaintiff and the promotion of the efficiency of the service need be shown. The Court disagrees.

 The Court has carefully examined the entire administrative record and finds that, except for the fact of conviction, there is no evidence that the removal of plaintiff will promote the efficiency of the service. The evidence presented indicated that, aside from the conviction, there were no other complaints made against the plaintiff; *fn4" that the only inefficiency resulting from the removal of plaintiff was that plaintiff's replacement could not handle the responsibility; *fn5" and that the conviction did not affect plaintiff's reputation for honesty nor his integrity. *fn6" In fact, the evidence established that the plaintiff's conviction was a product of his mental illness *fn7" and that plaintiff had "completely recovered and (was) doing extremely well both in his home and his work situation." *fn8" Consequently, the basic issue before this Court is whether a person's conviction, though later fully pardoned, can itself provide a rational basis for removing that person without the agency demonstrating that the removal of this particular person will promote the efficiency of the service.

 Subchapter S3 of Chapter 752-1 of the Federal Personnel Manual Supplement, recognizing that an agency taking adverse action against an employee must show that such action will promote the efficiency of the service, states that:

simply having an identifiable cause is not sufficient to warrant adverse action. In addition, the action must be "for such cause as will promote the efficiency of the service." A just and substantial cause is necessary for an adverse action and The ...

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