Petition — Rifkin v. United States

Supreme Court brief1977

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IN THE

Supreme Court of the Uni IR., CLERK

OCTOBER TERM, 1976

No. 16 ‘927

HAROLD S. RIFKIN,

Petitioner,

THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

HAROLD S. RIFKIN, Pro Se

CMR Box 3787

APO New York, New York 09057

LAR SE PSC

THE CASILLAS PRESS, INC.~1717 K Street. N. W.—Weshington, D. C.-223-1220

(i)

TABLE OF CONTENTS

Page

SE, od ao AE eR eS he ag gs l

PRELIMINARY STATEMENT AS TOTIMELINESS .. . 2

GENERAL HISTORY OF THECASE ........ 2

CIRCUMSTANCES OF THECASE........ . 3

Appendix A - Timeliness Position . . . . ......, la

Appendix B — Letter dated November 8, 1976, from

Clerk of Supreme Court denying exten-

sion of time for filing Petition for Writ

46 ea oS 6s a Se

Application for Extension of Time Within

Which To File Petition for Writ of Cer-

Ee er ee ee

Appendix C — Opinion of the United States Court of

Claims, Decided April 14,1976 . . . . . . ~~ Ta

Appendix C — Opinion of the United States Court of

Claims, Filed July 2,1976 . ... .. =. 34a

Appendix D — Order of the United States Court of Claims

Filed May 19, 1976, denying rehearing . . . I14a

(ii)

TABLE OF AUTHORITES

Statutes:

5 U.S.C. 5731

18 U.S.C, 287, 1001

18 U.S.C. 1018

28 U.S.C. 2514

Veterans Preference Act of 1944, 58 Stat. 390. as amended

August 4, 1947, 61 Stat. 723, 5 U.S.C. 863 (1964 ed.)

Regulations:

Department of the Army Civilian Regulations:

CPR C2.1-6a .

CPR C2.4-2a(1) . \ ee

ae eee ee ee ee

CPR E2.5, dated 22 June 1962, Paragraph 5-8c

CPR E2.7. dated 22 June 1962, Paragraph 7.1a

CPR S1.2, Paragraph 1-2(b), Change 7 —

CPR S1.3, 25 May 1962, Paragraph 3-10.a, Change 2 .

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

HAROLD S. RIFKIN,

Petitioner,

THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

INTRODUCTION

This is a Petition for a Writ of Certiorari addressed to

The United States Supreme Court. The petitioner is Harold

S. Rifkin, a United States citizen. The petition urges re-

view and reversal of The Decision of The United States

Court of Claims, dated April 14, 1976, in the Case of

Plaintiff vs. The United States Court of Claims, Docket

Number 437-70, which reversed a decision of The Trial

Judge of The United States Court of Claims dated July

2, 1975, which decision was favorable to plaintiff. The

petitioner is not an attorney but is presenting this peti-

tion Pro Se, as he has not the funds required to retain

a competent attorney.

Plaintiff further seeks all rights and entitlements granted

him by the Court of Claims Trial Judge or any other relief

this Honorable Court may deem appropriate in the premises.

PRELIMINARY STATEMENT AS TO TIMELINESS

Appellant’s petition to The United States Supreme Court

For Writ of Certiorari was not filed within the period estab-

lished by rules of The United States Supreme Court.

It was physically impossible, due to conditions beyond

his control, for appellant to file a timely Petition For Writ

of Certiorari with The United States Supreme Court or, in

lieu thereof, to timely file a Petition for Extension of Time

in which to file a Petition For Writ of Certiorari. Appel-

lant was not negligent and acted with all available diligence.

GENERAL HISTORY OF THE CASE

1. Appellant terminated from his Civil Service position.

Appellant took administrative grievance appeal.

3. Grievance Examiner, after hearing testimony, decided

in full for appellant.

4. Command refused to follow Grievance Examiner’s

finding and recommendation after an improper, secret re-

ceipt of ex parte letters.

5. Appellant filed action in United States Court of

Claims.

6. Court of Claims Judge, after hearing testimony, study-

ing evidence, and evaluating arguments, decided in full for

appellant.

7. United States government appealed decision to United

States Court of Claims Appellate Division.

8. United States Court of Claims Appellate Court re-

versed Trial Judge’s decision.

9. Appellant now appeals to United States Supreme

Court.

CIRCUMSTANCES OF THE CASE

1. The Trial Judge of the Court of Claims in his opin-

ion, filed July 2, 1975, stated:

“CONCLUSION OF LAW”

Upon the foregoing findings of fact and opinion,

which are adopted by the court and made a part

of the judgment herein, the court concludes as a

matter of law that plaintiff is entitled to judgment

ordering his restoration to his former position in

the Department of the Army or to an equivalent

position in grade GS-12, and that plaintiff is en-

titled to back pay from April 13, 1965, until the

date of such restoration to duty with the excep

tion of the period from June 8, 1968 to Decem-

ber 8, 1970.

IT IS THEREFORE ORDERED, pursuant to 28

U.S.C. § 1491 and Rule 147(c), that the Secre-

tary of the Army be and he is hereby directed

to reinstate plaintiff to the position he formerly

held or an equivalent position at the same grade.

IT IS FURTHER ORDERED, that the amount

of recovery due plaintiff will be determined in

further proceedings pursuant to Rule 131(c).”

In its decision of April 14, 1976, the court adopted

only so much of the Trial Judge’s opinion as pertained to

plaintiff's recovery of salary for the period of April 13,

1965 to August 30, 1965, the period during which plain-

tiff was wrongfully denied duty status, although this period

should properly have terminated on September 17, 1965,

the date on which plaintiff was actually separated. Rule

147(b) of the Court of Claims states:

“Trial Judge’s Report: The court may adopt the

trial judge's report, including conclusions of fact

and law, or may modify it, or reject it in whole

or in part. or direct the trial judge to receive fur-

ther evidence, or refer the case back to him with

instructions. Due regard shall be given to the

circumstance that the trial judge had the oppor-

tunity to evaluate the credibility of the witnesses;

and the findings of fact made by the trial judge

Shall be presumed to be correct.”’ (Emphasis sup-

plied).

It is the belief of plaintiff that this last portion of the

rule was disregarded to the detriment of plaintiff’s rights

and resuJted in the further errors alleged by plaintiff.

2. The decision of April 14, 1976, stated, pages 17

and 18:

“In addition the trial judge relied (as showing

abuse of discretion) on (a) testimony by offi-

cials at the immediate level of comimand that

plaintiff's motivation was the higher prestige of

being considered and treated as a GS-13, not

the desire to defraud the United States out of

the $351 extra cost of first-class transportation

on the vessel; (b) testimony that these first-

level officials deliberately put out of their minds

as inappropriate considerations, their personal

evaluations of ‘intent or human frailties, sym-

pathy, or compassion’; and (c) the evidence that

these same first-level officials mistakenly thought

that they had a choice only between a minimal

punishment (such as suspension for no more than

30 days) and the ultimate sanction of removal.

After setting aside, on these grounds, the pe-

nalty of removal imposed by the Department,

the trial judge held, ‘On an overall view of the

_ evidence in the record and in light of the perma-

nent adverse effect that plaintiff's single transgres-

sion has already had on what was up to then a

promising career, that a suspension without pay

in excess of 2% years would be unduly harsh and

an abuse of discretion.

We do not agree with this evaluation and analy-

sis and conclude, on the contrary, that the record

does not show an abuse of discretion by the De-

partment of the Army.

In the first place we think the trial judge’s ap-

proach slights the cardinal fact that the ultimate

decision was made by the office of the Secretary

of the Army. It is that decision we are review-

ing, not the first or second level determinations

made in Europe. And there is no convincing evi-

dence that the Secretarial level was under the

same misapprehensions as the first-level officers

who testified at the trial and on whose evidence

the trial judge rests so heavily... .”

Justice and equity must require that a more reasonable

interpretation be taken, than that demonstrated by the court,

in the above statement, because:

a. The decision by the office of the Secretary of the

Army to sustain the decision to remove plaintiff could not

have been made had Colonel Larsen not made the original

decision for removal. The trial judge consistently pointed

out that Colonel Larsen was not aware of the procedures

or even the regulations governing penalties when he made

his decision. Had the original decision been for a lesser

penalty, as it would no doubt have been had Colonel Lar-

sen studied and understood the regulations and procedures:

considered the mitigating circumstances he finally admitted

to during the trial proceedings; and exercised the informed

discretion required of him by Department of the Army Ci-

vilian Regulations, CPR C2.1-6a and C2.4-2a.(1), the pe-

nalty would no doubt have been accepted by plaintiff, or

if appealed, could not have been increased by the office of

the Secretary of the Army. The Secretarial level decision

was based on his subordinates’ decision. A Fortiori, if the

subordinates’ decision was wrong, his could only be wrong.

Actually, there was no evidence whatever that the Secre-

tarial level was not under the same, admitted, misapprehen-

sions of the first-level officers.

b. Even more vitally, the Court’s decision points out

(page 19) that the Employment Policy & Grievance Review

Board asked for ‘a comprehensive report with respect to

the basis for — equity of decision in appellant’s case when

compared to certain similar cases involving military person-

nel —.” The Bord was never told that what has been am-

ply demonstrated by the record in the Court of Claims, the

actions of Colonel Larsen in the removal of plaintiff demon-

strated bias and were arbitrary, capricious and contrary to

the expressed Department of the Army policy of equal treat-

ment under the law, as admitted on the witness stand at the

trial hearing when he testified:

“He told that he would put in papers to get out

of the Army if I gave him nonjudicial punishment.

Based on that I did give him nenjudicial punish-

ment under Article 15.” (p. 184, Transcript of

Testimony, lines 11-14); “anyway, the higher head-

quarters in Orleans in reviewing my decision re-

duced the fine to $300, although I had fined him

$800. McBreen at the same time, within a very

few days, put in to get out of the Army; and he

was out of the Army in very short order. But he

did end up getting a pension.” (p. 185, lines 2-7);

and “‘n.y testimony that I realize we use different

standards to punish wrongdoing within the mili-

tary as contrasted to within the Civil Service was

based on my belief (which | still hold) that punish-

ment of the military is typically more severe than

punishment within the Civil Service.” (p. 4, De-

fendant’s Exhibit 29)

These actions and statements are contradicted by his action

in removing plaintiff from the Federal Service, who had over

23 years of service, without offering to plaintiff the oppor-

tunity to resign, retire or otherwise voluntarily leave the em-

ployment of the U.S. Army Procurement Center or the De-

partment of the Army, in exchange for accepting a lesser

punishment, as he did in the case of Major McBreen.

In the name of justice, and on this point alone, how can

the court’s decision that a fair anc impartial review at Sec-

retarial level, corrected or neyated all defects occurring at

the lower levels of the administrative hearing process be al-

lowed to stand? d. The court completely disregarded the findings of the

trial judge, after his examination of the witnesses and ex-

amining the record, that the review at the Secretarial level

judge rests so heavily, were not witnesses for the plaintiff, did not correct, but rather repeated the defects at the lo-

but were, in fact, witnesses for the government, called by wer levels when he stated: (Trial Judge’s opinion, pages

counsel for the defendant, and his associate counsel (from 17-24)

and impartial in the administration of justice and equity,

can impute to the defendant, a defense he does not claim

for himself, to the detriment of plaintiff.

c. The witnesses, upon whom the court says the trial

the Litigation Division, Office of the Judge Advocate Gen-

eral, Department of the Army). At no time, either through

any brief, or through witnesses or oral argument at either

the trial or the appellate hearing, did counsel for the de-

fendant ever offer the defense, nor could he, in good con-

science, that all defects in the entire administrative hear-

ing process were corrected by the review at Secretarial le-

vel. Had counsel for the defendant desired to avail himself

of this defense, nothing precluded his calling personnel con-

nected with that review, as witnesses for the defendant, at

the trial, and the record bears out the fact that he did not

do so. If he had, plaintiff would have been able to estab-

lish through cross examination, that the hearing and review

at the Secretarial level was no more fair, than the decision

of Colonel Larsen to remove, or the decision of the Com-

mander-in-Chief, US Army Europe (CINC-USAREUR), to

overrule his own Hearing Examiner and sustain the remo-

val decision of Colonel Larsen.

Counsel for the defendant constantly advanced the de-

fense, that the review at Secretarial level was as fair and

impartial as the review at the two lower levels in Europe.

Both, the court and the trial judge established that the de-

cision and review at the lower level were defective. Plain-

tiff cannot see how the court, which is supposed to be fair

“The record in this case establishes that the com-

manding officer who imposed the penalty of dis-

charge was under a misapprehension of material

fact which was conveyed to and was accepted by

his superiors at every level of review. Through-

out the proceedings beginning with the decision

of Colonel Larsen runs the theme that plaintiff

had deliberately attempted to and did defraud

the United States Government out of money or

moneys worth and therefore he could not be

trusted in his important position in connection

with the disbursement of large sums of money.

Major General Kyser in his ex parte communica-

tion of July 2, 1965, to the Commander in Chief,

Europe, urging that the grievance examiner’s recom-

mendations be overruled did so on the grounds

that plaintiff having committed “fraud against the

United States” his sense of propriety was incon-

sistent with his fiduciary responsibilities, and that

“retention of an employee who is known to have

committed a fraud against the United States”

would unfavorably affect the integrity of others.

Both the Commander in Chief, Europe and the

Secretary of the Army, as well as the boards

which assisted them accepted Colonel Larsen’s

characterization that plaintiff had used the altered

documents to defraud the United States. No doc-

ument in the record shows that any of them gave

any express consideration to either agree or dis-

agree with the question raised by the grievance

examiner in her opinion when she noted that “there

is no regulation which states that Mr. Rifkin was

not, even as a GS-12, precluded from first class ac-

commodatiéns” and that the $351 would have

been considered an acceptable Government cost

on another sailing date.

Title 5 U.S.C. § 5731 provides that the allowance

for transportation expense for government em-

ployees, generally ““may not exceed the lowest

first-class rate by the transportation facility used.”

The Standardized Government Travel Regulations

issued by the Executive Office of the President,

Bureau of Budget, pursuant to statutory authority

in effect during 1965, provides:

3.6 Accommodations on trains, steamers, and air-

planes.

b. Steamer accommodations.

(1) Staterooms. — The minimum first-class ac-

commodation will be allowed when stateroom is

included in cost of passage or is a separate charge,

- - - The travel order or other administrative deter-

mination may, however, specify the use of an ac-

commodation less costly than the minimum first-

class accommodations when suitable for a particu-

lar voyage. - - -

The Department of the Army’s Travel Regulations

(CPR T3) state at paragraph 1-2, that the Gov-

ernment Travel Regulations permit the exercise of

administrative discretion by the Secretary of the

Army, and therefore, where such administrative

authority has been exercised in the regulations to

prescribe less than the legal minimum, the regula-

tions are the controlling authority.” But none of

the Civilian Travel Regulations produced by defend-

ant states less than first-class travel has been pre-

scribed for GS-12 employees and that they are not

entitled to the lowest first-class steamer accommo-

dations such as were booked by the MSTS officer

on the SS United States for others. Nor did plain-

tiff *’s travel authorization limit plaintiff to less

than the lowest first-class steamer accommodations

to which he was entitled under the Standardized

Government Travel Regulations.

The undisputed testimony was that there was no

fixed dividing line between grades entitled to first

class and grades entitled only to lesser accommo-

dations, - - - Thus, it appears that assignment of

preferred accommodations in order of rank or grade

was merely an orderly method of allocation to

suit the requirements of a particular day’s reserva-

tions. Accordingly, while plaintiff's use of an al-

tered travel authorization falsifying his grade was

unquestionably an improper act designed to ob-

tain unwarranted advantage over others, it does

not necessarily follow, as Colonel Larsen assumed

and his superiors accepted, that it was designed

to or in fact did defraud the United States out

of money or moneys worth to which under no

circumstances was the plaintiff entitled.

At the time the removal was effected neither Col-

onel McKee nor Colonel Larsen accurately under-

stood the process by which the transportation com-

mand assigned accomodations. - - - Both of these

men, therefore, regarded plaintiff's action as an at-

tempt by him to obtain something to which he

would never have been entitled without the falsi-

fied order. Both perceived the falsification to be

a deliberate attempt to defraud the Government.

When the actual process was called to the atten-

tion of Colonel McKee and Colonel Larsen at the

trial, and it was explained that the cut off varied

from trip to trip, both men admitted this affected

their perception of the seriousness of the offense.

Colonel McKee testified, “It would certainly have

removed one element of the culpability, in my

opinion.” Colonel Larsen testified, “It is a miti-

gating circumstance, yes sir.”

The record also discloses that despite the reason

given in their removal notice those responsible for

that decision did not in fact believe that plain-

tiffs falsification of his grade was motivated by

desire to detraud the United States, but disre-

garded their own evaluation because of a lack of

comprehension as to the nature and scope of

their discretionary function with respect to met-

ing out penalties. At the time of the incident,

tion in the falsification was a desire for prestige

(“to be a big shot”); he had no doubt that plain-

tiff would never steal a dime from the Army. He

conveyed this appraisal to Colonel Larsen, who,

as a newcomer, sought the advice of others on his

staff. Colonel Larsen admitted that he had no

reason to differ with Major Murphy’s appraisal;

several others on his staff had concurred with this

view of plaintiff's basic honesty in his duties but

desire for prestige. Colonel Larsen, however, also

relied on Major Murphy’s legal advice that while

as a layman he could accept such appraisal of

plaintiff, his motivation and his basic honesty, as

a matter of law he was required to disregard such

considerations in imposing punishment.

While a false statement is in itself an offense jus-

tifying punishment, it is not necessarily of the

same order of gravity as an attempt to defraud

or cheat the United States. Cf Urbina v. United

States, 180 Ct. Cl. 194, 218-19 (1967). Yet this

was the essence of the removal notice and was re-

peated at every level of review (other than by the

grievance examiner) as the reason for affirming

the removal.3

For the foregoing reasons the decision removing

plaintiff represents an abuse of Discretion and can-

not stand.”

3 The extent of plaintiff's fiduciary responsibilities was also grossly

exaggerated and reiterated at every level o1 review. His function was

primarily accounting. He neither handled nor exercised any discretion

with respect to the disbursement of funds.

Major Murphy, the Procurement Judge Advocate,

had known plaintiff for almost three years. Ma-

jor Murphy was convinced that plaintiff's motiva-

It is difficult to reconcile the opinion of the court, that the

hearing at Secretarial level cured all defects at the lower levels

when the opinion of the trial judge referred to this review

four times in the above excerpt as accepting (three times)

and repeating (once) the defects charged by the trial judge,

to Colonel Larsen, thereby leading to his conclusion that

the decision “‘represents an abuse of discretion and cannot

stand.”

e. The court in its determination that the review at the

Secretarial level was fair and impartial and corrected all de-

fects contained in the actions at the lower levels in Europe,

failed to take into account that this level, just as the others,

failed to take into account the failure to comply with the

Department’s own regulations, which state:

“Change 7, CPR S1.2, paragraph 1-2 (b), dated

16 February 1961, titled “Job Protection Require-

ments.”

Principles

b. The requirements reflect the principles that

the employee shall have a full notice of the rea-

sons for a proposed action; adequate time and op-

portunity to explain why the action should not be

taken; and a notice of final decision explaining the

reasons for the decision. In applying these princi-

ples, the following will be observed:

(1) It will be noted that the procedures require

meticulous attention to detail in terms of spe-

cifity of notice, duration of the notice period,

and the contents of the final decision. In the

event of a grievance, an appeal, or a request

for judicial review, the failure to observe these

A A A

procedural requirements will result in a rever-

sal, notwithstanding the fact that the action

may have been warranted.

(2) Upon review to determine the merits of a par-

ticular adverse action, the action must stand

or fall on the basis of the contents of the

advance notice. - - - -.”

Change 2, CPR s1.3, 25 May 1962, Paragraph

3-10.a:

“Suspension” is a temporary nonpay status and

absence from duty ‘or a specific continuous period

required by the appointing officer for any reason

other than lack of work or a shortage of funds.

IN ADDITION, THIS INCLUDES THE PLACING

OF AN EMPLOYEE ON ENFORCED ANNUAL

LEAVE UNDER CERTAIN CIRCUMSTANCES

WHICH ARE TANTAMOUNT TO SUSPENSIONS

(5S) BELOW. - - - (5) IN A PERSONAL, DISCI-

PLINARY TYPE SITUATION, THE PLACING

OF AN EMPLOYEE ON LEAVE WITHOUT HIS

CONSENT WHEN HE IS READY, WILLING AND

ABLE TO WORK CONSTITUTES A SUSPENSION.

CPR E2.5, dated 22 June 1962, Paragraph 5-8c;

Special Provisions for Overseas Employees:

If the employee files an appeal and requests au-

thority to remain in the Command, the instal-

lation will extend the notice period and inform

the employee that he will be retained at the

installation in a duty status pending the hear-

ing and final disposition of the appeal at the

major command level ... The employee may

also be permitted to remain at the installation

in an annuai leave or leave without pay status

PROVIDED THE SUBMISSION OF A WRIT-

TEN REQUEST FOR SUCH LEAVE IS A

COMPLETELY VOLUNTARY ACTION ON

THE PART OF THE EMPLOYEE. Enforced

annual leave will not be directed by the instal-

lation for the purpose of removing the em-

ployee from a duty status.

CPR E2.7. dated 22 June 1962, Paragraph 7.1a:

The basic intent of these grievance and appeal

procedures is to insure that the employee’s

point of view has received full and objective

consideration and that such consideration has

resulted in an equitable decision. In keeping

with this intent, it is essential that all decisions,

at any level, be based upon facts which are de-

veloped during the grievance and appeal process;

be fully responsive to the employee’s allegations,

questions, or expressions of dissatisfaction; and

where the decision is adverse to the employee,

contain a full and understandable explanation

of the decision. Each decision will be accom-

panied by a copy of those portions of the

grievance or appeals record which do not con-

tain classified defense information and which

have not previously been made available to the

employee.”

Since the court concedes that the defects charged by plain-

tiff, and found to be factual, by the trial judge, actually

occurred at the lower levels, the failure of the review at

the Secretarial level to acknowledge these procedural errors

and order a reversal, on that basis alone, should invalidate

the court’s finding that the Secretarial level review removed

all defects.

Paragraph 2-1.b.(2), continues in the same vein, stating

upon review to determine the merits of a particular adverse

action, the action must stand or fall on the basis of the

contents of the advance notice. There was no mention in

the advance notice of any action which transpired in New

_York. Despite this, a major procedural error occurred when

this point was raised first at the grievance hearing and sec-

ond, in the 2 March 1966, ex parte letter, signed by Bri-

gadier General Warner, in the name of the CINC-USAREUR,

and addressed to Department of the Army, ATTN: Griev-

ance Branch, designed to convince the Secretary to uphold

the CINC-USAREUR’s decision. This use of charges, not

included in the advance notice, was brought to the atten-

tion of the Department of the Army, in a letter from plain-

tiffs then counsel, dated 22 August 1966, commenting on

the three ex parte documents, furnished plaintiff. The fail-

ure to reverse the decision, on this serious procedural error

casts serious doubt on the impartiality and fairness of the

Secretarial level review. This same incident was brought up

repeatedly by counsel for the defendant, all through the

record of the proceedings in the Court of Claims. The ma-

jor argument advanced by counsel for defendant, at the ap-

pellate hearing on the trial judge’s opinion, on February 5,

1976, was a reiteration of this event, not included in the

advance notice.

Paragraph 2-1.b.(2), continued in the same vein, stating

appeal or request for judicial. review, the failure to observe

procedural requirements will result in a reversal, notwith-

standing the fact that the action may have been warranted.

Both, paragraph 5-8c, CPR E2.5 and Change 2, paragraph

3-10.a, CPR S1-3 state that enforced leave, or the placing

of an employee on leave, without his consent when he is

ready, willing, and able to work constitutes a Suspension.

Both, the trial judge, and the court found plaintiff's con-

tention that he was illegally suspended, during the period

his appeal was pending at Hq. USAREUR and awarded him

back pay for this period (although the period was errone-

ously terminated on 30 August 1965, and not on 17 Sep-

tember 1965, the actual date of separation, because of trans-

mission of CINC’s decision to plaintiff through channels).

Failure of the review at Secretarial level to admit this ma-

jor procedural error and order a reversal substantiates once

more that this review did not correct the defects, occurring

at the lower level, as maintained by the court.

Paragraph 7-1.a, CPR E2.7, dated 22 June 1962 specific-

ally requires that a copy of all documents, not containing

classified defense information, considered during the griev-

ance or appeal review, will be furnished the employee. Fail-

ure to furnish plaintiff with these ex parte documents, ne-

gated any claim that the Secretarial level review was fair,

impartial, or corrected any procedural errors, but did, in

fact, add to them. This is borne out by the fact that:

a. During the review at CINC-USAREUR level the fol-

lowing listed six ex parte documents, were considered in

arriving at the decision. Not only were these six documents

not furnished to plaintiff along with the CINC-USAREUR

decision, as required by the regulation, but documents num-

ber 1, 2, 4 and 6 were never made known to plaintiff un-

til February 1972, almost seven years later, when they were

submitted to the Court of Claims, by counsel for defendant,

as part of his lists of Defendant’s Exhibits. Documents 3

and 5 were furnished to plaintiff's counsel for comment, on

28 July 1966, eleven months subsequent to the CINC’s de-

cision, and then only after John F. Griner, National Presi-

dent of the American Federation of Government Employees

(AFL-CIO) requested that any ex parte evidence be furnished

plaintiff. These six documents were:

1. Memorandum For Record, 20 May i%65, by ap-

pointing Officer. (DX 1)

2. Memorandum 24 June 1965, Civilian Personnel Offi-

cer, USACOMZEUR thru Staff Judge Advocate, to Command-

ing General, COMZ, and Comment 2, thereto from Staff

Judge Advocate. (DX 2)

3. Letter CG, USACOMZEUR to CINC-USAREUR,

dated 2 July 1965. (DX 3)

4. Letter Order 7-7, Hq. USAERUR dated 15 July

1965. (DX 4)

5. Memorandum 27 July 1965, Review Panel to CINC-

USAREUR. (DX 4)

6. Memorandum 16 August 1965, Deputy Chief of Staff,

Personnel & Administration to CINC-USAREUR. (DX 5)

Not only did the Secretarial level review fail, once again,

as required by its own regulation, to order a reversal of the

decision because of these additional procedural errors, but

it compounded its failure by again withholding from plain-

tiff four more ex parte documents. Of these four docu-

ments listed below, documents number |, 2 and 4 were not

made available to plaintiff until six years later, when they

were submitted as exhibits for the defendant, by defend-

ant’s counsel. Document No. 3 was made available to plain-

tiffs counsel in response to letter from AFGE referred to

above:

1. Message to CINC-USAREUR from Department of the

Army cited in CINC-USAREUR message to USACOMZEUR,

17 February 1966, requesting additional data. (DX 11)

2. CINC-USAREUR message to Dept. of the Army, 25

February 1966. (DX 12)

3. Letter, Hq. USAREUR, signed by Brig. Gen. Warner,

2 March 1966. (DX 12)

4. Memorandum for Record, 12 July 1966, Office of

the Under Secretary of the Army, Employment Policy and

Grievance Review Staff, signed by Mrs. Ella V. Bode.

(DX 15)

The strongest demonstration, that the Secretarial level re-

view was not fair and impartial, but demonstrated that it

made no attempt to comply with its own regulations, oc-

curred when after being challenged by Mr. Griner, on its

condoning the use of ex parte evidence, went through the

motions of making this material available for review by fur-

nishing plaintiff and his counsel three (3) of ten (10) docu-

ments, implying that this was the sum total of such docu-

ments. This demonstrates wanton disregard of the rights

of the appellant, whose case they were supposedly review-

ing in a fair and impartial manner. |

f. A most significant procedural error occurred at both

the appointing officer level, USAREUR level and Secretarial

level reviews, in that the removal of plaintiff was patently

inconsistent with paragraph 4-2.a.(1), CPR 2.4, dated 5

February 1964, which states:

- “(1) The action taken must be consistent with

the precept of like penalties for like offenses, with

due consideration for mitigating or aggravating cir-

cumstances in each case. The penalty should be

. —

A Os Oe PES: OS. ES

fair, equitable and no more severe than that which

sound judgement indicates is required to correct

the situation and maintain discipline.”

That the appointing officer, Colonel Larsen was not con-

cerned that the penalty administered to plaintiff ‘“‘must be

consistent with the precept of like penalties for like offen-

ses” or that “the penalty should be fair and equitable’’, was

evidenced by his testimony, as discussed in paragraph 2b,

above and in the excerpt of the trial judge’s opinion cited

in paragraph 2d, above. In considering the precept “‘of like

penalties for like offenses’’, four (4) other cases in the

USAREUR area must be considered. The first two involve

Major McBreen and another Civil Service employee in the

appointing authority’s own organization, the U.S. Army Pro-

curement Center, Frankfurt; the third case is that of the Ci-

vilian Personnel Officer who certified that the appointing

officer’s “Notice of Decision” “meets the regulatory and

procedural requirements of DA CPR S1” even though it

contained an improper suspension (see paragraph 2 e above);

and the fourth case involves a Civil Service employee (Dep-

uty Comptroller), in Berlin Command, which is a major ele-

ment under the CINC-USAREUR.

Case No. |: Major McBreen, a Contracting Officer at the

Procurement Center, falsified a travel voucher (18 U.S.C.

1018) and presented a fraudulent request for payment (18

U.S.C. 287, 1001). In exchange for a promise to immedi-

ately apply for relief from active duty, and retirement, was

recommended for Nonjudicial Punishment, under Article 15,

by Colonel Larsen. The $800 fine recommended by Colonel

Larsen was reduced by Major General Kyser to $300. This

case was discussed in paragraph 2b, above.

Case No. 2: Mr. Kammons, a Contracting Officer’s Rep-

resentative, a GS-11 Civil Service Employee, at the Procure-

ment Center, admitted that he falsified a Travel Claim. On

the face of the travel voucher filed by Mr. Kammons appears

the following statement, above the signature block: ‘‘Fraudu-

lent Claim — Falsification of an item in an expense account

works a forfeiture of the claim (28 U.S.C. 2514) and may

result in a fine of not more than $10,000 or imprisonment

for not more than 5 years or both (18 U.S.C. 287): id. 1001).”

For this serious “‘on duty” offense Mr. Kammons was given

a two day suspension, by Colonel Larsen, the same appoint-

ing officer who removed plaintiff.

Case No. 3: Mr. James H. Rowe, Sr., a GS-14 Civil Service

employee, was the Civilian Personnel Officer, Headquarters

Taunus District, in Frankfurt, and as such was also the Civil-

ian Personnel Officer for the Procurement Center. The Offi-

cers of Local 2348, Greater Frankfurt Local, American fed-

eration of Government Employees (AFL-CIO) filed charges

that Mr. Rowe had falsified his qualifications for employment

and promotion by claiming ninety four hours of college credit

from a Business School, which not only gives no college credit,

but which claimed that he only attended two very short

courses. Was Mr. Rowe removed or suspended during the

investigation? Certainly not. He was allowed to remain in

his highly sensitive position, except during the period he was

allowed to go on “Home Leave.”

When the charges were proved, was Mr. Rowe, the GS-14

Civilian Personnel Officer separated for this very serious “on

Duty” offense? No, he was given a reprimand, allowed to

volunteer for a one grade reduction to GS-13, and trans-

ferred to a position of lesser responsibility. (See pages 4-

9, 15-16, and 44-45, DX 20).

Case No. 4: This involves another Civil Service em-

ployee, the Deputy Comptroller, Berlin Command, Mr. Ma-

resco. This individual in a position almost identical to that

of plaintiff, admitted an “ton Duty”’ offense which not only

involved fraud against the U.S. Government, but a serious

violation of U.S. Customs Regulations. Mr. Maresco fraudu-

lently shipped to the United States from Berlin, on the tra-

vel orders of a military member of Berlin Command, per-

sonal property purporting to be the property of this Major,

knowing full well that it was his property. Further, Mr.

Maresco caused the Army Engineers to build a special crate

for the shipment of this property. Despite these very seri-

ous offenses, committed “on Duty’’, with premeditation,

and despite the position of responsibility he held, Mr. Ma-

resco was not separated, but was given a reprimand and a

short suspension.

Colonel Larsen, the appointing authority, Major General

Kyser, and Brigadier General Warner kept stressing that

punishment of plaintiff must be severe, not because of the

offense committed, but because of the position occupied.

This is a concept contrary to the true precepts of U.S. jus-

tice and contrary to the Civil Service Commission and De-

partmert of the Army policy of “‘like punishment for like

offenses’, with no mention of the grade occupied by the

offender. Where is this equality of punishment when:

A Contracting Officer, Major McBreen, signing contracts

and obligating the government to pay millions of dollars

annually, files a fraudulent travel claim and receives a repri-

mand, a fine of $300, and is permitted to retire, on a life

time pension, and accept employment with one of the firms

with whom he was contracting.

A Contracting Officer’s Representative, Mr. Kammons,

handling multi-million dollar contracts — falsified a travel

claim — and received a two-day suspension.

A Civilian Personnel Officer, Mr. Rowe, administering the

recruitment, hiring, grading and administration of approxi-

mately 20,000 civilian employees and thus the obligation of

millions of dollars annually — falsified his qualification rec-

ord for employment and promotion — and received a repri-

mand and was allowed to volunteer for a one grade reduction,

from GS-14 to GS-13, with only a minimal cut in salary.

A Deputy Comptroller, Mr. Maresco, occupying a posi-

tion of similar responsibility to that of plaintiff — fraudu-

lently shipped personal property on the travel orders of a

military member, violating customs regulations, as well, and

received a reprimand and a short suspension.

Plaintiff, Mr. Rifkin, committed an “off duty or leave

free status’ offense, unrelated to the duties of his position,

which was not infamous or notorious, and resulted in a no

loss to the government, and despite being a disabled veteran

with over 23 years honorable service — was separated.

Plaintiff agrees to the power of the appointing authority

to remove for cause, but only when this will result in fair

and equal treatment. Where was this policy when plaintiff's

appeal was being reviewed? Each of the first three cases,

discussed above, was brought to the attention of the pur-

portedly “fair and impartial” Secretarial level review board.

In the case of Major McBreen, because of information with-

held or erroneously reported, they concluded that:

“The attorney’s representations to the effect that

appelant had no opportunity to question ihe Com-

manding Officer, USAPCF concerning the affair of

Major “B’’ and was thus deprived of his right to

cross-examine witnesses against him are deemed un-

timely and without merit. The board did not con-

sider the admitted infractions of appellant and Ma-

jor “B” in the light of their respective positions of

trust and dissimilarity circumstances to be of such

comparable nature as to require similar penalties.

The Board therefore found that such additional

information concerning Major “‘B’s” activities as

might allegedly be developed during cross exami-

nation would not have provided a basis for change

in the Board’s earlier recommendation in the mat-

ter. Accordingly, lack of opportunity to cross-ex-

amine on this issue was not prejudicial to the ap-

pellant.”” (Paragraph 6b, Supplemental Report of

the Employment Policy and Grievance Review Staff,

Department of the Army, 17 November 1966. This

document was never seen by plaintiff, until it was

offered into evidence at the trial hearing, on 29

August 1974, as part of DX 32)

Review of paragra»h 2b, above, establishes how wrong

the decision by the Review Board was in this instance.

The case of Mr. Kammons was also referred to this board

and the record fails to disclose that they ever discussed or

evaluated this case, or answered plaintiff on this question.

When the case of Mr. Rowe was raised with this same

board their answer was that since Mr. Rowe had never

filed a grievance appeal with the Department of the Army

there was no basis on which they could consider the equal-

ity or inequality of treatment between Mr. Rowe and plain-

tiff. This is a fair and impartial review?

3. Plaintiff has rights that are derived generally from

Section 14 of the Veterans’ Preference Act of 1944, 58 Stat.

Par. 390, as amended August 4, 1947, 61 Stat. Par. 723 5

U.S.C. Par. 863 (1964 ed.), the current revision of which

appears in 5 U.S.C. Par. 7512. This provides that discharge

and other adverse actions against preference eligible em-

ployees may not be taken except “for such cause as will

promote the efficiency of the service.”

That separation of plaintiff did not promote the efficiency

of the service was established in the depositions admitted at

the Trial Hearing, which stated in part:

“To say that the dismissal of Rifkin enhanced the

operation of the Agency or that it enured to the

benefit of the service is a misstatement in military

history. My opinion is that Mr. Rifkin was the

most capable, loyal and industrious comptroller

this agency had, including his successors up to

the present time.” (Mr. Louis L. Haupt, Asst.

General Counsel, U.S. Army Procurement Agency)

“As one of the principal executives of that Agency,

I had daily contact with Mr. Rifkin on both oper-

ational and policy matters. I believe it is worthy

to note that no one assigned similar tasks after

Mr. Rifkin’s dismissal achieved a similar level of

performance or effectiveness.” and “Mr. Rifkin,

in my opinion, possessed all of the qualifications

and qualities to perform as a Comptroller at even

a higher level than the position he held in the or-

ganization at the time of his dismissal. He was

particularly well skilled in dealing with matters of

budget and personnel which were essential during

those very critical days of budget constraints and

entrenchment, and had the ability to carry the

organization through such very difficult times through

his skills and knowledge of how to cope with these

severe limitations that were imposed on us.” (Ed-

ward J. Bennett, Special Assistant to the Comman-

der, U.S. Army Procurement Agency)

“Definitely not. Harold Rifkin conducted, as I said

in my earlier statement, a shop with efficiency and

capability, to the extent that there were great bene-

fits from his service in the coordinating of the obli-

gations of funds relating to all contracts. This

was a tremendous job when you think in terms

of comptroller serving all of Europe, as well as

the entire military command in Germany. Imme-

diately after his dismissal his good service was no

longer there. There were various comptrollers

that came in and out since his removal in 1965,

but at no time have the comptroller activities

reached the efficiency and cooperation and coor-

dination that was available to the military, the

procurement agency, and the civilians at the cen-

ter. There was constant confusion and reports

were late. Liquidations were not up-to-date.

There was constant reshuffling of the activities

of the comptroller due to the constant turnover

of personnel and dissatisfaction in the shop. I

can definitely state that his removal was without

question a detriment to the Procurement Agency

and the Federal service as a whole.” (Peter Tri-

veri, Supervisory Contract Specialist, U.S. Army

Procurement Agency)

Nowhere in the Court’s decision is the question of the

removal of the plaintiff promoting the efficiency of the serv-

ice addressed.

For the reasons hereinbefore submitted it is petitioned that

appellant be granted the relief he secks.

Respectfully submitted,

Harold F. Rifkin, Pro se

CMR Box 3787

APO New York, New York 09057

I hereby certify that I have this day made service upon

the Solicitor General, Department of Justice, Washington, D.C.

20530 by mailing him a copy of this application at the

United States Air Force Post Office at Frankfurt/M, Ger-

many, APO New York 09057.

Harold S. Rifkin

Garten Strase 2b

6114 Gross Umstadt

Germany.

APPENDIX A

IN THE UNITED STATES SUPREME COURT

* * * * *

TIMELINESS POSITION

Plaintiff, who is not an attorney, acting Pro Se, without

a copy of the rules of the U.S. Supreme Court, and conval-

escing from open heart surgery, attempted to file this peti-

tion for a Writ of Certiorari, with what he believed to be

due diligence, and within the prescribed time limit. The

Court of Claims Decision of April 14, 1976, which contrary

to the Trial Judge’s opinion of July 2, 1975, was unfav-

orable to plaintiff, was issued while plaintiff was undergoing

tests for a heart condition at the "!.S. Army Hospital, Land-

stuhl, Germany. This decision did not reach plaintiff until

May I1, 1976.

Although ill, at that time, and preparing to leave for Lon-

don, England for open heart surgery, to be performed in less

than one week, and unable to check any legal references,

plaintiff did prepare and mail on May 14, 1976 a Motion

for Rehearing. This motion for a rehearing was denied by

an order, signed by Judge Davis on June 25, 1976. Because

of the double coronary artery bypass surgery performed on

May 22, 1976, at the Harley Street Clinic, London, England

by Donald Ross, F.R.C.S., and a period of convalescence in

the hospital, at a London hotel under medical supervision,

and at plaintiff's home in Germany, plaintiff did not ac-

tually receive this order until August 11, 1976. Plaintiff,

believing that he could count the ninety day period for fil-

ing this petitioin as commencing to run from the date of

actual receipt of the order, as he had done in the Court of

Claims, was of the opinion that this period expired on No-

vember 8, 1976.

On November 5, 1976, an application for an extension of

time (appendage 2), within which to file a petition for Writ

of Certiorari, was filed with the Clerk of the U.S. Supreme

Court, stating that plaintiff was still under a directed period

of convalescence from heart surgery, during which only a

gradual resumption of work would be attempted. Plaintiff,

still not feeling mentally or physically up to performing and

presenting a competent appeal, requested a sixty day exten-

sion of time, from November 8th, which would have been

ninety days after plaintiff had received the June 25, 1976,

order.

This application was returned to plaintiff, by letter from

the Clerk of the Court, dated November 8, 1976, stating that

the normal time for filing having passed, no request for ex-

tension of time could be accepted or granted. Plaintiff was

further advised that he should file his petition for a Writ of

Certiorari, and that the Clerk would submit it to the Court,

with a comment on its untimeliness. |

Appellant respectfully requests, for the reasons submitted,

the Court to accept and consider this petition, solely on its

merits, in the interests of justice and fair play.

Harold S. Rifkin

APPENDIX B

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

November 8, 1976

Mr. Harold S. Rifkin

CMR Box 3787

APO New York, New York 09057

Re: Harold S. Rifkin v. United States

Dear Mr. Rifkin:

I am returning your application for extension

of time to you. This Court cannot grant an extension

of time once the time for filing nas expired.

If you still desire to file a petition ‘or

writ of certiorari or to docket an appeal, you m ,

do so and your petition or appeal will be docketed

and sent to Court with a notation as to its untimeliness.

Very truly yours,

MICHAEL RODAK, JR., Clerk

— Aiaucer} Lab

Francis J. Lorson

Deputy Clerk

Enc.

Appendix B Page 2

IN THE

SUPREME COURT OF THE UNITED STATES

. * * * *

United States Court of Claims

No. 437-70

This is an application for extension of time within which

to file a petition for Writ of Certiorari.

The applicant is Mr. Harold S. Rifkin, hereinafter referred

to as Appellant.

The Trial Judge of The Court of Claims filed his opinion

on July 2, 1975. The opinion was favorable to the Appel-

lant.

The Trial Judge’s decision, however, was appealed by De-

fendant. The United States Court of Claims Appeals Court

entered judgment on April 14, 1976. The judgment in this

instance was unfavorable to Appellant.

Appellant’s motion for rehearing to amend or alter the

judgment of April 14, 1976 was denied by an order dated

June 25, 1976 signed by Judge Oscar H. Davis.

The order denying Appellant’s motion for rehearing was

received by Appellant on 11 August 1976.

By letter dated September 7, 1976 the Defendant, acting

through its attorney LeRoy Southmayd Jr., submitted to

Appellant a stipulation for Entry of Judgment. The stipu-

lation was not acceptable to Appellant. Appellant electing

to appeal to the United States Supreme Court.

Reasons for application for extension of time to file a pe-

tition for Writ of Certiorari:

Petitioner was hospitalized at U.S. Army Hospital Landstuhl,

Germany, from 11 to 15 April 1976 for a heart condition.

It was determined that open heart surgery would be neces-

sary and that such should be performed without delay.

Petitioner was operated on 22 May 1976, although prepa-

rations for such operation were started on 23 April 1976.

Operation was performed, due to its urgency, at Harjey

Street Clinic, London, England. Petitioner was hospitalized

in London from 19 May 1976 to 3 June 1976. Petitioner

was then directed to remain in London, England, for a

period of five weeks for medically supervised convalescence.

On or about 8 July 1976 Appellant returned to Germany

in a wheelchair. Appellant was in total convalescence for

a period of three months from date of operation. On 22

August 1976 Appellant started a second three month con-

valescence period during which a gradual resumption of

work would be attempted. Appellant still does not feel

mentally or physically up to preparing and presenting a

competent appeal.

To support his contention Appellant submits attached

hereto Operation Report (A) and Convalescence Report (B).

CONCLUSION

As Appellant’s recent efforts to obtain competent coun-

sel to represent him before this Hororable Court were un-

successful due to lack of required funds, he must therefore

act per se as he did in lower courts. Therefore:

It is respectfully petitioned, for the facts hereinbefore

mentioned, that, as the Appellant cannot reasonably be ex-

pected in his present condition to properly prepare and pre-

sent a petition for Writ of Certiorari that he be granted a

sixty day extension of time within which to file such peti-

tion. The sixty days to commence to run from November

8, 1976 which is ninety days after the day Appellant re-

ceived the Court of Claims Order denying his motion for a

rehearing, or from December 10, 1976 which is ninety days

after Appellant received Defendant’s stipulation for Entry

of Judgment, whichever of these two starting dates is per-

tinent.

Respectfully submitted

/s/ Harold S. Rifkin

Harold FB. Rifkin

CMR Box 3787

APO New York, New York 09057

2 enclosures

I hereby certify that I have this day made service upon

the Solicitor General, Department of Justice, Washington,

D.C. 20530 by mailing him a copy of this application at

the United States Air Force Post Office at Frankfurt/M,

Germany, APO New York 09057. 1 November 1976

/s/ Harold S. Rifkin

Harold S. Rifkin

eee

APPENDIX C

Gu the Gnited States Court of Claims

No. 437-70

(Decided April 14, 1976)

HAROLD s. RIFKIN v. THE UNITED STATES

Harold 8. Rifkin, pro se.

LeRoy Southmayd, Jr., with whom was Assistant Attor-

ney General Rer E. Lee, for defendant.

Before Davis, Sxxiton, and Bennett, Judges.

OPINION

Per Curtam: Plaintiff, while employed as a civilian at the

United States Army Procurement Center, Frankfurt, Ger-

many, was charged with the offense of “altering and using

an official document to defraud the United States” and was

subsequently removed from his position as comptroller, GS-

12, Step 3, in 1965. Plaintiff, who appears pro se, sues for

back pay and reinstatement from April 1965. Defendant

urges that there is no merit to plaintiff’s claim, and that suit

not having been filed until December 8, 1970, in any event

the claim is barred by the doctrine of laches.

Defendant’s motion for summary judgment was denied by

order dated April 27, 1973. The case was remanded to the

trial judge for appropriate proceedings toward resolution

of disputed factual issues, “in particular those relating téatiy

possible ex parte evidence, any factors pertaining to plain-

tiff which might affect the application of the doctrine of

laches to the case, and others.”

After a trial, Trial Judge Miller concluded that (a) under

the pertinent military regulations plaintill had been wrong-

fully deprived of his pay from April 13, 1965 to August 30,

1965 (7.¢. from the original date of his removal to the com-

pletion of his appeal to the major command in Europe) : (b)

the penalty of removal was, in all the cireumstances, an alvuse

of discretion and too harsh; (c) the appropriate penalty

would be no more than suspension without pay for a period

of approximately two years and six months (from June »,

1968 to December 8, 1970): (d) the bar of laches should not

preclude the entire suit but only foreclose recovery for the

same period (June 8, 1968 to December 8, 1970) : (¢) plaintitf

is eatitled to be restored to his former position (or to an

equivalent position in Grade GS-12): and (f) plaintiff i

entitled to back pay from April 13, 1965 (his initial removal

date) to the date of his restoration to duty, with the eacep-

tion of the two and one-half year period from June 8/1968

to December 8, 1970.

We agree with the first of these holdings but disagree with

the second and the third. Our determination, contrary ‘to

that of the trial judge, is that removal was not an abuse of

discretion. This conclusion disposes of the demand for resto-

ration and the bulk of the claim for back pay. and makes it

unnecessary for us to consider the defense of laches as it

applies to that major portion of the back-pay claim which

we deny on the merits.

In Parts I and II of this opinion we adopt the trial judge’s

statement of the facts and his discussion of the minor back-

pay claim for the period from April 15, 1965, to August 30,

1965. In Part III we set forth our own evaluation of the

severity of the penalty, in the light of all the circumstances,

and of the argument that the Army abused its discretion in

separating plaintiff. Next. in Part IV, we adopt and supple-

ment the trial judge’s discussion of the alleged procedural

errors with respect to ex parte presentations. Part V con-

cludes with our own short analysis of why laches does not bar

the lesser pay-claim for April-Angust 1965.*

1 This opinion embodies the necessary findings of fact.

It was the responsibility of the Procurement Center's

comptroller’s office, whieh piaintif® headed. to maintain its

financial records. All requests for payment of obligations.

totaling some $400 million annually, lad to Le certified by

the comptroller’s office. Plaintiff supervised some 40 clerks

whose funetion it was to match requests with supporting doc-

uments and Balances of funds on account. certify that the

obligations could be paid. and then record the expenditures.

The comptroller’s office itself kept no cash and could oniy

certify for payment requests accompanied by the appropriate

documents, ¢.q., contract, travel order, deiivery receipt. none

of which were within the purview of the comptroller’s office.

Plaintiff. who had an aggregate of move than 2° vears

of satisfactory Federal service, began his service in the Pro-

curement Center in 1958 as an accountant, GS-10, Through-

out his employment there to 1965 plaintiff reccived

consistently high performance ratings, and was rapidly

promoted. In 1963 he became comptroller, GS-12. He earned

a reputation for outstanding technical competence and pro-

ficient, innovative work. Twice, in 1960 and 1962, he re-

ceived sustained superior performance awards. On

December 28, 1964, just a few days prior to the incident

eausing his removal, plaintiff for the second straight year

was recommended by his superiors for promotion toa GS-15

grade,

The facts surrounding the incident leading to the removal

action are mostly not in dispute. Civilian employees of the

Department of the Army hired in the United States and

stationed in Germany were entitled and encouraged to take

biennial home leave at Government expense. The travel an-

thorization for plaintiff and his wife for purposes of such

leave was dated December 18, 1964. It authorized their

travel outside the United States by Government air, rail

and water transportation, or by his own vehicle, and within

the United States by first-class air, air tourist (if available)

and rail transportation or by his own vehicle. It also listed

their port of embarkation to be Bremerhaven, their date to

“BEST COPY AVAILABLE

10a

report there, January 5, 1965, and the name of the vessel

on which he was booked, SS United States. After a month's

vacation in Beverly Hills, California, on February 8, 1965,

plaintiff was scheduled to proceed to Rock Island, Illinois.

to attend a 2-week Army seminar on top management and on

February 24, 1965, to be available for return travel. The

travel authority made no arrangements for return booking.

Travel accommodations for Department of Defense per-

sonnel were handled by the Military Sea Transportation

Service (MSTS). The names, status, and family composi-

tions of those scheduled to travel were supplied by the spon-

soring agency and they were then assigned accommodations

by the MSTS on the basis of rank or GS level. There was no

fixed cutoff between those entitled to first-class and those

entitled to cabin-class accommodations, either in any regula-

tion or in actual practice. It depended on the blocks of space

procured by MSTS for a particular voyage and the actual

mix of the authorized travelers. On one sailing all GS-—13’s

or equivalent might be in cabin class, on another the GS-12’s

might be in first class. An effort was made, however, to avoid

aggravated invidious treatment by placing all those in the

same grade in similar accommodations. On the January 5,

1965 voyage of SS United States GS-13’s were placed in

first class, GS-12’s and below in cabin class. Plaintiff, who

had been listed with the MSTS as a GS-12, was therefore

assigned cabin accommodations.

After the ship departed Bremerhaven, plaintiff presented

to the assistant purser of the ship additional copies of his

travel orders, which he had previously altered so as to indi-

cate falsely that his grade was a GS-13, and sought reassign-

ment to first-class accommodations. At Southampton the

purser called the “mistake” to the attention of the MSTS

representative and the latter obtained first-class accommoda-

tions for plaintiff and his wife at an additional cost to the

Government of $351.

Shortly thereafter. Col. John T. McKee, Commanding

Officer of the Army Procurement Center, received a com-

plaint from the Army Transportation Command that the

Procurement. Center had furnished erroneous travel orders

designating plaintiff at a level inferior to his actual rank.

lla

At Colonel MeKee’s direction an investigation was conducted

by the Criminal Investigation Detachment (CTD). The CID

eventually located and interviewed plaintiff at his hotel in

California, and he admitted the alteration and misuse of the

altered travel order. Colonel McKee ordered plaintitf to

return to Frankfurt at the end of his leave without attending

the seminar, and plaintiff departed from New York on Feb-

ruarv 8. 1965.

Colonel McKee retired from the Army on Mareh i. 1965,

Based on the information received by that time. Colonel

Melee had decided to proceed with action to remove plaintiff

from the Service. Prior to his departure he discussed this

fully with his successor, Col. George FE. Larsen. On March 2.

1965, Colonel Larsen sent plaintiff an “Advance Notice of

Proposed Removal,” effective April 5. 1965, charging hini—

with altering and using an official document to defrecd

the United States Government * * * [by] chanefing]

the grade and salary from GS-12. $10,960 to Gs-13.

$12,075 on a copy of [his] travel orders * * * [hy pre-

senting it to] an assistant purser on the S.S. United

States * * * for fraudulent purposes * * * to change

[his] accommodations [sic] [to those] based on the grade

S-15 indicated thereon. * * *

As authorized by the notice, at plaintiil’s reguest. an in-

formal meeting was held with Colonel Larsen on March 10,

1965, for presentation of plaintiff’s side of the case. Also

present were plaintiff’s attorney and Maj. Eugene Murphy.

Colonel] Larsen’s Procurement Judge Advecate. Plaintiff

admitted the alteration but claimed in mitigation his actions

had been motivated by his depression over the fact that his

position was deserving of a higher grade (to which he had

been twice recommended) and by the fact. tliat many of his

friends mistakenly thought he held a higher grade. Thus he

decided to maintain that posture in their eyes. He claimed

he had no intention to defraud the United States, but had

presented the altered orders to the purser in a moment of

foolishness and “poor judgment,” and under the influence

of medically prescribed tranquilizing drugs. Plaintiff stated

that he was “very, very sorry” and that he wanted to re-

imburse the Government for the cost involved, which he sub-

12a

sequently did. Plaintiff also detailed his long. distinguished.

and theretofore unblemished, record in the military and civil

service and pleaded that he could continue to render com-

petent and trustworthy service. The formal written reply to

the proposed removal submitted by plaintiff on April 2,

1965, embodied these same represenations.

On April 7, 1965, Colonel Larsen advised plaintiff of his

removal on the ground that there was substantial evidence

to support the charges of —

altering and using an official document to defraud the

US Government * * *. In view of your military service

in the Finance Corps, including approximately seven

years as a Lieutenant, your approximately two years as

a Supervisory Accountant with the US Army Audit

gency, and over six years with the US Army Procure-

ment Center Frankfurt as an Accounting Officer, Su-

pervisory Accountant, and Comptroller, you were espe-

cially well qualified to be aware of the gravitv and

implications of vour actions. * * *

As entitled by Department of the Army Civilian Personnel

Regulations. plaintiff appealed his removal to the major

commander, the Commander in Chief, United States Army,

Europe (CINC USAREUR). Incident to such an appeal

plaintiff was entitled to an evidentiary adversary type hear-

ing before a grievance examiner, who was to make findings

and conclusions for submission to the Commander in Chief.

This was held on May 24, 1965.

At the administrative hearing Colonel Larsen justified his

ouster of the plaintiff on the ground that Mr. Rifkin’s posi-

tion required him to sign documents authorizing the outlay

of huge amounts of Federal funds, and that such authority

required 2 man whose trustworthiness and absolute honesty

in all matters is beyond all doubt in the minds of both his

superiors and subordinates, whereas plaintiff's conduct had

permanently impaired that trust. The grievance examiner

found that there was no question as to the objective facts of

plaintiff's conduct, but that the maximum penalty, which

under the regulations could have ranged from a 5-day sus-

pension to removal from the Federal Service, was too severe

for the offense.

She was of the view that inadequate consideration had

been given to plaintiff’s prior record of more than 20 vears

13a

of exemplary Federal. military and civilian. service and that

his one fall from grace was not in the course of his regular

duties and did not show that he had or would betray a trust

involved in such duties. With respect to the commanding

oflicer’s finding that Rifkin had intended to defraud the

Government. she found more persuasive the statements of

two of his co-workers that his misdeed was the product of

personality traits which placed undue emphasis upon recoz-

nition of his prestige and importance, rather than any intent

to defraud. Moreover. she found that “there is no regulation

whieh states that Mr. Rifkin was not, even as a GS 12.

precluded from first class accomodations [sic]”, and that

there was a question whe.aer the Government had suffered

any loss and whether the loss would not have been considered

an acceptable condition on another sailing date.

The grievance exaininer concluded that the penalty of re-

moval was too severe under the circumstances of this case

beeanse (1) while plaintiff did use an official document to

defraud the Government, there was no evidence that at the

time of alteration he intended to so defraud: (2) he had a

long career of faithful and ontstanding service; and (5) he

could still render trustworthy and effective service in an-

other position. Accordingly the examiner recommended that

plaintiff be transferred to another organization at a different

location, suspended with loss of pay for up to 6 months, re-

duced to a Jower grade and position in which he would have

no responsibility for disbursing funds and/or changed to a

nonsupervisory position.

As allowed in the Denartment of the Army Civilian Per-

sonnel Regulations, the Commander in Chief, Furope, re-

ferred the recommendation: of the grievance examiner to an

Employee Appeals Review Board, at his headquarters, con-

sisting in this instance of two army officers and one civilian

employee. In July 1965, the board found that “the charge of

altering and using an official document to defraud the United

States Government is supported,” that no relief should be

granted due to the seriousness of the act and the comparative

possible sentences if found guilty in a civilian or military

court, and that accordingly Mr. Rifkin’s appeal should be

denied and his removal from the Federal Service be finalized

for the good of the Federal Service.

14a

On August 30, 1965, the Commander in Chief, Europe

notified plaintiff that the appeal record “clearly supports the

charge that vou did alter and use an official document. to

defraud the United States Government” and that his removal

would promote the efficiency of the Federal Service. There-

fore. he would not set aside or modify Colonel Larsen’s

decision. He also advised plaintiff of his right to seck review

by either the Secretary of the Army or the Civil Service

Commission, but not by both. (Civilian Personnel Regula-

tion S1.2-6a.(2) (a) (i) (Change 6, Feb 6. 1964).)

Plaintif? cleeted to wppenl to the Seeret are of the A ry,

In addition to challenging the penaliy of removal as grossly

excessive and not warranted, plaintiff raised the issue of dis-

criminatory treatment of civilian personnel vis-a-vis mili-

tarv personnel by compering his situation to that of a

military officer with the Procurement Ageney who had re-

ceived substantially lighter punishment for an allegedly

similar offense. After consideration of further information

about this incident supplied by Headquarters, United States

Army, Europe (USAREUR), at the Secretary’s request,

the Employment Policy and Grievance Review Board stated

that “the charge of altering and using an official document

to defrand the United States Government was supported

by substantial evidence and warrants the action taken.” The

board had also directed an inquiry to Headquarters,

USAREUR, regarding the severity of the penalty.

The board noted its agreement with Headquarters, USA

REUR’s response to the effect that a person who

had plaintiff's responsibilities for certification and financial

management of procurement funds must exemplify the

hiehest standards of personal integrity and “‘Mr. Rifkin’s

deliberate action to defraud the United States necessitated

his removal’ *. On April 27, 1966. the Secretary of the Army

sustained the removal as “appropriate in light of the nature —

of your offenses and your position of trust” and not an abuse

of administrative discretion.

On June 3, 1966, the president of the American Federation

of Government Employees wrote to the director of Civilian

Personnel of the Army concerning the possible use of cx

parte evidence in plaintiff's case. On July 28, 1966, the de-

partment supplied plaintiff copies of three documents so

15a

used: the letter dated July 2, 1965, from the Commanding

General, Communications Zone Europe. to Commander in

Chief, United States Army, Europe; the memorandum to

the Deputy Chief of Staff at CINC USAREUK from the

Appeals Review Board, dated’ July 27, 1965, setting forth its

recommendations; and the comments on plaintiff's appellate

brief that were furnished tiie Secretary of the Army by the

Commander in Chief. United States Army. Europe. on

March 2, 1966. Plaintiif’s attorney was advised that he could

submit any comments on the documents. and, under date of

August 22, 1966. he did so. His conunents were forwarded to

the Office of the Under Seerctary, Department of the Arrive.

for consideration. Such submission together with the cocn-

ments were considered by the Army, and in a supplenental

report the Emplovinent. Policy and Grievance Review Boar!

found no facts warranting modification of its origina! deci-

sion. On November 25, 1966, the Deputy Under Secretary of

the Army advised plaintiff that it had been deternuined that

there was no reason for modifying the depariment’s decision

of April 27, 1968.

On June 2. 1966. plaintif? appealed to the Civil Serviee

Commission. On June 29, 1966, the Appeals Exainining Office

disallowed the appeal on grounds that plaintiff had exhausted

his appellate rights by filing an appeal with the Secretary of

the Army. Plaintiff's appeal of this decision to the Commis-

sion’s Board of Appeals and Review was also denied on Sep-

tember 8, 1966. Meanwhile during 1966, plaintiff’s wife wrote

to the President of the United States complaining that her

husband had been victim of religious discrimination. The

matter was referred to the Equal Employment Opportunity

Officer of the Army who determined that the ap»eal had not

been filed within the statutory period and therefore could

not be considered. This decision was then appealed by plain-

tiff to the Civil Service Commission which sustained the

Army’s decision, most recently on April 13, 1967. Plaintiff's

further efforts in 1969 to have the Army change Standard

Form 50 issued him at the time of his removal, which stated

“Employee altered and used an official] document to defraud

the United States Government,” to omit any reference to the

word fraud, were also fruitless. Suit was filed in this court

on December 8, 1970.

203-7056—76

l6a

Following his removal, plaintiff continued to reside in

Germany. Eventually, in 1970. he obtained a job in the United

States Army Commissary asa sales clerk, GS-3. Step 1, at an

annual salary of 85.212. By August 1974 he lad been pro-

moted to supervisory supply clerk, GS-5, Step 10, earning

$10.467.

Plaintiff claims that regardless of the correctness of his

discharge he was wrongfully deprived of his pay for the

period from April 13, 1965 (the initial date of the determina-

tion to remove him) to August 50, 1965 (when the major

command confirmed his removal). The essence of his claim is

that by regulation an overses employee of the Arniy, re-

cruited in the United States, is entitled to remain in duty

status until the completion of his appeal to the major

command,

The Civilian Personnel Regulations provide in pertinent

part (CPR 2.5 (June 1962) ) :

SPECIAL PROVISIONS FOR OVERSEA

EMPLOYEES

5-8. In precessing an action under CPR S1 dischare-

ing for cause a United States citizen employee serving

overseas who is eligible for return transportation at Govy-

ernment expense, or, who is ineligible for such trans-

portation but who cannot remain in the oversea area

after separation because of immigration requirements

and ‘or agreements requiring repatriation to the country

of residence, the special previsions set. forth below will

be applicable. These provi-tons do not apply to separa-

tion of an individual serving a probationary or trial

period.

* ty Fad x *

ce. Tf the emplovee files an appeal and requests an-

thority to remain in the command, the installation will

extend the notice period and inform the emplovee that

he will be retained at the installation in a duty status

pending the hearing and final disposition of the appeal

at the major command level. Should the reasons for the

removal action preclude retaining him on duty. he will

be retained at the installation but suspended without

pay. The suspension nust be processed under CPR St

as a separate personnel action. The employee mav also

be permitted to remain at the installation in annual leave

17a

or leave without pay status provided the sulivission of

a written vequest for such leave is a completely volun-

tary action on the part of the employce. Enforced a1-

nual leave will not be directed by the instalation for the

urpose of removing the employee from a duty status.

f Emphasis in original. |

Tt is clear from the record that plaintitl’s waiver of duty

status was not “a completely voluntary action” within the

meaning of the regulation and plaintiff did not waive duty

status pending resolution of his appeal. Prior to the April %

1965 meeting with plaintiff. Colonel Larsen had been in-

structed by his judge advocate, Major Murphy. sid the eivil-

ian personnel officer. Mr. Rowe. that plainti? was likely to

reguest to remain in duty status pending his appeal. but that

plaintiff did not qualify under the regulation, Their ration-

ale was that plaintiff having just used his cntiiloment te

travel at Government expense by means of a round trip te

the Uirited States and not yet having completed a new teur

of duty, was not “eligible for return transportation at Gov-

ernment expense” and therefore not within the scape of the

Special Provisions? At the meeting plaintiff indicated that

he did intend to request duty status and that the letter of

appeal he had prepared so indicated. Colonel Larsen told

plaintiff that the letter was unacceptable and instructed plain-

tiff to redraft the letter requesting annual leave or leave

without pay. Despite their objections, plaintiff and his coun-

se] submitted a revised letter on April 9, 1965, which com-

plied with that direction. By letter of April 12. 1965. Colonel

Larsen amended his original decision to permit plaintif® to

utilize his annual Jeave aid then continue in leave without

pay statns. The decision stated :

5. * * * Towever. in order to minimize personal

hardship to you and your family during the period of

appeal, paragraph 1, reference le is amended to delete

12 April 1965 as the effective date of your removal. TI

find no justifiable basis for continuing you in a duty

status pending the receipt of a decision on your appeal.

I do approve your request for annual leave and leave

without pay during this period beginning at 0750, 13

April 1965. * * *

2 There is no contention that plaintiff qualified as one who could not remain

overseas because of immigration or repatriation requirements.

| BEST COPY AVAILABLE

18a

This enabled plaintiff to retain commissary, post exchange

and other similar privileges through September 17, 1965.

Defendant's position is that plaintiff is not entitled to the

benefit of the Special Provisions for Oversea Eniployees be-

cause. having just taken advantage of his biennial reemploy-

ment leave and round-trip transportation to the United

States, under the Civilian Travel Regulations he became ob-

ligated to serve an additional 2 years before becoming “eligi-

ble for return transportation at Government expense” within

the meaning of the special provision.

The Civilian Travel Regulations, CPR T3, (June 1961)

provide (para. 1-6) that each new or current employee

selected for assignment to an oversea official duty station is

required to sign a transportation agreement prescribing a

stipulated period of oversea duty before transportation at

Government expense to the oversea area may be authorized

and that he has a vested right to return transportation only

upon completion of the prescribed period of service (here 2

years). The standard transportation agreement, which 1s

attached to the regulations, provides for round-trip transpor-

tation of such employees, their immediate families, their

household goods and personal effects at Government expense,

but employees are not eligible for the return portion if they

separate voluntarily or are separated involuntarily because

of misconduct prior to completion of the agreed period. Par-

agraph 2-11 of the regulations allows and encourages em-

ployees, upon completion of the minimum period of service

and execution of an agreement for a new tour of duty, to

utilize this transportation for “reemployinent leave” in the

United States. The prescribed tour for the new transporta-

tion agreement then begins as of the date the employee

returns to work, (Para. 2-11.2.)

The travel regulations set forth qualifications for return

“transportation entitlement” from an oversea duty station

to place of residence. (CPR T3.2-4.c. (June 1961).) Tn addi-

tion to completion of the agreed minimum period of service,

these include the requirements that the employee has been

reassigned or transferred from, or recruited in the United

States: or, if he is a Tnited States citizen hired locally, that

he maintain bona fide residence in the United States. For

purposes of such entitlement an individual is considered to

hee eR ah re

19a

have prima facie residence in the United Stute- if ii~ status

at the time of employment was that of student formu!!y en-

rolled in a recognized institution of learning. traveler alisent

from the United States for not more than 6 months. member

of the Armed Forees separated locally for the express pur-

pose of accepting Federal cmployinent. or employee of an-

other Federal agency, instrumentality, Goverment eontrac-

tor, international organization, or other activity operating

in support of the United States or its personnel, if the in-

dividual was reeruited in the United States under conditions

of employment which provided for return transportation.

It is apparent that even for purposes of the travel regula-

tions the meaning of a term such as “eligible for return trans-

portation at Government expense” would depend upon the

context in which the phrase appeared. For example. para-

graph 1-6 provides that upon completion of the preseribed

period of service the otherwise qualified employee has a

“vested right” to return transportation at Governinent ex-

pense. The implication is that completion of the minimutn

period of service results in “vesting” and that prior to that

time one is eligible if he eventually meets the other eondi-

tions for return transportation at Government expense.

Similarly, paragraph 2—4.c. provides that to avoid misunder-

standing and disagreement at a later date as to meeting the

conditions, “entitlement to return transportation «rill he de-

termined at time of appointment and recorded through ex-

ecution of [the] transportation agreement” (emphasis in

original). It is obvious that in such context “entitlement”

means qualified other than by completion of the service pe-

riod. “Eligible” would certainly appear to mean less than

“vested” or “entitled”.

Tt is concluded that in the context of the Grievance and

Appeal Procedures (CPR F2) Special Provisions for Over-

sea Employees (section 5-8), the provision for allowing

employees “eligible for return transportation” who are

appealing removal actions to remain in duty status pending

disposition of their appeals is not limited to the time after

they have completed their periods of service.

It is important to note that the special provision covers

not only employees eligible for return transportation but two

other groups, to wit:

20a

fA] United States citizen employee serving overseas

who is eligible for return transportation at Government

expense, or, who is ineligible for such transportation but

wh. cannot remain in the oversea area after separation

Lecause of immigration requirements and/or agreements

requiring repatriation to the country of residence * * *.

The regulations contain no explanation as to the reason why

the three categories of employces are to be retained in duty

status pending appeal of their discharge for cause, or as to

what common purpose is served by similar treatment for

those eligible for return transportation, those who cannot

remain in the area because of immigration restrictions, and

those who must be repatriated. Nor does defendant sugge-t

any conunon denominator. Absent any other interpretative

aid, it is inferred that the purpose of the Special Provisions

for Oversea Employees is to insure that a United States citi-

zen who would be unlikely to be able to find foreign employ-

ment because of cultural or legal impediments will not he

effectively deterred or hampered in the exercise of his right

to appeal his discharge to the major command level by his

inability to support himself in the foreign area while the

appeal is pending.

Tn the context of the Grievance and Appeal Procedure a

“citizen employee * * * who is eligible for return trans-

portation at Government expense” is one who is a resident

of or is reassigned or transferred from or recruited in the

United States, or if hired locally maintains bona fide resi-

dence in the United States and has not been absent for more

than 6 months, or was a student or member of the Armed

Forces or employee of another Federal or similar agency

who transferred for the purposes of obtaining the particular

employment, i.e., all those covered by a transportation agree-

ment, whether or not the right to the return portion has

matured. A regulation that an employee who meets the above

requirements is not eligible to remain in duty status pending

the appeal from his removal because he does not have 2 years

of service since his last home leave, while at the same time

one who does not meet such requirements but is barred from

remaining in the area by immigration restrictions or inter-

national repatriation agreement is entitled to duty status

after only one day’s employment would create a discrimina-

AAS wee Anes «

ae ee ee ee,

cea cD A ON mires ent te

OAT eye eR hid OT. emt a Ss a ae

ee a ae

Anon tine

oti se MEEOKe Seer ee

2la

tion without discernible purpose. Under defendant's con-

-truction, the only persons who would ever be “eligibie for

retin framsportation.” and therefore entitled to remain in

duty status, would be those who had eompleted their :nini-

int serviee but had not yet exercised their right to reem-

plovinent leave, This would mean that an employee could

come within the protection of the special provisions only

once every 2 vears, and then remain eligible for this protec-

tion for probably only a few months at most. Such an anom-

tlous construction would appear to defeat the purpose of the

special provisions.

A second factor that makes the Government's interpreta-

tion untenable is that the same prerequisite, 4.7.. “eligible for

return transportation at Government expense.” applie= to

retention in leave -tatus, which Colonel Larsen granted witli-

out hesitation. If plaintiff was not within the class of persons

to whom the special provisions applied, then obviousiy lie

could not be afforded any of the protections or rights created

therein. The introduction to the special provisions ilentifies

those employees for whom a discharge action must Le proe-

essed in accordance with the special procedures, Paragrap!.

-e begins by providing that an employee requesting to remain

in the command “will be retained at the installation in a duty

status pending the hearing and final disposition of the appeal

at the major command level”. If it is inappropriate to keep

him in duty status, a separate suspension action must he

processed with appropriate notice and hearing procedures.

If the employee abandons his right to duty status and vo/un-

tarily requests annual or without pay leave status ‘then this

may be granted. The regulations emphasize the need for vol-

untariness by italicizing the phrase “provided the submission

of a written request for such leave is a completely voluntary

action on the part of the employce.” The emphasis is rein-

forced by the next sentence which warns that “[e]nforced

annual leave will not be directed by the installation for the

purpose of removing the employee from a duty status.” It

would seem, therefore, that by telling plaintiff he was not

eligible for duty status yet requiring him to rewrite his re-

quest for annual and without pay status, Colonel Larsen was

able to obtain pro forma compliance with the requirement

22a

of voluntariness and immediately remove plaintiff from the

command. Plaintiff should now be compensated for the period

he was wrongfully deprived of duty status.

Ill

There is no dispute that the acts charged were in faet

done. Plaintitl’s principal plea is that the penalty of re-

moval was too harsh in the light of both the nature of his

single transgression and his long history of unblemished and

superior Government service.

Recent decisions of this court have outlined the limited

review functions of this court with respect to penalties. In

Grover v. United States, 200 Ct. Cl. 337, 553 (1975) the court

asserted : )

ineasure of the ge is within the discretion of the

agency. Birnholz v. United States, 199 Ct. Cl. 532

(1972); Ileffron v. United Siates, 186 Ct. Cl. 474, 484,

405 F. 2d 1307, 1312 (1969); Liotta v. United States,

174 Ct. Cl. 91, 96 (1966); De Nigris v. United States,

169 Ct. Cl. 619, 625 (1965). There are, of course. ex-

ceptions to this general rule where it can be shown that

the decision made by the agency was the product of

abused discretion. The test for the abuse of discretion

requires a showing by the plaintiff that the penalty is

so harsh that there is “an inherent disproportion be-

tween offense and punishment.” ae) v. United

States, supra, 186 Ct. Cl. at 485, 405 F. 2d at 1312-13;

Clark v. United States, 162 Ct. Cl. 477, 484 (1965).

However, when such abuse of discretion has occurred, the

the court has not hestiated to set aside penalties, whether

or not they have been within the range of permissible al-

ternatives. Clark v. United States, 162 Ct. Cl. 477, 482-86

(1963): Jacobowitz vy. United States, 191 Ct. Cl. 444, 458-59,

424 F, 2d 555, 563 (1970); Cuiffo v. United States, 131 Ct.

Cl. 60, 68-70, 137 F. Supp. 944, 949-50 (1955); Power v.

United States, Ct. Cl. No. 439-74, decided March 17, 1976;

cf. Daub v. United States, 154 Ct. Cl. 434, 292 F. 2d 895

(1961).

Civilian Personnel Regulatiop C2 (Feb. 1964) provides

that the severity of disciplinary action is left to the discre-

tion of appropriate officials of the employing activity (para,

a ee ae a NR a Ee en nd Ca BNC Oh a IN ea Cl A at a

23a

4-2.7.). but it does set out a list of suggested penalties. For

the applicable offense, “False statements. misrepresenta-

tion, or fraud in application blank or other official records

submitted to the Department of the Army”, the suggested

range of penalties for a first offense is “5- to 10-day suspen-

sion, or removal.” (CPR C2, app. B, Table I (Feb. 1964).)

The trial judge concluded that, although the sanction of

removal fell within the range of authorized penalties, the

Department of the Army had abused its diseretion in this

instance. His main ground for this result was that the De-

partment was under the misapprehension that, as a GS-12.

Rifkin would never have been entitled to first-class carriage-—

that the line was always drawn between GS-12's and

GS-15's—and therefore that he deliberately intended to and

did defrand the United States by changing his travel orders

to show that he was a GS-13. The trial judge said: “The

undisputed testimony was that there was no fixed dividing

line between grades entitled to first class and grades entitled

only to lesser accommodations. On some sailings GS-12's

were assigned first-class accommodations. It all depended on

the blocks and mixes of accommodations booked in advance

for a particular sailing by the MSTS officer in charge as com-

pared to the actual demand therefor. Thus, it appears that

assignment of preferred accommodations in order of rank

or grade was merely an orderly method of allocation to suit

the requirements of a particular day’s reservations. Accord-

ingly, while plaintiff’s use of an altered travel authorization

falsifying his grade was unquestionably an improper act

designed to obtain an unwarranted advantage over others,

it does not necessarily follow, as Colonel Larsen assumed

and his superiors accepted, that it was designed to or in

fact did defraud the United States out of money or moneys

worth to which under no circumstances was the plaintiff

entitled.”

In addition the trial judge relied (as showing abuse of

discretion) on (a) testimony by officials at the immediate

level of command that plaintiff’s motivation was the higher

prestige of being considered and treated as a GS-13, not the

desire to defraud the United States out of the $351 extra cost

of first-class transportation on the vessel; (b) testimony that

24a

these first-level officials deliberately put out of their minds,

as inappropriate considerations. their personal evaluations

of “intent or human frailties, svmpathy. or compassion”:

and (c) the evidence that these same first-level officials mis-

takenly thought that they had a choice only between a mini-

mal punishment (such as suspension fer no more than

30 days) and the ultimate sanction of removal.

After setting aside. on these grounds, the penalty of re-

moval imposed by the Department, the trial judge held.

“fojn an overall view of the evidence in the record and in

light of the permanent adverse effect that plaintiff's single

transgression has already had on what was up to then a

promising career,” that a suspension without pay in excess of

914 years would be unduly harsh and an abuse of diseretion.

We do not agree with this evaluation and analysis and

conelude, on the contrary, that the record does not show an

abuse of diseretion by the Department of the Army.

In the first place we think the trial judge’s approach slights

the cardinal fact that the ultimate decision was made by the

office of the Secretary of the Army. Tt is that decision we are

reviewing, not the first. or second level determinations made

in Europe. And there is no convincing evidence that the Sec-

retarial level was under the same misapprehensions as the

first-level officers who testified at the trial and on whose evi-

dence the trial judge rests so heavily. The grievance exam-

iner had made all the points the trial judge now makes and

her recommendation was forwarded up the line. Moreover,

in the course of appealing the first-level decision plaintiff's

counsel hammered * at his contention that no fraud had heen

committed against the United States and that there was no

rigid classification putting all GS-12’s in eabin elass. That

the departmental Employment Policy and Grievance Review

Board considered all aspects of the case is also suggested by

the fact that on its own initiative it specifically asked the

European command for “a comprehensive report with re-

spect. to the bases for the first level review decision, consid-

eration given to assessment of lesser penalty, equity of deci-

* Especially at the grievance hearing ond in his brief which was forwarded

to the Secretary of the Army.

ee eR les ee te me 8 Re tn eile Ae heeled”

ae ee

sion in appellant's ease wher compared to certain ‘sins'-

lar’ cases involying military personnel. and te the

activity commander's intention to replace appeliant with a

military officer.” ' The Board came to its first decision only

after receiving this report from Europe. After its attention

was called to the ea parte communications clisctissed in Part

IV /afre, the Board reopened the proceedings to allow plain-

tiff's counsel to comment on the hitherto ex pre communi-

cations and then reaffirmed its conclusion. Finally. the Board

devoted a substantial part of its initial report to the aptness

of the penalty and in that connection considered (and dis-

agreed with) the grievance examiner’s recommendation. Ail

in all, we cannot say that at the Secretarial level—whatever

may be said of the first-level decision—the Department of

the Army was under a misapprehension as to the pectineat

facts or as to its full discretion and powers with respect to

the seope of the penalty. That subject appears to have bow:

given ample and careful consideration in Washington.

Second, it was not wrong for the Army io characterize

plaintill’s conduct as defrauding the United States. The fact

is that on the particular vovage Mr. Rifkin (as a GS-12)

was not entitled to first-class accommodations. By showing

his travel authorization, which he had deliberately altered to

siate that he was a GS-15, he persuaded the purser to give

him a first-class cabin on that trip. This cost the Government

an additional $351, It is irrelevant that on some other eross-

ing he might. as a GS-12. have been entitled to a first-class

room. On the particular trip in question he was not so en-

titled and he nevertheless sought to obtain that advantage

by exhibiting an altered copy of his travel orders. It cannot

he gainsaid that on that specific trip plaintiff's actions cost

the Federal Government an extra $351 which it would not

have had to pay if he had not falsified his grade and which

it was not required to pay under the cabin-demarcation pat-

tern adopted for that voyage. Even in technical terms this

was the misuse of an official document to defraud the United

States. In more colloquial usage, allowable in civil adverse

action proceedings, the United States is defrauded when an

*The quotation ts from the first report of the Employment Poltey and

Grievance Review Board.

26a

emplovee deliberately alters an official document so as to mis-

represent its content for his own advantage. As we have said,

there is no sufficient evidence that. when the case was decided

at the Secretarial level, there was any misunderstanding by

either side as to what was here involved in the concept of

“defrauding the United States.” Whether or not that termi-

nology would be correct in a criminal information or indict-

ment, we think that it was not inappropriate forthis adverse

action proceeding. That Mr. Rifkin’s primary mof/ration

may have been to enhance his own prestige rather than to

cheat the Government does not serve to eliminate the clement

of fraud. He knew that he was a GS-12 not a GS-15: he

deliberately altered the travel orders to show incorrectly that

he was a GS-15: he deliberately exhibited the altered orders

in order to obtain a substantial advantage aboard ship: he

knew that his elevation to first-class would cost the Govern-

ment more money: and he was ready to cause that result in

order to obtain the prestige (and comfort) of being consid-

ered a GS-15. The psychological motivation for these inten-

tional and deliberate acts of cheating does not take the

offense out of the category of defrauding. .

Third. unlike the trial judge we cannot bring ourselves to

hold that. in all the circumstances. the penalty of removal

was unduly harsh or an abuse of discretion. The improper

act was a knowing, willful and deliberate one—a few days

before his trip plaintiff had directed his secretary to alter

the grade and salary designation on his travel authorization

and then to have the changed document reproduced in several

copies; after discussing with the purser aboard the ship

the possibility of obtaining first-class accommodations and

learning that GS-13'’s had such treatment he presented one

of the altered copies to the purser in order to show that he

was a GS-13; upon debarking at New York plaintiff made

arrangements for his return travel. again submitting the

altered travel form: but after the disclosure of the altera-

tion he requested the return of the incorrect forms and the

enhstitution of correct ones before the return trip. The Army

eould rightly hold on this reeétd that plaintiff knew what

he was doing and knew that it was wrong. And as the depart-

mental board stressed. Mr. Rifkin was a relatively high-level

27a

employee in a position of great trust. Whei such aa en! Oxee

deliberately changes an official document so as to make it

falsely represent his status, in significant fashion, and then

deliberately uses it so as to obtain a substantial advantage for

himself, removal cannot be branded as disproportionate “

the offense. See Birnholz v. United Stats. 199 Ct. Cl. 53

(1972): Grover y. United States. 200 Ct. Cl. 337, 353 so

(1973): Hoover v. United States. 206 Ct. Cl. 640, 64849

513 F. 2d 605, 607-08 (1975).

It is not hypocrisy or lip-service to repeat that we are not

allowed to substitute our judgment for that of the Army.

that we can set aside the punishment only when we consi ier

it an abuse of discretion or disproportionate to the offense,

We cannot exercise clemency or give way to our sense of com-

passion in the same manner the employii iw aageney can. Te

is another case in which a single mis-tep may ruin as eu-

ployee’s otherwise unblemished career but we do not fee! that

the offense is so slight or the punishment -o disproportion.

ately heavy that as judges we can intervene—-whatever we

might have or might not have done as administrato:~. The

responsibility for discipline lies with management » 1 in

this instance, though the sanction may lave been severe, man-

agement’s discretion was not abused.

Fourth, the decisions in which we have set aside or re-

duced punishment, as unduly severe or disproportionate to

the offense, are quite different from this. In Clisk ve United

States, 162 Ct. Cl. 477 (1963), the most serions offense was

the occasional misuse of a Government-owned automobile by

the employee’s family for private shopping: removal wa-

plainly too harsh for such minor misconduct. J. at 483-84. In

Jacobowitz v. United States, 191 Ct. Cl. 444, 424 F. 2d 555

(1970), the only surviving offense was failure to promptly

process checks received from certain taxpayers. “This charge

was minor in nature, was old, and plaintiff had already re-

ceived a reprimand for it from his superior.” Zd. at 459, 424

F. 2d at 563, In addition, government counsel tacitly agreed

at oral argument that the employee would not have been dis-

charged under that count if the other more serious (but re-

versed) count were not in the case. See id. at 458, 424 F. 2d

at 563. As its opinion demonstrates. our recent decision in

28a

Power v. United States, Ct. Cl. No. 439-74. decided March 17,

1976. is likewise no precedent here : “Defendant failed to sub-

stantiate a serious charge of alteration of weight tickets, but

continued to advocate dismissal based on two minor discrep-

ancies. There is some doubt whether plaintiff actually filed

folse information, and there is even greater doubt that plain-

tiff submitted the de minimis claims knowingly, intentionally

and with the purpose to defraud the Govermnent. The year's

delay in bringing about plaintiff's removal poses yet another

question concerning the fairness of the overly harsh penalty.”

Slip op. at 8 (emphasis in the original text).

The court’s remand order of April 27, 1975, requested

resolution of the issue with respect to the use of ex parte

evidence against plaintiff. In Camero v. United States, 179

Ct. Cl. 520, 525-27, 375 F. 2d 777, 779-81 (1967) and Jarett

v. V'nited States. 195 Ct. Cl. 520, 330-32, 451 F. 2d 625,

628-99 (1971), the court held that the Government’s ex

parte communications concerning the merits of a case to

those responsible for the decision in proceedings prescribed

by regulations to be based on evidence and adversary in na-

ture invalidated a decision adverse to a Government employee.

Plaintiff alleges the improper use of at least 12 ex parte

documents during the administrative appellate proceedings

without the knowledge of plaintiff or his counsel. Plaintiff,

however, identifies only one document, Colonel Larsen’s

Memorandum for Record of May 20, 1965, sent to the Com-

manding Officer of the United States Army Communications

Zone (COMZ) at Orleans. This document was not a commu-

nication to one having the responsibility for a decision in an

adversary hearing on evidence; the purpose, as testified to by

Colonel Larsen, was routine—to keep his own commander,

General Kyser, informed on matters pending within the

Procurement Agency command.

When the American Federation of Government Employees

(AFGE) raised the ex parte issue with the Army, plaintiff's

counsel was furnished three documents :

(1) The memorandum from the Employee Appeals Re-

view Board to a Deputy Chief of Staff of the Commander in

Chief. Europe, dated July 27, 1965, setting forth its recom-

mendations with respect to plainti’s appes] aml the eriey-

anee examiner’s report,

CPR E2.5-5.0. (Change 2. Tuly 30, 1963) allows the major

conunander to “preseribe the methods and procedures” for

review, on the merits. of the transcript of the grievance hear-

ting and the examiner’s report. Pursnant to this authority. an

Employee Appeals Review Board was set up by CINC US

AREUR to review the record and to make recommendations

to num. It was not unreasonable for the Commander in Chief.

Europe, to seek assistance from his staff. the members of

which had not been involved in the case. The board made a

complete review and report. This appears to be allowable

tinder the regulations, and since the panel's review was not

wn adversary hearing it was not inherently wifair or

prejudicial, )

(2) The comments on plaintiff’s appellate bricf that were

furnished the Secretary of the Army by the Commander in

Chief, Europe, on March 2, 1966.

This was prepared pursuant to a request by the Secretary

of the Army for further information concerning the issues

raised in plaintiff’s appellate brief to the Secretary. The

request sought information with respect to: (a) basis for

determination that removal rather than a lesser penalty was

warranted, as recommended by examiner; (b) circumstances

of the major “B” case. urged by plaintiff to show discrimina-

tory treatment; and (c) intention of Colonel Larsen to fill

the comptroller position with a military officer, also claimed

hy plaintiff. .

With regard to an appeal to the Secretary of the Army

from a major commander’s decision, CPR F2.5-6.a.(1)

(Change 2, July 30, 1963) provides:

The emplovee’s request for review will be added to the

appeal record along with any comments the activity com-

mander or major commander wish to make, and will be

forwarded through channels to the Office, Secretary of

the Army. * * * 5

Since the regulations providing for such appeal specifically

contemplate “comments” by the activity and major: com-

mander, and are silent concerning making such comments

available to an appellant, it appears that such documents

were proper.

30a

Moreover. since the delegate of the Secretary of the Army

made both documents (1) and (2) available to plaintiff, gave

plaintiff's counsel an opportunity to file a brief in response

thereto and reconsidered his decision in the light of sueh

brief, plaintiff has not been deprived of any rights granted

by the regulations or which affect the basic fairness of the

appeal proceeding.

(3) A July 2, 1965 letter from COMZ (Major General

Kyser) to Commander in Chief. Europe. |

Colonel Larsen had been keeping his immediate superior.

Major General Kyser (COMZ). informed of his actions with

respect to the Rifkin matter. After the grievance examiner's

report was issued on July 2. 1965. General Kyser unilaterally

wrote to the Commander in Chief, Europe, before whom

plaintiff’s appeal was pending, without furnishing a copy to

plaintiff. urging that the recommendations of the grievance

examiner not be followed and that the removal be sustained.

He stated “[{t]hat fraud against the United States was com-

mitted is adequately established” ; the removal of an employee

in a position of trust who has failed with respect. to honesty

and integrity is necessary to promote the efficiency of the

service: “[t]he retention of an emplovee who is known to

have committed a fraud against the United States” would

unfavorably affect the morale, integrity and high standards

of conduct of other emplovees: and plaintiff’s fraudulent

act could have been the basis of a prosecution which could

have warranted a $10,000 fine and 5-vears imprisonment.

General Kvser’s letter is troublesome. Tt sought to influ-

ence the result of an adversary hearing required to be based

on evidence by imposing his own conclusions in the appeal.

Since it urged that the grievance examiner’s recommenda-

tion for a punishment less severe than discharge not be fol-

lowed because the plaintiff was guilty of a frand against the

United States which conld even have warranted fine and

imprisonment, it was certainly prejudicial to plaintiff. Major

General Kyser was Colonel Larsen’s direct superior and

Colonel T.arsen testified he conferred frequently with the gen-

eral and his staff and kept them fully informed on every-

thine he did in the Rifkin ease, by memoranda, telephone

and personally. Thus General Kyser’s perspective and views

on the case were derived at least to some extent trom Colonel

Larsen, who was a party to the appeal. Colonel Larsen also

testified that General Kyser was extremely corcerned and

upset about the Rifkin case and needed no convinciag from

him to write the letter to higher headquarters expre-sing his

views about the case while the appeal was pending. Tie letter

was in fact considered by the Commander in Chief, Europe.

vad his staff, in deciding the appeal, since it is expressly

referred to in the memorandum dated 27 July 1965 from a

panel set up by him, and is quoted in the letter to the Secre-

tary of the Army dated 2 March 1966.

General Kyser’s letter of July 2. 1965, states that it is in

comphance with USAREUR Regulation 690-32. paragraph

b(b) (Feb. 8.1965). It is not clear that such reentation. which

is set out below. does authorize an er parde conmmianicarion

of the sort at issue here. In any event, if it did. a regional

regulation which would authorize ex parte comments stich as

those of General Kyser’s would be inconsistent with the en-

tire adversary and evidentiary grievance procedure set up by

the Army Civilian Personnel Regulations.

The trial judge concluded that General Kyser’s letter was

so prejudicial to plaintiff as to destroy his right to a fair

and impartial hearing before the Commander in Chief,

Europe. The trial jndge then went on to say that it was

unnecessary for him to decide, since he had already deter-

mined that the penalty should be vacated for other reasons,

whether the reconsideration of its decision by the Office of

the Secretary of the Army after plaintiff was allowed to

respond to the three ex parte documents (including General

Kyser’s letter) was enough to cure the unfairness in the ap-

peal to the major commander (Commander in Chief,

Europe).

5“6. Processing Appeals From Adverse Actions. a. An information copy

of the Report of Inquiry and Grievance Record, which is forwarded directly

to the Personnel and Administration Division, Headquarters USAREUR

(CPR E2.5-4b), will be transmitted to the appropriate area commander. When

the activity concerned reports directly to a staff division of Headquarters

USAREUR, a copy of the Report of Inquiry and Grievance Record will be

forwarded to the head of that staff division.

b. Immediately on receipt of the copy of the Report of Inquiry and Grievance

Record by the commander indicated in a above, a qualified staff officer will be

designated to analyze the appeal and reccommend appropriate action.”

32a

Unlike the trial judge. we must direetly face the impact

in these proceedings of General Kyser’s communication. We

hold that any error at the European level in reeviving

and considering this letter ex parte was cured and rendered

harmless at the level of the Sceretary of the Army. There

the document was made available (along with the other two)

to plaintiff, and his counsel had the opportunity to comment

on the letter; thereafter the ®mployment Poliey and

Grievance Review Board reconvened to reconsider the mut-

ter and the office of the Secretary reconfirmed its decision

upholding the removal. It is the decision of the office of the

Secretary that we are now reviewing—not the lower level

decision of Colonel Larsen or of the Commander in Chief.

Europe—and by the time the decision at the Secretarial level

was finally made and issued there was no longer any e7

parte influence on, or communication to. the deciding au-

thority. Our ruling with respect to General Kyser’s letter

is the same as the holding of the trial judge (and ours) with

respect to the other two ea parte documents. Sce supra.

We add a few words on laches. Because we sustain the

defendant in removing plaintiff, we need not consider

whether his broad claim would be barred in whole or in part

by laches. We have, however, allowed him recovery of back

pay for the early period from April 13, 1965 to August 50.

1965 (the period during which he was entitled to remain in

duty status). See Part II, supra. Even if laches were to bar

the rest of his claim, there is authority for carving out this

early period. In Chappelle v. United States, 168 Ct. Cl. 362

(1964), although the suit was brought more than five and

one-half vears after accrual, the court struck down a defense

of laches because the employee himself limited the claim to

an early period for which he would have been entitled to

recover had he brought suit more promptly. See a/so Cason

v. United States. 200 Ct. Cl. 424, 471 F. 2d 1225 (1973). The

same principle applies here with respect to the April 1965-

August 1965 period for which back pay is awarded. More-

over, none of the factors which induce the application of

laches is present for this part of the claim—the issue is purely

33a

one of law and there is no problem of lest records. unavail-

able witnesses, or faded memorics; nor would the Govern-

ment have been saved a <loulle salary for this period if piain-

tiff had sued earlier.

CONCLUSION OF LAW

Plaintiff is entitled to recover only his back pay for the

period from April 18, 1965 to August 30, 1965, und the

amount thereof will be determined in further proceedings

under Ru! 151(¢). Plaintiff is not entitled to recover on any

of the rest of his claim and that portion ef the petition is

clisinissed,

34a

APPENDIX D

IN THE UNITED STATES COURT OF CLAIMS

TRIAL DIVISION

No. 437-70

(Filed July 2, 1975)

HAROLD S. RIFKIN v. THE UNITED STATES

Harold S. Rifkin, plaintiff, pro se.

LeRoy Southmayd, Jr., with whom was Assistant Attor-

ney General Carla A. Hills, for defendant.

OPINION*

MILLER, Trial Judge: Plaintiff, while employed at the

United States Army Procurement Center, Frankfurt, Germany,

was charged with the offense of “altering and using an offi-

cial document to defraud the United States’ and was subse-

quently removed from his position as comptroller, GS-12, Step

3, on September 17, 1965. Plaintiff, who appears pro se,

sues for back pay and reinstatement from April 12, 1965S.

Defendant urges that there is no merit to plaintiff’s claim,

and that suit not having been filed until December 8, 1970,

in any event, the claim is barred by the doctrine of laches.

Defendant’s motion for summary judgment was denied by

order dated April 27, 1973. The case was remanded to the

"The trial judge’s recommended decision and conclusion of law

are submitted in accordance with Rule 134(h).

— are OL 2 est bh CA IL. ta es RN TO

35a

trial judge for appropriate proceedings toward resolution of

disputed factual issues, ‘“‘in particular those relating to any

possible ex parte evidence, any factors pertaining to plain-

tiff which might affect the application of the doctrine of

laches to the case, and others.”

It was the responsibility of the Procurement Center’s comp-

troller’s office, which plaintiff headed, to maintain its finan-

cial records. All requests for payment of obligations, total-

ing some $400 million annually, had to be certified by the

comptroller’s office. Plaintiff supervised some 40 clerks

whose function it was to match requests with supporting

documents and balances of funds on account, certify that

the obligation could be paid, and then record the expendi-

ture. The comptroller’s office itself kept no cash and could

only certify for payment requests accompanied with the ap-

propriate documents, e.g., contract, travel order, delivery re-

ceipt, none of which were within the purview of the comp-

troller’s office.

Plaintiff who had an aggregate of more than 23 years of

satisfactory Federal service, began his service in the Procure-

ment Center in 1958 as an accountant, GS-10. Throughout

his employment there to 1965 plaintiff received consistently

high performance ratings, and was rapidly promoted. In

1963 he became comptroller, GS-12. He earned a reputa-

tion for outstanding technical competence and proficient,

innovative work. Twice, in 1960 and 1962, he received

sustained superior performance awards. On December 28,

1964, just a few days prior to the incident causing his re-

moval, plaintiff for the second straight year was recom-

mended by hjs superiors for promotion to a GS-13 grade.

The facts surrounding the incident leading to the remo-

val action are mostly not in dispute. Civilian employees of

36a

the Department of the Army hired in the United States

and stationed in Germany- were entitled and encouraged to

take biennial home leave at Government expense. The tra-

vel authorization for plaintiff and his wife for purposes of

such leave was dated December 18, 1965. It authorized

their travel outside the United States by Government air,

rail and water transportation, or by his own vehicle, and

within the United States by first-class air, air tourist (if

available) and rail transportation or by his own vehicle. It

also listed their port of embarkation to tb. Bremerhaven,

their date to report there, January 5, 1965, and the name

of the vessel on which he was booked, SS United States.

After a month’s vacation in Beverly Hills, California, on

February 8, 1965, plaintiff was scheduled to proceed to

Rock Island, Illinois, to attend a 2-week Army seminar on

top management and on February 24, 1965, to be available

for return travel. The travel authority made no arrange-

ments for return booking.

Travel accommodations for Department of Defense per-

sonnel were handle< by the Military Sea Transportation

Service (MSTS). Ti:e names, status, and family composi-

tions of those scheduled to travel were supplied by the

sponsoring agency and they were then assigned accommo-

dations by the MSTS on the basis of rank or GS level.

There was no fixed cut off between those entitled to first-

class and those entitled to cabin-class accommodations,

either in any regulation or in actual practice. It depended

on the blocks of space procured by MSTS for a particular

voyage and the actual mix of the authorized travelers. On

one sailing all GS-13’s or equivalent might be in cabin class,

on another the GS-12’s might be in first class. An effort

was made, however, to avoid aggravated invidious treatment

by placing all those in the same grade in similar accommo-

—E

> . eee

ee oe

—_—ee — — — oe a eT

37a

dations. On the January 5, 1965 voyage of SS United

States GS-13’s were placed in first class, GS-12’s and be-

low in cabin class. Plaintiff, who had been listed with the

MSTS as a GS-12, was therefore assigned cabin accommo-

dations.

After the ship departed Bremerhaven plaintiff presented

to the assistant purser of the ship additional copies of his

travel orders, which he had previously altered so as to indi-

cate falsely that his grade was a GS-13, and sought reassign-

ment to first-class accommodations. At Southampton the

purser called the “mistake” to the attention of the MSTS

representative and the latter obtained first-class accommoda-

tions for plaintiff and his wife at an additional cost to the

Government of $351.

Shortly thereafter, Col. John T. McKee, Commanding Of-

ficer of the Army Procurement Center, received a complaint

from the Army Transportation Command that the Procure-

ment Center had furnished erroneous travel orders designat-

ing plaintiff at a level inferior to his actual rank. At Colo-

nel McKee’s direction an investigation was conducted by the

Criminal Investigation Detachment (CID). The CID eventu-

ally located and interviewed plaintiff at his hotel in Califor-

nia, and he admitted the alteration and misuse of the altered

travel order. Colonel McKee ordered plaintiff to return to

Frankfurt at the end of his leave without attending the se-

minar, and plaintiff departed from New York on February

8, 1965.

Colonel McKee retired from the Army on March 1, 1965.

Based on the information received by that time, Colonel Mc-

Kee had decided to proceed with action to remove plaintiff

from the Service. Prior to his departure he discussed this

fully with his successor, Col. George E. Larsen. On March

38a

2, 1965, Colonel Larsen sent plaintiff an “Advance Notice

of Proposed Removal,” effective April 5, 1965, che -ging

him —

with altering and using an official document to

defraud the United States Government * * * [by]

chang[ing] the grade and salary from GS-12,

$10,960 to GS-i3, $12,075 on a copy of [his]

travel orders * * * [by presenting it to] an as-

sistant purser on the S.S. United States * * *

for fraudulent purposes * * * to change [his] ac-

commodations [to those] based on the grade GS-

13 indicated thereon. * * *

As authorized by the notice, at plaintiff's request, an

informal meeting was held with Colonel Larsen or Meaich

10, 1965, for presentation of plaintiff's side of the case.

Also present were plaintiff's attorney and Maj. Eugene

Murphy, Colonel Larsen’s Procurement Judge Advocate.

Plaintiff admitted the alteration but claimed in mitigation

his actions had been motivated by his depression over

the facts that his position was deserving of a higher

grade (to which he had been twice recommended) and

by the fact that many of his friends mistakenly thought

he held a higher grade. Thus he decided to maintain

that posture in their eyes. He claimed he had no inten-

tion to defraud the United States, but had presented the

altered orders to the purser in a moment of foolishness

and “poor judgment’, and under the influence of medi-

cally prescribed tranquilizing drugs. Plaintiff stated that

he was “very, very sorry” and that he wanted to reim-

burse the Government for the cost involved, which he sub-

sequently did. Plaintiff also detailed his long, distinguished,

and theretofore unblemished, record in the military and

civil service and pleaded that he could continue to render

39a

competent and trustworthy service. The formal written re-

ply to the proposed removal submitted by plaintiff on April

2, 1965, embodied these same representations.

On April 7, 1965, Colonel Larsen advised plaintiff of his

removal on the grounds that there was substantial evidence

to support the charges of —

altering and using an official document to defraud

the US Government * * * . In view of your mi-

litary service in the Finance Corps, including ap-

proximately seven years as a Lieutenant, your ap-

proximately two years as a Supervisory Accountant

with the US Army Audit Agency, and over six

years with the US Army Procurement Center Frank-

furt as an Accounting Officer, Supervisory Account-

ant, and Comptroller, you were especially well qua-

lified to be aware of the gravity and implications

of your actions. * * *

As entitled by Department of the Army Civilian Personnel

Regulations, plaintiff appealed his removal to the major

commander, the Commander in Chief, United States Army,

Furope (CINC USAREUR). Incident to such an appeal

plaintiff was entitled to an evidentiary adversary type hear-

ing before a grievance examiner, who was to make findings

and conclusions for submission to the Commander in Chief.

This was held on May 24, 1965.

At the administrative hearing Colonel Larsen justified his

ouster of the plaintiff on the ground that Mr. Rifkin’s posi-

tion required him to sign documents authorizing the outlay

of huge amounts of Federal funds, and that such authority

required a man whose trustworthiness and absolute honesty

‘in all matters is beyond all doubt in the minds of both his

superiors and subordinates, whereas plaintiff's conduct had

40a

permanently impaired that trust. The grievance examiner

found that there was no question as to the objective facts

of plaintiff's conduct, but that the maximum penalty, which

under the regulations could have ranged from a 5-day sus-

pension to removal from the Federal Service, was too severe

for the offense.

She was of the view that inadequate consideration had

been given to plaintiff's prior record of more than 20 years

of exemplary Federal, military and civilian service and that

his one fall from grace was not in the course of his regu-

lar duties and did not show that he had or would betray a

trust involved in such duties. With respect to the command-

ing officer's finding that Rifkin had intended to defraud the

Government, she found more persuasive the statements of

two of his co-workers that his misdeed was the product of

personality traits which placed undue emphasis upon recog-

nition of his prestige and importance, rather than any intent

to defraud. Moreover, she found that “there is no regula-

tion which states that Mr. Rifkin was not, even as a GS 12,

precluded from first class accommodations’’, and that there

was a question whether the Government had suffered any

loss and whether the loss would not have been considered

an acceptable condition on another sailing date.

The grievance examiner concluded that the penalty of

removal was too severe under the circumstances of this

case because (1) while plaintiff did use an official docu-

ment to defraud the Government, there was no evidence

that at the time of alteration he intended to so defraud;

(2) he had a long career of faithful and outstanding serv-

ice and (3) he could still render trustworthy and effective

service in another position. Accordingly the examiner

recommended that plaintiff be transferred to another or-

4la

ganization at a different location, suspended with loss of

pay for up to 6 months, or reduced to a lower grade and

position in which he would have no responsibility for dis-

bursing funds, or to a nonsupervisory position.

As allowed in the Department of the Army Civilian Per-

sonnel Regulations, the Commander in Chief, Europe, re-

ferred the recommendations of the grievance examiner to

an Employee Appeals Review Board, at his headquarters,

consisting in this instance of two army officers and one ci-

vilian employee. In July 1965, the board «and that “the

charge of altering and using an official document to defraud

the United States Government is supported”, that no relief

should be granted due to the seriousness of the act and the

comparative possible sentences if found guilty in a civilian

or military court, and that accordingly Mr. Rifkin’s appeal

should be denied and his removal from the Federal Service

be finalized for the good of the Federal Service.

On August 30, 1965, the Commander in Chief, Europe

notified plaintiff that the appeal record “clearly supports

the charge that you did alter and use an official document

to defraud the United States Government” and that his re-

moval would promote the efficiency of the Federal Service.

Therefore, he would not set aside or modify Colonel Lar-

sen’s decision. He also advised plaintiff of his right to

seek review either by the Secretary of the Army or the

Civil Service Commission, but not by both. (Civilian Per-

sennel Regulation C6, S1.2-6a.(2)(i).)

Plaintiff elected to appeal to the Secretary of the Army.

In addition to challenging the penalty of removal as grossly

excessive and not warranted, plaintiff raised the issue of dis-

criminatory treatment of civilian personnel vis-a-vis military

personnel by comparing his situation to that of a military

42a

officer with the Procurement Agency who had received sub-

stantially lighter punishment for an allegedly similar offense.

After consideration of further information about this inci-

dent supplied by plaintiff at the Secretary’s request, the

Employment Policy and Grievance Review Board stated

that “‘the charge of altering and using an official document

to defraud the United States Government was supported by

substantial evidence and warrants the action taken”. The

board directed an inquiry to Headquarters, United States

Army, Europe (USAREUR), regarding the severity of the

penalty. The board noted its agreement with Headquarters,

USAREUR’s response to the effect that a person who had

plaintiff's responsibilities for certification and financial man-

agement of procurement funds must exemplify the highest

standards of personal integrity and “‘Mr. Rifkin’s deliberate

action to defraud the United States necessitated his remo-

val.”” On April 27, 1966, the Secretary of the Army sus-

tained the removal as “appropriate in light of the nature of

your offenses and your position of trust’’ and not an abuse

of administrative discretion.

On June 3, 1966, the president of the American Federa-

tion of Government Employees wrote to the director of

Civilian Personnel of the Army concerning the possible use

of ex parte evidence in plaintiff's case. On July 28, 1966,

the department supplied plaintiff copies of three documents

so used: the letter dated July 2, 1965, from the Command-

ing General, Communications Zone Europe, to Commander

in Chief, United States Army, Europe; the memorandum to

the Deputy Chief of Staff at CINC USAREUR from the

Appeals Review Board, dated July 27, 1965, setting forth

its recommendations; and the comments on plaintiff's appel-

late brief that were furnished the Secretary of the Army by

the Commander in Chief, United States Army, Europe, on

43a

March 2, 1966. Plaintiff's attorney was advised that he

could submit any comments on the documents, and, under

date of August 22, 1966, he did so. His comments were

forwarded to the Office of the Under Secretary, Department

of the Army, for consideration. Such submission together

with the documents were considered by the Army, and in

a supplemental report the Employment Policy and Grievance

Review Board found no facts warranting modification of its

original decision. On November 25, 1966, the Deputy Un-

der Secretary of the Army advised plaintiff that it had been

determined that there was no reason for modifying the de-

partment’s decision of April 27, 1966.

On June 2, 1966, plaintiff appealed to the Civil Service

Commission. On June 29, 1966, the Appeals Examining

Office disallowed the appeal on grounds that plaintiff had

exhausted his appellate rights by filing an appeal with the

Secretary of the Army. Plaintiff’s appeal of this decision to

the Commission’s Board of Appeals and Review was also

denied on September 8, 1966. Meanwhile during 1966,

plaintiff's wife wrote to the President of the United States

complaining that her husband had been victim of religious

discrimination. The matter was referred to the Equal Em-

ployment Officer of the Army who determined that the ap-

peal had not been filed within the statutory period and it

therefore could not be considered. This decision was then

appealed by plaintiff to the Civil Service Commission which

sustained the Army’s decision, most recently on April 13,

1967. Plaintiff's further efforts in 1969 to have the Army

change Standard Form 50 issued him at the time of his re-

moval, which stated “Employee altered and used an official

document to defraud the US Government”’, to omit any re-

ference to the word fraud, were also fruitless. Suit was

filed in this court on December 8, 1970.

44a

Following his removal, piaintiff continued to reside in Ger-

many. Eventually, in 1970, he obtained a job in the United

States Army Commissary as a sales clerk, GS-3, Step 1, at

an annual salary of $5,212. By August 1974 he had been

promoted to supervisory supply clerk, GS-5, Step 10, earn-

ing $10,467.

Plaintiff's rights are derived generally from Section 14 of

the Veterans’ Preference Act of 1944, 58 Stat. § 390, as

amended August 4, 1947, 61 Stat. § 723, 5 U.S.C. 8 863

(1964 ed.), the current revision of which appears in 5 U.S.C.

§ 7512. This provides that discharge and other adverse ac-

tions against preference eligible employees may not be taken

except “for such cause as will promote the efficiency of the

service.’ Added to this are the further judicially imposed

requirements that a department head must follow its own

regulations voluntarily adopted for dealing with its em-

ployees. (Vitarelli v. Seaton, 359 U.S. 535 (1959); Service

v. Dulles, 354 U.S. 363 (1957)); that his actions thereunder

may not be arbitary or capricious, or without substantial

evidence (Ciambelli v. United States, 198 Ct. Cl. 240 (1972);

Urbina v. United States, 180 Ct. Cl. 194, 208 (1967); Louks

v. United States, 184 Ct. Cl. 361, 370, 395 F.2d 993, 997

(1968)):; and his exercise of discretionary authority may not

be abused (Jacobowitz v. United States, 191 Ct. Cl. 444,

458-59, 424 F.2d 555, 563 (1970); Ciambelli v. United

States, supra at 251-52).

The Severity of the Penalty

There is no dispute that the acts charged were in fact

done. Plaintiff’s principal plea is that the penalty of removal

was too harsh both in the light of the nature of his single

transgression and his long history of unblemished and su-

perior Government service.

Oe ee a aes

eT ae NE A a reo

45a

Recent decisions of this court have outlined the limited

review functions of this court with respect to penalties. In

Grover v. United States, 200 Ct. Cl. 337, 353 (1973) the

court asserted:

* * * This court has stated on many occasions

that the measure of the penalty is within the dis-

cretion of the agency. ‘ Birnholz v. United States,

199 Ct. Cl. 532 (1972); Heffron v. United States,

186 Ct. Cl. 474, 484, 405 F.2d 1307, 1312 (1969):

Liotta v. United States, 174 Ct. Cl. 91, 96 (1966);

De Nigris v. United States, 169 Ct. Cl. 619, 625

(1965). There are, of course, exceptions to this

general rule where it can be shown that the deci-

gion made by the agency was the product of

abused discretion. The test for the abuse of dis-

cretion requires a showing by the plaintiff that

the penalty is so harsh that there is “an inherent

dispreportion between offense and punishment.”

Heffron v. United States, supra, 186 Ct. Cl. at

485, 405 F.2d at 1312-13; Clark v. United States,

162 Ct. Cl. 477, 484 (1963).

However, when such abuse of discretion has occurred, the

court has not hesitated to set aside penalties, whether or

not they have been within the range of permissible alterna-

tives. Clark v. United States, 162 Ct. Cl. 477 (1963): Ja-

cobowitz v. United States, 191 Ct. Cl. 444, 458-59, 424

F.2d 555, 563 (1970); Cuiffo v. United States, 131 Ct. C1.

60, 137 F. Supp. 944 (1955): and cf. Daub vy. United States,

154 Ct. Cl. 434, 292 F.2d 895 (1961).

Civilian Personnel Regulation C2.4 provides that the sever-

ity of disciplinary action is left to the discretion of appro-

priate officials of the employing activity, but it does set out

46a

a list of suggested penalties. For the applicable offense,

“False statements, misrepresentation, or fraud in application

blank or other official records submitted to the Department

of the Army”, the suggested range of penalties for a first

offense is ‘*5-to 10-day suspension, or removal.” (CPR C2,

app. B.) -

That this requires an exercise of informed discretion by the

appropraite official seems clear. Throughout the regulations

are directions that the penalties listed are suggestive only,

they are to be used as a general guide, due consideration

should be given to mitigating circumstances, and the penalty

imposed should be no more severe than necessary to correct

the situation and maintain discipline.! The severity of a re-

moval action is emphasized in the regulations on several oc-

casions. Removal is to be imposed only where the circum-

stances demand it.”

| See CPR C2.1-6a; C2.4-2a; CPR C2 app. B.

2 CPR S1.3-3 “Removal” provides:

* * * Before proceeding with a removal action, considera-

tion should be given to whether some other type of action

would be more appropriate. * * *

Job Protection Requirements

a. A removal is the most drastic action that can be im-

posed against an employee in that it not only results in his

separation from the rolls but may also result in his being

denied further employment. Therefore, the greatest care

and judgment must be exercised and the full requirements

of section 2 must be observed in effecting this action. * * *

(continued)

ottiind sees tam aebed ett.

47a

An abuse of discretion occurs not only when an official

disregards important pertinent facts of which he knows but

just as well when he accepts and fails to ascertain the truth

of a material proposition of fact upon which is decision de-

pends and which is in fact untrue. Cf. Crocker v. United

States, 130 Ct. Cl. 567, 573-75, 127 F. Supp. 568, 571-73

(1955); and United States v. Tucker, 404 U.S. 443 (1972).

The record in this case establishes that the commanding

officer who imposed the penalty of discharge was under a

misapprehension of material fact which was conveyed to

and was accepted by his superiors at every level of review.

Throughout the proceedings, beginning with the decision of

Colonel Larsen runs the theme that plaintiff had deliberately

attempted to and did defraud the United States Government

out of money or moneys worth and therefore he could not

be trusted in his important position in connection with the

disbursement of large sums of money. Major General Kyser

in his ex parte communication of July 2, 1965, to the Com-

mander in Chief, Europe, urging that the grievance examiner’s

recommendations be overruled did so on the grounds that

plaintiff having committed “fraud against the United States”

his sense of propriety was inconsistent with his fiduciary re-

sponsibilities, and that “retention of an employee who is

known to have committed a fraud against the United States”

would unfavorably affect the integrity of others. Both the

2 (Cont'd)

Relationship to Other Actions

b. Removal actions will not be initiated in those cases

where some other separation action covered by these regu-

lations is more appropriate. * * *

* * * * * * *

48a

Commander in Chief,. Europe, and the Secretary of the

Army, as well as the boards which assisted them accepted

Colonel Larsen’s characterization that plaintiff had used

the altered documents to defraud the United States. No

document in the record shows that any of them gave any

express consideration to either agree or disagree with the

question raised by the grievance examiner in her opinion

when she noted that “there is no regulation which states

that Mr. Rifkin was not, even as a GS 12, precluded from

first class accommodations” and that the $351 would have

been considered an acceptable Government cost on another

sailing date.

Title 5 U.S.C. § 5731 provides that the allowance for

transportation expense for Government employees, generally

“may not exceed the lowest first-class rate by the transpor-

tation facility used.” The Standardized Government Travel

Regulations issued by the Executive Office of the President,

Bureau of the Budget, pursuant to statutory authority in

effect during 1965, provides:

3.6 Accomodations on trains, steamers, and

airplanes.

-_ * - *

b. Steamer accommodations.

(1) Staterooms. — The minimum first-class

accommodation will be allowed when stateroom

is included in cost of passage or is a separate

charge, * * * The travel order or other admin-

istrative determination may, however, specify the

use of an accommodation less costly than the mi-

nimum first-class accommodation when suitable for

a particular voyage. * * *

oe er oe

ee ee eer a)

49a

The Department of the Army’s Civilian Travel Regulations

(CPR T3) state at paragraph 1-2, that the Government Tra-

vel Regulations permit the exercise of administrative discre-

tion by the Secretary of the Army, and therefore, “[w] here

such administrative authority has been exercised in the regu-

lations to prescribe less than the legal maximum, the reguia-

tions are the controlling authority.” But none of the Civi-

lian Travel Regulations produced by defendant states less

than first-class travel has been prescribed for GS-12 em-

ployees and that they are not entitled to the lowest first-

class steamer accommodations such as were booked by the

MSTS officer on the SS United States for others. Nor did

plaintiff's travel authorization limit plaintiff to less than

lowest first-class steamer acommodations to which he was

entitled under the Standardized Government Travel Regula-

tions.

The undisputed testimony was that there was no fixed

dividing line between grades entitled to first class and grades

entitled only to lesser accommodations. On some sailings

GS-1 2’s were assigned first-class accommodations. It all de-

pended on the blocks and mixes of accommodations booked

in advance for a particular sailing by the MSTS officer in

charge as compared to the actual demand therefor. Thus,

it appears that assignment of preferred accommodations in

order of rank or grade was merely an orderly method of

allocation to suit the requirements of a particular day’s re-

servations. Accordingly, while plaintiff's use of an altered

travel authorization falsifying his grade was unquestionably

an improper act designed to obtain an unwarranted advan-

tage over others, it does not necessarily follow, as Colonel

Larsen assumed and !ijs superiors accepted, that it was de-

signed to or in fact did defraud the United States out of

money or moneys worth to which under no circumstances

was the plaintiff entitle:

50a Sla

At the time the removal was effected neither Colonel Mc- the falsification was a desire for prestige (“to be a big shot”):

Kee nor Colonel Larsen accurately understood the process he had no doubt that plaintiff would never steal a dime

by which the transportation command assigned accommoda- from the Army. He conveyed this appraisal to Colonel

tions. Colonel McKee apparently knew nothing of the sys- Larsen, who, as a newcomer, sought the advice of others

tem used, but thought that by presenting the falsified orders, on his staff. Colonel Larsen admitted that he had no rea-

plaintiff was obtaining a class of passage to which he could son to differ with Major Murphy’s appraisal; several others

not have otherwise been authorized. Colonel Larsen’s mis- | on his staff had concurred with this view of plaintiff’s ba-

conception was even more in point. He believed that the sic honesty in his duties but desire for prestige. Colonel

cut off was fixed between GS-12 and GS-13, with GS-12’s Larsen, however, also relied on Major Murphy’s tens slides

and below always traveling cabin class and GS-!3’s always that while as a layman he could accept such appraisal of

traveling first class. Both of these men, therefore, regarded plaintiff, his motivation and his basic honesty, as a matter

plaintiff's action as an attempt by him to obtain something of law he was required to disregard such eunsidesstions in

to which he never would have been entitled without the imposing punishment.

falsified order. Both perceived the falsification to be a de-

liberate attempt to defraud the Government. While a false statement is in itself an offense justifying

punishment, it is not necessarily of the same order of gra-

When the actual process was called to the attention of vity as an attempt to defraud or cheat the United States

Colonel McKee and Colonel Larsen at the trial, and it was Cf. Urbina v. United States, 180 Ct. Cl. 194 218-19 (1967)

explained that the cut off varied from trip to trip, both | Yet this was the essence of the removal notice and was re- |

men admitted this affected their perception of the serious- peated at every level of review (other than by the grievance

ness of the offense. Colonel McKee testified, “It would cer-

tainly have removed one of the elements of the culpability,

in my opinion’. Colonel Larsen testified, “It is a mitigat-

ing circumstance, yes sir.”

examiner) as the reason for affirming the removal.?

In Drucker vy. United States, 204 Ct. Cl. 514, 518, 498

F.2d 1350, 1352 (1974), the court quoted with approval a

definition of administrative discretion from BLACK’S LAW

The record also discloses that despite the reason given in DICTIONARY (rev. 4th ed. 1968), which states that—

their removal notice those responsible for that decision did

not in fact believe that plaintiff's falsification of his grade

was motivated by the desire to defraud the United States,

but disregarded their own evaluation because of a lack of

comprehension as to the nature and scope of their discre-

[w]hen applied to public functionaries, discretion

means a power or right conferred upon them by

tionary function with respect to meting out penalties. At 3 The extent of plaintiff's fiduciary responsibilities was also grossly

the time of the incident, Major Murphy, the Procurement exaggerated and reiterated at every level of review. His function was

Judge Advocate, had known plaintiff for almost 3 years. i primarily accounting. He neither handled nor exercised any discretion

Major Murphy was convinced that plaintiff's motivation in | with respect to the disbursement of funds.

52a

law of acting officially in certain circumstances,

according to the dictates of their own judgment

and conscience, uncontrolled by the judgment or

conscience of others.

Rather than following “‘the dictates of their own judgment

and conscience’, the officers concerned in this case delib-

erately disregarded their personal evaluation of plaintiff and

the motivation for his offense. Major Murphy seemed to

believe that a lawyer could not and should not be influenced

by personal evaluaions of intent or human frailties, sym-

pathy, or compassion; and he imposed this narrow view of

his legal responsibilities in the exercise of discretion upon

Colonel Larsen. Such a view eliminates the very essence

of discretion, following the dictates of one’s own judgment

and conscience. Under this view of discretion, the decision

is only a mechanistic choice uninfluenced by personal con-

sideration, conscience, or judgment. It is more accurate to

describe the decision as an abdication rather than an exer-

cise of discretion.

Evidence in the record reflects other misconceptions in-

volving the authorized range of penalties which likewise pre-

vented the proper exercise of discretion with respect thereto.

Colonel McKee and Colonel Larsen had both been advised

by Major Murphy, the Procurement Judge Advocate, that

the prescribed schedule of penalties allowed for either very

minimal punishments or removal, with no variations or gra-

dations in between. At the trial (now) Colonel Murphy ex-

plained:

The reason why he could not be suspended be-

yond 30 days was non-legal, but policy as they

told me, non-law in a sense. It was based on a

theory that if a man was to be suspended more

53a

than 30 days then he should be removed. And

you could not keep a vacancy open for six

months, nine months, or one year because it

didn’t make Civil Service sense. This is the ra-

tionale I got from the CPO study.

The record shows that one factor definitely influencing the

decision by both men that removal was warranted, was the

belief that the only other alternative, a maximum suspen-

sion of 30 days, was too minimal a punishment for the

fraudulent offense charged. Such a limited view of the

range of permissible penalties runs directly counter to the

mandate of the applicable regulations. CPR S$1.3-10b.(1),

specifically permits a suspension for more than 30 days,

provided full job protection rights are accorded.

In this same vein, Major Murphy advised his superior that

“It is illegal * * * to transfer for punishment purposes.”

According to his testimony, transfer was only appropriate

for “inefficiency or incompetency at work”. Major Murphy

was apparently relying on CPR S1.3 “Adverse Actions’ at

3-1 1.c.(1), which states:

A change to lower grade will not be imposed as

a disciplinary action. When an offense warrants

the imposition of a penalty, determination of the

appropniate action will be made in accordance

with CPR C2.

This regulauon, however, prohibits only demotions for the

same work, it says nothing about transfer to another posi-

tion. Major Murphy admitted that a voluntary demotion or

voluntary transfer would have been allowable. In fact, when

shortly after plaintiff’s discharge by Colonel Larsen, the civi-

lian personnel officer who advised Colonel Larsen on plain-

tiffs punishment, was himself found to have falsified his

54a

own personnel records by claiming education qualifications

for courses of study he never took, he was permitted to ac-

cept a reduction in grade and nominal reduction in salary

from GS-14 to the top of GS-13 and transfer to another

location. However, the availability of such an alternative

sanction was never considered nor discussed with plaintiff.

For the foregoing reasons the decision removing plain-

tiff represents an abuse of discretion and cannot stand.

The Ex Parte Submissions

The court’s remand order of April 27, 1973, requested re-

solution of the issue with respect to the use of ex parte

evidence against plaintiff. In Camero v. United States, 179

Ct. Cl. 520, 375 F.2d 777 (1967) and Jarrett v. United

States, 195 Ct. Cl. 320, 451 F.2d 623 (1971), the court

held that the Government’s ex parte communications con-

cerning the merits of a case to those responsible for the de-

cision in proceedings prescribed by regulations to be based

on evidence and adversary in nature invalidated a decision

adverse to a Government employee.

Plaintiff alleges the improper use of at least 12 ex parte

documents during the administrative appellate proceedings

without the knowledge of plaintiff or his counsel. Plaintiff,

however, identifies only one document, Colonel Larsen’s Me-

morandum for Record of May 20, 1965, sent to the Com-

manding Officer of the United States Army Communications

Zone (COMZ) at Orlean. This documerit was not a commu-

nication to one having the responsibility for a decision in

an adversary hearing on evidence; the purpose, as testified

55a

to by Colonel Larsen, was routine — to keep his own com-

mander, General Kyser, informed on matters pending with-

in the Procurement Agency command.

When the American Federation of Government Employees

(AFGE) raised the ex parte issue with the Army, plaintiff's

counsel was furnished three documents:

(1) The memorandum from the Employee Appeals Re-

view Board to the Deputy Chief of Staff of the Comman-

der in Chicf, Europe, dated July 27, 1965, setting forth its

recommendations with respect to plaintiff's appeal and the

grievance examiner’s report. CPR C2, E2.5-5a allows the

major commander to “prescribe the methods and proce-

dures” for review, on the merits, of the transcript of the

grievance hearing and the examiner’s report. Pursuant to

this authority, an Employee Appeals Review Board was

set up by CINC USAREUR to review the record and to

make recommendations to him. It was not unreasonable

for the Commander in Chief, Europe, to seek assistance

from his staff, the members of which had not been in-

volved in the case. The board made a complete review

and report. This appears to be allowable under the regu-

lations, and since the panel’s review was not an adversary

hearing it was not inherently unfair or prejudicial.

(2) The comments on plaintiff's appellate brief that were

furnished the Secretary of the Army by the Commander in

Chief, Europe, on March 2, 1966.

This was prepared pursuant to a request by the Secre-

tary of the Army for further information concerning the is-

sues raised in plaintiff's appellate brief to the Secretary.

The request sought information with respect to: (a) basis

for determination that removal rather than a lesser penalty

56a

was warranted, as recommended by examiner; (b) circum-

stances of the major ““B” case, urged by plaintiff to show

discriminatory treatment; and (c) intention of Colonel Lar-

sen to fill the comptroller position with a military officer,

also claimed by plaintiff. The request directed CINC USA-

REUR to obtain information from COMZ concerning the

latter two matters.

With regard to an appeal to the Secretary of the Army

from a major commander’s decision, CPR C2, E.5-6.a.(1)

provides:

The employees request for review will be added

to the appeal record along with any comments

the activity commander or major commander

wish to make, and will be forwarded through

channels to the Office, Secretary of the Army.

** *

Since the regulations providing for such appeal specifically

contemplate “comments” by the activity and major com-

mander, and are silent concerning making such comments

available to an appellant, it appears that such documents

were proper.

Moreover, since the delegate of the Secretary of the Army

made both documents (1) and (2) available to plaintiff, gave

plaintiff's counsel an opportunity to file a brief in response

thereto and reconsidered his decision in the light of such

brief, plaintiff has not been deprived of any rights granted

by the regulations or which affect the basic fairness of the

appeal proceeding.

(3) A July 2, 1965 letter from COMZ (Major General

Kyser) to Commander in Chief, Europe.

57a

Colonel Larsen had been keeping his immediate superior,

Major General Kyser (COMZ), informed of his actions with

respect to the Rifkin matter. After the grievance examiner’s

report was issued on July 2, 1965, General Kyser unilaterally

wrote to the Commander in Chief, Europe, before whom

plaintiff's appeal was pending, without furnishing a copy to

plaintiff, urging that the recommendations of the grievance

examiner not be followed and that the removal be sustained.

He stated “[t] hat fraud against the United States was com-

mitted is adequately established”’; that the removal of an

employee in a position of trust who has failed with respect

to honesty and integrity is necessary to promote the effi-

ciency of the service; that “[t]he retention of an employee

who is known to have committed a fraud against the United

States’ would unfavorably affect the morale, integrity and

high standards of conduct of other employees; and discharge

was not too severe a punishment because plaintiff’: fraudu-

lent act covld have been the basis of a prosecution which

could have warranted a $10,000 fine and 5-years imprison-

ment.

General Kyser’s letter is troublesome. It sought to in-

fluence the result of an adversary hearing required to be

based on evidence by imposing his own conclusions in the

appeal. Since it urged that the grievance examiner’s recom-

mendation for a punishment less severe than discharge not

be followed because the plaintiff was guilty of a fraud

against the United States which could even have warranted

fine and imprisonment, it was certainly prejudicial to plain-

tiff. Major General Kyser was Colonel Larsen’s direct su-

perior and Colonel Larsen testified he conferred frequently

with the general and his staff and kept them fully in-

formed on everything he ‘did in the Rifkin case, by memo-

randa, telephone and personaliy. Thus General Kyser’s per-

58a

spective and views on the case weie derived at least to

some extent from Colonel Larsen, who was a party to the

appeal. Colonel Larsen also testified that General Kyser

was extremely concerned and upset about the Rifkin case

and needed no convincing from him to write the letter to

higher headquarters expressing his views about the case

while the appeal was pending. The letter was in fact con-

sidered by the Commander in Chief, Europe, and his staff,

in deciding the appeal, since it is expressly referred to in a

memorandum dated 27 July 1965 from a panel set up by

him, and is quoted in a letter to the Secretary of the Army

dated 2 March 1966.

General Kyser’s letter of July 2, 1965, states that it is in

compliance with USAREUR Regulation 690-32, paragraph

6(b). It is not clear that such regulation, which is set out

below,’ does authorize an ex parte communication of the

sort at issue here. In any event, if it did, a regional regu-

lation which would authorize ex parte comments such as

those of General Kyser’s would be inconsistent with the en-

tire adversary and evidentiary grievance procedure set up

by the Army Civilian Personnel Regulations. This letter

was so prejudicial to plaintiff as to destroy his right to a fair

4 «6, Processing Appeals From Adverse Actions. a. An infor-

mation copy of the Report of Inquiry and Grievance Record, which

is forwarded directly to the Personnel and Administration Division,

Headquarters USAREUR (CPR E2.5-4b), will be transmitted to the

appropriate area commander. When the activity concerned reports

directly to a staff division of Headquarters USAREUR, a copy of

the Report of Inquiry and Grievance Record will be forwarded to

the head of that staff division.

b. Immediately on receipt of the copy of the Report of Inquiry

and Grievance Record by the commander indicated in a above, a

qualified staff officer will be designated to analyze the appeal and

recommend appropriate action.”

59a

and impartial hearing before the Commander in Chief, Europe.

It is unnecessary to decide at this point whether the re-

consideration of its decision by the Office of the Secretary

of the Army after piaintiff was allowed to respond to the

three ex parte documents is enough to cure the unfairness

in the appeal to the major commander, since it has already

been decided that the penalty should be vacated for other

reasons.

DUTY STATUS

Plaintiff claims that regardless of the correctness of his

discharge he was wrongfully deprived of his pay for the

period from April 13, 1965 to August 30, 1965. The es-

sence of his claim is that by regulation an oversea employee

of the Army, recruited in the United States, is entitled to

remain in duty status until the completion of his appeal to

the majer command.

The Civilian Personnel Regulations provide in pertinent

part (CPR E2.5):

SPECIAL PROVISIONS FOR OVERSEA

EMPLOYEES

5-8. In processing an action under CPR S! dis-

charging for cause a United States citizen employee

serving Overseas who is eligible for return transpor-

tation at Government expense, or who is ineligible

for such transportation but who cannot remain in

the oversea area after separation because of immi-

gration requirements and/or agreements requiring

repatriation to the country of residence, the special

provisions set forth below will be applicable. These

provisions do not apply to separation of an indi-

vidual serving a probationary or trial period.

o + o o * o = *

60a

c. If the employee files an appeal and requests

authority to remain in the command, the installa-

tion will extend the notice period and inform the

employee that he will be retained at the installa-

tion in a duty status pending the hearing and final

disposition of the appeal at the major command le-

vel. Should the reasons for the removal action pre-

clude retaining him on duty, he will be retained at

the installation but suspended without pay. The

suspension must be processed under CPR S|! as a se-

parate personnel action. The employee may also

be permitted to remain at the installation in an-

nual leave or leave without pay status provided the

submission of a written request for such leave is

a completely voluntary action on the part of the

employee. Enforced annual leave will not be di-

rected by the installation for the purpose of re-

moving the employee from a duty status. [Em-

phasis in original. ]

It is clear from the record that plaintiff's waiver of duty

status was not “a completely voluntary action” within the

meaning of the regulation and plaintiff did not waive duty

status pending resolution of his appeal. Prior to the April

9, 1965 meeting with plaintiff, Colonel Larsen had been

instructed by his judge advocate, Major Murphy, and the

civilian personnel officer, Mr. Rowe, that plaintiff was

likely to request to remain in duty status pending his ap-

peal, but that plaintiff did not qualify under the regula-

tion. Their rationale wa

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