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July 23, 1980

Joseph A. LIGUORI, Plaintiff,
Clifford ALEXANDER, as Secretary of the Army, Lt. General Andrew J. Goodpaster, as Superintendent of the United States Military Academy at West Point, New York, Maj. Henry Glisson, Individually and as Officer in Charge of the Cadet Mess, United States Military Academy at West Point, New York, Arthur Reimers, Individually and as Chief Personnel Officer at the United States Military Academy at West Point, New York, Michael Heller, Individually and as Director of Management-Employee Relations, Office of Civilian Personnel, United States Military Academy at West Point, the Department of the Army, and the United States Civil Service Commission, Defendants

The opinion of the court was delivered by: CARTER

Joseph Liguori, a Cook Foreman at the United States Military Academy at West Point ("USMA") brings this suit to challenge certain personnel actions taken by officials of USMA, the Department of the Army ("DA"), and the United States Civil Service Commission ("CSC") that affected him adversely.

The complaint seeks in four separate counts: (1) judicial review of the finding of a CSC appeals officer that plaintiff's rights were not violated by a reorganization at USMA; (2) review of the refusal of the CSC Appeals and Review Board ("ARB") to reopen and reconsider that determination by the appeals officer; (3) amendment of his personnel records maintained by USMA pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a; and (4) damages from 3 defendants for false and defamatory statements made by them and included in his personnel files.

 Defendants have moved for summary judgment as to the first two claims and for dismissal of the third and fourth claims. For the reasons that follow, these motions are denied.


 Plaintiff was hired in January, 1975, as Superintendent (Food Preparation) of the Cadet Mess at USMA, a position rated at grade level WS-15 in the competitive civil service. In March, 1977, he was notified that his position was to be abolished as a result of a reduction-in-force ("RIF") incident to a reorganization of the Mess and that he could assume a new position as Cook General Foreman, rated as a WS-11 and paying a lower wage than he had formerly received. In this new position, plaintiff would report to one Edward Ramus, a Food Preparation General Foreman, rated WS-12, who had previously been plaintiff's supervisee. The reorganization and the change in plaintiff's position was the culmination of a complex history of USMA management efforts to reorganize the Mess, the details of which need not be recounted here. Suffice it to say that plaintiff had been at least partially aware, before the official notification, that some reallocation of duties would occur. The ultimate outcome of the reorganization as it affected his position, however, was a surprise to him. He interpreted the change in rank as a demotion engineered by certain USMA officials due to malice toward him and in retaliation for changes he had made in the Mess since his arrival. Plaintiff accepted the position of Cook General Foreman under protest.

 On March 15, 1977, plaintiff filed an appeal with the New York Field Office of the Federal Employee Appeals Authority ("FEAA") of the CSC. *fn1" Because the change in plaintiff's position was characterized by USMA officials as the result of a reduction-in-force, CSC determined that no hearing was statutorily required. *fn2" Nevertheless, in its discretion, CSC granted plaintiff a "personal appearance" before an FEAA hearing officer. *fn3" Both plaintiff and USMA submitted various letters and documents to the FEAA prior to the appearance. At the August 17, 1977 appearance plaintiff was accompanied by a co-worker at the Mess; USMA was represented by an attorney and a civilian personnel official. The parties were given an opportunity to explain their positions and to submit documentation. USMA's position was that the change in plaintiff's rank was the necessary result of applying applicable RIF regulations to the constellation of positions existing after the planned reorganization was approved. Plaintiff argued that the RIF had been a guise for his demotion, that he was the only employee adversely affected by the RIF, and that the reorganization which had been effected was not the same as that officially approved by USMA management.

 On October 13, 1977, the FEAA Appeals Officer issued his decision. He found that plaintiff did not contest "the bonafides of the reorganization," that USMA's actions resulted from valid application of the RIF regulations, and that plaintiff's rights under those regulations had not been violated. In regard to plaintiff's claim of a vendetta against him, the Appeals Officer found that the reorganization plan and its results had been approved prior to the time when plaintiff began to have problems with the officer in charge of the Mess, defendant Arthur Reimers.

 In June, 1978, plaintiff sought review of the FEAA decision from the ARB. This request was denied on the ground of untimeliness. *fn4"

 The First and Second Counts

 The complaint alleges in its first count that the FEAA decision was erroneous in that the Appeals Officer failed to consider plaintiff's claim that the alleged RIF was a mere sham to disguise his demotion, and that no RIF had in fact occurred. The second count alleges that the ARB denial of review was arbitrary and capricious. Defendants' summary judgment motion, treating these two claims as identical, contends that the FEAA decision must be upheld on the basis of the administrative record, and that judicial review is limited to deciding whether the CSC decision was arbitrary, capricious, or otherwise not in accordance with the law. They argue at length that the substantial evidence standard is inapplicable, because the "personal appearance" was not a hearing required by law. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971).

 I do not reach the question whether the CSC decisions met the applicable standard of judicial review, however, because the administrative record supplied by defendants is unreviewable under any standard.

 A district court reviewing the decision of an agency is confined to an examination of the record that was before the administrator and on which he based his decision. See Schicke v. Romney, 474 F.2d 309 (2d Cir. 1973). In this case, however, the court cannot determine what record was before the FEAA. The decision of the Appeals Officer does not list the evidence he considered or relied on to reach his decision. *fn5" Obviously, he considered the testimony adduced at the personal appearance, as well as documents submitted by the parties in advance. But it is unclear what those documents were. Defendants' memorandum in support of the motion (hereinafter Defendants' Memo) states that the record before the officer consisted of 4 letters submitted by the parties as well as "various other letters, memoranda and other materials. . . ." (Defendants' Memo at 6). Defendants identify the pages in the administrative record at which these letters begin, but not where they end. (Defendants' Memo at 5-6). In addition, some of the letters refer to enclosures but the enclosures do not seem to follow the letters in identifiable order. The "various other materials" submitted by the plaintiff are not identified. The transcript of the appearance also includes vague references to documents discussed at the hearing and circulated among the parties and the Appeals Officer, e.g., Tr. at 6, 7, 9-15, 20, 23, 29-30, 33, but these documents are not identified for the court.

 Moreover, the transcript of the appearance is, in large part, incoherent. Sentences appear with significant omissions. E.g., Tr. at 3 ("The rest personnel anybody could ......promoted."); Tr. at 62 ("Even Col. Silvers and my . . . grievance.") Other sentences are sheer nonsense. E.g., Tr. at 25 ("They said that the Department of Research took ransom?"); Tr. at 54 ("We stated in the format that Mr. Liguori job description in reduction in force was over a towel.") Key persons in the dispute are referred to by various names and spellings so that it is unclear who was being discussed. For example, two key characters in the dispute, Reimers and Ramus, are both referred to as "Rames," or "Ramis." E.g., Tr. at 39, 40, 52, 61, 63, 65, 68, 70. Other references to a "Ryan," Tr. at 41, and a "Riners," Tr. at 57, may refer to Reimers or Ramus or a third individual. Finally, the administrative record is totally unorganized. It consists of some 974 pages of material which seems to include documents submitted to the FEAA, to the ARB, and others whose relevance to the proceedings is unclear. These documents are not indexed or chronologically ordered.

 Due to the incoherence of the transcript and the disorganization of the record, it is impossible to determine exactly what evidence was before the FEAA Appeals Officer when he made his decision, or whether the record provides any support for his findings. Therefore, defendants' summary judgment motion must be denied without prejudice to its renewal on a clarified record. Defendants may file their motion again after they have submitted a record which clearly separates, orders, and identifies the evidence before the FEAA Appeals Officer, and the separate evidence submitted to the ARB. The documents before the FEAA should be separated into material submitted in advance, and material submitted at the hearing. Each document that refers to enclosures should have those enclosures marked and attached ...

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