513 F.2d 603 | Ct. Cl. | 1975
delivered the opinion of the court;
Plaintiff appealed to the Regional Commissioner of the Service and was granted a formal hearing within the agency. The appeals examiner who presided at this hearing recommended that the adverse action be sustained, and this suggestion was followed by the Regional Commissioner.
Plaintiff then appealed to the Regional Office of the Civil Service Commission which accorded him another hearing, this time before a civil service appeals examiner. The Regional Office upheld the removal, and on further appeal to the Board of Appeals and Review, this was affirmed in June 1973. This suit was then brought to review the administrative proceedings and decisions. Both parties have moved for summary judgment and there is no request that further evidence be taken in this court.
The charges sustained by the Civil Service Commission were that (a) in his tax return for 1968 plaintiff claimed deductions to which he was not entitled with respect to payments to doctors and dentists, contributions, and interest paid, and (b) in his 1969 return he claimed deductions (again, to which he was not entitled) for medical and dental expenses, moving expenses, contributions, taxes, and union dues. There is no contest that these deductions were incorrect, but Hoover urges that even an IRS employee cannot be removed merely for making mistakes on his returns.
This contention has given us some pause because the letter of proposed adverse action does not explicitly charge anything more than that the deductions were incorrect. We are satisfied from the record, however, that the case was actually
Probably the most damning evidence on this point is that for 1968 plaintiff deducted $375 for payments to a doctor who was his own personal physician, but that doctor’s office indicated to the IES inspector that Hoover had not been there at all since 1967. Plaintiff insisted that he had in fact visited this doctor many times in 1968 and had always paid in cash, but he had no receipts. The triers of fact were of course not compelled to credit his unsupported testimony or his explanation that the receipts were lost in a move he made in December 1969.
The other main allegation against plaintiff concerned moving expenses ($382) he claimed for 1969. This deduction was taken, he said, because of a change in his driving to work. The return showed that the distance from his residence to
A barrage of procedural complaints is levied against the charges and the administrative proceedings, but none is sufficient to vitiate the determination of removal. We put to one side general arguments which have been authoritatively rejected, such as that the employee is entitled to all the protections of a criminal trial (see Arnett v. Kennedy, 416 U.S. 134 (1974)), and that hearsay is inadmissible (see Peters v. United States, 187 Ct. Cl. 63, 70-71, 408 F. 2d 719, 722-23 (1969)). The points we now consider are those tied specifically to these particular proceedings.
As we have already indicated, plaintiff understood and was made to understand the crux of the allegations against him, and was not misled by the possibility that he was merely being charged with having made innocent or negligent errors in his tax returns. It is settled, too, that the general standard of promoting the efficiency of the service is adequate for removal or discipline (Arnett v. Kennedy, supra, 416 U.S. 134, 161 (1974)), and in this instance we think that there can be no doubt that it promotes the efficiency of the civil service to proceed against an IRS tax technician — responsible for overseeing other taxpayers’ returns — who deliberately or recklessly overstates his own deductions. “The IRS is rightly concerned with its image of honesty and integrity. Members of the public, who must turn square con-
There is an accusation that witnesses plaintiff wished to call at the IRS hearing were not produced by management. No good ground exists for questioning the rulings on this point of the examiner who presided at that hearing. Several of these persons had no knowledge of any of the relevant issues; some were no longer in IRS employ; others were demanded in order to talk about penalties imposed by IRS in adverse action cases but there was no showing that any of them had knowledge of cases directly comparable to plaintiff’s. One witness, who had audited Hoover’s return, was made available but was not called either at the IRS or at the Civil Service Commission hearing. It is clear that, at the latter, plaintiff had available any IRS witnesses he had indicated he desired, but his representative failed to call most of them. It is also plain that he had full opportunity to cross-examine the IRS inspector (the only management witness at either hearing) who gave the crucial testimony against him.
Other scattershot charges against the proceedings are either unproved or irrelevant to the agency’s and the Commission’s final determination. The suggestion is made that the IRS first suspected that plaintiff was guilty of accepting a bribe, and that this accusation colored and tainted the whole adverse action proceeding. Although plaintiff’s tax returns may have originally been made subject to audit because of this suspicion, the fact is that he was never charged with bribery, no attempt was made to prove or suggest that he had engaged in such misconduct, and he was early told that he had been cleared of suspicion of bribery. Nor does the record show that this initial suspicion motivated the later adverse action proceeding or the removal. It is not unusual for an inquiry set off by one particular matter, which is later found to be groundless, to turn up evidence of other
It is also said that the IRS inspector refused to allow plaintiff to have a union representative with him at the interview with the inspector (prior to the issuance of the letter of charges). If this was so, it was immaterial to the determination of the formal adverse action proceedings which did not rest in any significant sense on statements or admissions made by plaintiff to the inspector. Another claim is that claimant was entitled, in the proceedings following the letter of charges, to see all of the inspector’s report, even that portion which was unconnected with the charges actually made. The answer is that the regulations require the employee to be supplied only with “the material * * * relied on [by the agency] to support the reasons in that notice” (5 C.F.R. 752.202(a) (2) (1974)) — and that was done here.
Bias is alleged on the part of the oral reply officer but there is no warrant in the record for this accusation, and plaintiff’s representative admitted at the close of that meeting that “We had our opportunity to say everything that we hoped to say.” A separate charge of bias against the IRS hearing examiner is likewise unsustained by the record, as the Civil Service Commission found. The further allegation that that examiner should have disqualified himself because he and the management representative had once attended a school together is obviously frivolous.
We come finally to the point that the penalty of removal was too severe for the offense, especially in view of plaintiff’s twenty-six years of federal service and eleven years in the IRS. This is a furrow which has been well plowed in recent years. See Grover v. United States, 200 Ct. Cl. 337, 353-54 (1973), and cases cited. In this case we cannot say that there is an inherent or gross disproportion between the punishment of removal and the offense of an IRS tax technician’s knowingly or recklessly overstating his deductions in his personal return for his own tax benefit. In the words of the
The record reveals more than substantial evidence to show that he knew he was doing wrong. Certainly there is no excuse for his claiming considerable medical payments to his own personal physician in 1968 when the evidence shows that he did not visit that doctor at all after 1967. The administrative agencies found, and could properly find, that this was not a case of mere sloppiness or negligence but a deliberate effort to decrease his tax in the expectation that his misstatements would not be discovered (or, if they were, that he would simply have to pay the difference in tax). As we have stressed, the “IRS is rightly concerned with its image of honesty and integrity” (Birnholz v. United States, supra, 199 Ct. Cl. 532, 537 (1972)). It was not an abuse of discretion to separate this tax official who was found to have culpably made, for his own benefit, overstatements of the very kind taxpayers are regularly warned against.
The plaintiff’s motion for summary judgment is denied, the defendant’s motion is granted, and the petition is dismissed.
At the hearing within IRS, the management representative said that “what we have before you today is not a matter of místate * * * nor is this case before you because Mr. Hoover incurred deficiencies,” and later he said that it “is perfectly obvious we think that what we have here in at least some of these entries in the returns are not innocent errors but deliberate falsifications”; in discussing some of the individual specifications the management representative also made it clear that he was not talking about oversights, mistakes or innocent errors but about intentional or reckless falsifications.
At the separate Civil Service Commission hearing, the same management representative argued that the errors might be “inadvertent and innocent and accidental” if made by a person “not trained in tax matters” but "in the case of an experienced man like Bob Hoover, these errors have to be deliberate and they have to be willful”; he also said that “[t]here is no doubt in our minds that he deliberately took deductions to which he was not entitled,” and with respect to the medical deductions he said: “This is not accidental. This has to be willful for someone in his position.”
The claimed medical expenses of $1,214 for 1969 were shown, through a similar inquiry made of the doctors, to be overstated by $692. Again, plaintiff did not attempt to verify the payments made, nor did he try to sustain them by records of any hind.
We do not canvass the evidence with respect to the lesser specifications since we are of the view that the administrative decision can be supported on the major charges relating to the medical and dental deductions for 1968 and 1969, and to the moving-expense deduction for 1969.
In this connection we agree with the Civil Service Commission that the record does not support plaintiff's claim that the IRS inspector put him under duress during an interview regarding his tax returns by implying a threat to accuse him of receiving a bribe in connection with a tax audit Hoover had performed.