Pascal v. United States, No. 379-74.

CourtCourt of Federal Claims
Writing for the CourtLARAMORE, Senior , and DAVIS and KUNZIG
Citation543 F.2d 1284
PartiesHarvey PASCAL v. The UNITED STATES.
Docket NumberNo. 379-74.
Decision Date20 October 1976

543 F.2d 1284

Harvey PASCAL
v.
The UNITED STATES.

No. 379-74.

United States Court of Claims.

October 20, 1976.


543 F.2d 1285

Michael E. Goldman, Washington, D.C., for plaintiff; Robert M. Tobias, Washington, D.C., atty. of record.

Stephen G. Anderson, Washington, D.C., with whom was Asst. Atty. Gen. Rex E. Lee, Washington, D.C., for defendant John W. Showalter, Washington, D.C., of counsel.

Before LARAMORE, Senior Judge, and DAVIS and KUNZIG, Judges.

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

DAVIS, Judge:

Plaintiff Harvey Pascal, then an agent (GS-12) in the Audit Division of the Office of International Operations of the Internal Revenue Service, was originally removed by his agency on six different grounds. The Civil Service Commission sustained the result

543 F.2d 1286
and four of the supporting reasons. We find it necessary to consider only the first two and confine this opinion to those determinations.1

After some five years with the Revenue Service in Brooklyn Pascal was transferred to International Operations in Washington. About five months later he was assigned to conduct a tax audit of the Canada Life Assurance Company in Toronto, Canada. This audit lasted for some time and Thanksgiving Day 1972 came in the midst of it. To visit his girl friend in New York, he flew from Toronto to New York on a flight leaving at 10:20 a.m. on Wednesday, November 22d, and arrived back in Toronto on a return flight at 11:00 on Monday, November 27th.

The first charge we take up is that he (a) falsely and intentionally stated in his official time reports that he had worked a full day (8 hours) on both Wednesday, November 22d, and Monday, November 27th, (b) had also falsely and intentionally charged the full day of Friday, November 24th, to official time, and (c) had included, likewise falsely and deliberately, those times during which he was actually not working in Toronto in his certification for per diem payments. The second, related, charge is that Pascal failed to obtained advance authorization to be absent from his place of duty in Toronto on part of that Wednesday, all of Friday, and part of Monday — which were working days.

The bare, hard, objective facts of these two charges are not and have not been contested; the chief dispute is over the administrative finding — within the agency and at both levels in the Civil Service Commission — that plaintiff knew that his reports were false when he made them and also understood that he had not gotten authorization to take the time off.

Pascal's presentation was and is that prior to leaving Washington for Toronto he arranged with his girl friend (Ms. Josephine Hornstein), who was divorced with young children and lived in New York, to see her during the Thanksgiving weekend; she was to come to Toronto if she could get a baby-sitter. Pursuant to this plan he says he bought in Toronto on November 8th an airline ticket between Toronto and New York; he says he was then told, on inquiry, that the ticket was good either way so that Ms. Hornstein could use it from New York if she got a babysitter and he could use it from Toronto if she did not. On Tuesday, November 21st, Ms. Hornstein told him that she was unable to obtain help. He thereupon made reservations to fly from Toronto to New York on Wednesday, November 22d. His testimony was that, though he tried, he could not get accommodations on the 1:15 p.m. or 3:15 p.m. flights (which he said he was told were full) and had to take a reservation on the 10:20 a.m. flight. He testified that he thought he could travel to New York for the holiday weekend on government time (without taking leave of any kind). He added, also, that he had obtained oral authorization from his superior in Washington, over the 'phone, to take Friday off on compensatory leave.

This story is undermined, however, by the expressed disbelief of both the agency and the Civil Service Commission in plaintiff's credibility. Summarizing much of the conflicting evidence,2 the Commission's

543 F.2d 1287
Appeals Examining Office concluded that "Mr. Pascal's credibility has been damaged to the extent that we no longer find his statements worthy of belief. The Board of Appeals and Review was not so forth-right but did say it concurred in the Examining Office's findings regarding the specifications dealing with the New York trip and was "not persuaded that these three specifications resulted from plaintiff's misunderstanding of his rights while in a travel status." These conclusions as to credibility are fully supported by the administrative record and we cannot, nor do we wish to, overturn them. Cf. Sternberger v. United States, 401 F.2d 1012, 1016-17, 185 Ct.Cl. 528, 535-36 (1968).3 It follows that, with plaintiff's testimony thus discounted, there was more than substantial evidence to sustain the two charges we are considering. Indeed, on that basis the record practically compels a determination that plaintiff deliberately falsified his records in order to obtain an advantage to which he would not be entitled and which he knew he could not rightly claim

With his back against the wall, plaintiff counters that, in any event, there was no regulation expressly forbidding his going to and returning from New York (over the Thanksgiving weekend) on official time. But it is not the principle of the government

543 F.2d 1288
world that everything is permissible which is not specifically prohibited by regulation or statute. Much is left to the common understanding that work-time is for work and those activities directly related to work — not for personal recreation or personal concerns. Plaintiff, a GS-12 revenue agent of substantial experience, must have known this. We agree with the Appeals Examining Office that "Mr. Pascal has been an employee of the Federal Government for approximately five and one-half (5½) years. We find it beyond belief that an employee with 5½ years of service would believe that he could travel for his own personnal sic pleasure on government time."4

Pascal then falls back with a blast of procedural objections, some of which relate only to the charges we have put aside but others touch upon the removal-reasons on which we center. These latter all fall short of their mark. Like many other claimants, plaintiff makes the mistake of believing that any procedural lapse, no matter how unrelated to the end-result, endows him automatically with a right to a judgment and to back-pay. We do not take that position but look to see not only whether an error occurred but whether it substantially affected plaintiff's rights in the removal process. See Rasmussen v. United States, Ct. Cl., 543 F.2d 134, p. 140, decided this day.

In the successive chronological steps of the removal procedure plaintiff first attacks the pre-charge investigation conducted by the IRS Inspection Service as biased and incomplete (contrary to the...

To continue reading

Request your trial
31 practice notes
  • Johnson v. U.S., No. 79-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Mayo 1980
    ...specifically 5 C.F.R. § 772.305(c)(4) (1974), authorized introduction of statements from witnesses. See Pascal v. United States, 543 F.2d 1284, 1289, 211 Ct.Cl. 543 (1976); Jacobowitz v. United States, 424 F.2d 555, 559-60, 191 Ct.Cl. 444, 448-49 (1970). At the Commission hearing, Johnson's......
  • Bishop v. Tice, No. 79-1607
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 16 Mayo 1980
    ...a necessary step before relief relating to his employment rights can be sought in the courts. See, e.g., Pascal v. United States, 543 F.2d 1284 (Ct.Cl.1976); 25 A.L.R.Fed. 443, Id. Finally, the court held that Bishop's fraud and deceit claim, to the extent it was distinguishable from his ot......
  • Lawrence v. United States ICC, Civ. A. No. 80-3321.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 7 Marzo 1986
    ...419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974); Onnen v. United States, 524 F.Supp. 1079, 1085 (D.Neb. 1981); Pascal v. United States, 543 F.2d 1284, 1288, 211 Ct.Cl. 183 (1976)8. Third, defendants' uncontroverted quotations from plaintiff's deposition indicate that plaintiff himself ack......
  • Baumgardner v. Secretary, U.S. Dept. of Housing and Urban Development on Behalf of Holley, No. 91-3039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 31 Marzo 1992
    ...notice was not involved in Connor.) See also Shaw v. U.S. Postal Service, 697 F.2d 1078 (Fed.Cir.1983); Pascal v. United States, 543 F.2d 1284, 211 Ct.Cl. 183 (1976); compare Rasmussen v. United States, 543 F.2d 134, 211 Ct.Cl. 260 (1976). We do not excuse or justify HUD's failure to adhere......
  • Request a trial to view additional results
31 cases
  • Johnson v. U.S., No. 79-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 8 Mayo 1980
    ...specifically 5 C.F.R. § 772.305(c)(4) (1974), authorized introduction of statements from witnesses. See Pascal v. United States, 543 F.2d 1284, 1289, 211 Ct.Cl. 543 (1976); Jacobowitz v. United States, 424 F.2d 555, 559-60, 191 Ct.Cl. 444, 448-49 (1970). At the Commission hearing, Johnson's......
  • Bishop v. Tice, No. 79-1607
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 16 Mayo 1980
    ...a necessary step before relief relating to his employment rights can be sought in the courts. See, e.g., Pascal v. United States, 543 F.2d 1284 (Ct.Cl.1976); 25 A.L.R.Fed. 443, Id. Finally, the court held that Bishop's fraud and deceit claim, to the extent it was distinguishable from his ot......
  • Lawrence v. United States ICC, Civ. A. No. 80-3321.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 7 Marzo 1986
    ...419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974); Onnen v. United States, 524 F.Supp. 1079, 1085 (D.Neb. 1981); Pascal v. United States, 543 F.2d 1284, 1288, 211 Ct.Cl. 183 (1976)8. Third, defendants' uncontroverted quotations from plaintiff's deposition indicate that plaintiff himself ack......
  • Baumgardner v. Secretary, U.S. Dept. of Housing and Urban Development on Behalf of Holley, No. 91-3039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 31 Marzo 1992
    ...notice was not involved in Connor.) See also Shaw v. U.S. Postal Service, 697 F.2d 1078 (Fed.Cir.1983); Pascal v. United States, 543 F.2d 1284, 211 Ct.Cl. 183 (1976); compare Rasmussen v. United States, 543 F.2d 134, 211 Ct.Cl. 260 (1976). We do not excuse or justify HUD's failure to adhere......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT