Camero v. United States, No. 192-61.

• Court: Court of Federal Claims
• Writing for the Court: COWEN, , and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS
• Citation: 179 Ct. Cl. 520,375 F.2d 777
• Parties: Frank CAMERO v. The UNITED STATES.
• Docket Number: No. 192-61.
• Decision Date: 14 April 1967

179 Ct. Cl. 520, 375 F.2d 777 (1967)

Frank CAMERO
v.
The UNITED STATES.

No. 192-61.

United States Court of Claims.

April 14, 1967.

Edwin J. McDermott, Philadelphia, Pa., attorney of record, for plaintiff.

Thomas J. Lydon, Washington, D. C., with whom was Asst. Atty. Gen. Barefoot Sanders, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

375 F.2d 778

OPINION

COLLINS, Judge.

This case, in which plaintiff seeks to recover back salary from the date of his alleged wrongful removal from his position as supervisory inspector, GS-9, at the Military Clothing and Textile Supply Agency, Philadelphia Quartermaster Depot, Department of the Army, was originally before the court on cross-motions for summary judgment. The court at that time, with Judge Davis dissenting, found upon review of the administrative record that there were sufficient grounds to warrant the removal of plaintiff and that his removal was based upon substantial evidence. However, both motions for summary judgment were denied and the case was referred to Commissioner Richard Arens for a trial to be limited to issues relating to the alleged participation in the decision-making process by Mr. Theodore M. Kostos, an attorney in the office of the General Counsel of the Supply Agency. Camero v. United States, 345 F.2d 798, 170 Ct.Cl. 490 (1965).

The trial has now been held and Commissioner Arens has filed a report of his findings of fact. The case is before the court for decision without oral argument on the basis of the commissioner's report and the defendant's brief. For reasons hereinafter set out, we hold that plaintiff's removal was invalid and that he is entitled to the back salary he seeks to recover.

The pertinent facts involved in reaching the above decision are as follows: On May 29, 1959, plaintiff, after he had been notified of his proposed removal and had replied thereto, was separated from his position on charges of bribery, false and fraudulent travel vouchers, and undue familiarity with Government contractors. At that time he was also informed of his right to seek review under the Army grievance procedures and of his right to appeal to the Civil Service Commission.

Plaintiff chose to pursue the remedies provided by the grievance procedures and pursuant thereto duly protested his removal. A hearing was held before the Grievance Committee of the Quarter-master Depot. At the hearing, plaintiff was represented by counsel and the Agency was represented by Mr. Kostos. Witnesses were called and testified on direct and cross-examination, exhibits were received in evidence, and counsel for both parties made summary arguments.

On November 2, 1959, the Grievance Committee filed its report with the depot commander, Maj. Gen. Webster Anderson. In this report, for reasons not relevant to the case in its present posture, the Committee recommended, among other things, that the removal action against plaintiff be revoked and that he be reinstated to the position and grade he held at the time of his dismissal.

Before any action was taken on the Grievance Committee's recommendation, but after it had been filed with General Anderson, the General Counsel of the Agency, Donnell K. Wolverton, prepared and submitted a legal opinion to General Anderson in which he stated, inter alia:

After a complete and diligent analysis of all the facts and applicable laws, it is my considered opinion that the grievance of Frank Camero resulting from his separation for cause by this Agency should be denied, notwithstanding the recommendation of the Agency\'s Grievance Committee.

Thereafter, General Anderson reached a decision to sustain the removal and so informed plaintiff by letter dated December 30, 1959.

When the case was before the court on cross-motions for summary judgment, plaintiff contended that his dismissal was invalidated by certain alleged activities on the part of Theodore M. Kostos, the attorney who had represented the Agency before the Grievance Committee. These activities, according to plaintiff, involved ex parte communications between Kostos and those participating in the ultimate decision to sustain his removal, as

375 F.2d 779

well as actual participation by Kostos in that decision

The basis for the assertion that Kostos had actually participated in the removal decision was the appearance of his hand-written initials in the right margin of the final page of the office copy of General Anderson's decision letter rejecting plaintiff's grievance and a statement by Donnell K. Wolverton (in an affidavit dated June 3, 1963) that the General's letter "was coordinated" with Kostos, among others.

At the proceeding before the trial commissioner, it developed that the inference which plaintiff desired the court to draw from the existence of Kostos' initials on the copy of the decision letter and Wolverton's statement that the letter "was coordinated" with Kostos was not supported by the evidence. It seems that there was in effect at the time a procedure of routing through various offices of the Agency, including the General Counsel's office, material or letters prepared for the commanding general's signature. As evidence that the document had passed through a particular office, an official thereof would initial it. This official (in the General Counsel's office) was the senior official in the office at the time. On the particular day that the letter rejecting plaintiff's grievance was routed through the General Counsel's office, Kostos was the senior official present and he...