Masino v. United States, 270-77.

Citation589 F.2d 1048
Decision Date13 December 1978
Docket NumberNo. 270-77.,270-77.
PartiesThomas J. MASINO v. The UNITED STATES.
CourtCourt of Federal Claims

John I. Heise, Jr., Silver Spring, Md., atty. of record for plaintiff. Robert A. Hahn, Silver Spring, Md., and Sam Resnicoff, New York City, of counsel.

Emory J. Bailey, Wheaton, Md., with whom was Asst. Atty. Gen. Barbara Allen Babcock, Washington, D.C., for defendant.

Before FRIEDMAN, Chief Judge, and KUNZIG and BENNETT, Judges.

ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

KUNZIG, Judge:

This civilian personnel action comes to us on the parties' cross-motions for summary judgment, and plaintiff's motion, in the alternative, to remand to our Trial Division for further ascertainment of facts. We are faced with the difficult problem of whether a customs inspector (plaintiff, Masino) was properly terminated on the basis of his personal use and transportation of marijuana, when the duties of his position require him to enforce federal laws against the illegal importation of marijuana. Plaintiff also raises certain alleged procedural irregularities.

Masino sues in this court for reinstatement and back pay claiming wrongful removal from his position with the U.S. Customs Service. With some reluctance, and agreeing that the issue is close, we find no material procedural flaw, and hold that the Civil Service Commission in sustaining plaintiff's removal for cause was neither arbitrary, capricious nor unsupported by substantial evidence.

Plaintiff joined the U.S. Customs Service as a Customs Control Officer in August 1972 and served satisfactorily in New York with the usual promotions until July 1974 when he was promoted to Customs Inspector and assigned to Nogales, Arizona. In March 1975, while in Nogales, plaintiff was advanced to Customs Inspector, GS-9.

On May 20, 1975, plaintiff was interviewed by agents of the Customs Bureau of Internal Affairs. Plaintiff was first admonished according to paragraph (j) of section 27.39 of the Customs Manual as follows:

Mr. Masino, I am a Special Agent of the U.S. Customs Service assigned to Internal Affairs, conducting an investigation solely administrative in nature. I am investigating an allegation regarding your use of marijuana.
Under paragraph (j) of section 27.39 of the Customs Manual, it is required that you disclose any information in your possession pertaining to the matter which I am investigating and answer any proper questions which I might put to you. You may be subject to disciplinary action for the failure or refusal to answer proper questions relating to the performance of your duties as an employee of the U.S. Customs Service.
You are further advised that the answers you give to my questions or any information or evidence which is gained by reason of your answers cannot and will not be used against you in any subsequent criminal proceeding, except that you may be subject to criminal prosecution for any false answer that you give to any of my questions. Is that clear to you?

After plaintiff replied, "Yes, it is," he was placed under oath and testified in general as to the following.

Plaintiff has used marijuana. He used it in the service in 1969, quite a few times when he was in the Navy, and occasionally thereafter. He testified that he used it once or twice a month. Since he had come to Nogales, he had used marijuana about four or five times. He testified he smoked with Customs Inspector Jose Edwards at his house, once probably alone, and once or twice with his wife. He also offered Inspector Edwards a marijuana cigarette. Masino said the marijuana he used and offered to Inspector Edwards he had brought with him from New York. He brought about a half an ounce of marijuana.

The May 20, 1975 interview was recorded on tape and transcribed on or about July 14, 1975.1 On that date, plaintiff was given the opportunity to read and make changes in the transcription. Plaintiff crossed out the response to the question "Approximately what quantity of marijuana did you bring from New York," namely "a half ounce" and wrote in "one quarter (¼) ounce." Plaintiff initialed the change "T.J.M."

On September 25, 1975, plaintiff was issued a notice of a proposal to remove him for cause from the U.S. Customs Service. He was charged with four specifications involving violation of Treasury Personnel Manual, Section 0.735-54 Falsification of Official Records2 (Charge I, no longer at issue before this court), and charged with four specifications involving violation of Treasury Personnel Manual Section 0.735-56 General Conduct Prejudicial to the Government3 (Charge II) of which three specifications4 now remain at issue before this court.

The next step in the sequence of factual events came on November 11, 1975, when plaintiff and his representative made an oral reply to the proposed adverse action. Masino's representative argued that he had been denied due process at the time of the May 20, 1975 interview for the reason that Masino was told that failure to answer questions would result in his being subject to disciplinary action. Most importantly, at that oral reply, plaintiff did not deny his May 20, 1975 statements and did not deny the authenticity of the transcription of those statements signed by plaintiff on July 14, 1975.

On February 6, 1976, plaintiff's representative was given the summary of the November 11, 1975 oral reply and on February 18, 1976, that representative was asked to make comments thereon. Defendant alleges that plaintiff's representative did not thereafter object or otherwise comment on this summary of the November 11, 1975 oral reply.

The Regional Commissioner, U.S. Customs Service, on March 4, 1976, sustained all charges and specifications and found that they warranted the removal of plaintiff to promote the efficiency of the service effective March 19, 1976. Plaintiff was notified of his appeal rights and was removed from the service on that date.

On March 26, 1976, plaintiff appealed the removal action to the Civil Service Commission and on July 27, 1976, a hearing was held. At the hearing, plaintiff basically affirmed his use of marijuana as a Customs Inspector, recanted part of his May 20, 1975 statement (mainly with regard to the frequency of his marijuana use and to his having brought marijuana from New York to Nogales).

At the hearing Masino testified he had used marijuana "on very infrequent occasions, maybe a couple of times" while employed as a Customs Patrol Officer. On May 20, he had admitted he used marijuana "at least once or twice a month" during the same time period. Plaintiff further testified before the CSC that he had used marijuana "once or twice" in Arizona, while on May 20, he had admitted using marijuana "four or five times." Masino confirmed the fact that he had offered his own cigarettes (marijuana) to Mr. Edwards. He further testified that he had only smoked with Mr. Edwards once and once alone, while on May 20, he had stated he had smoked also with his wife. With regard to the transportation of marijuana from New York to Arizona, Masino testified that he had packed his household goods for moving and "didn't have any idea that it was coming down here Arizona."

On October 1, 1976, the appeals authority found Specifications II, III and IV of Charge II (i. e., three specifications) were supported by a preponderance of credible evidence, were procedurally valid, that the removal was not arbitrary and capricious or unreasonable under the circumstances, and that there existed sufficient nexus between the admitted off duty conduct and the promotion of the efficiency of the service through the removal.

The major findings of the appeals authority with regard to the three specifications were:

... Charge II, Specification II, the allegation that appellant used marijuana frequently while in the U.S. Navy dating from 1969, occasionally thereafter, and regularly until approximately September 1974, appellant's May 20, 1975 statement indicates that he used marijuana once or twice a month while in the military service and occasionally thereafter. He also reported in that statement the use of marijuana on four or five occasions since transferring to Nogales, Arizona on July 1, 1974. At hearing, appellant recanted his statement as to the frequency of his use of marijuana. He attempted to correct the record to indicate that he only used marijuana "once or twice" while serving as a Customs Patrol Officer (from August 1972); and, subsequently on two occasions in Nogales during August 1974 * * *. We find that Specification II is supported by credible evidence as reflected by the sworn statement of appellant. His subsequent testimony at the hearing did not refute the validity of his earlier affidavit except arguably to the extent of his use of marijuana from 1969 to August 1974. We find that Specification II of Charge II is sustained by the preponderance of credible evidence... Charge II Specification III alleging that appellant transported marijuana from New York to Nogales for his personal use, the May 20, 1975 sworn statement by appellant was to the effect that the marijuana that he smoked with another Customs Inspector was "some from back home, from New York" and that he brought "one quarter (1/4) ounce" from New York. At hearing, appellant testified that he did not transport the marijuana himself but that it was in his "furniture and stuff" that was packed in a van and shipped to Nogales * * *. We find that appellant was in actual possession of the marijuana in question when he lived in New York and that he was responsible for its shipment in his household goods from New York to Nogales. Accordingly, we sustain Specification III of Charge II.
... Charge II Specification IV and the allegation that appellant admitted to the use of marijuana since he arrived in Nogales on or about June 30, 1974, appellant responded in his May 20, 1975 sworn statement that he had so used it on four or five occasions since coming to Nogales.
...

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