Beruflich Dokumente
Kultur Dokumente
No. 10-5221
GERALD WALPIN,
APPELLANT
v.
1
Eisen cited the Acting United States Attorney’s referral of
Walpin’s conduct for review and asserted Walpin had been absent
from the CNCS’s headquarters over the objection of the Board,
“exhibited a lack of candor in providing material information to
decision makers” and “engaged in other troubling and inappropriate
conduct.” Mot. to Dismiss, Ex. E.
5
office and therefore did not give rise to a clear right to relief for
violating section 3(b). Walpin remained on administrative
leave, with pay, until July 18, 2009, more than thirty days after
the President’s letters to the Congress, when he was in fact
removed from the payroll. See Aff. of Gerald Walpin ¶ 11 n.1,
Walpin v. Corp. for Nat’l & Cmty. Serv., No. 09-1343 (D.D.C.
Sept. 17, 2009). His status while on leave was much like the
U.S. Postal Service employee’s in Oliver v. U.S. Postal Service,
696 F.2d 1129 (5th Cir. 1983).
The employee in Oliver was given a “Notice of Proposed
Removal” and placed on paid leave for 30 days. He contended
the suspension of his duties violated a provision of the Civil
Service Reform Act of 1978, which requires “at least 30 days’
advance written notice” before taking certain adverse actions,
including “a removal.” 5 U.S.C. §§ 7513(b)(1), 7512(1). The
Fifth Circuit disagreed, declining to “[i]nfer[] a right to remain
on duty during the notice period,” “where none is expressly
provided or need be inferred to effect a protection granted.”
696 F.3d at 1131. So here, IGA section 3(b) provides no right
to continued duty performance but only to deferral of “removal”
until thirty days after notice is given. Accordingly, we cannot
conclude that the statutory language gives rise to the clear duty
or right to relief necessary for mandamus relief. Cf. Swan v.
Clinton, 100 F.3d 973 (D.C. Cir. 1996) (denying mandamus
relief to removed holdover board member not granted statutory
removal protection).
Walpin next contends the President violated his duty under
section 3(b) to communicate “the reasons for . . . removal” in
the thirty-day notice. The President did, however, provide in
the letters to the Congress his reason for removing
Walpin—that the President “no longer” had “the fullest
confidence” in him. This explanation satisfies the minimal
statutory mandate that the President communicate to the
Congress his “reasons” for removal. Section 3(b) imposes no
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2
Walpin did not argue below that he is entitled to a declaratory
judgment in the absence of a right to mandamus relief, see 718 F.
Supp. 2d at 24, and has therefore waived the argument. See Murthy
v. Vilsack, 609 F.3d 460, 465 (D.C. Cir. 2010).