# Petition for Writ of Certiorari — Kanarek v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0628%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 394 U.S. 1013 ## Text Msi end IEVAAEN | a SUPREMS COURT. LU & ed. IN THE @ "SUPREME COURT OF THE UNI oe) ié@4 1968 IRVING A. KANAREK, Petitioner, vs. UNITED STATES OF. AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO - ‘THE UNITED STATES COURT OF . CLAIMS IRVING A. KANAREK 14416 Victory Boulevard Van mest Celiforata. poss ae Le IN THE SUPREME COURT OF THE UNITED STATES October Term, 1968 No. IRVING A. KANAREK, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF CLAIMS IRVING A. KANAREK 14416 Victory Boulevard Van Nuys, California Counsel for Petitioner, Pro Se - TOPICAL INDEX Table of Authorities CITATION TO OPIN IONS BELOW JURISDICTION QUESTIONS PRESENTED . CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS AND COURT RULE INVOLVED (See Appendix '"'C") STATEMENT REASONS FOR GRANTING THE WRIT CONCLUSION OPINION OF COURT OF. CLAIMS, March 6, 1963 OPINION OF COURT OF CLAIMS, May 10, 1968 i CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS AND CUURT RULE INVOLVED. i. REPS EEG PO TAT, FO ii 14. 21 ik et Dae tt a TABLE OF AUTHORITIES Cases Page Dooley v. United States, 182 U.S. 222 15 Dupree v. United States, 141 Fed.Supp. 772, 136 Court of Claims 57 18, 19, 20 Greene v. McElroy, 360 U.S. 474 é, 6, 6, 36,.3%, 18 Parker v. Lester, 227 F.2d 708 19 Peters v. Hobby, 349 U.S. 331 4, 19 Public Utilities Commission v. U.S., 355 U.S. 534 4 U.S, v. United States Gypsum Co., 333 U.S. 364 20, 21 Weiman v. Updegraff, 344 U.S. 183 4, 19 Constitution United States Constitution, Fifth Amendment 5, 14 Statutes F.R.C.P. , Rule 44 3, & i¢ 28 U.S.C. 1255(1) 3 ii. GRP TENE RI * 28 U.S.C. 1491 4, 5, 14, 15 28 U.S.C. 1738 3, 5, 17 28 U.S.C. 1739 3, 5, 17 iii. PO ae TR PIS ee an } Rees CEES RE AIRES 78 RENT RYE ONES TO eee ee ane eR FP PTA RTS PAPVPOS ‘ oan Soa anneal ee tae IN THE SUPREME COURT OF THE UNITED STATES October Term, 1968 No. IRVING A. KANADEK, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF CLAIMS To the Honorable Chief Justice Ear] Warren, and to the Honorable Associate Justices of the Supreme Court of the United States: Petitione~: petitions that a Writ of Certiorari issue to review all the action of the United Ste.es Court of Claims in case 139-58, as to which the final judgment was entered on May 10, 1968; a timely Petition for Rehearing was denied on October 18, 1968; this Honorable Court has extended the time for docketing the 1. . ale” hee EO RRR ee Vy FR er Tete rv pe oe @ eruenee. Petition for Writ of Certiorari until March 16, 1969; after an interlocutory judgment, and denial of a timely Petition for Rehearing by the Court of Claims as to said interlocutory judgment, this Honorable Court denied Certiorari (379 U.S. 83s). CITATION TO OPINIONS BELOW The interlocutory judgment of the afore- mentioned U.S. Court of Claims was entered on March 6, 1963; concurrently with the entry of judgment said Court of Claims filed a written opinion which is reported at 314 Fed. 2d 802. The certified record which accompanies this Petition includes said opinion [R. 146-151]. (See Appendix A, pp. 1-8). Subsequent to this Honorable Caurt deny- ing the Petition for Certiorari in connection with the interlocutory judgment, the U. S. Court of Claims entered on May 10, 1968 a subsequent opinion in connection with this case. (See Appendix B, pp. 1-18). JURISDICTION As stated, supra, the interlocutory Court of Claims judgment was entered with written opinion, on March 6, 1963, and timely Petition — for Rehearing was denied on April 17, 1964 without written opinion; on May 10, 1968 a sub- sequent opinion of the U.S. Court of Claims was entered and a timely Petition for Rehear- ing in connection with this second, and purportedly fimal, decision was denied on October 18, 1968. The jurisdiction of this court is invoked under 28 U.S.C. 1255(1). QUESTIONS PRESENTED 1. Can an ultimate finding of fact and a . conclusion of law (Appendix B, P- 18) in the U.S... Court of Claims be predicated upon the purported testimony over objection, of a purported a California bepartment of Employment employee, which testimony was a crucial basis for the _ decision that petitioner was not "ready, willing - and able to accept suitable employment" “es (Appendix B, p. 18, paragraph 25), when Said testimony by ‘he non-percipient employee was incompetent hearsay (said employee having never seen the plaintiff and having had nothing.tc do te whatever with the plaintiff, or any matter per-. taining to the plaintiff) and in violation of Rule 44 of the Federal Rules of Civil Procedure ? .2.. May an act of the legislature of the . State, herein the State of California, be used in determining and rendering judgment in the U. &..... Court of Claims notwithstanding that 28 U.S.C.A. 1738, 1739 have not been complied with ? 3. Whether the United States Court of ne Claims has power to invoke the provisions of ' "The Industrial Personnel Security Review Regulation" (Department of Defense Directive 5220.6) termed Program "'B" for the sake of .- convenience in this Petition for a Writ of 3. RR emenerr ees sernmeemnpees Eras Samer Sertiorari (set forth in 20 Federal Register 1554), and its antecedent ''The Industrial Personnel and Facilities Security Clearance Program, "' termed Program "A" for the sake of convenience in this Petition for a Writ of Certiorari, to evaluate the measure of monetary recovery of petitioner whose security clearance while employed at North American Aviation, Inc., was withdrawn without authority by the United States, wiin the consequent pinning oP him of a lifetime "BADGE OF INFAMY, "2! in view of the fact that this Court holds in Greene v. McElroy, 360 U.S. 474 at page 504, that Program "A" and Program "'B" constitute an "elaborate clearance program" which was unauthorized? Includéd ‘in this question is whether there was, in fact, any administrative remedy whatsoever available to petitioner [See Public Utilities Commission v. Unitec States, 355 U.S. 554 at 539 and R. 121]. 4. Whether 28 U.S.C. 1491 provides a bases for monetary recovery by petitioner due to the unauthorized withdrawal of petitioner's security clearance by the United States? Included in this question is whether the due y Language used by this Court in Wieman v. Updegraff, 344 U.S. 183 at 191 (involving a State Civil Service employee) and Peters v. Hobby, 349 U.S. 331 at 347 (involving a profes- sor of medicine employed as a Special Consultant by the Federal Government). 4. ; ry 3 i al a a ek Boas IF FETRIIRES, 1S LEELA I NE INLINE SFR EINE 1 a TERI ET SII ERO IIE LRM ERE NOG CRIS t ] he eh process clause of the Fifth Amendment constitutes a basis for recovery and/or whether the just. compensation clause of said Fifth Amendment constitutes a basis for recovery. 5. What are the criteria which must be used to- evaluate the extent of petitioner's nonetary recovery for the damage resulting to him from.the unauthsrizec withdrawal of security clearance by the United States ? 7 , CONSTITUTIONAL PROVISIONS, STATUTES , REGULATIONS AND COURT RULE INVOLVED (See Appendix "C"') A. The Constitutional provisions involved are the due process and. just compensation clauses of the Fifth Amendment. - B. Statutes involved are 28 U.8.C, 1491; 28 U.S.C, 1738 and 28 U.S.C. 1739. 'C. . The regulations involved are | ‘1. Industrial Personnel and Security Clearance Program [R. 42-60], held unauthorized in Greene v. McElroy, 360 U.S. 474, 2. Industrial Personnel Security Review Regulations, Department ' of Defense Directive No, 5220.6, held unauthorized in Greene v, : De RIEL LOOSE ELIE ts) SRW ERE NONA UNC The Bae LEN ALG TRO NINTH McElroy, 360 U.S. 474, [Ex. 2 attached to ''Defendant's Reply to Plaintiff's Objections to Defen- dant's Motion to Dismiss" and referred to at R. 68]. (In this Petition for a Writ of Certiorari 1, supra, is termed Program "A", and 2, supra, is termed Program ''B"; the purported Monetary Restitution provisions of these two progiams are set forth in Appendix C). D. Rule 44 of Federal Rules of Civil Procedure. STATEMENT On April 1, 1958, petitioner filed a timely Petition with the United States Court of Claims [R. 1-6]. This Petition has a Court of Claims Docket Number 139-58. The jurisdiction of the Court of Claims was invoked because the security clearance of petitioner was revoked by the purported.authority of Program "A", a regula- tion promulgated by the Secretaries of the Army, Navy and Airforce on May 4, 1953 [R. 42-60]. Prior to and including July 12, 1954, petitioner was employed at Los Angeles, Calif. ‘by North American Aviation, Inc., hereinafter referred to for convenience as North American, as a Research Engineer. Prior to and including July 12, 1954, petitioner was possessed ofa . security clearance authorizing petitioner to have 6.. SPELL PIL STF LE PPE AN ONE IEA NET ETA RTT SNE. TENT EO HN PORE TENE PYRITE Or . 4 ON Nd a eal PE Rieti SB I ss ; OL OE DONS TION PRELIM *) Sa eee re Sie aati "7 : access to classified security information up to and including material and information classified as Top Secret. ‘On or about July 12, 1954, petitioner and North American were informed by the Screening Division of the Western Industrial Personnel Security Board, purportedly an agency of the Department of Defense of the United States Government, that the granting of clearance to petitioner of access to classified security infor- mation was not clearly consistent with the interests of national security. Petitioner was suspended without pay on or about July 12, 1954 by North American as a result of said action of Said Screening Division. Petitioner's Salary at the time of said Suspension was $710.00 per month. After a hearing before the Appeal _ Division of the Western Industrial Personnel | Security Board, petitioner and North American were informed on or about September 29, 1954, | that granting petitioner access to classified | information was-not-clearly consistent with the interests of national ‘security. __ On or about September 6, 1955 the Industrial Personnel Security Review Board determined that the granting to petitioner of clearance for access to classified information was clearly consistent with the interests of. national security. This Board was purportedly operating under Department of Defense _ Directive No. 5220.6 (termed Program "'B" — a Uprkbes a ee oe a ee es herein), [Referred to as Ex. 2 at R. 68], the S effective date of which was April 3, 1955. , The. aforementioned Directive purportedly super- seded the Industrial Personnel and Facility — Security Program (termed Program "A" herein). Both of these Programs were found to be un-, | authorized by this Court in Greene v. McElroy, . supra. Notwithstanding the determination of the. Industrial Personnel Security Review Board (on — or about September 6, 1955), that the granting: . to petitioner of clearance for access to classified information was clearly consistent with Bes interests of national security, petitioner was not | regranted access to information classified as. _ Secret until on or about February 7, 1958 while employed at Radioplane Co. Due to the fact of the withd rawal of security clearance petitione. was completely deprived of employment utilizing his technical skills from July 12, 1954 to April 9, 1956. | During the period September 21, 1955 to April 9, 1956 petitioner had no earnings. puring the period April 9, 1956 to - January 21, 1956 petitioner was employed at Lockheed Aircraft Corp.;, Missile Systems _ Division, but notwithstanding the action of the Industrial Personnel Security Review Board of on or about September 6, 1955, and the letter of September i5, 1955 seat to the Headquarters © Air Materiel Command [R. 127], the United States did not regrant petitioner Secret clearance. while he, petitioner, was employed at Lockheed. a Due to the fact of withdrawal of security clearance on or about July 12, 1954 and the fact that petitioner was not successful in obtaining re-grant of security clearance to the Secret level (at North American petitioner had a Top Secret _ security clearance) until on or about February 7, 1958, petitioner has been extensively and permanently damaged due to withdrawal of his security clearance. Due to the fact of with- drawal of security clearance on or about July 12, 1954 and the fact that petitioner was not succes- sful in getting the re-grant of security clearance to the Secret level until on or about February 7, 1958, petitioner has lost forever irreplaceable - experience-time in the field of rocket propul- sion research in which field he had been engaged. The withdrawal of security clearance disloged petitioner from the field of rocket pr spulsion research and the entire field of rocket propul- . . sion, research and otherwise, with consequent extensive and permanent damege to him. Petitioner is co-inventor of a patent (No. 2, 760, 845) entitled "Stabilized Fuming Nitric Acid, " a material now extensively used as a propellant (oxidizer) by the United States Government in jet propulsion driven vehicles, such as vehicles driven by certain rocket engines. This invention also has non-jet propulsion uses. Petitioner is inventor of a patent (No. 2, 930, 684) entitled ''Propellant Combination Including Liquid Fluorite and Liquid Oxide Oxidizer.'' Since these inventions - occurred during the course of research work while petitioner was at North American, petitioner's interests in said patents were assigned to North American. Nevertheless, North American has had a policy of making certain - monetary awards to each inventor in con.ection with each of his inventions provided the inventor is on the payroll at the time of the issuance of the patent. The "Stabilized Fuming Nitric Acid" patent referred to, supra, was issued on August 28, 1956; the "Propellant Combination Including Liqu'd Fluorine and Liquid Oxide Oxidizer" patent refer.«# to, sypra, was issued on March 29, 1960. ther patent disclosures both classified and unclassifieés were made to North American by petitioner. At least two of said cisclosures have resulted in the issuance of Secrecy Orders by the United States Patent Office. (Said Secrecy Orders are themselves not classified. They are transmitted by ordinary mail and are not labled as classified matter. -“‘No patent can issue from a disclosure covered by a Secrecy Order, regard- less of the patentability of the subject matter, until the Secrecy Order is lifted. ) The fact of withdrawal of security clear- ance imposed, and still imposes, a ''badge of infamy'' «pon petitioner. By way of illustration,- ' reference is made to a paper which was presented to the American Rocket Society atits fall. -— : meeting, September 18-21, 1955, at Los Angeles,’ California, by North American personnel. This paper, entitled "Generalized Solution of the . Theoretical Specific Thrust of a Rocket Motor for the C-H-N-O-F Atomic System," did not include petitioner as a co-author because of the fact of the withdrawal of his security clearance. | 10; rm mo SPT OE SOMPLO ba Bs Tae SET TY ICL TS SREY CEO 2 RAE TF P ewe Si Ds oh Mert A Ate MN I lg eh Sp alg kb nee ment, professional, and other Opportunities for petitioner have been permanently and extensively damaged and limited, Petitioner did not the Ramo- Wooldridge Corporation and its affiliates, and the Douglas Aircraft Cumpany, Inc., have been permanently and extensively compense in both. Scientific and non-scientific activity consistent with his unique and highly : . Specialized training, abilities, and experience, whether said activity requires security clear- ance or not. . me Petitioner alleges that he has been McElroy, found the security programs which were applied to petitioner to be without authorization. This 18. Sika ds ta 3 NE el ep ny a ee” Court should grant certiorari in the instant case in view of the fact that without such grant there is no appellate review possible of the Court of Claims' decision in the instant case, and thelaw, and novel premise, would be settled, without judicial review, that unauthorized regulations can purportedly be used to determine the criteria for recovery [Bottom of R. 149 to top of R. 150, and note 2 at the bottom of R. 68; also, see. Appendix A, p. 6]; such procedure offends due process under the Fifth Amendment as did the un- authorized withdrawal of security clearance; not- withstanding the statements in Dupree [R. 148 and Appendix A, pp. 3-4], petitioner contends that the right to follow a lawful calling is Constitu+ tionally protected and hence his claim is one founded upon the Constitution. This is borne out by Parker v. Lester, 227 F.2d 708 at 717 where the Court states, referring to privately employed merchant seamen, that the liberty to follow their chosen employment "is no doubt a right more clearly entitled to Constitutional protection than the right of a Government employee to obtain or retain his job." Thus, there is a fundamental conflict between the Court of Appeals for the Ninth Circuit and the Court of Claims; furthermore, it is urged that the position of the Court of Claims is inconsis- tent with that of this Court in Wieman v. Updegraff, 344 U.S. 183, and Peters v. Hobby, 349 U.S. 331 (see footnote at bottom of p. 2, supra), in that, as stated by Mr. Justice Douglas in his concurring opinion in Peters v. Hobby, supra, at 351, 19. "We deal here with the:reputation of men and their right to work -- things more precious than property itself." The Court of Claims in its first decision in the instant case, quoting from its own decision in Dupree, supra (Appendix A, p. 4) asks the question "did plaintiff lose his means of live- lihood because of the alleged violation of his constitutional rights ?"' In the case of petitioner the answer must be "yes" since, except for the violation of due process by way of the unauthorized withdrawal of the security clearance vested in him, petitioner. would not have been severed from North American and dislodged from the rocket- propulsion field. Petitioner, unlike a litigant in the State Courts or a Federal District Court, has no appellate review from the Court of Claims except that granted by this Court in his struggle to obtain redress for the at least $163, 381 . damages done him which redress the Honorable Court of Claims below has seen fit to evaluate at $4,677.52. Petitioner urges this Court to grant certiorari so that it may review,.inter alia, the findings of fact and conclusions of law below and reverse. This Court has the power so to do (U.S. v. United States Gypsum Co., 333 U.S. 364 at 395) when the trial court's 20. finding (or findings) is "clearly erroneous. '" Thus, in the instant case there is no question but what ''a mistake has been committed" (U.S. v. United States Gypsum Co. » Supra, at 395), for insiance, by the Honorable Court below in its using the purported evidence advanced by Mr. Zack of the California Department of Employment. CONCLUSION For the foregoing reasons, this petition for a writ of certiorari should be granted. Respectfully submitted, IRVING A. KANAREK Counsel for Petitioner, Pro Se 21. APPENDIX “A”, Opinion of the United States Court of Claims. In the United States Court of Claims. No. 139-58 (Decided March 6, 1963) Irving A. Kanarek v. The United States. Rex M. Minter for plaintiff. Lawrence S. Smith, with whom was Acting Assistant Attorney General Joseph D. Guilfoyle, for defendant. Before Jones, Chief Judge; Whitaker, Judge; Lara- more, Judge; Durfee, Judge; and Davis, Judge. On Defendant’s Motion to Dismiss Plaintiff’s Peti- tion 7 Laramore, Judge, delivered the opinion of the court: This case originally came before the court on defend- ant’s motion to dismiss. The court, at that time, suspended the proceedings until plaintiff had exhausted his administrative remedy through the Department of the Air Force. © Plaintiff thereafter pursued said remedy, and the Secretary of the Air Force approved the claim in the amount of $4,677.52. On Juiy 23, 1962, plaintiff moved that the suspension of proceedings be lifted and that the court set the matter down for argument. This motion was premise on the contention that more money is due plaintiff and the administrative recommendation of $4,677.52 was unacceptable to him. By order of court, this motion was allowed and, after filing” of certain addi- A —2— tional exihibits by defendant,’ the case was assigned for argument on the validity of plaintiff's claim. Thus the case now before us calls for a determination of the entire claim of plaintiff as alleged in his petition. It is plaintiff’s claim that in addition to loss of wages during the period his security clearance was withdrawn, he is entitled to a much greater sum representing dam- ages suffered because of lost merit raises and general increases, damages based on a linear increase in earning power, loss of experience in the field of rocket pro- pulsion research, loss of a bonus resulting from an invention of plaintiff, damages because of certain patent disclosures by North American Aviation, Inc., and for damages occasioned by loss of employment opportunities. Plaintiff alleges his action arises under Article II of the Constitution of the United States, the Fifth Amendment thereto, and section 1491, Title 28 US&., the general jurisdictional act relating to the Court of Claims. The facts are these: On July 12, 1954, while employed as a research engineer for North American Aviation, Inc., plaintiff's Goverament clearance for access to classified security information was with- drawn. On September 21, 1955 it was restored. North American Aviation, Inc., was a Government contractor and had, on April 6, 1953, entered into a written security agreement with the Government, containing various provisions for the safeguarding of 1Tnasmuch as the defendant filed exhikits to support its motion to dismiss, we now treat the Governmcnt’s motion as @ mouon for summary judgment. Rule 16(b) of the Rules of this court. RR A REINA CLM LEI NE TE ETE, TT EE TS ST TT ST TE A—3— Classified security data that would come into its posses- sion in the course of its performance of Government Contracts. One of these provisions was that the Govern- ment agreed, upon application of the contractor, to designate employees of the contractor who could have access to certain types of classified security information. With the exception of plaintiff’s claim for loss of wages, we are of the opinion that plaintiff’s claims are unfounded, and we will dispose of such claims at the outset, not an employee of the contractor as plaintiff argues. Furthermore, it is apparent that there was no privity between plaintiff and the Government, and since his alleged injuries were the result of dealings between the United States and the sontractor, there is no basis for & contract implied or in fact between plaintiff and the United States. Nor can plaintiff base a claim upon the due process clause of the Constitution. It was so held by this court in Dupree v. United States, 136 Ct. Cl. 57. in this case the court stated, at page 61: We are, nevertheless, of opinion that his petition is insufficient to state a case as one founded on the Constitution. If it is possible at all in a A-A— case such as this to state a case founded on the Constitution, it would, at least, be necessary to allege facts to show that, except for this violation ~ of his constitutional rights, the certificate would have been granted him, and he would have been permitted to follow his vocation and would have earned the wages for which he sues. It is hardly conceivable that such a case could ‘be stated, and, even if it could be done, we seriously doubt the right of a citizen to recover a money judgment in such a case. But, assuming such a case could be stated, the question is, did plaintiff lose his means of livelihood because of the alleged violation of his constitutional rights? Otherwise stated, is it necessarily true that the certificate would have been issued to him if his alleged constitutional rights had been respected, that is, had he been confronted by his accusers. How can we know? Suppose he had been con- fronted by his accusers and they had testified to the things alleged * * *; and that after these witnesses had been subjected to cross-examination, the Commandant had still believed their testimony, under these circumstances must he have granted the certificate? If this does not follow, plaintiff has not stated a case. Plainly it does not follow. The Dupree case and this case are strikingly similar. Dupree’s security clearance was withheld; plaintiff’s security clearance was withheld. Here, as in the Dupree case, nothing is present, alleged or proved, to convince us that under any circumstances plaintiff’s certificate would not have been removed or would have been a granted him so that he would have been permitted to follow his vocation. Having failed to allege and prove the necessary allegations under the criteria of the Dupree case, supra, plaintiff cannot recover under the due process clause of the Constitution. Nor has plaintiff stated a case under the just compensation clause of the Fifth Amendment of the Constitution. The action taken was simply the issuance of a regulation designed to protect the United States and action taken thereunder to withhold the security clearance. Its purpose was not to take property for public use, nor was property taken for public use which is essential to a Fifth Amendment taking. Since there can be no recovery in this case under any article or amendment of the Constitution of the United States, and absent a contract between plaintiff and the United States, plaintiff’s only alternative for recovery, with the exception noted earlier relating to loss of wages, would be under a statute, or a regulation, or for liqui- dated or unliquidated damages for cases not sounding in tort. 28 U.S.C. § 1491. No statute or regulation is called to our attention and we know of none which could form the basis of plaintiff’s claim. Consequently, plaintiff must also fail on this aspect of the case. Respecting the portion of the statute which permits suits for liquidated or unliquidated damages for cases not sounding in tort, two decisions of the Court of Appeals for the Third Circuit? are significant. The facts of the above cases are very similar to the facts *Dupree v. United States, 247 F. 2d 819; Dupree v. United States, 264 F. 2d 140. A—6-- in this case, and the court therein clearly recognized and treated the alleged actionable conduct of the de- fendant as a tort. Recovery was denied because the Federal Tort Claims Act specifically precludes recovery for this particular category of torts. We can see no distinction between the two above cited cases and the case at bar. If it was a tort in the case of Dupree, it is a tort in the instant case, and since the statute specifically exludes tort claims from our jurisdiction, plaintiff cannot recover under this court’s general jurisdictional act, supra. This brings us to plaintiff's claim for wages lost by reason of the withholding of his security clearance. Paragraph 26, Industrial Personnel Security Review Regulation, Department of Defense Directive 5220.6, dated February 2, 1955, as amended, authorized the secretary of the department concerned to settle reim- bursement claims in appropriate cases resulting from the suspension of a contractor employee’s clearance. As noted earlier, plaintiff’s security clearance was restored September 21, 1955. Pursuant to this court’s order, plaintiff pursued his administrative remedy and the Secretary of the Air Force approved the claim in the amount of $4,677.52, covering the period July 12, 1954 to January 29, 1955, less outside earnings. He did not grant the claim for the balance of the period January °30, 1955 to September 21, 1955, because plaintiff failed to furnish satisfactory evidence to reasonably demonstrate a deligent interest in securing a ¥ Ch i ah a i a i eS tines meeeeemiemaial ‘ employment and availability therefor. It was pointed out to plaintiff in the letter allowing his claim in part that he drew unemployment compensation benefits from the State of California up to January 29, 1955, but they were terminated on that date, presumably because he failed to qualify for them under the unemployment code of that state, and that he did not contest or otherwise dispute such action. This was the only evidence concerning plaintiff’s efforts to obtain em- ployment during this period. At the time of oral argument plaintiff was granted the opportunity to file an affidavit concerning his ef- forts to obtain employment and he thereafter did file such an affidavit. In his affidavit he avers that while he is now unable to state with precision the particular times, he did make efforts to secure employ- ment and he lists the names of certain organizations to which he applied. He also avers that his efforts were to no avail. He also avers that menial employment, such as dishwashing as suggested by the Department of Em- ployment of the State of California, was not sought, and that he was always ready, willing and able to work after July 12, 1954. We are of the opinion that a person with the scientific background of plaintiff should not be forced to take jobs so far below his level of intelligence and level of his former employment in order to avoid the impli- cation of failure to seek employment. We are further of the opinion that in consequence of his affidavit, a A—8— question of fact now exists which cannot be disposed of except by a trial before a commissioner cf this court. Consequently, we now remand the case to a commis- sioner for a determination of the unresolved question of whether or not plaintiff actually did attempt to obtain employment in the period January 30, 1955 to September 21, 1955.° On all other phases of the case, defendant’s motion for summary judgment is granted, and plaintiff's petition with respect thereto is dismissed. 8If plaintiff prevails, he, of course, would be entitled to recover loss of wages for this period in addition to the administrative de- termination of $4,677.52. APPENDIX B Gn the Waited States Gourt of Gains No. 139-58 (Decided May 10, 1968) IRVING A. KANAREK v. THE UNITED STATES Irving A. Kanarek, pro se. Lawrence S. Smith, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant. Before Cowen, Chief Judge, Lazamore, Dorrez, Davis, Cottins, SKELTON, and Nicuo1s, Judges. OPINION Per Curtam: This case was referred to Trial Commis- sioner Saul Richard Gamer with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a). The commissioner has done so in an opinion and report filed on February 21, 1967. Exceptions to the commissioner’s opinion, findings of fact and recommended conclusion of law were filed by plaintiff and the case has been submitted to the court on the briefs of the parties and oral argument of plaintiff, pro se, and counsel for defendant. Since the court is in agreement with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, plaintiff is entitled to recover and judgment is entered for plaintiff in the sum of $4,677.52. 297-755—68 SPR commennn cn ereeremarens NISL ENNIO OM GME SEE WT SE IRS NE POSES OG RN Ie PON F ene B-2 OPINION OF COMMISSIONER Gamur, Commissioner: By its decision of March 6, 1963 * on defendant’s motion to dismiss (which was treated by the court as @ motion for summary judgment), the court held thet plaintiff was entitled, in accordance with the determi- nation of the administrative agency (the Department of the Air Force), to recover the sum of $4,677.52, being the net amount of back salary plaintiff lost during the period July 12, 1954, when plaintiff's security clearance was suspended, to January 29, 1955, when plaintiff’s eligibility to receive further unemployment compensation payments was with- dravn by the State of California Department of Employ- ment. The administrative agency denied the balance of plaintiff's back salary claim in the amount of $5,291.87 cov- ering the period January 30, 1955 to September 21, 1955, the date plaintiff was notified that favorable action had been taken on his appeal and that the suspension of his security clearance had been lifted. The agency determined that, for such latter period, plaintiff had failed to make a satisfactory showing that he was ready, willing, and able to take suitable employment. By said decision, the court granted defendant’s motion and dismissed all of plaintiff’s claims set forth in his peti- tion, totaling $163,831, except as to said amount of $4,677.52, to which it held plaintiff to be entitled, and said balance of $5,291.37, upon which it reserved judgment. As to plain- tiff’s entitlement to said balance, the court remanded “the case to a commissioner for a determination of the unresolved question of whether or not plaintiff actually did attempt to obtain employment in the period January 30, 1955 to Sep- tember 21, 1955.” (161 Ct. Cl. at 43-44.) For the reasons set forth in the following detailed and ultimate findings of fact and conclusions of law, it is con- cluded that, considering all the facts and circumstances based upon a full review of the record, the administrative agency’s action was fair and reasonable and should be sustained, that 1161 Ct. Cl 87, G14 F. 24 802; plaintif’s motion for reconsideration denied April 17, 1964; plaintiff's petition for a writ of certiorari denied October 12, 1964 (879 U.8. 888). a SE SO ee SRP LSNSOR A, SILL MO EEL INO LE INO SLL EI ODL IED IO GOL GE Eg ELE SE I B-3 plaintiff has failed to sustain his burden of proving entitle- ment to recovery for the period January 30, 1955 to Septem- ber 21, 1955, and that judgment should ke entered for plain- tiff in the net amount of $4,677.52, representing gross lost wages of $4,752.52 during the period July 12, 1954 to Janu- ary 29, 1955, less the amount of $75 earned in other employ- ment during such period. Finpines or Faor 1. On July 12, 1954, the Department of the Air Force, by the action of the Screening Division of its Western Indus- trial Personnel Security Board, withdrew plaintiff's authori- zation for access to Government classified information. As & consequence, the employment of plaintiff, a research engi- neer, with North American Aviation, Inc. an Air Force contractor, was suspended, the contractor having previously executed a “Security Agreement” with the Department of the Air Force, acting for the Department of Defense, which required it to take such action under such circumstances. By letter dated September 29, 1954, plaintiff was notified that the Screening Division’s action had been affirmed by the Appeal Division of said Board. 2. On November 11, 1954, plaintiff established an “unem- ployment insurance” claim in the office of the State of Cali- fornia Department of Employment and thereafter drew weekly unemployment compensation from such date to Jan- uary 29, 1955 in the total amount of $270. The record does not indicate why. plaintiff waited until November before establishing such aclaim. On the latter date, such payments were terminated. No appeal proceedings were instituted by plaintiff with respect to such cessation. 3. On plaintiff’s request, his case was reviewed by the De- partment of Defense Industrial Personnel Security Review Board which determined that the granting of clearance to plaintiff for access to classified information was clearly con- sistent with the interests of national security. North Ameri- can Aviation was so notified by a letter dated September 15, 1955 from the Director of the Department of Defense Office of Industrial Personnel Security Review. On September 21, 1955, plaintiff was also so notified by the receipt of such a letter dated September 16, 1955. B-4 4. (a) Department of Defense Directive No. 5220.6 of February 2, 1955, entitled “Industrial Personnel Security Review Regulation”, provided in paragraph 26, headed “Monetary Restitution”, that where, in such cases, there was a final determination favorable to an employee of a Depart- ment of Defense contractor, the particular Department con- cerned would reimburse the employee “in an equitable amount for any loss of earnings during the interim resulting directly from a suspension of clearance”, such amount not to “exceed the difference between the amount the contractor employee would have earned at the rate he was receiving on the date of suspension and the amount of his interim net earnings.” (b) By letter of October 31, 1955, plaintiff inquired of the Director of the Office of Industrial Personnel Security Review how he could obtain the restitution provided by the directive. 5. Following receipt of information from the Department of Defense as to how to proceed, plaintiff, on December 27, _ 1955, submitted to the Department of the Air Force, on the required Department of Defense form entitled “Claim for Loss of Wages”, a claim in the amount of $9,698.89 for net lost wages from July 12, 1954, the date his security clearance was withdrawn, to September 21, 1955, which plaintiff set forth as the date of the reinstatement of such clearance. Plaintiff listed the total lost wages during the period of the suspension of his security clearance as $10,258.89. In re- sponse to a specific inquiry on the form concerning the “A mount of Unemployment Compensation Benefit Payments Received or Due for Period of Your Suspension”, plaintiff inserted the figure of $270, and deducted such amount from the total of lost wages, as well as, in response to another ques- tion on the form, the amount of $290 in earnings during such interim suspension period, making a net claim of $9,698.89. 6. The California Unemployment Insurance Code in effect at that time (West’s Annotated California Codes, Unemploy- ment Insurance §§ 1253, 1256-1258) provided, among other things, that to be eligible to receive weekly unemployment compensation benefits, the claimant must register for work; continue to report to the appropriate public employment office; be able to, and be available for, work; and attempt to LO BREIL RE IE TINT Te a a ele NE ah i ¢ LIER APR ENE PEE LOIRE YETI CALE TITLE iy BN MERON RE Ml NY IEA tts B-5 seek work on his own behalf. Among the causes for dis- qualification were leaving work voluntarily and without good cause, a discharge for misconduct, refusing to accept suitable employment, or failing to apply for such suitable employ- ment when notified by a public employment office. “Suitable employment” was defined as “work in the individual’s usual occupation or for which he is reasonably fitted * * *.” For the latter, the risk to health and safety had to be considered, as well as, among other things, the applicant’s physical fit- ness, training, and experience. The Department’s regula- 1 Pertinent parts of sald sections of the Code, in effect in 1954 and 1955, are as follows: ““§ 1258. Bligibility for partioular week. An unemployed individual is ell- gible to receive unemployment compensation benefits with respect to any week only if the director finde that: (a) A claim for benefits with respect to that week has been made in accord- ance with authorized regulations. (b) He has registered for work, and thereafter continued to report, at a public employment office or such other place as the director may approve. Either or both of the requirements of this subdivision may be waived or altered by authorized regulation as to partially employed individuals attached to regular jobs. ’ (c) He was able to work and available for work for that week, and had made such effort to seek work on his own behalf as may be required in accord- ance with such regulations as the director sha‘l prescribe. (4) He has been unemployed for a waiting poriod of one week as defined in Section 1254, © © © * o « aa . e a § 1256. Disqualification ; voluntarily quitting; presumption of discharge ; rebuttal of presumption. An individual is disqualified for unemployment compensation benefits if the director finds that he left his most recent work voluntarily without good cause or that he has been discharged for misconduct connected with his most recent work. An individual is presumed to have been discharged for reasons other than misconduct in connection with his work and not to have voluntarily left his work without good cause unless his employer has given written notice to the contrary to the director within five days after the termination of service, setting forth facts sufficient to overcome the presumption. If the employer files such notice, the question shall immediately be determined in the same manner as benefit claims. * * # § 1257. Disqualification; falsification; refusal of employment. An indi- vidual is also disqualified for unemployment compensation benefits if: (a) He wilfully made a false statement or represeatation or wilfully failed to report a material fact to obtain any unemployment compensation benefits under this division. : (b) He, without good cause, refused to accept suitable employment when offered to him, or failed to apply for suitable employment when notified by a public employment office. * * ¢ $1258. Suitable employment. ‘Suitable employment’ means work in the individual’s usual occupation or for which he is reasonably fitted, regardless of whether or not it is subject to this division. In determining whether the work is work for which the individual is reason- ably fitted, the director shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his expe- rience and prior earnings, his length of unemployment and prospects for a a a ee Re eee ee eee ee ‘ ne EPR EN . 4 B-6 tzons defined in detail the action tiat would be considered as constituting reasonable efforts by a claimant t» eek work on his own behalf." Department of Employment to discontinus bene At no time was it the policy or authesized practice of che £ts to an applicant who refused to accept employment far California below his educational background level, treining, or Saf iptaT? nea bts h 1 ry 1k 8 §4 pagel tlealin 2h hE | geal : Ls ae ay aH Hy ie it ra t Ht i i ef ee j He itil TH: Hire employment of a permanent 8. Plaintiff did not obtain type antil he was employed by the Lock- April 9, 1956, when heed Aircraft security with time he was gi given lower clearance, & clearance than he had held of type Reddy HE AHE isle] full THE qh passage of evveral letters between the parties, Despite the in which the unemployment reitarated its Air Force employment, plainti#® refused te HIE aad a fi HAY a ae a Hi ay eee raehy ae tf fd parte ui tof ti i Ht ini BUDE tf HH 3 HF ot Hf 44411 Se Hit il LA Ht | He apply to claimants applying for deaedits of thie section do not of partial enemployment.” : - ie as B-8 queries in the July 18 letter are not pertinent to the adjudica- tion of my claim”. Among other things, plaintiff relied on the case of Mendes v. United States, 119 Ct. Cl. 845, 96 F. Supp. 826 (1951), stating that such decision “is not con- cerned with nor even makes mention at all relative to Mr. Mendez’s attempts to obtain employment during this period.” Plaintiff stated that unless he received the claimed $9,698.89, he would sue in the Court of Claims for “alZ the damages suffered by me as a proximate result of the withdrawal of my security clearance * * *.” [Emphasis in original.]* 10. By letter dated February 26, 1957, the Office of the Judge Advocate General of the Air Force advised plaintiff that, in view of his persistent refusal to answer the questions which the Air Force felt were necessary for a proper adju- dication of plaintiff’s claim, “the long period during which this claim has been under consideration, and the rather considerable amount of correspondence in the interval, this office has decided to set March 15, 1957 as the latest date upon which administrative processing of our final recommen- dation to the Secretary of the Air Force will be undertaken. If you elect to answer our previous propounded questions, we shall be pleased to include them in our recommendation.” However, plaintiff did not, by March 15, 1957, answer the questions. 11. (a) Because the Air Force concluded that replies to its previous queries were essential to an equitable disposition of plaintiff’s claim, no adjudicatory action was taken with respect thereto, the claim being held in a so-called “open” status. In this exchange of letters, plaintiff, araong other thingy, (a) asserted a statutory basis for his claim, as against the Department's contrary assertion, and (b) complained about a delay in the delivery of a letter to him. Also plaintiff had enrolled in the Loyola University School of Law on Sep- tember 29, 1952 and graduated on June 10, 1956. In the aforesaid letters, the Air Force also inquired of plaintiff? whether he had removed himself from ths labor market by attending school during the period of his suspension, but plaintiff satisfactorily answered certain of the Department's questiong on this subject, advising that his attundance, except for one course of two credit units during the summer quarter of 1955 (June 20-September 1, 1955) was as a part-time evening student, an activity he had undertaken while he had had full-time employment with North American. The Department verifiec this information by direct inquiry of the law school. B-9 (b) On April 1, 1958, plaintiff instituted his suit herein seeking damages totaling $163,831. 12. On August 1, 1958, defendant filed a motion to dis- miss the petition, which plaintiff, by objections filed Novem- ber 19, 1958, opposed. In defendant’s reply to plaintiff's objections, filed October 14, 1959, defendant made the addi- tional contention that plaintiff, by having refused to furnish the Air Force with the pertinent data concerning his un- employment compensation, had frustrated agency action and had therefore failed to exhaust his administrative remedy, warranting the dismissal of the petition. In the alternative, defendant requested that the suit be suspended and plaintiff directed to pursue his administrative remedy and, in con- nection therewith, to submit to the Air Force the data it had previously requested. Over plaintiff’s objection, and after oral argument, the court, by order dated June 30, 1961, ordered that “further proceedings, including action with regard to defendant’s motion to dismiss, be and the same are suspended pending plaintiff’s pursuit and completion of the administrative remedy available through the Department of the Air Force which proceedings are to be instituted and completed within a reasonable time.” 13. (a) Upon receipt of the court’s order, the Office of the Judge Advocate General, Department of the Air Force, by letter of July 12, 1961, advised plaintiff that, in accordance with the court order, the Air Force would continue to process plaintiff's claim upon receipt of the information previously requested. It again set forth the specific questions it de- sired answered, including the reason for the termination of the unemployment benefits on J anuary 29, 1955. However, by letter of August 1, 1961, plaintiff failed to furnish the data requested. Plaintiff took the position that the court’s order “made no mention” of the claim he had previously filed, and that his claim row consisted of the full damages that he was claiming in his court suit. (b) By letter of August 4, 1961, the Air Force replied that it had, under the aforesaid directive, authority to consider only a claim for back wages and not for other consequential damages arising from the suspension. It stated that it could therefore only take action, under the court order, on the 297-755—68——-2 ——eEEEEyEE—————E B-10 original $9,698.89 claim which plaintiff had filed, and that, if plaintiff did not submit the information requested by Sep- tember 15, 1961, “your claim will be considered on the merits upon the basis of available facts.” The specific questions to which it desired answers were again set forth. 14, By letter of September 18, 1961, plaintiff did furnish answers to some of the questions. He stated he had been informed by the California Department of Employment “that compensation was terminated”, but could rot then, because of the lapse of time and his failure to remember, give any further information on this matter, the records pertaining to old claims having been destroyed. He stated, however, that “I do recall that it was suggested that I take dishwash- ing employment.” Specifically as to the reason for the termination of his unemployment benefits on January 29, 1955, plaintiff stated he was, “because of the long passage of tims” unable to state the reason. He further stated that: “In any even, it is suggested, that whatever reason might have been stated for the termination of said unemployment benefits was probably different from, and perhaps even un- related, to the true reason.” Plaintiff listed the names of a number of companies with which he had sought employment and stated that “Menial employment such as, for instance, dishwashing was not sought.” In answer to the question whether unemployment benefits were ever withdrawn be- cause he refused to accept suitable employment when offered or failed to apply for such employment, plaintiff again re- sponded that “because of the long passage of time, these questions cannot be answered by me with precision” but: “It is suggested that whatever the reason stated may have been for the termination of unemployment compensation payment, the real reason was something else wherein the real reason or alleged real reason was a reflection of the atmos- phere at that time. * * * In any event, the alleged reason for termination of unemployment compensation payments would be rank hearsay on the part of an individual, it is suggested, who was influenced by the hysteria and atmosphere at the time. * * * Regardless of the termination of the unemploy- ment compensation payments, I was available for work and able to work at the time said termination occurred. The problem was, it is suggested, that no suitable employment B-11 was offered me; as I recall, the only employment actually offered was, as aforesaid, menial in nature such as dishwash- ing. Furthermore, although much time has passed, I know that when I was notified by the California Department of Employment that there was a possibility for suitable employ- ment, I followed up such possibility.” 15. (a) By letter of September 25, 1961, the Office of the Judge. Advocate General advised plaintiff that “According to the California Unemployment Insurance Code, it fully appears that your benefits were terminated on 29 January 1955 by the State of California for the reason that you had failed to make a reasonable effort to secure employment in your own behalf.” The Office therefore felt that it was necessary for plaintiff to furnish further information con- cerning his efforts to secure employment during his suspen- sion period, and requested that, in support of plaintiff’s assertions that he attempted to secure such employment, plaintiff furnish some supporting “definitive proof”, such as any copies of applications he submitted, résumés, or correspondence. (b) By letter of February i2, 1962, plaintiff responded that the “definitive proof” which the Air Force requested “is simply not obtainable * * * either with the organize- tions from whom employment was unsuccessfully sought or with myself * * * .” He also advised that the California Department of Employment no longer had any records concerning the matter. He suggested that the Department make its own inquiries of such sources. Plaintiff again, however, sought payment of his claim in the amount of $163,831. 16. (a) On April 16, 1962, the Air Force Judge Advocate General recommended to the Secretary of the Air Force that consideration be given only to that part of plaintiff’s $163,831 claim which related to back wages, i.e., plaintiff's original claim of $9,698.89. He stated, among other things, that “* * * it fully appears that claimant’s [unemployment] benefits were terminaied because he had removed himself from the labor market by failing to dili- gently seek employment.” He noted plaintiff’s failure to appeal the State’s action in removing plaintiff from the B-12 unemployment compensation rolls and his attendance of law school during such period. Despite plaintiff’s contention that “he was unable to secure satisfactory employment commensurate with his abilities during this period and that he remained ready and willing at all times to accept em- ployment of a suitable nature”, he concluded that “it appears from all of the information available that claimant was not actively seeking employment subsequent to 29 January 1955 * * * when he became ineligible for unemployment benefits.” He therefore recommended to the Secretary that any re- imbursement after such date be denied. For the period July 12, 1954 to January 29, 1955, plaintiff's salary would have been $4,752.52. During such period plaintiff had received $75 in other earnings, making a net amount due of $4,677.52. Since California required repayment, where back wages were awarded, of unemployment benefits during the period involved, the $270 plaintiff received was not added to the deductions, Accordingly, it was recommended that plaintiff be awarded the net amount of $4,677.52, and that the balance of plaintiff’s claim, in the amount of $5,291.87, be denied.‘ (b) On April 19, 1962, the Secretary of the Air Force approved payment of said amount of $4,677.52 “subject to acceptance by the claimant in full satisfaction and final settlement.” By letter of the same date, plaintiff was so advised. The letter stated that “After considering all the facts, it was determined that your entitlement to reimburse- ment should be limited to the period from 12 July 1954 to 29 January 1955”, it being concluded “that any entitlement for the period thereafter should be disapproved since you had failed to furnish satisfactory evidence to reasonably demonstrate a diligent interest in securing employment and availability therefor.” The letter further stated that “* * * it was considéred significant that your unemployment bene- fits were terminated by the State of California on 29 January 1955 ostensibly for the reason that you had failed to qualify ‘4 The agency treated plaintiff’s claim as $270 more than he actually claimed because it did not, as did plaintiff, deduct the unemployment compensation payments he received. ‘hus, the total lost wages for the period involved was $10,258.89. Deducting the $290 outside earnings made a net claim of $9,968.89. The amount awarded was $4,677.52, leaving a balance cf $5,201.87. B-13_ to deny any reimbursement claimed for the period 30 Janu- ary 1955 to 21 September 1955.” Plaintiff was advised that if he accepted the amount of $4,677.52 in full satisfaction and final settlement of his claim, a check in such amount would be issued. 3 (c) By letter of May 17, 1962, plaintiff rejected the offer of $4,677.52, and reasserted his claim in the amount of $163,831. 17. On July 23, 1962, plaintiff moved that, since the amount found due to him administratively was unacceptable to him, the suspension of the proceedings on defendant’s motion to dismiss be lifted and that the motion be calendared for fur- ther argument. By order of August 3, 1962, the motion was allowed. At the second oral argument, plaintiff was given permission to file an affidavit concerning his efforts to obtain employment. Such an affidavit was filed on February 5, 1963, in which plaintiff listed various companies with which he sought employment during the neriod J uly 12, 1954 until April 9, 1956, when he secured employment with Lockheed. He further stated that he was “informed and believes” that the reason he was denied unemployment: benefits after Janu- ary 29, 1955 “was because of his refusal to tak menial labor, such as dishwashing * * *,” which the Department suggested he take, the Department personnel having “equated the with- drawal of Security Clearance with one being a Communist and a disloyal American.” 18. By decision of March 6, 1968 (161 Ct. Cl. 37, 814 F. 2d 802), the court ruled that plaintitf was entitled to recover $4,677.52, constituting lost wages for the period July 12, 1954 to January 29, 1955, as allowed by the administrative deter- mination, but that, asa result of plaintiff's affidavit submitted after the oral argument, a question of fact existed concerning whether plaintiff actually did attempt to obtain employment during the period January 30, 1955 to September 21, 1955. The court remanded the issue to a commissioner for the determination of such “unresolved question.” The court further’ stated that plaintiff’s claim was not to be prejudiced by his failure to accept or seek menial employment, such as AE A aE NTN NE LE LE IE SELES EERE AEA SE NE: PREP TE LEBER EEL I ERE Ss Tb Sl, B-14 dishwashing. In all other respects, plaintiff’s petition was dismissed. Plaintiff's motion for reconsideration was denied on April 17, 1964, and his petition for certiorari on October 12, 1964 (879 U.S. 888). 19. At the trial held in Los Angeles, California, on July 7, 1965, plaintiff himself was the only witness in his behalf. He did testify that he had, during the period in question, sought employment commensurate with his educational background and experience. However, the testimony was otherwise unsupported. No documents or exhibits, such as copies of letters or applications for employment, were introduced. Plaintiff testified he retained no such copies. He did not enlighten the court with respect to the “unresolved question” in any respect that added to the affidavit he had filed with the court on February 5, 1963. Actually, plaintiff's case at the trial in effect consisted only of such affidavit, which plaintiff adopted as his testimony and his proof. (Tr. 17-20; 51.) Defendant’s evidence consisted of a witness from the California Department of Employment. He testified that as a matter of policy, case records are retained only three years sfter the expiration of the benefit year, so that plaintiff's records are no longer in existence. He further testified that as a matter of policy and practice, the Depart- ment at no time required a man to take work far below his educational background level ; that the suspension of security clearance in no way affected an applicant’s eligibility to draw compensation (although it might affect his availability for employment); and that benefits could not be terminated without cause. Uurmmate Finprngs anp CONCLUSIONS 20. Plaintiff’s conduct before the agency in effect frus- trated the administrative process. In 1955, when he first applied to the agency for the restitution of his lost wages, a remedy which the agency had the power to provide (finding 4) and for which he now sues in this court, as weil as in 1956 when the agency was processing his claim (findings 7, 9), plaintiff took the position that the reason the State of Cali- fornia terminated his unemployment compensation payments om oe eo te aR IES eR ; NR: