United States v. Rasmussen

• Decision Date: 07 October 1963
• Docket Number: Civ. No. 2323.
• Citation: 222 F. Supp. 430
• Parties: UNITED STATES of America, Plaintiff, v. Witso H. RASMUSSEN, Defendant.
• Court: U.S. District Court — District of Montana

222 F. Supp. 430

UNITED STATES of America, Plaintiff, v. Witso H. RASMUSSEN, Defendant.

Civ. No. 2323.

United States District Court D. Montana, Great Falls Division.

October 7, 1963.

Moody Brickett, U. S. Atty., and Robert T. O'Leary, Asst. U. S. Atty., for the District of Montana, for plaintiff.

Frisbee & Moore, Cut Bank, Mont., for defendant.

JAMESON, District Judge.

Plaintiff seeks to enjoin defendant from "acting as County Office Manager of the Glacier County A.S.C.S. Office in Cut Bank, Montana or in any way acting as a lawful employee" of that office.

Defendant, by appointment of the Glacier County Agricultural Stabilization Conservation Committee¹ served as county manager from April, 1957, until July 6, 1962. On that date the chairman of the Montana A.S.C.S. Committee sent defendant a letter notifying him that the state committee "pursuant to the authority contained in section 7.29(a)" of the applicable regulations² had suspended defendant from the position of county manager, effective at the close of business on July 6, 1962, charging the defendant with "committing, or attempting to commit, fraud" in the conduct of his employment.³ On July 11, 1962, defendant, by letter addressed to the state committee, refused to accept the suspension, contending that the state committee had exceeded its jurisdiction. On the same date the chairman of the Glacier County A.S.C.S. Committee notified the state committee by letter that the county committee had been furnished with no facts which would substantiate the charge of fraud; that a meeting of the county committee had been held on July 11 and the committee had determined that defendant was not guilty of the alleged fraud; that the county committee refused to accept the suspension of the defendant, and that he had been reinstated as county office manager.

At a formal meeting on July 18, the state committee voted to "confirm their action taken individually, by telephone, July 6" authorizing the chairman of the state committee to notify defendant that he was suspended as of the close of business July 6, 1962. On July 20 the state committee adopted a motion removing defendant from office as county manager.

On July 18, 1962, at the time of filing the complaint in this action, the court granted plaintiff's application for a temporary restraining order. On August 2, 1962, defendant filed an answer and counterclaim, alleging illegality of the July 6 suspension by reason of lack of jurisdiction in the state committee. A hearing was held on August 21 on plaintiff's application for a preliminary injunction. By order entered September 21, 1962, the preliminary injunction was granted. In a memorandum opinion it was held that (1) by reason of failure to comply with applicable regulations, the suspension order of July 6 was invalid and (2) the purported suspension order could not be ratified as of that date; but (3) on both July 18 and 20, the state committee, by reason of the action taken by the county committee on July 11, had authority to suspend defendant; and (4) the action taken on July 18 and 20 in effect constituted suspension orders as of those dates.

On November 8, 1962, the state committee again notified defendant of his removal from office and that he had 30 days within which to appeal to the committee for a review of the facts.⁴ On December 20, 1962, a hearing was held on defendant's appeal. The defendant was present and represented by counsel.

On December 27, 1962, the state committee notified defendant that it sustained its action of November 8, 1962 removing defendant from office. Defendant was advised of his right to appeal to the Deputy Administrator, State and County Operations, Agricultural Stabilization and Conservation Service, U. S. Department of Agriculture, Washington, D. C. This appeal was properly prosecuted and on February 7, 1963, defendant was notified that, after a complete review of the case, the removal decision of the state committee was sustained.

A hearing on plaintiff's application for a permanent injunction was held on April 18, 1963. In granting the preliminary injunction the court relied upon minutes of the meeting of the county committee held July 11, 1962, which recited that defendant's "notice of suspension from the Montana State A.S.C.A. office was reviewed, the evidence supporting their suspension and the regulations governing the same were reviewed", and "* * * on review of the charges, documents and evidence which was to support the charges, the county committee determined that the county office manager was falsely accused". The chairman of the county committee testified at the hearing on April 18, 1963, and explained that the state committee had not at any time furnished the county committee with the evidence and facts upon which the state committee based the charges of fraud and its orders of suspension, and that the county committee had merely reviewed such evidence as it had available in the files of the county office.

A transcript of the proceedings at the hearing on appeal before the state committee on December 20, 1962, was received in evidence, in which the following appears:

"Mr. McKenna (State Chairman): Present your facts.

"Mr. Frisbee (Counsel for defendant): At this time, does the Government intend to present any witnesses?

"Mr. Mostow (Counsel for Department of Agriculture): May I make a statement, Mr. Chairman?

"Mr. McKenna: Proceed.

"Mr. Mostow: As you know, the State Committee has had before it facts on which it based its charges against Mr. Rasmussen. These facts are part of the record. This is the opportunity afforded to the Appellant to offer what he chooses to disprove these charges, to explain them, and to offer any legal argument he cares to make or to take any action he wishes to ask the Committee to review the facts which it had before him. Now, it had a set of facts from which it acted and we have given you a brief summary of those facts. Now, this is not a judicial proceeding. The Committee has its evidence. Now it is your opportunity to present yours.

"Mr. Frisbee: Mr. Mostow. I would like to correct your statement. As far as my knowledge is concerned, there have absolutely been no facts presented to the Committee upon which they have acted. Mr. Rasmussen has repeatedly requested the facts or the evidence upon which this suspension has been based, and those facts and evidence have been denied both to Mr. Rasmussen and to the Glacier County A.S.C. Committee. As of November 6th, the first opportunity that Mr. Rasmussen had or that his counsel had or that the Glacier County A.S.C. Committee had to review what might be referred to as facts were when Mr. Rasmussen was furnished with a copy of a statement which he purportedly signed, which was dictated by Mr. Kennedy, of your San Francisco office. To our knowledge, the only basis for the suspension and the only facts in evidence upon which his suspension has been made is based upon this statement. Now, am I correct in my understanding that the statement of Mr. Rasmussen which was signed by him is the only basis for his suspension?

"Mr. Mostow: I think not. There are additional facts. The facts are a summary of which have been read. Now we have not stated to you at any time that we are going to furnish you the evidence upon which these charges were based. This is within the knowledge and custody of the State Committee.

"Mr. Frisbee: At this time, may the record show that counsel for the Appellant and the Appellant objects to a proceeding such as this. This is the first time in my extensive practice of the law that I have ever run into a situation wherein the United States of America concealed and withheld evidence upon which a person is accused of fraud so that he may not know the evidence or the facts which he is to refute. * * *

* * * * * *

"Mr. Frisbee: At this time, it is our understanding that the evidence and the facts upon which Mr. Rasmussen is being tried will not be furnished to him, is that correct?

"Mr. McKenna: Correct." (Emphasis added.) (Tr. 8, 9, 10, 11.)

It is now clear from the evidence before the court:

1. At no time was the defendant, his counsel, or the county committee furnished with any statement of the evidence upon which the state committee based its charges of fraud, and orders of suspension and removal, other than (a) the statement of charges set forth in footnote 3, and (b) defendant's own statement to an investigator for the Department of Agriculture;

2. The county committee and the defendant, both personally and through counsel, repeatedly requested a statement of the evidence upon which the charge of fraud was based;

3. Defendant was given an opportunity to offer any evidence he might have to disprove or explain the charges against him; but

4. At no time was he given the right to confront and cross-examine the witnesses upon which the state committee relied in support of its charge of fraud and its orders of suspension and removal.

The primary question before the court is whether by reason of plaintiff's failure to furnish defendant with a statement of the evidence against him and grant him the right of confrontation and cross-examination there was a failure to comply with applicable regulations and a denial of due process.

The answer to this question requires a careful analysis of the decisions of the Supreme Court involving the dismissal of employees of the Executive branch of the Government.

In Keim v. United States, 1900, 177 U.S. 290, 293-294, 20 S.Ct. 574, 575-576, 44 L.Ed. 774, 776, involving the dismissal of an honorably discharged veteran on a charge of inefficiency, the Court said:

"The appointment to an official position in the Government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment. The appointing power must determine the fitness of the applicant; whether or not he is the proper one to discharge the duties of the position.

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