Heffron v. United States

• Decision Date: 24 January 1969
• Docket Number: No. 430-67.,430-67.
• Citation: 405 F.2d 1307,186 Ct. Cl. 474
• Parties: Michael G. HEFFRON v. The UNITED STATES.
• Court: U.S. Claims Court

186 Ct. Cl. 474, 405 F.2d 1307 (1969)

Michael G. HEFFRON v. The UNITED STATES.

No. 430-67.

United States Court of Claims.

January 24, 1969.

Rufus W. Peckham, Jr., Washington, D. C., for plaintiff, Carl L. Shipley, Washington, D. C., attorney of record. Shipley, Akerman & Pickett, Washington, D. C., of counsel.

Edward Weintraub, Washington, D. C., with whom was Asst. Atty. Gen., Edwin L. Weisl, Jr., for defendant.

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

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

NICHOLS, Judge.

This is a suit for back pay lost by plaintiff when he was discharged from his position of contract administrator with the Department of Defense (DOD) Defense Supply Agency (DSA) in the New York Defense Contract Administration Services Region (DCASR). On September 9, 1966, the Director of the Contract Administration Directorate at DCASR notified plaintiff of a proposal to remove him from his position no sooner than 30 days from his receipt of the notice for violating DOD and DSA regulations regarding gratuities. The notice charged that plaintiff had accepted a case of liquor from a government contractor whose contract he had the responsibility of administering for DCASR. After responding to the charges, both orally and in writing, plaintiff received a notification of DCASR's decision to remove him as of November 4, 1966. This notice informed him of his right to appeal, which he did, and a hearing was held by the New York Regional Office of the Civil Service Commission (CSC) on March 14, 1967. On June 20, 1967, the Regional Director issued his decision in which he found that all of the procedural requirements for removal had been complied with, but that the cause for which plaintiff was removed had not been established. He recommended plaintiff be reinstated. On Agency appeal, the CSC Board of Appeals and review (BAR) rejected this recommendation and supported the Agency's action. Plaintiff then brought suit in this court, charging that the BAR's action in not adopting the Regional Director's decision was arbitrary and capricious and that the employing Agency was arbitrary and capricious and in error in discharging him. This case is before us on defendant's motion and plaintiff's cross-motion for summary judgment. We hold there are no issues of material fact, that plaintiff's dismissal was proper, that the BAR's action was supported by substantial evidence and was not arbitrary or capricious.

Plaintiff was charged with violating the following regulations:

(1) DOD personnel will not accept any favor, gratuity, or entertainment directly or indirectly, from any person, firm, corporation, or other entity which is engaged, or is endeavoring to engage in procurement activities or business transactions of any sort with any agency of the DOD * * *. DOD Directive 5500.7 (17 May 1963) paragraph VI. A.

(2) 1. The acceptance of luncheons, dinners, entertainment, and other forms of gratuities from Department of Defense contractors or prospective contractors is prohibited * * *.

2. Gratuities within the meaning of DOD Directive 5500.7 and this regulation include tangibles and intangibles, benefits, discounts, tickets, passes, transportation, accommodations or hospitality, given or extended to or on behalf of the recipient. DSA Regulation 5500.1 (25 November 1964) paragraph IV. B.

(3) An employee will not accept any favor or gratuity, directly or indirectly, from anyone conducting procurement activities or business transactions of any sort with DCASR if such favor or gratuity might influence, or might reasonably be interpreted as seeking to influence, the employee\'s impartiality. DCRN Regulation 1400.10 (1 November 1965) paragraph IV. 6.

The fact that plaintiff received some liquor is not in dispute, although there has been some disagreement as to whether he received a half or a whole case. At his hearing he repeatedly called what he received a case. However, whether plaintiff received a half or a whole case really makes no difference. Plaintiff denies that he violated any regulation, and he relies on the circumstances surrounding his receipt of the liquor to support his position. Some time during the week of December 25, 1965, plaintiff met, at a restaurant, two employees of the corporation whose contracts he administered. They took the keys to his car from him and placed the liquor in the trunk of the car. It was not until after they had separated that plaintiff knew how much had been placed in his car. Plaintiff swore that he believed it would be a bottle or two only and was told it was a farewell gift from the employees of the contractor, paid for with their personal funds. He had been notified of his transfer to the contracts of another contractor, and had communicated this information to this contractor's employees. There was no claim he customarily exchanged gifts or social amenities with these persons, that he reciprocated with any gifts on this occasion, or even enquired whom he should thank. After plaintiff found the case or half case he said nothing about it and it was not until he received the notice of proposed removal, months later, that the matter of the liquor again arose. Upon receipt of the removal proposal, plaintiff talked with his supervisor and admitted receiving the liquor and that it might be interpreted as an infraction of the gratuity regulations. He thought, however, in view of his years of service and his record that the penalty of removal was too harsh. He later responded to the charges in writing, denied that his receipt of the liquor violated any regulations and denied that he had ever been influenced in any manner.

Plaintiff had an adversary type of hearing and was confronted with most of the important witnesses against him. The hearing examiner admitted some affidavit evidence, and the CSC clearly had difficulty in according perfect due process because of its lack of subpoena power. Some witnesses who testified refused to be cross-examined except within their own narrow concepts of what was relevant. Plaintiff does not seem to have preserved any objection to the procedure per se for subsequent appellate review, and the hearing transcript supports defendant's motion insofar as it depends on the non-existence of any fact issue requiring trial. Burton v. United States, 186 Ct.Cl. ___, 404 F.2d 365 (decided December 13, 1968).

Plaintiff's primary contention is that the BAR was arbitrary and capricious in upholding the Agency's decision to remove him. He places great stress on the fact that the Regional Director, after a hearing, recommended that he be reinstated, finding that no cause for the removal of plaintiff had been established. The Director further found that there was no evidence as to who was responsible for ordering the liquor or who paid for it, and that there was no evidence to show that the liquor did not come from plaintiff's friends as a farewell gift. The BAR, on the other hand, found that the evidence in the record did support plaintiff's removal. None of the witnesses who were involved in the procurement and delivery of the liquor testified that it was a going away gift, but, on the contrary, none gave any reason why the liquor had been given plaintiff. The BAR found with evidentiary support that the liquor was ordered by the contractor, the liquor was delivered to the contractor, and the contractor was billed for the liquor. From this and the fact that there was no showing that the liquor was a farewell gift the BAR found that the receipt of the liquor violated the gratuity regulations. The BAR also found that plaintiff knew that he had violated the regulations when he accepted the liquor; from these facts it found cause had been established for plaintiff's removal.

There might be much question whether acceptance of a gift from the contractor's employees, as individuals, would not itself violate the regulations, but the BAR findings did not turn on this. They squarely stated that the corporation bought the liquor, and this was, we hold, adequately proved despite the contrary finding of the Regional Director. The BAR did not believe plaintiff was told it was a personal gift of contractor's employees. Evidence to refute plaintiff's contention as to this seems sufficient though inferential. If he expected only a bottle or two as he said, why was he not given pause on finding so much larger a quantity? If he thought he was protected because individuals had purchased the gift, why did he admit on interviewing his supervisor that he had or might have violated the regulations? Would not the coy manner of delivering this gift have suggested that it was a transaction not fit for public observation? If he thought this was in the nature of an amenity, it is strange he did not himself observe the customary amenity of ascertaining who the donors were and thanking them. By his testimony he only learned it was "A gift from members of their the contractor's Contract Administration * * * and that it was not in the expense account * * *". It looks as if his main interest was that the corporate records should not show him as the donee.

This court will accord finality to an administrative decision to remove unless it is shown that it is arbitrary or not supported by substantial evidence. Morelli v. United States, 177 Ct.Cl. 848 (1966); Barnes, et al. v. United States, 170 Ct.Cl. 639, 643-644 (1965); Houston v. United States, 297 F.2d 838, 156 Ct.Cl. 38, cert. denied, 371 U.S. 815, 83 S.Ct. 27, 9 L.Ed.2d 56 (1962). We believe that the evidence in the record amply supports the BAR's conclusion that plaintiff violated the gratuity regulations. The regulations, with which plaintiff had every chance to be familiar after many years as a contract administrator for DOD, are quite clear. The DOD gratuity regulation provides that "DOD personnel will not accept any favor, gratuity, or...