Camero v. United States

• Citation: 345 F.2d 798,170 Ct. Cl. 490
• Decision Date: 14 May 1965
• Docket Number: No. 192-61.,192-61.
• Parties: Frank CAMERO v. The UNITED STATES.
• Court: U.S. Claims Court

170 Ct. Cl. 490, 345 F.2d 798 (1965)

Frank CAMERO v. The UNITED STATES.

No. 192-61.

United States Court of Claims.

May 14, 1965.

Edwin J. McDermott, Philadelphia, Pa., for plaintiff.

Thomas J. Lydon, Washington, D. C., with whom was Asst. Atty. Gen., John W. Douglas, for defendant.

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

COLLINS, Judge.

Plaintiff, a non-veteran, is a former classified civil service employee of the Department of the Army. Effective May 29, 1959, plaintiff was removed from his position of supervisory inspector, GS-9, at the Military Clothing and Textile Supply Agency, Philadelphia Quartermaster Depot. In this action, plaintiff seeks to recover back salary from the date of his allegedly wrongful removal. Both plaintiff and defendant have filed motions for summary judgment.

With regard to plaintiff's motion for summary judgment, the basic assertion by plaintiff is that his separation was arbitrary, capricious, and not supported by substantial evidence. Plaintiff attacks (1) the grounds upon which his dismissal was based, and (2) the role which the attorney who represented the Government before the Grievance Committee played in the making of the decision to remove plaintiff. This court has determined infra (1) that there were sufficient grounds to warrant the removal of plaintiff, but (2) that plaintiff has raised a serious question as to the possible violation of Army grievance procedures.

Facts pertinent to both motions for summary judgment are as follows: Plaintiff received notice, by a letter dated April 21, 1959, that his removal was proposed. The first charge against plaintiff was that, in 1948, he had accepted from a Government contractor payments intended to influence plaintiff's performance of his official duties. Secondly, the letter stated that, in 1958, plaintiff had falsely certified travel vouchers and, as a result, had received overpayments. Finally, plaintiff was charged with undue familiarity with Government contractors in that, during 1957 and 1958, plaintiff had made three telephone calls from his home to certain individuals whose firms dealt with the Supply Agency.

By letter of May 11, 1959, plaintiff replied to the charges. However, on May 29, 1959, plaintiff was notified that the decision had been made to effect his removal, as of that date. Plaintiff was informed (1) of his right to seek review under the Army grievance procedures and (2) of his right to appeal (regarding procedural violations) to the Third Region of the Civil Service Commission. Plaintiff elected to follow the first course.

Pursuant to the Army regulations, a hearing was held before the Grievance Committee of the Quartermaster Depot. On November 2, 1959, the Grievance Committee submitted its report which included the recommendation that plaintiff be reinstated. With regard to the charge of bribery, the committee determined that the Government had not met its burden of proof. The Grievance Committee did find that plaintiff had violated the instructions of the Supply Agency's Inspection Handbook pertaining to the recording of travel time and mileage, although plaintiff was not guilty of deliberate falsification. Also, contrary to regulations, plaintiff had been unduly familiar with Government contractors. Still, it was the opinion of the Grievance Committee that the proper sanction regarding the latter two violations would be 10 days' suspension, not dismissal.

The report of the Grievance Committee was submitted to the depot commander, Major General Webster Anderson, who reached the conclusion that the charges against plaintiff were sustained. Accordingly, the removal of plaintiff was upheld. Subsequent appeals of plaintiff to the Quartermaster General and to the Secretary of the Army were unsuccessful.

After the approval by the Secretary of the Army of plaintiff's dismissal, plaintiff, on February 8, 1961, initiated an appeal to the Third Region of the Civil Service Commission. Because plaintiff's appeal was untimely (i. e., not filed within 10 days of the removal), the Third Region did not accept the application. The decision of the Third Region was affirmed by the Civil Service Commission Board of Appeals and Review.

Then, on May 12, 1961, plaintiff commenced the present action. On November 6, 1962, plaintiff brought an action in the United States District Court for the Eastern District of Pennsylvania, in which he sought reinstatement and a declaratory judgment that his discharge was wrongful.¹ On September 25, 1963, the district court granted the Government's motion for a general continuance, since plaintiff already had pending the instant suit in this court. Camero v. McNamara, 222 F.Supp. 742, 745 (E.D. Pa.1963).

In the case at bar, defendant had included as one ground for its motion for summary judgment the assertion that, by virtue of 28 U.S.C. § 1500,² the filing of the district court suit took away the jurisdiction of this court. At the time of oral argument of the present case, defendant announced that it had abandoned its position on jurisdiction. Furthermore, for the reasons expressed in Tecon Engineers, Inc. v. United States, Ct.Cl., 343 F.2d 943 (April 16, 1965), we hold that, regardless of the degree of similarity between the suit in the district court and the case at bar, the filing of the action in the district court did not affect the jurisdiction of this court over the present case.

Turning to plaintiff's motion for summary judgment, the three grounds for the dismissal of plaintiff can best be considered separately. First, plaintiff asserts that the charge of bribery was not supported by substantial evidence.

The test of "substantial evidence" is widely used as the standard for judicial review of administrative determinations. The Supreme Court has construed "substantial evidence" to be "* * * more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. of New York v. N. L. R. B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). The Court added (at 230, at 217 of 59 S.Ct.), "Mere uncorroborated hearsay or rumor does not constitute substantial evidence." These general notions expressed by the Supreme Court, even though stated in a very different context, should be relevant to the present case.

Thus, our task is to analyze the evidence presented before the Grievance Committee and to determine whether it might be accepted by a reasonable mind as "adequate to support the conclusion that plaintiff accepted bribes." The function of the Grievance Committee was to advise the installation commander. It is also important to note that the Army regulations relative to grievance hearings expressly provided that, "Legal rules of evidence used in courts of law will not be observed."³

The exact charge against plaintiff was that, in 1948, he accepted payments from one Jack Altman, the president of Pembroke Clothes, Inc., when plaintiff was assigned as an inspector to the plant of Pembroke.⁴ The purpose of the payments was to insure the release of shipments of coats manufactured by Pembroke for the Government. As indicated, the depot commander sustained the charge of bribery, although the Grievance Committee had concluded that the Government had not met its burden of proof.

One item which General Anderson stressed in his decisional letter of December 30, 1959, was the statement given by Altman on January 21, 1953, to an FBI agent. In the statement, Altman admitted a practice of making payments to Quartermaster inspectors in order to secure the release of shipments to the Government. Plaintiff's argument that Altman's statement was not applicable to him is untenable.⁵

It is clear that plaintiff was one of the inspectors implicated by Altman's statement.⁶ The depot commander reasonably took the position that Altman's confession was corroborated by the testimony of Fred C. Millman, the former bookkeeper and office manager of Pembroke Clothes. There are definite and obvious inconsistencies between (1) Millman's statements to the FBI on May 28, 1953, and February 2, 1959, and (2) his May 11, 1959, statement to the attorney of plaintiff and his testimony of August 13, 1959, before the Grievance Committee. Contrary to his statements to the FBI, Millman's testimony and his statement to plaintiff's attorney, in part, constituted disclaimers of personal knowledge of payments by Altman to plaintiff. However, it is significant that the depot commander construed the conflicting statements of Millman in a manner favorable to the position of plaintiff. That is, the depot commander accepted the view that, "* * * Mr. Millman had no personal knowledge or eye witness observations of these criminal acts the alleged bribery, * * *."

Considering all the relevant evidence and the circumstances set forth in the record, this court is of the opinion ion that the depot commander was justified in using the charge of acceptance of unlawful payments as one basis for the dismissal of plaintiff.⁷

This court is not unmindful of the serious nature of the charge of accepting bribes, nor do we overlook the drastic consequences of being removed from employment on such grounds. Nonetheless and despite the fact that plaintiff was charged with activities which (if timely asserted) could have provided the basis for a criminal prosecution, the standard of review applicable to the instant case is that of "substantial evidence." It is clear that the charge of bribery was not proved "beyond a reasonable doubt." However, this is not determinative of the case at bar. Cf. Finn v. United States, 152 Ct.Cl. 1 (1961), where the removal of an employee was upheld, despite a directed verdict of acquittal in a related criminal action. Even though the Government did not prove "beyond a reasonable doubt" that Camero had accepted payments from Altman, this court does find that there was sufficient...