Petition — Power v. United States
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oe 1) OCT 26 1979
SUPREME COURT OF THE UNITED PaIES. sat
79-686
LUTHER G. POWER, JUR.,
Petitioner,
V.
THE UNITED STATES,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF CLAIMS
Philip E. McCleery
1200 Alico Building
Waco, Texas 76701
Counsel for Petitioner
Of Counsel:
SHEEHY, LOVELACE & MAYFIELD
1200 Alico Building
Waco, Texas 76701
INDEX
Page
Se a ee ee C
a 2
Questions Presented .....:.220 se ce 3
Statutory Provisions Involved ........ 3
weauemene Gr CMe GOSe Gas. twee ee 5
Reasons for Granting the krit
The decision below is in conflict with
applicable decisions of this Court and
decides Federal questions of substance
not heretofore determined by this Court . 9
a ss £2
Appendix A
Opinion of the United States Court of
Claims, April 18, 1979, Luther G.
Power, Jr. v. The United States ..... Aq-l
Appendix B
Order of the United States Court of
Clainis, June 29, 1979, Luther G.
Power, Ur. v. The United States ..... Eel
Appendix C
Opinion of the United States Court of
Claims, March 17, 1976, Luther CG.
Power, Jr. v. The United States ..... Ce]
Appendix D
Order of the United States Court of
Claims, June 25, 1976, Luther G.
Power, Jr. v. The United States ..... Del
11
Statutes
Appendix £
In the Matter of Luther G. Power, Ur. Page
Board of Appeals and Review Decision,
Atl) Bs LTR se Ce ehh ee eX ie hae S tcS.Gsy SOCtion S508) 6.1 5 aes ees 4
26 Us Seu, SOCCION 1991 4 4 ce te ee ee 3
25 UscSe0a, SOCtiOn T2551) <%s 6 a 2 ee 2
List of Authorities
Ainsworth v. United States, 399 F.2d 1/76
esGls SOG) 6 & @ 2 6 4 OS He OO ~« 10
Curtis Publisnina Company vs. Butts,
Jou Use Lau (SOF) ew tee te ll
Y, Fay v. Noia, 372 UsS. 391 (1963) .« ~ « eo « ll
- Johnson vs. Zerbst, 304 U.S. 458, 464 (1938). 11
New York Shipbuilding Corp. v. United States,
300 Feed 4c/ (CECT. [90s }. 2 & 2 2 e~« we de
Power v. United States, 531 F.2d 505
(eteGle £970) 6 = 6 4 4 ae ae 6
Power v. United States, 210 Ct.Cl. 742 (1976) 7
Schwartz v. United States, 181 F.Supp. 408
(Ct.Cl. 1960) “sak ee & + & 8
United States v. Perkins, 116 U.S. 483 (1886) 10
United States v. Teston, 424 U.S. 392 (1976) 10
! United States v. wickersham, 201 U.S. 290
(1 UO6 in
(1406 ) . . . . . . . . . . . . . + . . . . 1C
rz
IN THE
SUPREME COURT OF THE UNITED STATES
Page
Petitioner,
Respondent.
OR WRIT OF CERTIORARI TO THE
oe
T
4
STATES COURT OF CLAIM
The Petitioner, LUTHER 6. POWER, UR.,
respectfully prays that a krit of Certiorari issue
to review the judgment and Opinion of the United
states Court of Claims entered in this proceeding
on April 18, 1979 and of the Order overruling
Plaintiff's Motion for Rehearing entered in this
proceeding on June 29, 1979,
ite
OPINIONS BELOW
The opinion of the Court of Claims, not yet
reported, appears in Appendix A hereto. The
Opinion of the Court of Claims on Defendant's
Motion and Plaintiff's Cross Motion for Sumniary
Judgment is reported at 531 F.2d 505 (Ct. Cl.
1976). The opinion of the Court of Claims denying
Respondent's Motion for Rehearing is reported at
210 Ct.Cl. 742 (1976).
JURISDICTION
The judgment of the Court of Claims was
entered on April 18, 1979 and the Order overruling
Plaintiff's Motion for Rehearing was entered on
vune 29, 1979, This Petition for Certiorari is
filed within ninety (90) days of that date. This
Court's jurisdiction is invoked under 28 U.S.C.
section 1255(1).
at.
QUESTIONS PRESENTED
Li May an appointed career civil service
employee's right to receive the pay of his office
terminate after a determination by the Court of
Claims that his removal was invalid before he has
been validly removed or retired?
2s May the backpay award to a validly
appointed civil service employee, whose removal
from his position was determined to be invalid, be
reduced by an amount that he might have earned by
seeking other employment without any evidence that
he could have obtained other employment or of the
amount ne would have earned from such employment?
STATUTORY PROVISIONS INVOLVED
28 U.S.C. Section 1491:
“The Court of Claims shall have jurisdiction
to render judgment upon any claim against the
United States founded either upon the Constitution,
Or any Act of Congress, or any regulation of an
executive departinent, or upon any express or
wis
implied contract with the United States, or for
liquidated or unliquidated damages in cases not
sounding in tort.* * * To provide an entire remedy
and to complete the relief afforded by the judg-
ment, the court may, as an incident of and
collateral to any such judgment, issue orders
directing restoration to office or position, place-
ment in appropriate duty or retirement status, and
correction of applicable records, and such orders
may be issued to any appropriate official of the
Unites States.* * * *
5 U.S.C. Section 5596(b):
* * *(b) An employee of an agency who, on the
basis of an administrative determination or a time-
ly appeal, is found by appropriate authority under
applicable law or regulation to have undergone an
unjustified or unwarranted personnel action that
has resulted in the withdrawal or reduction of al]
Or a part of the pay, allowances, or differentials
of the employee --
(1) is entitled, on correction of the
personnel action, to receive for the period
for which the personnel action was in effect
an amount equal to all or any part of the pay,
allowances, or differentials, as applicable,
that the employee normally would have earned
during that period if the personnel action had
not occurred, less any amounts earned by hin
through other employment during that period;
and
(2) for all purposes, is deemed to have
performed service for the egency during that
period, except that the employee may not be
credited, under this section, leave in an
amount that would cause the amount of leave to
uo
his credit to exceed the maximum amount of the
leave authorized for the employee by law or
regulation.* * *"
STATEMENT CF THE CASE
On December 20, 1967, the Petitioner was
appointed to a competitive, career civil service
position in the Department of the Army as an Ammu-
nitions Inspector (Surveillance). His initial
appointment was a Grade CS-5. Ke continued to
serve in this position and continued to receive
promotions and ultimately achieved the: srade of
GS-9, Step 4 on January 9, 1972. He was removed
from his position effective September 18, 1972 upon
allegations relating to the submission of a claim
for allowances in connection with a transfer from
Fort Wingate Army Cepot, Callup, New Mexico to Red
River Army Cepot, Texarkana, Texas. Fol lowing
Petitioner's removal in 1972, he prosecuted = an
administrative appeal.
On April 5, 1974, the Board of Appeals and Review
acting for the Civil Service Commission, upheld
Petitioner's removal.1 Having exhausted his
administrative appeal, the Petitioner filed suit in
the Court of Claims on December 23, 1974 Seeking a
judgment for backpay from September 18, 1972 and
for reinstatement in the position from which he was
involuntarily removed.
On March 17, 1976 the Court entered a judgment
for the Petitioner. The Court held that the
penalty of removal which the Cepartment of the
Army, with the approval of the Civil Service Com-
mission, assessed against the Plaintiff "was so
unconsciounably disproportionate as to be an abuse
of discretion by Defendant".3 The Court further
lin the Matter of Luther G. Power, dr.,
Board of Appeals and Review Decision, April 5,
1974. Appendix —E at E-l.
cPower v. United States, 531 F.2d 505
(Ct.Cl. 1976). Appendix A at A-l.
SIbid., p. 507. Appendix A at A-5.
a, oe
held that "we have determined not to order rein-
Statement in this action in the light of the unus-
ual nature of this case".4 Finally, the Court
remanded this case to the Trial Division for fur-
ther proceedings under Rule 131(c), Court of Ciaims
Rules to cetermine the amount to be awarded Peti-
tioner, consistent with its opinion.
On May 5, 1976, Respondent filed a Motion for
Rehearing in the case and the Court denied the
Respondent's Motion in an Order dated June 25,
1976.9
The Trial Judge recommended a finding that the
Petitioner's right to receive pay terminated on the
date of the Court's derision on March 17, 1976. He
further recommended a finding that Respondent was
SIbid., p. 510. Appendix C at C-16.
SPower v. United States, 210 Ct.Cl. 742
(1976). Appendix D at D-l.
entitled to an offset from the backpay award for
amounts that Petitioner might have earned had he
exerted reasonable effort to obtain other employ-
ment.
The Court of Claims held that Petitioner's
right to receive pay terminated on June 25, 1976,
when the Respondent's Motion for Rehearing was
denied in a “speaking" Order.© The Court con-
Strued the June 25, 1976 Crder of the Court of
Claims to have held that the Petitioner had waived
all further claim to backpay from that date by the
position he had taken and his conduct with respect
to the Respondent's Motion for Rehearing. / The
Court further held that Respondent is entitled to
an offset for the amount that the Petitioner could
©Power v. United States, No.
18, 1979 Order. Appendix A at A-l.
Ibid. Appendix A at p. A-7.
«Qe
have earned by seeking and obtaining employment at
minimum wage for the period from the date that the
administrative appeal of the improper discharge was
final, April 6, 1974, until the date of the Court's
denial of rehearing, June 25, 1976.8
REASONS FOR GRANTING THE WRIT
THE DECISION BELOW IS IN CONFLICT WITH APPLIC-
ABLE DECISIONS OF THIS COURT AND DECIDES FEDERAL
QUESTIONS QF SUBSTANCE NOT HERETOFCRE DETERMINED BY
THIS COURT.
The Court of Claims decision on the liability
phase of this case dated March 17, 1976, held that
Respondent had abused its discretion in applying a
penalty to the actions it had found Petitioner to
have committed. Therefore, the removal of the
Sibid. Appendix A at p. A-22.
«10.
Petitioner from his position was unlawful, illegal
and ineffective.
Under the applicable decisions of this Court
it is clear and undisputed that an employee who has
been wrongfully removed from his position is en-
titled to the pay of his position until he has been
properly removed. United States v. Teston, 424
U.S. 392 (1976); United States v. hickersham, 201
U.S. 290 (1906); Ainsworth v. United States, 399
F.2d 176 (Ct.Cl. 1968); and United States v.
Perkins, 116 U.S. 483 (1886).
The United States Court of Claims, by its
decision of April 18, 1979, hneld that even though
Petitioner was never properly removed from his
position, his right to pay terminated on June 25,
1976. The Court indicated that it had based its
decision on a purported waiver. The Court stated:
“We construe the statement in the June 25,
1976 Order as a holding by the Court that
plaintiff, by his position and conduct with
respect to the defendant's rehearing motion,
had waived all claim to further backpay (as
elie
well as to reinstatement). The Court did
not, at that time, consider that plaintiff
could recover further backpay even though
he affirmatively rejected reinstatement.
If plaintiff believed that he could, he
should have sought clarification or change
in the Order of June 25, 1976."9
The Supreme Court of the United States in the
case of Fay v. Noia, 372 U.S. 391 (1963) stated
that “the classic definition of waiver enunciated
in Johnson vs. Zerbst, 204 U.S. 458, 464, 82 L.Ed.
1461, 1466, 58 S.Ct. 1019, 146 ALR 357 - ‘an inten-
tional relinquishment or abandonment of a known
right or privilege’ - furnishes the controlling
Standard". The Supreme Court has also held that
“an effective waiver must be one of a known right
or privilege", Curtis Publishing Company vs. Butts,
388 U.S. 130 (1967). "No man can be bound by a
waiver of his rights unless such waiver is dis-
tinctly made, with full knowledge of the rights
II bid. Appendix A at p. A-7.
st
which he intends to waive; and the fact that he
knows his rights and intends to waive them must
plainly appear." 28 Am.Jur.2d 840-841; Section 158
Estoppel and Waiver.
A review of the proceedings in this case in
light of the above definition of waiver clearly
indicates that Petitioner has not waived his right
to receive pay until he has been properly removed.
Petitioner filed this suit seeking reinstatement
and backpay based upon his contention that his
removal was an abuse of discretion. The Respondent
moved for a Summary Judgment of dismissal and Peti-
tioner moved for a Summary Judgment as to liabil-
ity. As set forth above, the Court denied Respond-
ent's motion and granted Petitioner's motion.
However, the Court elected not to exercise its 28
U.S.C. 1491 authority to order Petitioner's rein-
Statement. The Respondent, impliedly recognizing
that under well established law it had continuing
1%
liability to Petitioner for his Pay until he was
validly discharged, filed a Motion for Rehearing.
In Petitioner's response to Defendant's Motion for
Rehearing, Petitioner took the position that under
28 U.S.C. 1491 the Court had the discretion to
affirmatively order reinstatement but that Said
action was not necessarily mandatory. Petitioner
never took the position that the Court's refusal “to
Order reinstatement effectively removed him or
terminated his right to receive the pay of his
position until he was validly removed.
Furthermore, there is no basis for an implied
Waiver as the Order of the Court cites no authority
to support its conclusion and the Court of Claims
has previously held that it will not, without a
proper showing, imply a waiver. New York Ship-
building Corp. v. United States, 385 F.2d 427 (Ct
Cl., 1967)
The Court, in its Order of June 25, 1976 over-
ruling Defendant's Motion for Rehearing, stated:
“In denying rehearing en banc the Court
emphasizes that it deems that plaintiff,
in his opposition to the defendant's
petition en banc and for rehearing, has
rejected the position that he had to be
reinstated, and the Court concludes that
he is content with the relief he has been
accorded. "10
The relief which Petitioner had been accorded was a
Summary Judgment that the Respondent's action in
removing him constituted an abuse of discretion.
Under well established law, that made the Respond-
ent liable to the Petitioner for the pay of his
position until he was validly removed. Therefore,
while Petitioner may have waived his right to an
affirmative Crder of the Court requiring Respondent
to reinstate him, he certainly did not waive his
right to the pay of his position until he was
validly removed.
f) . : 7A
lOpower v. United States, 210 Ct.Cl. 742
(1976). Appendix D at O-1.
{
\
It is also quite significant that in the
Court's Order of June 25, 1976, the Court spoke to
the Petitioner's right to recover backpay indefi-
nitely. The Court said:
“If defendant remains fearful that,
despite plaintiff's position on the
rehearing petition, he will be able
to recover backpay indefinitely, it ’
can always reinstate him voluntarily."
—)
The Court's Order of June 25 did not say that Peti-
tioner's position on the rehearing terminated his
right to pay nor did the Court say that its Order
of March 17, 1976 terminated the Petitioner's right
to receive pay.
Under the above circumstances it certainly
Cannot be said that Petitioner waived his rights.
Likewise, it cannot be said that such waiver was
distinctly made with full knowledge of the rights
which he intended to waive. Finally, it certainly
llibid. Appendix 0 at D-1l.
does not "plainly appear" that Petitioner intended
to waive his right to his pay.
The Court stated in its opinion of April 18,
—"
‘©
“
Oo
that
“We construe the statement in the June
25, 1976 Order as a holding by the Court
that plaintiff, by his position and con-
duct with respect to the defendant's Re-
nearing Motion, had waived all claim to
further backpay (as well as to reinstate-
ment)."
+
It is apparent that the Court has failed to distin-
moO
guish between its discretionary authority under 23
U.S.C. 1491 to affirmatively order the reinstate-
ment and its authority to determine that an employ-
ee's removal was unlawful, thereby subjecting the
Respondent to liability for his pay.
The basis upon which the Respondent is liable
for the employee's pay is that the employee, once
12> ower ve. United States, No. 439-74,
A hi
April 18, 1979 Order. Appendix A at A-7.
4%
appointed to a position, is entitled to the pay of
that position until he is validly removed. He re-
ceives his pay as a result of Statutory entitle-
ment. te does not receive pay for having done work
for the government. On the other hand, an affirma-
tive Order of the Court requiring a particular
person's reinstatement to a particular job presents
Other considerations. In the latter case, the
Court is exercising traditional equitable jurisdic-
tion and, under the facts in a particular case,
such an order may not be appropriate. Therefore, a
finding by the Court that a person's removal was an
abuse of discretion Subyecting the Respondent to
liability for the pay of the position until proper
removal does not necessarily mean or even probably
mean that it would be appropriate, in the eavctes
Of equitable discretion to affirmatively order
reinstatement. Likewise, a decision by the Court
not to affirmatively order reinstatement does not
'
[@9)
'
amount to a termination or a holding that the
government has no further liability for backpay.
Utherwise, the Court would put itself in the posi-
tion of exercising executive discretion. Under
such circumstances, backpay cases would take on the
nature of damage suits.
The question of whether or not the Court of
Claims can effectively remove a government employee
after finding that the agency's removal of him was
an abuse of discretion is a question of first
Impression tefore this Court. Prior to 1972, the
power of reinstatement resided alone in district
courts, and a plaintiff who won backpay in the
Court of Claims had to go to the district court in
a pro forma action to get reinstated. The 1976
amendment to 28 U.S.C. 1491 provided the Court of
Claims with the power to make such a plaintiff
whole by allowing reinstatement and award of back-
pay in one action. The amendment did not provide
al Be
~
the Court of claims with executive discretion to
determine whether or not to remove a validly
appointed employee from his position. The Court of
Claims' decision in effectively removing Petitioner
from his position after determining that the
agency's action in removing him was an abuse of
discretion is inconsistent with and contrary to the
intent of the remand statute. This decision by the
Court usurps executive authority to determine who
should be removed from a position and for what rea-
sons. Accordingly, since the Court determined that
the agency's removal of Petitioner was invalid and
Since the Court of Claims has no jurisdiction to
remove Petitioner, he remains in the position to
which he was appointed. As indicated above, Peti-
tioner has taken no action which could be deemed to
constitute a waiver of his right to receive the pay
of his office. He remains entitled to that Day
until such time as he is validly removed or retired.
-20- ~P
In addition to holding that Petitioner's right “***to receive for the period for which
the personnel action was in effect an
to pay terminated on June 25, 1976, the Court's amount equal to all or any part of the
pay *** that the employee normally would
decision of April 18, 1979 further determined that nave earned during that period if the
personnel action had not occurred, less
Respondent was entitled to an offset. The amount any amounts earned by him through other
employment during that period ***,"
of the offset was the amount that Petitioner might 9 U.S.C. Section 5596(b)(1) (1976)
(emphasis added).
have earned ty seeking and obtaining employment at =
As indicated above, the Court found that Peti-
the applicable minimum wage for the period begin-
tioner did not have any earnings through other
ning on April 6, 1974, the day after his removal |
employment during the applicable period.
from government service became final, until June |
The Court of Claims construed the statutory
25, 1976, the date of the Court of Claim's denial ~ | .
provision to include in the offset the amount that
of Respondent's Motion for Rehearing. This deci- ss
Petitioner might have earned had he exerted a rea-
sion was entered in spite of a specific finding
sonable effort to secure other employment, citing
that Petitioner had no other earnings. _ |
the decision in Schwartz v. United States, 181 F.
The Back Pay Act, 5 U.S.C. Section 5596 (1976),
Supp. 408 (Ct.Cl. 1960), which concerned a statute
provides in part that a government employee who is _
, similar to the Back Pay Act. There is no basis in
found to have undergone an unjustified or. unwar-
this statute for such an implied intent. Further,
ranted personnel action, which has resulted in the . | |
the implied intent as construed by the Court of
withdrawal or reduction of all or a part of his a
Claims places an undue and improper burden upon the
pay, is entitled, on correction of the personnel
action:
Petitioner to disprove his ability to obtain other
employment as the Court required no specific show-
ing by the Respondent that Petitioner woulda have
been able to obtain such employment. Furthermore,
the Respondent was not required to produce any evi-
dence of the amount Petitioner would have earned
from any such employment.
SUMMARY
It has been the law, as clearly announced by
both this Court and the Court of Claims since 1886
that a validly appointed civil service employee is
entitled to the pay of his office until he is
validily removed. The Court of Claims in this case
has determined that Petitioner's removal was in-
valid. Nevertheless, the Court determined that
Petitioner's right to receive the pay of his posi-
tion terminated on June 25, 1976. In essence, the
Ceurt of Claims removed Petitioner from his position
o230
and, in doing so, exceeded its jurisdiction. The
Court has attempted to justify its action by a
determination that Petitioner waived his right to
Dackpay. However, no action or inaction by Peti-
tioner could be held to constitute a waiver as that
concept has been defined by this Court.
The Court of Claims also awarded Respondent an
offset when the evidence established as a matter of
law that there was nothing to offset.
In the above regard, the Court of Claims has
erred. The Court recognized that Petitioner has
Deen subjected to an abuse of discretion by the
Respondent in punishing him to the extent that it
was unconscionable. This abuse of discretion has
severly damaged Petitioner. The Court of Claims
has recognized Petitioner's right but has left him
without a meaningful remedy. Petitioner must now
seek relief in this Court as his last resort.
hs.
PRAYER
Petitioner prays that a Writ of Certiorari
should issue to review the judgment and opinion of
the United States Court of Claims.
Respectfully submitted,
By:
Philip E. McCleery
1200 Alico Building
waco, Texas /6/01
(817) 756-7231
Counsel for Petitioner
A-]
APPENDIX A
IN THE UNITED STATES COURT OF CLAIMS
No. 439-74
(Decidea April 18, 1979)
LUTHER G. POWER, JR. v. THE UNITED STATES
Philip E. McCleery, attorney of record, for
plaintiff. Sheehy, Lovelace & Mayfield, of counsel.
Donnie Hoover, with whom was Assistant Attor-
ney General Barbara Allen Babcock, for defendant.
Before DAVIS, KASHIWA and SMITH, Judges.
OPINION
PER CURIAM:* This is a Rule 131(c) proceeding
to determine the anount of the plaintiff's recovery
under the court's decision of March 17, 1976, Power
v. United States, 209 Ct. Cl. 126, 531 F.2d 505,
*Except for the section on "Termination of
Right to Pay," this opinion incorporates the
opinion of Trial Judge Mastin G. white, with minor
modifications. The necessary findings of fact are
contained in this opinion and the earlier opinion,
and in the appended supplementary findings.
A-2
which held that the defendant was liable to the
plaintiff and remanded the case to the trial divi-
Sion for a determination of the amount of the
plaintiff's recovery.
Employment
The plaintiff was formerly a civilian employee
of the Department of the Army in the competitive
Civil service. After successfully completing a
é-year period of training at the AMC Ammunition
School, Savanna Army Depot, Savanna, Illinois, the
plaintiff was promoted from GS-7 to GS-9, step l,
effective February 2, 1970, and was assigned to a
position as an ammunition inspector (surveillance)
at the Fort Wingate Army Depot, Gallup, New Mexico.
At Fort Wingate, the plaintiff was advanced to step
2 in grade GS-9 effective December 27, 1970; and
then, because of superior service, he received an
advancement to step 3 in grade GS-9 on January 10,
1971.
On April 9, 1971, the plaintiff was trans-
ferred from the Fort Wingate Army Depot in New
Mexico to the Red River Army Depot, Texarkana,
Texas. In connection with this transfer, the
A-3
plaintiff was entitled to certain travel allowances
for the transportation and Subsistence of himself
and his dependents, and for the Shipment of his
household goods and personal effects. Claims for
Such allowances were Subsequently submitted by the
plaintiff.
While serving at the Red River Army Depot, the
plaintiff was advanced to Step 4 in grade GS-9
effective January 9, 1972.
Removal
On September 18, 1972, the plaintiff was
involuntarily removed from his position at the Red
River Army Uepot. The removal was based upon
Charges which, as ultimately upheld by the Board of
Appeals and Review of the Civil Service Commission
at the end of a series of administrative appeals by
the plaintiff, alleged that the plaintiff, in sub-
mitting a voucher for reimbursement of expenses
incurred as a result of his transfer from the Fort
Wingate Army Depot in New Mexico to the Red River
Army Depot in Texas, had submitted a false document
indicating the expenditure of $175 for temporar y
A-4
lodging, when in fact this expenditure was in the
amount of only $125, and that he had submitted
false documentation indicating expenditures for
meals supposedly eaten by his wife during the move,
althougn in fact the plaintiff's wife did not ac-
company him on the move from New Mexico to Texas.
Judicial Proceedings
Having exhausted the administrative remedies
available to him in connection with his involuntary
separation from the government service, the plain-
tiff instituted the present action in this court on
December 23, 1974. In the petition, the plaintiff
asked for a judgment for back pay from September
18, 1972, and for reinstatement in the position
from which he was involuntarily removed.
On May 27, 1975, the defendant filed a motion
for summary judgment; and the plaintiff thereafter
filed a cross-motion for summary judgment on June
30, 1975.
On March 17, 1976, the court rendered a deci-
sion denying the defendant's motion for summary
judgment, granting the plaintiff's cross-motion,
A-5
entering judgment for tne plantiff on the issue of
liability, and remanding the case to the trial
division for a determination of the amount of the
plaintiff's recovery under Rule 13l(c). Power v.
United States, 209 Ct. Cl. 126, 531 F.2d 505. The
court held that tne penalty of dismissal which the
Department of the Army, with the subsequent ap-
proval of the Civil Service Commission, assessed
against the plaintiff "was so unconscionably dis-
proportionate as to be an abuse of discretion by
defendant." Id. at 129, 531 F.2d at 507. The
court said that the plaintiff was entitled to
recover back pay, but that it had "determined not
to order reinstatement in this action in the light
of the unusual nature of this case" (emphasis in
original). Id. at 135, 531 F.2d at 510.
On May 5, 1976, the defendant filed a motion
for rehearing in the case. This motion was denied
by the court in an order datea June 25, 1976. 210
oe. St. FEZ.
Over a period of months, the parties attempted,
through negotiations, to reach an agreement on the
amount due the plaintiff under the court's decision
of March 17, 1976. Such negotiations ultimately
A-6
proved to be unsuccessful; and, after the parties
nad engaged in discovery procedures, a trial on the
issue of damages was held in Waco, Texas, on Novem-
ber 14, 1977. The customary post-trial procedures
by the parties under tne rules of the court were
conducted thereafter.
Termination of Right to Pay
One of the questions to be decided in the pre-
sent proceeding under Rule 131(c) relates to the
termination date of the plaintiff's right to
receive pay under the court's decision of March i B
1976.
With respect to this question, the defendant
contends that the plaintiff's right to receive pay
terminated on the date of the court's decision,
1.€., on March 17, 1976.
The plaintiff, on the other hand, contends
that he is entitled to receive pay through November
14, 1977, i.e., the date of the trial on the issue
of damages under Rule 13l(c).
The trial judge opted for March 17, 1976, but
the court rejects both of the dates urged by the
A-7
parties and holds that the termination of plain-
tiff's' right to receive pay occurred in this case
on June 25, 1976, when the Government's motion for
rehearing was denied in a "speaking" order. That
order declared in pertinent part:
In denying rehearing en banc the court
emphasizes that it deems that plaintiff,
in his opposition to the defendant's peti-
tion for rehearing en banc and for rehear-
ing, has rejected the position that he
had to be reinstated, and the court con-
cludes that he is content with the relief
he has been accorded. In that situation
reinstatement is certainly not mandatory,
just as it would not be if plaintiff had
failed to ask for reinstatement in his
petition [See Rule 35(g)] or otner papers.
If defendant remains fearful that, despite
plaintiff's position on the rehearing peti-
tion, he will be able to recover back-pay
indefinitely, it can always reinstate him
voluntarily. The court's decision [report-
ed at 209 Ct. Cl. 126, 531 F.2d 505 (1976) ]
does not preclude such action by the Govern-
ment. (Power v. United States, 210 Ct. C1}.
742, 743).
Plaintiff never challenged that statement nor
sought rehearing or modification of it.
We construe the statement in the June 25, 1976
order as a holding by the court that plaintiff, by
his position and conduct with respect to the
A-8&
defendant's rehearing motion, had waived all claim
to further back pay (as well as to the reinstate-
ment). The court did not, at that time, consider
that plaintiff could recover further back-pay even
though he affirmatively rejected reinstatement. If
plaintiff believed that he could,! he should have
sought clarification or change in the order of June
25, 1976.
The parties have stipulated that, if the term-
ination date is June 25, 1976 (as we hold), plain-
tiff is entitled to back-pay of $59,199.36 (includ-
ing a retirement deduction of $3,710.06 and a lump-
sum for annual leave of $6,169.28).2
Level of Pay
The plaintiff argues that the computation of
back pay should take into account a promotion of
the plaintiff from grade GS-9 to grade GS-11 as of
lat the oral argument on the present phase
of the case, plaintiff's counsel asserted the right
to recover back-pay (in a new suit or suits) inde-
finitely or at least up to retirement age.
¢The computation assumes that plaintiff
would have remained in Grade GS-9 but would have
advanced to step 5 of GS-9 on January 6, 1976, and
to step 6 on January 4, 1976.
A-9
October 1, 1972, and subsequent step increases in
grade GS-11 on October 14, 1973, October 14, 1974,
and October 12, 1975. The argument on this issue
1S based upon the plaintiff's testimony in the
record to the effect tnat at about the time of his
transfer from the Fort Wingate Army Depot to the
Ked River Army Depot, he was informed by his super-
iors (not identified by name) that he was slated
for a subsequent transfer Overseas; that at the
time in question, a number of ammunition inspectors
were being transferred by the Department of the
Army to the Far East, principally to Vietnam; and
that he was told such a transfer resulted in a
promotion from GS-9 to GS-11 in accordance with a
then-current Department of the Army policy designed
to encourage service in the Far East (although the
policy was not incorporated in a statute or regula-
tion).
In the absence of conflicting evidence, the
plaintiff's testimony, together with the excellent
record that he had made in the performance of his
duties as an ammunition inspector, warrants the
inference that if the plaintiff had continued in
the service after September 18, 1972, he might well
A-10
have been transferred to the Far East within a rea-
sonable period of time and, in connection with such
transfer, might well have received a promotion from
grade GS-9 to GS-11.
Tne possibility or mere Probability of promo-
tion, however, is not sufficient for this factor to
receive consideration in connection with a determi-
nation as to the level of pay on which the Dlain-
tiff's recovery is to be computed.
There are numerous decisions by this court an-
nouncing the general rule that a civilian employee
of the Government, or a member of the Armed Forces,
is entitled only to the rights and Salary of the
position to which such person has been administra-
tively appointed. £.g., Bielec v. United States,
197 Ct. Cl. 550, 560, 456 F.2d 690, 696 (1972);
Peters v. United States, 208 Ct. Cl. 373, 377, 534
F.2d 232, 234 (1975). In order to recover on the
basis of the salary of a higher position than that
to which a claimant has actually been appointed,
the claimant must normally show a legal entitlement
to the pay of the higher position. Selman v. United
states, 204 Ct. Cl. 675, 684, 498 F.2d 1354, 1358
(1974); Doggett v. United States, 207 Ct. Cl. 478,
A-11
482 (1975). Possibly the Federal Personnel Manual
Supplement 999-2 may qualify this requirement some-
wnat when it provides for back-pay on the basis of
a higher grade if it is "clearly established" that
the promotion would have occurred but for the im-
Proper personnel action.3
The plaintiff in the Dresent case does not
contend that the Department of the Army would have
been under a mandatory duty to promote him to grade
GS-11 as of October 1, 1972 -- or at any other time
-- if he had continued in the Service after Septem-
ber 18, 1972. Nor is it "clearly established" that
he would have been Promoted. His claim to the
Salary of the higher grade is based only upon hope,
and perhaps reasonable expectation. Consequently,
under all the authorities, this claim must be
rejected.
It follows, therefore, that the amount of the
Plaintiff's entitlement to back Pay is $59,199.36,
3The Manual Provides for such back pay "if
it is clearly established by appropriate authority
that, under applicable law, Executive Order, regu-
lation, or collective bargaining agreement, the em-
ployee would have been selected for the promotion,
but for the unjustified or unwarranted personnel
action." FEDERAL PERSONNEL MANUAL SUPP. 990-2,
Book 550, Subch. 8, §8-4(b)(2) (1977) (emphasis in
original).
A-12
Dased upon tne salary of the position to which he
nad been administratively appointed and which he
was occupying at the time of his involuntary sepa-
ration from the service, as affected by the step
increases that he would have received between the
date of his separation from the government service
and the date of the court's decision.
Expenses
The plaintiff claims -- and the defendant con-
cedes -- that the plaintiff is entitled to recover
in the present action:
(1) reimbursement in the amount of $378.00
for travel expenses incurred by the plaintiff in
connection with the prosecution of his appeals at
the administrative level from the adverse action
that was taken against him by the Department of the
Army; and
(2) reimbursement in the amount of $1,635.08
as the allowable travel expenses incurred by the
plaintiff in connection with his move from the Fort
Wingate Army Depot to the Red River Army depot in
1971.
A-13
The plaintiff also asserts a claim -- which
the defendant opposes -- for reimbursement in the
amount of $257.08 to cover travel expenses which
the plaintiff's attorney incurred, and which the
plaintiff defrayed, on a trip from Waco, Texas, to
Washington, 0.C., and return, in connection with
the successful conduct of the present litigation.
The plaintiff's argument in support of this
claim is based upon the portion of the Federal
Personnel Manual Supplement 990-2, Book 550, Subch.
8, §8-6(11), which provides for the payment of a
government employee's travel expenses incurred in
suctessfully prosecuting an administrative appeal
from an adverse administrative action. Although
the Federal Personnel Manual does not refer to
travel expenses incurred by such an employee's
attorney, the plaintiff states in his brief that
"Clearly Plaintiff is entitled to be represented in
the Court of Claims by counsel and counsel's
expenses are made necessary for the successful
prosecution of Plaintiff's appeal," and that the
plaintiff "should be entitled to recover this
amount".
This court, in rendering judgment for a claim-
ant in a case involving the taking of property by a
A-14
government agency, is authorized by 42 U.S.C. §4654
(c) (1976) to include an amount for reasonable
litigation expenses incurred by the claimant in
prosecuting the case. The court, however, is not
authorized to make an award for litigation expenses
incurred by a claimant in successfully prosecuting
a civilian pay case, such as the present one.
Accordingly, the plaintiff's claim in the
amount of $257.08, relating to litigation expenses,
must be rejected.
Offset
Tne defendant contends that it is entitled to
an offset against the amount awarded to the plain-
tiff, because (according to the defendant) the
plaintiff failed to mitigate damages by making a
reasonable effort to obtain other employment after
his involuntary separation from the government ser-
vice.
In support of this argument, the defendant
refers to the Back Pay Act, 5 U.S.C. §5596 (1976),
which provides in part that a government employee
who is found to have undergone an unjustified or
A-15
unwarranted personnel action, which has resulted in
the withdrawal or reduction of all or a part of his
pay, is entitled, on correction of the personne!
action:
*x*x* to receive for the period for wnich
the personnel action was in effect an a-
mount equal to all or any part of the
pay *** that the employee normally would
have earned during that period if the per-
Sonnel action had not occurred, less any
amounts earned by him through other employ-
ment during that period ***. 5 U.S.C. §5596
(b)(L) (1976) (empnasis added)
The evidence in the record shows that the
plaintiff did not have any earnings through other
employment during the period between the date of
his involuntary separation from the government ser-
vice and the date of tne court's decision or the
date of the denial of rehearing. His entire income
during that period consisted of his retirement pay
from the Navy. (The plaintiff retired from the
Navy as a Chief Petty Officer, E-7, in 1970, after
serving on active naval duty from 1939 until 1960
and then remaining in the Fieet Reserve from 1960
to 1970.)
Although the portion of the Back Pay Act prev-
iously quoted refers only to the deduction of "any
A-16
amounts earned *** through other employment" during
a period when the pay of a government employee has
been improperly withdrawn or reduced, the defendant
cites this court's decision in Schwartz v. United
States, 149 Ct. Cl. 145, 181 F. Supp. 408 (1960),
which construed a statutory provision similar to
the current Back Pay Act. In that decision, the
court said (among other things) that:
*xkxthe clearest implication that can pos-
sibly be drawn from the language used, is
that it was contemplated that the claim-
ant would make a reasonable effort to se-
cure other employment and that the amount
which the claimant earned, or with reason-
able effort might have earned, be deducted
from the total amount of compensation that
would otherwise be paid under the statute.
zee 149 Ct. Cl. at 147, 181 F.Supp. at 410
(emphasis supplied).
The defendant argues that the plaintiff in the
present case, with reasonable effort, could have
obtained employment paying at least the applicable
minimum wage, and thus could have earned at least
$9,908.80 during the period beginning 1 year after
the date of his involuntary separation from the
government service and extending through the date
of the court's decision holding that his removal
from his position was unlawful; and that this sum
A-17
Should be offset against the amount which the plain-
tiff would otherwise be entitled to recover in the
present action.
The defendant, in explaining its concession
that it is not entitled to any offset because of the
plaintiff's failure to seek other employment during
the l-year period immediately following his separa-
tion from the government service, quotes from a reg-
ulation of the Civil Service Commission, 5 C.F.R. §
550.804(f) (1977), which stated in part as follows:
(f) In computing the amount of back
pay due an employee under *** [the Back
Pay Act], if the employee has been re-
Stored within 1 year after his errone-
Ous separation, the agency may not delete
any period from computation on the basis
that the employee was under obligation to
make an effort to secure other employment
during the period covered by the unjusti-
fied or unwarranted personnel action.4
4This regulation was amended effective March
25, 1977. The amended regulation does not contain
any one-year exclusion of setoffs for other employ-
ment; it merely states that "*** the agency shal]
deduct the amounts earned by the employee from other
employment during the period covered by the correc-
ted personnel action." 41 Fed.Req. 16,127, 16,128
(1977), codified in 5 C.F.R. §550.804(e) (1978).
Because defendant has not actively contested before
this court the beginning date for computation of the
offset, see note 5, infra, we have no occasion to
consider the impact, if any, of the amended regula-
tion.
A-]
©
It seems to be the defendant's view that the
quoted regulation, by necessary implication, gives
the defendant a right of offset after the expira-
tion of the l-year period immediately following the
plaintiff's separation from the government service,
because of the plaintiff's subsequent failure to
make a reasonably diligent effort (in the defend-
ant's opinion) to obtain other employment. This
View that the plaintiff was under an obligation to
begin to seek other employment immediately after
the expiration of an arbitrarily fixed 1-year
period following his separation from the government
service should not be accepted, in our opinion.
Rather, the plaintiff's specific situation should
be taken into account.
In September 1973, at the end of the l-year
period following his removal from his position with
the Department of the Army, the plaintiff was
awaiting, and preparing for, a hearing before a
representative of the Dallas Regional Office of the
Civil Service Commission on the plaintiff's initial
appeal to the Commission. Furthermore, he was
entitled to appeal to the Board of Appeals and
Review of the Commission if the decision of the
A-19
Dallas Regional Office should turn out to be ad-
verse to him. Under the circumstances, it would be
unfair to hold that the plaintiff was under an ob-
ligation at that time to begin a diligent effort to
obtain other employment, when he was pursuing his
administrative remedies in an effort to overturn
the action of the Department of the Army.
Under the portion of this court's decision in
the Schwartz case, supra, dealing with the question
of wnen the obligation of the claimant in that case
to seek other employment began, 149 Ct. Cl. at 148,
181 F.Supp. at 410, the proper view seems to be
that a government employee who has been improperly
removed from his position is not required to seek
Other employemnt while appellate administrative
proceedings are in progress and the employee is
endeavoring to obtain reinstatement; but that the
obligation to seek other employment does arise when
the adverse action removing him from his position
becomes final at the administrative level. In the
present case, the plaintiff's removal from his
position actually did not become final until the
Board of Appeals and Review of the Civil Service
Commission rendered the final administrative
A-20
decision on April 5, 1974, upholding the plaintiff's
removal and finally concluding the series of admini-
Strative appeals to which the plaintiff was entitled.
Consequently, the defendant is not properly
entitled to any reduction in the award to the plain-
tiff because of nis failure (if any) to make a dili-
gent effort to obtain other employment during the
period from the date of his involuntary separation
from the government service and the date (April 5,
1974) when his efforts at the administrative level
to obtain reinstatement came to an end with the
final decision of the Board of Appeals and Review of
the Civil Service Commission. Perhaps it should be
Stated at this point that, during the period just
mentioned, the plaintiff devoted much of his time,
efforts, and thoughts to the endeavor to obtain re-
instatement in the position from wnich he had been
improperly removed.°
A different situation obtains, however, with
respect to the period beginning April 6, 1974, and
extending through June 25, 1976, the date of the
court's denial of rehearing. The plaintiff's
SBefore the judges, defendant did not contest
the trial judge's conclusion that no offset was
allowable for the period prior to April 6, 1974.
A-21
removal had become final at this time; and the evi-
dence indicates clearly that the plaintiff did not
make a reasonably diligent effort to obtain other
employment.
The supplementary findings of fact relate in
some detail the rather half-hearted efforts that
the plaintiff made to obtain other employment after
he was removed from his position by the Department
of the Army on September 18, 1972. Insofar as such
efforts can be definitely fixed as to the time,
they occurred during the period while the plain-
tiff's appeals at the administrative level were
still in progress and while the plaintiff was still
hoping and expecting to obtain reinstatement in his
position -- i.e., during the period when the plain-
tiff actually was not under an obligation to seek
other employment. As for the period after April 5,
1974, when the plaintiff's removal from his posi-
tion became final, there is no clear evidence in
the record that the plaintiff made any effort what-
ever to obtain other employment. Presumably, his
retirement pay from tne Navy and the earnings of
his wife, who was working, were deemed adequate to
meet the family's financial needs.
A-22
During the period which began on April 6,
1974, and extended through June 25, 1976, the
plaintiff's age was in the 52-54 range; he was
pnysically and mentally capable of working; he was
a competent person; ne was an experienced aviation
mechanic (having performed that type of work during
his last 12 years of active naval duty); and he was
experienced in the field of ammunition and explo-
sives by virtue of his work for the Department of
the Army. It is only reasonable to infer, and to
find, that if the plaintiff had made a reasonably
diligent effort to obtain employment, he could have
found work at wages that would have been at least
equal to the applicable minimum wage at tne time,
in view of the plaintiff's age, experience, and
competency. It is our view, therefore, that the
defendant is entitled to offset, against the award
otherwise due the plaintiff, the sum of $9,284.00,
representing the amount that the plaintiff could
have earned by seeking and obtaining employment at
the applicable minimum wage during the period that
began on April 6, 1974 (the day after his removal
from the government service became final) and
A-23
extended through June 25, 1976 (tne date of the
court's denial of rehearing.)
Conclusion
The plaintiff is entitled to a judgment in the
net amount of $51,928.44, consisting of $59,199.36
(including $3,710.06 for retirement) for back pay,
$378.00 as reimbursement for travel expenses
incurred by the plaintiff in connection with the
prosecution administratively of his adverse-action
appeals, and $1,635.08 as reimbursement for allow-
able travel expenses incurred by the plaintiff dur-
ing his move from the Fort Wingate Army Depot in
New Mexico to the Red River Army Depot in Texas,
less an offset of $9,284.00 to which the defendant
is entitled.
SUPPLEMENTARY FINDINGS OF FACT
The court makes the following supplementary
findings of fact:
6The figure of $9,284.00 is derived from a
stipulation of the parties (with a slight correc-
tion in plaintiff's favor for a legal holiday which
would not have been worked).
A-24
i (a) In September 1972, shortly after he
was removed from his position at the Red River Army
Depot, the plaintiff submitted an application for
employment to the Texarkana, Texas, branch office
of the Texas State Employment Commission. At the
time, he was not offered a position by that office.
(b) When he moved from Texarkana to
Waco, Texas, the plaintiff informed the Texarkana
branch office of the Texas State Employment Commis-
sion regarding his change of address. However, he
never heard anything from the Texarkana branch
office, and he did not communicate with that branch
office again.
és There is a branch office of the Texas
State Employment Commission located in Waco, Texas,
where the plaintiff has been living since the fall
of 1972. The plaintiff did not at any time, how-
ever, confer with the Waco branch office regard ing
the possibility of obtaining employment.
ae In McGregor, Texas, a town that is loca-
ted fairly close to Waco, Texas, there is a plant
of the Rocketdyne Company that makes rockets ( among
other things), mainly under government contracts.
Sometime in 1973, the— plaintiff went to the
A-25
Rocketdyne plant and spoke to the Personnel Direc-
tor about the possibility of obtaining employment,
but the company was not doing any hiring at that
time. During the course of the interview, the
plaintiff told the Personnal Director about his
Army job, and stated that he expected to be rein-
stated at any time. The Personnel Director indi-
cated that the matter of the plaintiff's reinstate-
ment in his Army job ought to be resolved before
the plaintiff submitted a formal application to
Rocketdyne.
4, On one occasion, the plaintiff inter-
viewed the owner of an apartment house (presumably
located in Waco, Texas) about a job as apartment
house manager. When the plaintiff, in order to be
forthright, informed the man that he was awaiting
reinstatement in his Army job, the man indicated
that he was not interested in employing the plain-
tiff because of the uncertainty as to the length of
the plaintiff's tenure, if employed.
5. The plaintiff (at a time not disclosed by
the record) submitted applications to the District
Offices of the Civil Service Commission in Houston,
Texas, and in Dallas, Texas, for a mid-level posi-
tion. However, he was never offered a position.
D
1
ho
Loa)
CONCLUSION OF LAW
On the court's decision of March 17, 1976 (209
Ct. Cl. 126, 531 F.2d 505), the order of June 25.
1976, denying rehearing (210 Ct. Cl. 742), the sup-
plementary findings, and the foregoing opinion, the
court concludes as a matter of law that the plain-
tiff is entitled to recover the net sum of Fifty-
One thousand nine hundred and twenty-eight dollars
and forty-four cents ($51,928.44), which includes a
retirement deduction of $3,710.06 to be credited to
plaintiff, and judgment is entered for the plain-
tiff in that amount.
B-1
APPENDIX B
IN THE UNITED STATES COURT OF CLAIMS
No. 439-74
LUTHER G. POWER, UR.
Vv.
THE UNITED STATES
Before DAVIS, Judge, Presiding, KASHIWA and
SMITH, Judges.
ORDER
This case comes before the court on plain-
tiff's motion, filed May 7, 1979, for rehearing en
banc pursuant to Rules 7(d) and 151(b), with refer-
ence to the slip opinion entered herein on April 18,
1979, granting judgment for plaintiff. Upon consi-
deration thereof, together with the response in
Opposition thereto, without oral argument, by the
seven active Judges of the court as to the sugqes-
tion for rehearing en banc under Rule 7(d), which
Suggestion is denied, and further having been so
considered by the panel listed above as to the
motion for rehearing under Rule 151(b).
IT IS ORDERED that plaintiff's said motion for
rehearing be and the same is denied.
BY THE COURT
/s/ Oscar H. Davis
Judge, Presiding
June 29, 1979
C-1
APPENDIX C
IN THE UNITED STATES COURT OF CLAIMS
No. 439-74
(becided March 17, 1976)
LUTHER G. POWER, JR. v. THE UNITED STATES
Philip E. McCleery, attorney of record, for
plaintiff. Sheehy, Lovelace & Mayfield, of counsel.
Donnie Hoover, with whom was Assistant Attor-
ney General Rex E. Lee, for defendant.
Before COWEN, Chief Judge, DURFEE, Senior
Judge, and KUNZIG, Judge.
ON DEFENDANT'S MOTION AND PLAINTIFF'S CROSS MOTION
FOR SUMMARY JUDGMENT
KUNZIG, Judge, delivered the opinion of the
court:
In this civilian pay case plaintiff, formerly
employed as an Army Ammunition inspector, contests
his dismissal seeking reinstatement and back pay.
C-2
Tne Army removed Power because he allegedly sub-
mitted false information in connection with a claim
for travel expense reimbursement. We find the dis-
missal penalty so out of Proportion to plaintiff's
Proven conduct that it constitutes an abuse of dis-
cretion by defendant. Accordingly, plaintiff is
entitled to recover back pay.
The instant case stems from Plaintiff's April
1971 transfer from Fort Wingate Army Depot in New
Mexico to Red River Army Depot (Red River) at
Texarkana, Texas. On June 4, 1971, following his
transfer, plaintiff submitted a claim for travel
expenses at the Red River Finance and Account ing
Office. This claim included requests for reim-
bursement of household goods cartage payments,
temporary rent costs and meal expenses. It is un-
disputed that plaintiff did not personally fill out
the claim voucher. Instead, pursuant to Red River
practice, he provided Supporting documents to Mrs.
Mary A. Goodman, a clerk at the ed River Finance
and Accounting Office. Mrs. Goodman "filled out"
the voucher.
After its preparation, Mrs. Goodman gave the
voucher and supporting documents to her Supervisor
C-3
wno noted that certain “weight tickets" for the
household good cartage had apparently been altered.
Believing that plaintiff had altered the documents
in an attempt to defraud the Government, the super-
visor triggered an investigation by the CID and the
FBI into plaintiff's claim.
One year later, on July 17, 1972, the Army
issued a notice of proposed removal. Defendant
accused plaintiff of submitting false information
in connection with the claims. The Charges related
to claims for (1) cartage, (2) rent, and (3) meals.
Specifically, the Army contended that plaintiff had
moved only 1280 pounds of household goods, but
altered the weight tickets in an attempt to obtain
reimbursement for 5200 pounds. Further, defendant
accused Power of claiming $175 for temporary lodg-
ing in May 1971 when in fact he had paid only $125.
Finally, the Army claimed that Power had attempted
to collect for meals taken by his wife during the
move although he was not entitled to such reim-
bursement .1
Ithus the rent error could be as much as $50.
The record fails to show the amount plaintiff spe-
cifically spent for meals for his wife. Nor did
defendant correct this deficiency. A fair estimate
might be about $200.00. See note 4, infra.
C-4
On September 18, 1972, the Army removed plain-
tiff on the basis of these charges.
During the course of subsequent administrative
proceedings, various facts emerged. The Civil Ser-
vice Commission (CSC) hearing examiner determined
that defendant failed to prove any alteration of
the weight tickets and found for plaintiff on the
Substantial cartage charge. However, he held that
the rent claim contained an error of $50 and, fur-
tner, that Power's request for reimbursement for
his wife's meals was improper.2 Concluding that
plaintiff had submitted false information in con-
nection with the claims for rent and meals, the
examiner upheld the Army's decision to remove
plaintiff. The CSC Dallas Region appeals examiner
and the CSC Board of Appeals and Review affirmed
the hearing examiner.
2Plaintiff had claimed reimbursement for
meals taken by his wife at times when she was not
specifically with him. Since under the examiner's
interpretation of the regulations an employee may
only obtain reimbursement for a dependent's meals
when the dependent accompanies the spouse, the
examiner concluded that Power had improperly at-
tempted to obtain payment for certain of his wife's
meals.
C-5
Plaintiff Subsequently brought the present
action to contest the administrative determina-
tions. He attacks his removal primarily on two
levels. First, contends plaintiff, defendant
failed to establish guilt based on the offenses
Charged. Second, even if the charges were substan-
tiated, the penalty of dismissal was unduly harsh.
Given the unique facts of this case, we hold
the penalty was so unconscionably disproportionate
as to be an abuse of discretion by defendant. We
therefore find for plaintiff.
Power's first attack, that defendant has not
established guilt, must fail.
It is well settled that our review of admini-
Strative determinations is limited to a finding of
substantial evidence supporting the decision.
Peters v. United States, 187 Ct. Cl. 63, 408 F.2d
719 (1969); Powers v. United States, 169 Ct. Cl.
626 (1965); Harrington v. United States, 174 Ct.
Cl. 1110 (1966); Greenway v. United States, 163 Ct.
Cl. 72 (1963). In the instant case, there is
Sufficient evidence to uphold the administrative
determination of guilt despite some doubts raised
C-6
Dy various facts in the record. Thus plaintiff's
removal cannot be upset based on defendant's
alleged failure to prove quilt.
Plaintiff's second argument, that his penalty
was too severe, stands on different footing.
The departure point for our inquiry into the
propriety of plaintiff's penalty is an analysis of
tne standard for review. The administrative con-
clusions in this case were founded on the premise
that removal was appropriate in view of the offen-
ses alleged. Plaintiff contends otherwise.
As a general rule, a penalty for employee mis-
conduct is a matter left to the discretion of the
executive agency. Birnholz v. United States, 199
Ct. Cl. 532 (1972); Cook v. United States, 164 Ct.
Cl. 438 (1964); Dulcy v. United States, 149 Ct.
Cl. 153, 284 F. 2d 687 (1960). However, in two
Situations courts will not uphold the punishment
imposed by the agency. The first test for an
invalid penalty is whether or not the sanction
exceeds the range of permissible punishment speci-
fied by statute or regulation. Daub v. United
States, 154 Ct. Cl. 434, 292 F.2d 895 (1961);
C-7
Cuiffo v. United States, 131 Ct. Cl. 60, 68, 137
F. Supp. 944, 950 (1955). Under the second test,
courts disapprove discipline which is so harsh and
unconscionably disproportionate to the offense that
it amounts to an abuse of discretion y the agency.
It is only where the transgression is
SO minor, and a discharge based there-
on so ‘unduly harsh and unwarranted,
that the dismissal could be considered
as constituting an abuse of discretion
*** that demands redress by this court
*x*,' (Heffron v. United States, 186
Ct. Cl. 474, 484, 405 F.2d 1307, 1312
(1969)]. (emphasis added).
Recently this philosophy was reaffirmed by Judge
Skelton, speaking for the court in a Situation
Similar to the case at bar.
In any event, we agree with plaintiff
that his discharge on Count I after
22 years of satisfactory government
service was too harsh and out of al]
Proportion to the offense Charged.
We have held that a dismissal under
such circumstances is an abuse of
discretion, is illegal, and demands
redress by this court ***,
[Jacobowitz v. United States, 191 Ct.
Cl. 444, 458-59, 424 F. 2d 555, 563
(1970)].
The same test has been used in Heffron v. United
States, 186 Ct. Cl. 474, 485, 405 F.2d 1307, 1312-
13 (1969); Liotta v. United States, 174 Ct. Cl. 91
(1966), and De Nigris v. United States, 169 Ct. Cl.
619, 625 (1965).
C-8
The usual test for abuse of discretion in
evaluating a penalty necessitates "a showing by
plaintiff that the penalty is so harsh that there
is an ‘inherent disproportion between the offense
and punishment.'" Grover v. United States, 200 Ct.
Cl. 337, 353 (1973). Further, if an abuse of dis-
cretion is demonstrated, the court will set aside
the penalty even wnere it lies within the range of
penalties permitted by statute or regulation. Id.
Having determined the standard of review, we
turn to the facts presented in the instant case.
Clearly, if plaintiff submitted false information
in support of his claim for reimbursement, his
dismissal was permitted by regulation. 3 If plain-
tiff is successfully to attack the validity of his
dismissal, he must focus on the second standard
discussed above; that it was an abuse of discretion
for defendant to impose the maximum penalty permit-
ted when he only committed a de minimis offense.
SIR 690-3(730), App. VII, Figure 1: Table
of Standard Penalties. For “false statements, mis-
representation or fraud of a substantial nature ***
in the matter of *** entitlements in official rec-
ords" the minimum penalty is a ten-day suspension;
the maximum penalty, removal.
C-9
we agree with plaintiff that such is the case in
the instant fact situation.
At each of tne administrative appeal levels,
it was conclusively established that defendant
failed to prove the accusations relating to altera-
tion of weight tickets. The case for plaintiff's
removal thus rested on the two remaining minor
charges: the rent discrepancy and the meals com-
Dlaint.
It can be argued that the voucher was in error
because plaintiff paid only $125 for rent in May
1971 rather than the $175 listed on the rental
receipt. However, plaintiff's submissions through
Mrs. Goodman, the Red River clerk, were valid in a
manner of speaking. He had paid out $175 for rent,
but apparently $50 of the payment was for a return-
able deposit. Yet plaintiff was required to submit
covering receipts, and the $175 receipt was the
only proof he had. Whether or not plaintiff was
only entitled to a $125 reimbursement, the fact
remains there is no evidence in the record pertain-
ing to his motives for submitting the $175 receipt.
We cannot tell from the record if plaintiff acted
C-10
accidentally, willfully or in any way fraudulently.
Thus, the entire $50 incident remains somewhat in
doubt.
It can also be argued that plaintiff claimed
reimbursement for some meals taken by his wife
during May 1971 for which he was technically not
entitled to reimbursement. The hearing examiner
interpreted the applicable regulations to the
effect that an employee may only claim meal expense
incurred by a dependent if the dependent travels
with the employee. See note 2. supra. In the
instant case, plaintiff's wife remained in Waco,
Texas, during the month in question and only joined
her husband on weekends. It thus appears that
Power's claim for meals for his wife's entire
month's meal expenses included amounts to which he
was not entitled. Again, there is a paucity of
evidence in the record as to whether Power sub-
mitted the erroneous meal claims willingly and
knowingly. It is not clear whether plaintiff
understood the interpretation at the time he sub-
mitted his claim. The record does not indicate
that the Red River clerk or anyone else ever
C-11
explained it to plaintiff. Again, there is doubt
whether plaintiff knew he may have “padded" his
reimbursement claim.
Moreover, the de minimis nature of the rent
and meal discrepancies casts even more doubt on any
possible "willfulness" on plaintiff's part.
Defendant caught the discrepancies in its investi-
gation process. Plaintiff was never paia the extra
amounts. In any event, plaintiff could never have
received the $50 "extra." He was entitled to a
maximum reimbursement of $677.08 for rent and meals
during his move. Plaintiff's reimburseable rent
and meal expenses other than the $50 amounted to
Significantly more than this maximum. Therefore,
at no time did the $50 error ever portend a loss to
the Government. Against this background, it be-
comes even more difficult to believe Power submit-
ted the erroneous rent claim willfully.
Plaintiff's claim for his wife's meal expenses
becomes similarly de minimis. Once again, we can-
not determine from the facts in the record precise-
ly how much plaintiff improperly claimed for his
wife's meals. We can, for purposes of evaluating
tne seriousness of plaintiff's alleged misconduct,
derive an estimate of his wife's meals claim.4
Again, it would appear that any excessive meal
claims made by plaintiff were minor.5
In short, the cumulative doubts expressed
above suggest that the maximum penaity imposed on
plaintiff is clearly too harsh and out of all pro-
portion.
The doubt becomes even more significant given
other key facts in this case. Defendant delayed
over a year in bringing the charges against plain-
tiff. During this time, it “fine tooth combed"
plaintiff's submissions. While we cannot say that
“Plaintiff claimed $620.04 for meals for
himself and his wife. If we assume that the meal
costs were fairly equal for both, the wife's May
1971 meals cost $310.02. If she spent weekends and
holidays with plaintiff, she would have spent
roughly one-third of May with him. Power could
have claimed $103.34 for her meals. His actual
claim would then be excessive by some $206.68.
SPlaintiff's actual claim ($867.29) was
$190.21 over his maximum allowable re imbur sement
under the law ($677.08). If the excessive claim
for the wife was $206.68, the meal error could only
have cost defendant $16.47 in actual dollars lost.
The rent and meat errors combined, thus would have
totaled $66.47.
C-13
the delay in and of itself "taints" the present
Proceedings against plaintiff, it certainly is a
factor which should have been cons idered at the
time defendant imposed the penalty.
Even more serious is the defendant's manner of
Proceeding in the present case. Defendant joined
two relatively minor charges (rent and meals) with
a serious and significant accusation (the cartage
alteration). After failing to sustain the serious
charge, the Government continued to advocate dis-
missal on the basis of the two relatively insignif-
icant charges. Perhaps defendant really wanted to
remove plaintiff for the serious offense, but when
it found that the facts would not so allow, it
achieved the same result by use of the two de
minimis allegations. In other words, plaintiff's
punishment for tne two minor offenses might well
have been based upon defendant's unsupported, con-
tinuing belief that he was guilty of the serious
offense. Although defendant's motive for its
manner of proceeding is not readily provable, cer-
tainly the specific facts of the case at bar raise
Substantial questions.
C-14
In Jacobowitz, supra, we were confronted with
a similar problem. There, an IRS agent was removed
on three charges: (1) negligent failure to process
taxpayers' checks; (2) falsification of time
Sheets; and (3) failure to make efficient use of
his time. The IRS itself dropped charge number
(3), but continued to press for dismissal on the
Otner two. We found insufficient evidence in the
record to support the serious charge (falsification
of records) and concluded that discharge on the de
minimis remaining charge (negligent failure to pro-
cess checks) was "to (sic) harsh and all out of
Proportion with the offense charged." Id., 191 Ct.
Cl. at 458-59, 424 F.2d at 563. The instant situa-
tion is equivalent or even worse, since the strong
Charge was already rejected below.
Finally, defendant brings forth one last argu-
ment. It attempts to justify plaintiff's removal
as necessary to deter other expense account "pad-
ders." At oral argument, defense counsel stated
that the Government seeks to "make an example" of
Power. We have no quarrel with defendant's goal.
Deterrence can be an effective method of preventing
C-15
fraud upon the Government. However, at some point
an unduly harsh penalty can effectively ruin
defendant's goal of deterrence. Such a point has
been reached here. Moreover, if the penalty is so
harsh as to constitute an abuse, rather than an
exercise of discretion, it cannot be allowed to
Stand. Clark, supra; Jacobowitz, supra. Even for
a reason otherwise "virtuous." Plaintiff's conduct
in no way justified removal. "The punishment does
not fit the crime."
In summary, we are confronted with a case in
which the penalty is so unconscionably dispropor-
tionate tnat it becomes an abuse of discretion.
A plaintiff with an unblemished record of twenty-
five years of Government service has been removed
for submitting allegedly false information in con-
nection with claims for travel expense reimburse-
ment. Defendant failed to susbtantiate a serious
Charge of alteration of weight tickets, but con-
tinued to advocate dismissal based on two minor
discrepancies. There is some doubt whether plain-
tiff actually filed false information, and there is
even greater doubt that plaintiff submitted the de
C-16
minimis claims knowingly, intentionally and with
the purpose to aefraud the Government. The year's
delay in bringing about plaintiff's removal poses
yet another question concerning the fairness of the
overly harsh penalty. Finally, defendant wishes to
deter others from "padding" their expense accounts,
Dut we doubt that “throwing the book" at plaintiff
would have the desired effect.
we reemphasize that this suit is unique be-
cause of its particular facts. Tne general rule
remains that the penalty imposed by the agency wil]
be viewed as a matter within agency discretion un-
less such discretion is abused. Such discretion
has been abused in the case at bar.
Accordingly, defendant's motion for summary
judgment is denied and plaintiff's cross-motion is
granted. Having carefully considered plaintiff's
prayer for judgment, defendant's answer thereto,
briefs, oral argument and the reinstatement power
vested in us under Pub. L. 92-415, we have deter-
mined not to order reinstatement in this action in
the light of the unusual nature of this case.
Judgment is therefore entered for plaintiff, and
the cause is remanded to the Trial Division for
further proceedings under Rule 13l(c) to determine
the amount to be awarded plaintiff, consistent with
this opinion.
0-1
APPENDIX D
IN THE UNITED STATES COURT OF CLAIMS
No. 439-74
LUTHER G. POWER, UR.
Vv.
THE UNITED STATES
Before COWEN, Chief Judge, DURFEE, Senior
Judge, and KUNZIG, Judge.
ORDER
This case comes before the court on defend-
ant's suggestion and motion, filed May 5, 1976, for
rehearing en banc pursuant to Rules 7(d) and 151.
Upon consideration thereof, together with the
response in oppositon thereto, without oral argu-
ment, by the seven active Judges of the court as to
the suggestion for rehearing en banc under Rule
7(d), such suggestion is denied. In denying re-
hearing en banc the court emphasizes that it deems
that plaintiff, in his opposition to the defend-
ant's petition for rehearing en banc and for re-
hearing, has rejected the position that he had to
be reinstated, and the court concludes that he is
D-2
content with the relief he has been accorded. In
tnat situation reinstatement is certainly not
mandatory, just as it would not be if plaintiff had
failed to ask for reinstatement in his petition
[See Rule 34{g)] or otner papers. If defendant
remains fearful that, despite plaintiff's position
on the rehearing petition, he will be able to
recover Dack-pay indefinitely, it can always rein-
state him voluntarily. The court's decision does
not preclude such action by the Government.
The case having been further so considered by
the panel listed above as to the motion for rehear-
ing under Rule 151.
IT IS ORDERED that defendant's said motion for
rehearing be and the same is denied.
BY THE COURT
/s/ Chief Judge
June 25, 1976
BENNETT, Judge, dissenting, with whom SKELTON,
Judge, joins:
I respectfully dissent from the action of the
majority in refusing an en banc rehearing, limited,
however, to the narrow ground of its refusal to re-
instate plaintiff to his position as he requested
in paragraphs I and VIII of his petition. The
court has held that plaintiff is entitled to back
D-3
pay because his discharge was illegal since in the
court's opinion it was an excessive penalty for his
offenses. In declining to reinstate plaintiff, the
opinion of the court explains it only by saying "we
have determined not to order reinstatement in this
action in the light of the unusual nature of this
case." [Emphasis in text.] The action of the
court not to reinstate is implicitly based upon the
language of the remand and reinstatement statute,
Pub. L. 92-415, August 29, 1972, 86 Stat. 652, 28
U.S.C. §1491 (Supp. III, 1970), which states, in
pertinent part:
*** To provide an entire remedy and to
complete the relief afforded by the judg-
ment, the court may, as an incident of
and collateral to any such judgment, issue
orders directing restoration to office or
position, ***, [Emphasis supplied. ]
A literal reading of the statutory language sug-
gests that it is permissive, not mandatory. But,
" *k* federal courts have allowed the expressed
intention of Congress *** to prevail over the
alleged plain-meaning of a statute." International
Telephone and Telegraph Corp. v. United States,
Ct. Cl. No. 263-73, decided June 16, 1976, slip op.
1-2. This statute cannot be read literally as the
majority reads it because the legislative history
of the provision and the Supreme Court clearly tell
us that the statute "does not extend the classes of
D-4
cases over which the Court of Claims has jurisdic-
tion." H.R. REP. NO. 92-1023, 92d Cong., 2d Sess.
3 (1972); S. REP. NO. 92-1066, 92d Cong., 2d Sess.
(1972); 118 CONG. REC. H3769 (May 1, 1972); Unitea
States v. Testan, 0.5. (Sup. Ct.
No. 74-753), decided March 2, 1976). The Court of
Claims has never had authority to determine who
shall be appointed to government jobs under Civil
Service, who shall be promoted, or who shall be
fired. This is so well established as scarcely to
need citation of authority. "The power of removal
from office in the executive branch of the Federal]
Government, absent some specific provision to the
contrary, is incident to the power of appointment.
Keim v. United States, 177 U.S. 290, 293 (1900)."
Morelli _v. United States. 177 Ct. Cl. 848, 858
(1966); Sampson v. Murray, 415 U.S. 61, 70 n. 17
(1974). Thus, notwithstanding the fact that the
court cannot discharge plaintiff, since the remand
Statute brought about no change in the law that
makes discharges discretionary solely with the
executive, limited only by the proper exercise of
that discretion in accordance with the procedures
established therefor, the court has in fact dis-
charged plaintiff by refusing to reinstate him.
Wnen a plaintiff is awarded back pay it is
because he has been found not to have been legally
separated from the payroll. Crocker v. United
States, 130 Ct. Cl. 567 (1955). So, by what logic
D-5
and upon what grounds can it be held that plaintiff
will not be reinstated when the court holds that he
nas never been legally discharged in the first
place? To so hold is to say that the court can
exercise the discretion of the executive and dis-
Charge plaintiff. Here the court does not even say
why it removes him. It does not have such removal
authority. On the contrary, as shown above, it has
never claimed heretofore to nave such authority,
which is denied to it. Under the Back Pay Act, 5
U.S.C. §5596 (1970), the court can review an ad-
verse action, such as here, and award back pay for
an illegal removal from position. But, nowhere is
the court given any authority to fashion its own
remedy in addition thereto, except reinstatement to
make plaintiff whole because of the wrong done to
him. We thus have here a case of first impression
On the proposition of whether or not the court can
construct relief short of reinstatement under Pub.
L. 92-415. The testimony in support of the remand
and reinstatement act, and the committee reports
thereon, make it plain that not only was the juris-
diction of the court not being increased or changed
thereby but that the purpose of the legislation was
to enable the court when it awards back pay to make
a plaintiff whole by reinstating him to his job.
Prior to 1972 the power of reinstatement resided
alone in the district courts and a plaintiff who
won back pay in the Court of Claims then had to go
0-6
to the district court in a pro forma action to get
reinstated. Tnis was unwise so the Congress said
that in such circumstances the Court of Claims may
make him wnole Dy reinstatement, al! in one action.
It did not say that his partial relief in this
court should be continued as before the remand and
reinstatement statute. To do so would have render-
ed that statute meaningless. Nor did Congress say
that the court should have new authority to decide
whether he should be separated when he is granted
back pay because he should not have been separated.
It would be strange indeed if the court's view is
correct that we have authority to say plaintiff
should be separated from the payroll! at the same
time we give him back pay because we find he should
not nave been separated. This is inconsistent and
contrary to the intent of the remand statute, and
frustrates it. Also, it usurps executive authority
in determining who should be fired, and for subjec-
tive reasons different from those which say he
should not have been fired and is entitled to back
pay. It is just as wrong to do this as for the
court to say who should be appointed or promoted
when no regulation or statute has been violated.
Discretion to hire, fire, and promote is not a
judicial function.
The opinion of the court presents still an-
other difficulty. Although the petition demands
reinstatement, plaintiff's response to defendant's
D-7
motion for rehearing does not emphasize it, yet
does not repudiate the petition. The court seizes
upon this as amounting to waiver. It is defendant
here who reminds tne court that it has always been
held that once there is an award of back pay there
exists a continuing liability to award back pay un-
til the individual is reinstated and properly dis-
charged. The court in Ainsworth v. United States,
185 Ct. Cl. 110, 399 F.2d 176 (1968), quoted with
approval the language of a dissent describing the
result in McGuire v. United States, 145 Ct. Cl. 17,
24-25 (1959), that the plaintiff “gets judgment now
for the pay he would have earned to date, and the
next year he can bring another suit for his pay for
that year, and so on until he is formally rein-
Stated and discharged according to law." Recently
tne Supreme Court, in discussing cases of wrongful
discharge or suspension said: "*** at least since
the Civil Service Act of 1883, the employee is en-
titled to the emoluments of his position until he
has been legally disqualified." United States v.
Testan, supra, slip op. 10. See also, United
States v. Wickersham, 201 U.S. 390 (1906), affirm-
ing the rule announced in Lellman v. United States,
37 Ct. Cl. 128 (1902); United States v. Perkins,
116 U.S. 483 (1886); Simon v. United States, 113
Ct. Cl. 182, 198 (1949); Borak v. United States,
110 Ct. Cl. 236, 78 F. Supp. 123, cert. denied, 335
U.S. 821 (1948). Under the precedents, all that
0-8
could bar plaintiff from getting other judgments
for his back pay, based on what the court has held
to be an illegal discharge, would be to hold he
waived it in his response to defendant's motion (as
the order of the court does here), or if he waited
too long to claim such pay and was barred by
laches. Plaintiff will otherwise be able to re-
cover his salary from now on by bringing successive
Suits to recover on his continuing claim without
performing any service. This is not in the public
interest. It would be better to reinstate him in
nis position and if he is an incompetent or dishon-
est employee the agency can find a way to discharge
him according to law. If the court does not follow
this course, it is répudiating its precedents on
the theory of back pay, and it is misconstruing the
intent and purpose of the remand and reinstatement
Statute which was designed to make a wronged
government employee "whole" in his remedy. It is
restricting his rights and giving him half a loaf.
I agree that a plaintiff snould not be reinstated
unless he asks for it, as his petition does here.
I do not agree that a waiver of such demand is
implied here. The order of the court cites no
authority to support its conclusion. On the con-
trary, the court has previously held that it will
not, without a proper showing, imply a waiver. New
York Snipbuilding Corp. v. United States, 180 Ct.
Cl. 446, 385 F.2d 427 (1967). The court also#holds
D-9
that just because it does not reinstate him is no
bar to the agency doing so if it fears another suit
for back pay. If the court is not going to insist
upon making plaintiff wnole, his agency is unlikely
to feel under any compulsion to do so. True, the
court does not order that plaintiff not be rein-
Stated, but why should the agency reinstate him
when the court indicates that it holds the belief
plaintiff has waived his claim to reinstatement?
Wnat the court has failed to ao here is to face up
to what the reinstatement and remand statute means
wnen it awards Dack pay in a case where plaintiff
has also asked for reinstatement. It is not enti-
tled to anticipate a waiver in such a case in a
potential proceeding subsequent to its judgment.
Having sought unsuccessfully to extend the remand
and reinstatement statute into areas where it had
no jurisdiction in Testan, supra, the court is
overreacting in not employing the statute where it
clearly has authority and, I think, a compelling
duty to do so. "A court must be particularly cog-
nizant of the implications of a given case in the
Situation where it is confronted with clear evi-
dence of legislative intent and must formulate an
application of the statute which furthers such
Congressional purpose." First Nat'l City Bank v.
United States, Ct. Cl. No. 9-75, decided June 16,
1976, slip op. 25.
E=-1
APPENDIX E
UNITED STATES CIVIL SERVICE COMMISSION
BOARD OF APPEALS AND REVIEW
Washington, D.C. 20415
DECISION
IN THE MATTER OF
) TYPE CASE: Removal
)
)
Mr. Luther G. Power, Jr.
INTRODUCTION
The appellant appealed from the November 19, 1973,
decision of the Commission's Dallas Regional
Office, sustaining the agency's action removing the
appellant effective September 18, 1972. At the
time of the appellant's removal he was employed at
the Red River Army Depot, Texarkana, Texas, in the
position of Ammunition Inspector (Surveillance),
GS-9.
STATEMENT OF THE CASE
By letter dated July 17, 1972, the agency informed
the appellant that it was proposed to remove him
based upon the charge of submitting false informa-
tion for reimbursement of expenses incurred during
an official transfer from Fort Wingate Army Depot,
E-2
Gallup, New Mexico, to ked River Army Depot, Tex-
arkana, Texas. Four specifications (a through d)
Outlined the specifics of the infractions in Sup-
port of the basic reason for tne adverse action.
The appellant replied to the notice of proposed
adverse action in a letter dated August 9, 1972.
Additionally, the appellant made an oral reply on
August 31, 1972. By letter dated September 15,
1972, the appellant was advised that a decision had
been reached to remove him from the service and
tnat tnat decision was based upon the reason con-
tained in the notice of proposed adverse action.
As a result of the foregoing decision the appellant
was removed from his position effective September
18, 1972.
The appellant filed an appeal with the Department
of the Army wnich resulted in an agency hearing on
November 28, 1972. By letter dated February 21,
1973, the Commander, Red River Army Depot, Texar-
kana, Texas, issued his decision which sustained
the appellant's removal. The appellant appealed
that decision to the Commission's Dallas Regional
Office.
FIRST LEVEL DECISION
The Regional Office found that the agency had com-
plied with the procedural requirements of Part 752,
Subpart B, of the Civil Service regulations in ef-
fecting tne removal of the appellant. As to the
E-3
merits, the Regional Office found that the appel-
lant's removal was for such cause as to improve the
efficiency of tne service and affirmed tne action
of the agency.
REPRESENTATIONS TO THE BOARD OF APPEALS AND REVIEW
On appeal to the Board the appellant raised a
variety of contentions which depicted the agency's
action as one which did not take into account his
training and expertise which had cost the agency
over $20,000; that the agency refused to let him
withdraw his expense voucher after the investiga-
tion began; that tne information appearing on the
travel voucher was an administrative error; and
that much of his representations had been left out
or distorted.
The appellant continued his representations by mak-
ing point by point objections to tne Commission's
Regional Office decision and offered a voluminous
amount of additional information which he alleged
had a bearing on the action taken. All represent-
ations submitted by appellant were exchanged with
the agency and no rebuttals were forthcoming as a
result of that exchange. The Board has carefully
considered all of the appellant's contentions in
adjudicating his appeal notwitnstanding the fact
that many of his observations were foreign to the
issues on appeal.
E-4
ANALYSIS AND FINDINGS
The Board finds, as aid: the Regional Office, that
tne agency complied with the law and the Civil
Service regulations in effecting the removal of the
appellant. As to the merits, the Board is concerned
about the appellant's obvious desire to mitigate
the seriousness of the charges levied against him
through unsubstantiated innuendoes which were not
dealt with in detail in the Regional Office deci-
sion. In the Board's opinion the Regional Office
function with respect to the appellant's appeal was
to weigh the relevancy of the evidence presented
and to reach a conclusion as to whether the reasons
relied on by the agency were sufficient to support
its action by substantia! evidence. This is not to
Say that the resume submitted by appellant, which
took exception to the Commission's hearing, was not
considered; rather, it indicated that the relevancy
of that information was found not to be of suffi-
cient substance to warrant its inclusion in the
Regional Office summary of the hearing or its find-
ings and recommendations.
The Board has reviewed the appellant's resume of
the Civil Service Commissioner's hearing and finds
that the appellant objected to the appeals exam-
iner's rulings which denied him opportunities to
include or duplicate information which he felt was
relevant to the issue in his case. The Board is
not convinced tnat this information and otner alle-
gations raised in appellant's resume are matters
which could be considered as a valid defense.
The evidence of record establishes that appellant
submitted an expense voucher containing information
which could not be substantiated. The record fur-
ther shows that the agency's investigation produced
overwhelming and substantial evidence to establish
tnat the travel voucher was knowingly submitted by
appellant containing false entries.
The Board finds that the foregoing is the central
issue in this case and the fact that appellant was
not allowed to correct his voucher based upon the
contention that the false information was the re-
Sult of an administrative error is not controlling.
Further, the Board has determined that the other
issues and contentions raised by appellant on ap-
peal either have no merit or were disposed of in
tne Regional Office decision.
In view of the above, the Board concurs in the
findings of the Regional Office which affirmed the
removal action of the agency. The record has
established that falsification did take place as
alleged by the agency and the Board finds that the
appellant's statements and allegations do not show
facts and circumstances which would serve to excuse
the act for which he was charged. The Board
further finds that the agency's action was not
but was for
sucn cause as will promote the
@
tficiency of the
The decision of the Regional Office is hereby
affirmed.
AS provided in Section 772.307(c) of the Civi)
service regulations, the decision of the Boara is
final and there is no further right of administra-
tive appeal.
For the Commissioners:
/S/ William P. Berzak
Chairman
April 5, 1974
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.