# Petition — Rifkin v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 1098

## Text

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9
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 .

ne

IN THE

Supreme Court of the United States
OCTOBER TERM, 1976

HAROLD S. RIFKIN,

Petitioner,
v.

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.

tr

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

10

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,

13

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-

14

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

15

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

16

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.”

17

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

19

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:

20

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

21

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.

22

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).

23

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.

24

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

25

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.

26

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

27

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.

28

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.

2a

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

3a

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

th
Enc.

4a

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.

Sa

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).

6a

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

7a

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.”

2

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.

9a

3
I

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

4

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

5)

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
6

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
7

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
8

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
9

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

2

l6a
10

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.

IT

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
li

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
12

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

15

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
14

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

16

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 : )

* * © This court has stated on many occasions that the
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
17

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
18

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.

s

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

ae ee

19

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
20

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

21

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
22

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).

TV

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
24

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

23

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
26

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.

Vv

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
27

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 . 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 considerat

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1113%3A1. Public record. Not legal advice.