Massa v. Department of Defense, 86-1404

• Decision Date: 25 March 1987
• Docket Number: No. 86-1404,86-1404
• Citation: 815 F.2d 69
• Parties: Edmund J. MASSA, Jr., Petitioner, v. DEPARTMENT OF DEFENSE, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 69

815 F.2d 69

Edmund J. MASSA, Jr., Petitioner, v. DEPARTMENT OF DEFENSE, Respondent.

Appeal No. 86-1404.

United States Court of Appeals Federal Circuit.

March 25, 1987.

George F. Kelly, of Ryan & White, Springfield, Mass., argued, for petitioner; with him on the brief was Marcia Brayton Julian, of Ryan & White, Springfield, Mass.

Diane L. Donley, of the Commercial Litigation Branch, Dept. of Justice, Washington D.C., argued, for respondent; with her on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, and Robert A. Reutershan; of counsel was John Monahan, of the Defense Logistics Agency, Boston, Mass.

Before MARKEY, Chief Judge, and NIES and BISSELL, Circuit Judges.

BISSELL, Circuit Judge.

Petitioner Edmund J. Massa, Jr. (Massa) appeals from the final decision of the Merit Systems Protection Board (Board), 30 M.S.P.R. 570, affirming Massa's removal from the Department of Defense (agency) based on his acceptance of gratuities from an agency contractor in the years 1981, 1982, 1983 and 1984. We reverse.

BACKGROUND

Massa was employed by the agency as a supervisory quality assurance specialist, GS-12. He was required to certify to the agency annually that he would comply with the provisions of Defense Logistic Agency Regulation 5500.1 (Sept. 24, 1981). Part III, paragraph E. 2. of the regulation then in effect provided that:

Except as provided in subparagraph 3 below, DLA personnel and their immediate families shall not solicit, accept, or agree to accept any gratuity for themselves, members of their immediate families, or others, either directly or indirectly or on behalf of any source that:

(a) Is engaged in or seeks business or financial relations of any sort with any DoD Component.

(b) Conducts operations or activities that are either regulated by a DoD Component or significantly affected by DoD decisions.

(c) Has interests that may be substantially affected by the performance or nonperformance of the official duties of DoD personnel.

On August 29, 1984, as part of an investigation of certain agency employees, Defense Criminal Investigative Service special agents Scott Jackson and Stevan Little interviewed Mr. Herbert Potoker, the treasurer of Saratoga Industries, a division of an agency contractor. Potoker gave a sworn written statement to Jackson and Little stating that in 1983 and in 1984 he had accompanied Massa and others on outings to the Saratoga Racetrack and Saratoga Raceway in Saratoga Springs, New York. On these occasions he arranged for the use of Saratoga Industries' box seats at Saratoga Raceway and for free passes to the Saratoga Racetrack. The statement does not mention whether Massa was aware that Potoker paid for the parking, obtained the free passes or arranged for the use of Saratoga Industries' box seats.

On September 11, 1984, Jackson interviewed Potoker again. Jackson's report of the interview stated that Potoker reiterated the contents of his prior sworn statement. Jackson's report adds that during the August 1984 outing to the Saratoga racetracks, Potoker said he paid for dinner and beverages for the group, including Massa, and that during the August 1983 outing Potoker paid for all expenses at both tracks. Potoker stated he was reimbursed by Saratoga Industries for his expenses incurred in entertaining agency employees at the racetracks.

Jackson and special agent Henri Baillargeon interviewed Massa on January 8, 1985. The report of the interview stated that Massa recalled attending the Saratoga racetrack and Saratoga raceway on August 17, 1983, with Potoker and others; the group ate at the Raceway's restaurant; and Massa did not pay for the expenses of visiting the tracks. The report also contains a statement that Massa "believed" that Potoker paid the expenses, but the impact of that statement is challenged. Massa also stated that he was familiar with the agency's standards of conduct and that he "would not have accepted or accompanied Potoker to the race tracks had he (Massa) not been invited to the tracks by his father, Ed Massa, Sr., the former [Defense Contract Administration Services Management Area] Deputy Commander."

On March 12, 1985, Massa received a notice of proposed removal from his supervisor Elia Pambuku. Massa was charged with five violations of agency standards of conduct. The first and second charges related to Massa's acceptance of gratuities from Potoker at the 1984 and 1983 racing outings. The third and fourth charges related to acceptance of gratuities from Potoker during similar outings in 1981 and 1982. The fifth charge was abuse of Massa's government position based upon inviting a subordinate to the racing outing of August 17, 1983.

On May 22, 1985, Colonel Donald Damm, commander of Massa's management area, issued to Massa a notice of removal based on the charges contained in the notice of proposed removal. Massa was removed on May 23, 1985. He appealed to the MSPB and a hearing was held on September 3, 1986.

At the hearing, the agency called as its first witness Herbert Potoker, who appeared pursuant to a subpoena. Potoker identified himself, claimed his Fifth Amendment privilege against self-incrimination, and refused to answer any further questions. The agency's next witness was John S. Seaver, Jr. a co-worker of Massa who attended the August 1983 racing outing with Massa and Potoker. Mr. Seaver testified in substance that he was invited on the outing by his father rather than by Massa and that during the course of the day various members of the party bought food and drink on a reciprocating basis. The agency's third witness, Scott Jackson, identified Potoker's statement and his reports of conversations with Potoker and Massa. These documents were introduced into evidence over the objection of Massa's counsel that they were hearsay. The agency's other witnesses, Elia Pambuku and Colonel Damm, testified to the processes by which they arrived at the decision to remove Massa based upon the statement and reports provided by Jackson.

In his defense, Massa explained that he often attended horseraces with his father. When he had visited racetracks with Potoker, he was invited by his father. He believed that expenses other than admission to the tracks were shared by those in attendance. Massa denied attending with Potoker in 1981 and 1982. Massa also explained that, prior to his discussion with Jackson, he had no knowledge of who had paid for admission to the racetracks during the racing outings in 1983 and 1984. He assumed that his father had paid for admission to the tracks because it was his father's custom to do so, but when Jackson explained that Potoker had borne the expense Massa did not challenge Jackson's statement. With respect to the statement in Jackson's report: "Massa believes that Potoker paid for the expenses associated with the racetrack outings nor was he surprised that Potoker made the arrangements and paid the expenses ...," Massa testified that while he said he believed Jackson when the agent informed him that Potoker paid the expenses, he had no knowledge of that fact prior to his discussion with Jackson. Transcript at 197-98.

The presiding official sustained the first four charges of accepting gratuities, but did not sustain the fifth charge for abuse of government position. The initial decision sustaining the charges of accepting gratuities was based entirely upon Potoker's...