The opinion of the court was delivered by: TENNEY
In this action, Warren R. Grebosz seeks review of an action of the United States Postal Service, affirmed on appeal, discharging him from service as a letter carrier. Both Grebosz and the Government have moved for judgment on the pleadings, Grebosz for reversal of the agency action and the Government for dismissal of the complaint. For the reasons given below, the order of the United States Civil Service Commission ("CSC") affirming Grebosz's discharge is reversed.
On December 2, 1974, Grebosz was arrested and charged with the criminal possession and sale of cocaine. He pleaded guilty to the sale of cocaine and was sentenced to twenty days imprisonment and five years probation. On June 12, 1975, he was arrested and charged with the criminal possession of marijuana, which had been recovered at the time of the first arrest. He pleaded guilty to criminal possession of a controlled substance in the seventh degree, a misdemeanor; he was sentenced to three years probation and fined $ 250.00. The Postal Service subsequently began removal proceedings based upon the two narcotics charges.
In a letter dated February 14, 1977, the Postal Service notified Grebosz of its proposal to remove him based on the convictions described above.
He answered the notice of proposed removal in person on February 15, 1977 and in writing on March 9, 1977. On March 11, 1977 the Postal Service notified Grebosz of its decision to remove him effective March 18, 1977. Plaintiff subsequently appealed the removal decision to the CSC and, on October 31, 1977, after a hearing held on June 16, 1977, the CSC issued an opinion affirming the agency action. On March 23, 1978 Grebosz commenced this action for review of that decision, and the case subsequently assumed its current posture.
After looking to the record to determine whether the Postal Service action was arbitrary, capricious, or unreasonable, the CSC upheld the removal as warranted by the charges. In doing so, it made findings under the criteria set out in 5 C.F.R. § 731.202(c) and additional findings. Given seriatim, those findings under the regulation are summarized as follows:
(1) Grebosz's position as a letter carrier is a sensitive one in that he had daily contact with the public and access to the property of the families on his route.
(2) Grebosz's attorney admitted that the felony sale of cocaine and misdemeanor possession of marijuana are serious offenses, under New York law.
(3) Regarding the circumstances of the conduct, three facts were brought out. First, it occurred in his home during non-working hours, and it did not involve the families on his postal route nor children. Second, although the arrest for possession of marijuana stemmed directly from the arrest for the sale of cocaine, the charges are separate and, accordingly, Grebosz was involved with drugs on two occasions. Third, the quantity of drugs, which has a direct bearing on the seriousness and nature of the crimes, was very small as to the cocaine and substantial as to the marijuana. The amount of cocaine, 0.6 grams, was "enough for one or two people for their own head to get high." Hearing Transcript 62-63 ("Tr."). The marijuana that led to Grebosz's arrest was 31/2 pounds.
(4) The conduct for which Grebosz was removed was not recent; it occurred approximately three years before the removal was proposed. The delay in this case does not relate to any unfairness to Grebosz, but only to the question of the seriousness of the conduct as regarded by the Postal Service.
(5) At the time of the conduct, Grebosz was 25 years old and thus fully responsible for his conduct.
(6) His behavior was influenced by his experiences while serving in the United States Navy off the coast of Vietnam. Drug use among men in Vietnam was a significant problem that was widely publicized.
(7) Grebosz has been rehabilitated since his conduct. He was never in trouble at his job or with the law prior to the conduct in question here, and he has been in no trouble since then. The probation officer involved in Grebosz's case submitted a favorable letter to the Postal Service on the latter's behalf. Further support for a finding that he has been rehabilitated may be found from his work record since his arrests and from his fiscal responsibility. As to the latter, his attorney has stated that Grebosz has promptly paid legal fees and has made voluntary support payments to his ex-wife. Finally, support for this finding may be found in the action of Judge Paul T. D'Amaro, Acting Justice of the ...