463 F.2d 837 (D.C. Cir. 1972), 24599, Rodriguez v. Seamans

Docket Nº:24599.
Citation:463 F.2d 837
Party Name:Robert A. RODRIGUEZ, Appellant, v. Dr. Robert C. SEAMANS, Jr., Secretary of the Air Force, et al.
Case Date:April 03, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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463 F.2d 837 (D.C. Cir. 1972)

Robert A. RODRIGUEZ, Appellant,

v.

Dr. Robert C. SEAMANS, Jr., Secretary of the Air Force, et al.

No. 24599.

United States Court of Appeals, District of Columbia Circuit.

April 3, 1972

Argued Nov. 1, 1971.

Mr. Edward L. Merrigan, Washington, D. C., for appellant.

Mr. Richard S. Stolker, Atty., Dept. of Justice, with whom Mr. Robert L. Keuch, Atty., Dept. of Justice, was on the brief, for appellees.

Before WRIGHT and TAMM, Circuit Judges, and FRANK M. JOHNSON, Jr., [*] Chief Judge, U. S. District Court for the Middle District of Alabama.

TAMM, Circuit Judge:

In this appeal we are asked to determine whether the Government has the power to discharge a Veterans' Preference Act employee who gave false answers to certain questions on federal employment forms with reference to membership in either the Communist Party or other Communist-affiliated organizations. We have had a great deal of litigation involving both freedom of association and loyalty oaths in recent years. Of course, we note that there is a significant difference in those cases and the instant case, as this is a suit brought by a party who, as a result of his falsification of forms and not as a result of his prior memberships and associations, lost his position with the Air Force. Appellant's discharge took place after 27 years of otherwise exemplary service; he now seeks re-instatement to his former position. As the facts will indicate, the circumstances involving Mr. Rodriguez' dismissal are indeed unfortunate and may be indicative of a degree of governmental overkill. However, in reviewing the record it is apparent that the action of the Air Force and the Civil Service Commission is neither arbitrary nor capricious, nor can it be said to have been unreasonable. That being the case,

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we affirm the trial judge's grant of the Government's motion for summary judgment.

I.

Mr. Rodriguez filed an application on October 21, 1963, for a position as a general engineer with the United States Air Force. The position required a security clearance, for which he applied at the same time. One of the questions asked on the forms completed, viz., Standard Form 57 (Application for Federal Employment), Air Force Form 1150 (Security Certificate for Civilian Employment), and Department of Defense Form 398 (Statement of Personal History), required an answer to questions regarding membership in the Communist Party or other Communist organizations and in organizations contained on Civil Service Form 385, organizations designated by the Attorney General pursuant to Executive Order 10450. On each form Rodriguez answered these affiliation inquiries falsely, denying affiliation in any of the proscribed groups. This was contradicted by the appellant himself in a voluntary statement, made under oath, to an Air Force investigator, who on April 16, 1964, was conducting an investigation regarding the position for which appellant had applied. In the course of the statement given to the investigator, Rodriguez admitted that, in fact, he belonged to the Young Communist League from approximately 1934 to 1936. He stated that his involvement in the organization consisted of attending meetings, distributing literature and paying dues. He told the investigator that he considered the League to be "synonymous" with the Communist Party, U.S.A. Furthermore, in the course of this investigation Rodriguez revealed that in 1936, or so, he was a member of the American Labor Party and that he attended meetings and rallies sponsored by that organization. Mr. Rodriguez told the investigator that he failed to disclose these facts because he feared that so doing "would make any service to the United States Government impossible and make it impossible to secure unbiased hearings of the facts." 1

The Air Force, on March 4, 1965, began an adverse action of proposed removal charging appellant with the making of intentional false statements concerning his affiliation with certain proscribed organizations on three official forms. In his reply to these charges, Rodriguez admitted the truth of his sworn statement of 1964 and stated that his prior failure to disclose his membership in the Young Communist League and American Labor Party was based on a fear of endangering his employment status with the Air Force. In the form of a defense the appellant called the Agency's attention to his prior exemplary work record, his service in the military and his involvement with his community. Further, Rodriguez alleged that he did not understand the questions which he was accused of falsifying.

After considering his written submission the Air Force advised appellant that the charges against him had been sustained and that his removal from service would become effective on May 14, 1965. At that time the appellant requested, and was accorded, a grievance appeal as provided for by Air Force regulations. The Commander, Space Systems Division, appointed an Ad Hoc Committee to hear appellant's case with the grievance hearing being held on May 27, 1965, at the Los Angeles Air Force Station, El Segundo, California. Appellant was represented by competent counsel at the hearing.

At the very outset of the hearing appellant's counsel stated: "It is not going to be the position of [appellant] that a false statement was NOT made. This is quite obvious. . . . [W]e will not disagree with the obvious fact that a false statement was made. . . ." (Hearing Tr. 9-10.) 2 There were a good

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number of witnesses called on appellant's behalf who testified to his good character and his prior work record. We do not need to recount this testimony since these matters are not at issue. The Government concedes that Mr. Rodriguez had an excellent work record and was highly regarded in his community. During the course of the testimony Colonel Clifford R. Silliman, a former supervisor of the appellant and the officer who initiated the removal action, stated that he had made serious attempts to determine whether a lesser penalty could be imposed as to appellant and he concluded that there could not. Colonel Silliman testified that if he believed he could have invoked a lesser penalty, he

would have given it very serious thought. I think falsification of any official document . . . is a serious offense. . . . I think the action I took speaks for itself. . . . If I had been able to have gotten anything specific or factual that would have given me strong support in going for a lesser penalty, I would have gone in that direction.

(Hearing Tr. 65-67.) It was the Colonel's further testimony that he did not apply the regulation mechanically and that he acted only after consulting with the appropriate and informed parties.

Following the Colonel, appellant testified on his own behalf and admitted his association with the Young Labor Party in the mid-1930's and that he intentionally denied this fact on federal employment forms inquiring about present or prior affiliation with Communist and Communist-related organizations. Rodriguez testified that he falsely answered questions regarding Communist affiliations on "numerous [federal] forms after 1948 for various jobs and clearances up to and including . . . 1963. . . ." (Hearing Tr. 87.) Appellant explained his motivation for his action in the following terms: "I had the feeling . . . that it would be difficult, if not impossible, to find anyone to accept me if such statements [concerning membership] were made." (Hearing Tr. 94.) Rodriguez admitted, on the record, that he knew he had answered the membership questions falsely and that as he understood the questions they pertained to "any associations for any period of time." (Hearing Tr. 102.)

Findings of fact were filed by the Ad Hoc Committee on June 22, 1965. They found that Rodriguez had wilfully and deliberately falsified answers to inquiries in three official forms and that he thereby violated Air Force Regulation 40-712 as charged. The Committee concluded that "authority could/should have been obtained for assignment of a penalty less severe than removal." (J. A. Ex.I(D).) The findings were sent to the Base Commanding Officer, Major General Ben I. Funk, who concurred in the Committee's findings, but not its recommendations. In his letter to Rodriguez, General Funk gave two reasons for sustaining the removal action.

a. By your own admission, your negative answers to the questions referred to were deliberate falsifications because you were fully aware that your opportunity for employment would

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have been diminished had you answered the questions truthfully.

b. I find that the penalty imposed was appropriate and in accord with applicable rules and regulations.

(J.A. Ex.I(E).)

Appellant appealed the decision of General Funk to the Civil Service Commission. In a letter of September 9, 1965, the Commission's Regional Appeals Officer informed appellant that he found that the Agency had complied with all Procedural requirements of the Air Force regulations and that the removal penalty was justified. (J.A. Ex.I(F).) This finding was subsequently sustained on appeal by the Civil Service Commission Board of Appeals and Review. Appellant made numerous attempts to have the Commission reopen the case; however, each request was denied. After a further attempt at re-employment at his prior place of employment appellant filed this suit.

II.

At argument and in his brief appellant relies extensively on a line of cases which have stricken various statutes and loyalty oaths as being unconstitutional because they were vague or because the statute was so broad as to make meaningful compliance impossible. See, e. g., Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) (faculty loyalty...

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