Robert A. Rodriguez v. Dr. Robert C. Seamans, Jr., Secretary of the Air Force

463 F.2d 837, 1972 U.S. App. LEXIS 10345, 150 U.S. App. D.C. 1

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 3, 1972
• Docket: 24599
• Status: Published

Opinions

TAMM, Circuit Judge:

In this appeal we are asked to determine whether the Government has the power to discharge a Veterans’ Preference Act employee who gave false answers to certain questions on federal employment forms with reference to membership in either the Communist Party or other Communist-affiliated organizations. We have had a great deal of litigation involving both freedom of association and loyalty oaths in recent years. Of course, we note that there is a significant difference in those cases and the instant case, as this is a suit brought by a party who, as a result of his falsification of forms and not as a result of his prior memberships and associations, lost his position with the Air Force. Appellant’s discharge took place after 27 years of otherwise exemplary service; he now seeks re-instatement to his former position. As the facts will indicate, the circumstances involving Mr. Rodriguez’ dismissal are indeed unfortunate and may be indicative of a degree of governmental overkill. However, in reviewing the record it is apparent that the action of the Air Force and the Civil Service Commission is neither arbitrary nor capricious, nor can it be said to have been unreasonable. That being the case, we affirm the trial judge’s grant of the Government’s motion for summary judgment.

I.

Mr. Rodriguez filed an application on October 21, 1963, for a position as a general engineer with the United States Air Force. The position required a security clearance, for which he applied at the same time. One of the questions asked on the forms completed, viz., Standard Form 57 (Application for Federal Employment), Air Force Form 1150 (Security Certificate for Civilian Employment), and Department of Defense Form 398 (Statement of Personal History), required an answer to questions regarding membership in the Communist Party or other Communist organizations and in organizations contained on Civil Service Form 385, organizations designated by the Attorney General pursuant to Executive Order 10450. On each form Rodriguez answered these affiliation inquiries falsely, denying affiliation in any of the proscribed groups. This was contradicted by the appellant himself in a voluntary statement, made under oath, to an Air Force investigator, who on April 16, 1964, was conducting an investigation regarding the position for which appellant had applied. In the course of the statement given to the investigator, Rodriguez admitted that, in fact, he belonged to the Young Communist League from approximately 1934 to 1936. He stated that his involvement in the organization consisted of (attending meetings, distributing literature and paying dues. He told the investigator that he considered the League / to be “synonymous” with the Communist Party, U.S.A. Furthermore, in the course of this investigation Rodriguez revealed that in 1936, or so, he was a member of the American Labor Party and that he attended meetings and rallies sponsored by that organization. Mr. Rodriguez told the investigator that he failed to disclose these facts because he feared that so doing “would make any service to the United States Government impossible and make it impossible to secure unbiased hearings of the facts.”¹

The Air Force, on March 4, 1965, began an adverse action of proposed removal charging appellant with the making of intentional false statements concerning his affiliation with certain proscribed organizations on three official forms. In his reply to these charges, Rodriguez admitted the truth of his sworn statement of 1964 and stated that his prior failure to disclose his membership in the Young Communist League and American Labor Party was based on a fear of endangering his employment status with the Air Force. In the form of a defense the appellant called the Agency’s attention to his prior exemplary work record, his service in the military and his involvement with his community. Further, Rodriguez alleged that he did not understand the questions which he was accused of falsifying.

After considering his written submission the Air Force advised appellant that the charges against him had been sustained and that his removal from service would become effective on May 14, 1965. At that time the appellant requested, and was accorded, a grievance appeal as provided for by Air Force regulations. The Commander, Space Systems Division, appointed an Ad Hoc Committee to hear appellant’s case with the grievance hearing being held on May 27, 1965, at the Los Angeles Air Force Station, El Segundo, California. Appellant was represented by competent counsel at the hearing.

At the very outset of the hearing appellant’s counsel stated: “It is not going to be the position of [appellant] that a false statement was NOT made. This is quite obvious. . . . [W]e will not disagree with the obvious fact that a false statement was made. . . . ” (Hearing Tr. 9-10.)² There were a good number of witnesses called on appellant’s behalf who testified to his good character and his prior work record. We do not need to recount this testimony since these matters are not at issue. The Government concedes that Mr. Rodriguez had an excellent work record and was highly regarded in his community. During the course of the testimony Colonel Clifford R. Silliman, a former supervisor of the appellant and the officer who initiated the removal action, stated that he had made serious attempts to determine whether a lesser penalty could be imposed as to appellant and he concluded that there could not. Colonel Silliman testified that if he believed he could have invoked a lesser penalty, he

would have given it very serious thought. I think falsification of any official document . . . is a serious offense. ... I think the action I took speaks for itself. . If I had been able to have gotten anything specific or factual that would have given me strong support in going for a lesser penalty, I would have gone in that direction.

(Hearing Tr. 65-67.) It was the Colonel’s further testimony that he did not apply the regulation mechanically and that he acted only after consulting with the appropriate and informed parties.

Following the Colonel, appellant testified on his own behalf and admitted his association with the Young Labor Party in the mid-1930’s and that he intentionally denied this fact on federal employment forms inquiring about present or prior affiliation with Communist and Communist-related organizations. Rodriguez testified that he falsely answered questions regarding Communist affiliations on “numerous [federal] forms after 1948 for various jobs and clearances up to and including . . . 1963. . ” (Hearing Tr. 87.) Appellant explained his motivation for his action in the following terms: “I had the feeling . . . that it would be difficult, if not impossible, to find anyone to accept me if such statements [concerning membership] were made.” (Hearing Tr. 94.) Rodriguez admitted, on the record, that he knew he had answered the membership questions falsely and that as he understood the questions they pertained to “any associations for any period of time.” (Hearing Tr. 102.)

Findings of fact were filed by the Ad Hoc Committee on June 22, 1965. They found that Rodriguez had wilfully and deliberately falsified answers to inquiries in three official forms and that he thereby violated Air Force Regulation 40-712 as charged. The Committee concluded that “authority could/should have been obtained for assignment of a penalty less severe than removal.” (J. A. Ex.I(D).) The findings were sent to the Base Commanding Officer, Major General Ben I. Funk, who concurred in the Committee’s findings, but not its recommendations. In his letter to Rodriguez, General Funk gave two reasons for sustaining the removal action.

a. By your own admission, your negative answers to the questions referred to were deliberate falsifications because you were fully aware that your opportunity for employment would have been diminished had you answered the questions truthfully,

b. I find that the penalty imposed was appropriate and in accord with applicable rules and regulations.

(J.A. Ex.I(E).)

Appellant appealed the decision of General Funk to the Civil Service Commission. In a letter of September 9, 1965, the Commission’s Regional Appeals Officer informed appellant that he found that the Agency had complied with all Procedural requirements of the Air Force regulations and that the removal penalty was justified. (J.A. Ex.I(F).) This finding was subsequently sustained on appeal by the Civil Service Commission Board of Appeals and Review. Appellant made numerous attempts to have the Commission reopen the case; however, each request was denied. After a further attempt at re-employment at his prior place of employment appellant filed this suit.

II.

At argument and in his brief appellant relies extensively on a line of cases which have stricken various statutes and loyalty oaths as being unconstitutional because they were vague or because the statute was so broad as to make meaningful compliance impossible. See, e. g., Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) (faculty loyalty oath unconstitutional as vague); Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961) (teachers’ loyalty oath unconstitutionally vague); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967) (oath required by a New York act prohibiting treasonous and/or seditious teaching unconstitutionally vague). These cases are not persuasive. In the instant case there is one factor which serves to distinguish the cases cited above as well as all of the other authority relied on by appellant; in the instant case appellant falsified information required on Government forms.³ The central issue in this appeal, although at times the parties appear to have lost sight of it, is whether the Air Force had the authority to discharge Rodriguez for falsifying answers on various employment forms. There is no question here as to loyalty, the quality of appellant’s prior service, or whether he in fact did belong to the organizations at which inquiry was directed. The record is clear as to all of these matters. The simple fact is that appellant falsely answered material questions put to him concerning prior associations. He knew that the truthful answers to these questions could possibly jeopardize his chances of government employment or advancement. Appellant made a conscious decision based upon the options he believed open to him. He could have, and indeed should have, admitted his past activities and allowed the Government to investigate his past and if they were satisfied that he met the standards for federal employment he would have been granted a job. This power is inherent in government. “[W]e [do not] question the power of a State to safeguard the public service from disloyalty.” Cramp v. Board of Public Instruction, supra, 368 U.S. at 288, 82 S.Ct. at 281. The other alternatives available to appellant were: (1) not to seek any employment which would require disclosure of past affiliations, or (2) to engage in the course of action which he chose. This latter alternative was fraught with potential hazards and appellant ran the risk of discovery. We can show no sympathy now that this discovery has taken place.

On a number of occasions the Supreme Court has considered the charge that a statute or regulation was unconstitutional-as mitigation for the acts of a party. In Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) the Court stated:

In Kay v. United States, 303 U.S. 1 [58 S.Ct. 468, 82 L.Ed. 607], this Court upheld a conviction for making false statements in connection with the Home Owners’ Loan Act of 1933, without passing upon the claim that the Act was invalid. The Court said, “When one undertakes to cheat the Government or to mislead its officers, or those acting under its authority, by false statements, he has no standing to assert that the operations of the Government in which the effort to cheat or mislead is made are without constitutional sanction.” 303 U.S., at 6, 58 S.Ct. at 471.

The governing principle is that a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that his conduct be excused because the statute which he sought to evade is unconstitutional. This is a prosecution directed at petitioners’ fraud. It is not an action to enforce the statute claimed to be unconstitutional.

Id. at 866-867, 86 S.Ct. at 1847. In the Kay ease the Court observed:

It might as well be said that one could embezzle moneys in the United States Treasury with impunity if it turns out that they were collected in the course of invalid transactions. . . . Congress was entitled to protect the government against those who would swindle it regardless of questions of constitutional authority as to the operations that the government is conducting.^ Such questions cannot be raised by those who make false claims against the government.

Kay v. United States, 303 U.S. 1, 6-7, 58 S.Ct. 468, 471, 82 L.Ed. 607 (1938) quoting United States v. Kapp, 302 U.S. 214, 217-218, 58 S.Ct. 182, 82 L.Ed. 205 (1937). The point which we make is a simple one. Appellant could not make false statements concerning his past to the Government in order to secure employment and then challenge the constitutionality of the questions posed to him. Had appellant chosen to attack some constitutional infirmity, and stand on his attack, it is possible that he might have been successful. This attack could have been founded in a refusal to answer the questions presented. The constitutional issue, however, is only now being raised as a defense. We reject this argument and refuse to deal with the question of constitutionality, which most certainly has not been properly placed before this court.

III.

Appellant was discharged for making a false statement. According to the Air Force’s regulations false statements may be either minor or major. The penalty for a major offense is removal. The following is given as an explanation of a major false statement or misrepresentation:

Deliberate misrepresentation; fraud, falsification, exaggeration, or concealment of a material fact in connection with any official document, or withholding of material facts in connection with matters under official investigation.

See Air Force Regulation 40-712, Attachment 2. Appellant asserts that removal was too severe a penalty and claims that by imposing this penalty the Air Force has contravened the spirit of its own regulations. We have considered each of these assertions but are forced to reject them. Under the terms of AFR 40-712(1) the Air Force establishes that its policy is one in which

Primary emphasis will be placed on preventing situations requiring disciplinary actions . . . The supervisor will keep in mind that the objective of disciplinary action is to correct and rehabilitate, not to punish or penalize.

AFR 40-712(7) states:

Removal. Removal is the most severe type of adverse action. Before it is initiated, the facts and circumstances in an individual case must be carefully analyzed and must support the conclusion that the employee has clearly demonstrated his unwillingness or refusal to conform to the rules of conduct. Normally, a progression of disciplinary measures will be applied in an effort to rehabilitate an employee before determination is made to remove him.

It is true that the Ad Hoc Committee recommended a lesser penalty than removal to General Funk. It is also undeniably established in the record that the appellant had a superior work record and was highly thought of by his superiors. It is even true that the Director of Personnel for the Secretary of the Air Force stated that appellant could be re-employed at any Air Force installation for any position vacancy for which he was qualified and with the same security clearance as he held on his removal. All of this, however, does not change our state of affairs. Appellant falsified Government forms, was caught, and was removed by his commanding officer. The fact that the Air Force is willing to rehire appellant does not lessen the impact of his act.

We believe that the commanding officer was justified in the action he took. “Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust.” Garner v. Board of Public Works, 341 U.S. 716, 720, 71 S.Ct. 909, 912, 95 L.Ed. 1317, rehearing denied, 342 U.S. 843, 72 S.Ct. 21, 96 L.Ed. 637 (1951). “[T]he truthfulness of a man is material in estimating his reliability.” Harrison v. McNamara, 228 F.Supp. 406, 408 (D.Conn., 1964), affirmed per curiam, 380 U.S. 261, 85 S.Ct. 954, 13 L.Ed.2d 960 (1965). While it is axiomatic that the Government cannot discharge an employee on either arbitrary or discriminatory grounds, Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952), absent such a showing by appellant the removal must be allowed to stand. There seems to be a general feeling that General Funk over-reacted in removing appellant for this offense. However, this court has no power to review penalties of this nature where the action is justified. We may not have imposed the same penalty on appellant but that was a determination to be made by the General, in his sound discretion, after considering all of the evidence, submissions of the parties, and the recommendations of the Ad Hoc' Committee. General Funk was not bound by the Ad Hoc Committee report. It was just one of a number of factors to be taken into consideration in reaching his determination. Because we might not agree with the General’s disposition of this case is no reason to upset his findings absent a showing that his actions were either arbitrary, discriminatory or capricious. There has been no such showing in this case.

IV.

The final matter for us to consider is whether the Government could discharge a Veterans’ Preference Act employee for falsifying official forms. Under the terms of the statute “[a]n agency may take adverse action against a preference eligible employee, or debar him for future appointment, only for such cause as will promote the efficiency of the service.” 5 U.S.C. § 7512 (1964). Once again, in this regard, appellant cites authority for the proposition that a Veterans’ Preference Act employee cannot be discharged because of membership in or association with members of the Communist Party. See Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (1956). However, the Cole case and its progeny is clearly inapposite. This appellant was dismissed for falsification of records — an act which goes to appellant’s reliability, veracity, trustworthiness, ethical conduct and certainly affects the efficiency of the service.

We endorse our decision in Meehan v. Macy, 129 U.S.App.D.C. 217, 225, 392 F.2d 822, 830 (1968), remanded, 138 U.S. App.D.C. 38, 425 F.2d 469 (1968), reheard en banc, 138 U.S.App.D.C. 41, 425 F.2d 472 (1969) wherein we stated: “Since appellant has status as a Veteran’s Preference Eligible, he cannot legally be discharged except for such cause as promotes the efficiency of the service.” However, in this case, unlike in Meehan the efficiency of the service is likely to be promoted. Judge Hart stated the problem succinctly when during the argument in the District Court he said:

The person who makes a false statement — the question is as to whether or not it promotes the efficiency of the service to discharge people that make false statements. [Sic]

Somebody might, for example, in an office, steal 50 cents. Well, stealing 50 cents, so what? But stealing is what is bad. They might have been the finest employee on earth, but you can’t afford to have them around.

(J.A. 92.) Thus, the crux of the matter is the question of reliability. General Funk was justified, in our opinion, in questioning appellant’s reliability and in determining that his removal would promote the efficiency of the service.

We do not take issue with appellant’s fears concerning his past associations and memberships and their effect on his present life. Appellant, like thousands of other loyal Americans, made a mistake many years ago. Many of these people are responsible and trustworthy persons holding important positions in both the public and private sectors of commerce, industry, education, defense, etc. They have admitted to associating with parties belonging to the Communist Party or have admitted to membership themselves. The Government is entitled to investigate the competence, loyalty and suitability of its employees and prospective employees. In this case after the Government’s investigation Mr. Rodriguez was informed that his past associations would not disqualify him from re-employment. Had appellant told the truth initially he could have possibly avoided a great deal of anxiety, apprehension, public scorn, and ill-repute for his earlier acts. Appellant’s dilemma was brought about by false statements not his past associations. The judgment of the District Court, is, therefore,

Affirmed.

1 . Government Brief, Exhibit A, pp. 41-43.

2 . At no time in the proceedings did appellant or his counsel deny that the alleged misrepresentation liad been made. In the argument on the cross-motions for summary judgment, the following colloquy took place between appellant’s counsel and the court.

[Appellant’s Counsel] : [A]s a young man he gets on to the left-wing side of life, then some thirty years later he is asked to pay the price simply because he did not put down on a form made out in 1963, some twenty years after he was first employed by the United States Government, more than that from the time he became a member of the Army, lie simply does not answer that he was a member of the Young Communist League. . . . The Court: . . .In making his application, so far as I can see from the record, he intentionally omitted and said he hadn’t belonged to this, he knew he had. He did it because he was afraid of the consequences of it, although hopefully the consequences would have been nothing if he had done it. And that was his great error. [Sic]

J.A. 77.

3 . Appellant also places extensive reliance on the line of cases holding that Communist Party membership or affiliation is not sufficient reason for denying employment, bar membership, etc. See Application of Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657 (1971) ; Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971) ; Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957) ; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) ; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952).