money from Goldstein, plaintiff refused to answer because "[this] goes to the crux of the whole matter, the original accusation . . . and I feel . . . consultation for legal advice is necessary." Transcript of Administrative Proceedings, at 307. At all subsequent stages of the administrative proceedings plaintiff had the benefit of counsel and unequivocally affirmed his innocence.
On December 1, 1964, plaintiff received a written Notice of Proposed Adverse Action -- a notice of both suspension and removal -- based on two charges, one involving the acceptance of a bribe, the second concerning the failure to report the offer of a bribe.
Plaintiff was suspended for a period of 30 days beginning on December 9, 1964, and removed on January 8, 1965. Plaintiff appealed his removal to the Civil Service Commission Regional Office in New York, but all action on that appeal was suspended pending disposal of the criminal charges against him. An indictment was returned against plaintiff in October, 1965, which remained pending until the government filed a nolle prosequi on June 14, 1968. In the last two months of 1968, a hearing was held on plaintiff's administrative appeal. His suspension and removal were affirmed and plaintiff again appealed, this time to the Civil Service Commission Board of Appeals and Review. On August 25, 1969, almost five years after plaintiff had received a Notice of Proposed Adverse Action, the Board sustained his removal. Being without the necessary financial means to bring an action in this Court, plaintiff appealed to his union to prosecute this action on his behalf, which it finally agreed to do two and a half years later.
This Court has jurisdiction of this action under 28 U.S.C. § 1331 and is empowered to render a declaratory judgment herein under the provisions of 28 U.S.C. § 2201. See, e.g., Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822 (1968); Weinberg v. Macy, 124 U.S.App.D.C. 1, 360 F.2d 816 (1965); Massman v. Secretary of Housing & Urban Development, 332 F. Supp. 894 (D.D.C.1971). The Court is not impressed by the contentions of the defendants that jurisdiction is exclusively in the United States Court of Claims or that plaintiff has failed to join the proper parties, nor is the Court persuaded that plaintiff's suit is barred by laches. See Powell v. Zuckert, 125 U.S.App.D.C. 55, 366 F.2d 634 (1966).
The Court recognizes that in employee adverse action litigation such as this, it is engaged in limited review and that its determination is based upon the agency record submitted to it. The function of the Court is to review the record and determine whether there has been procedural error, whether there is substantial evidence to support the agency action, or whether the action is in some manner otherwise arbitrary or capricious. Polcover v. Secretary of the Treasury, 155 U.S. App. D.C. 338, 477 F.2d 1223, 1226, 1227 (D.C.Cir. 1973); see, e.g., Moore v. Administrator, 155 U.S. App. D.C. 14, 475 F.2d 1283 (D.C.Cir. 1973); Adams v. Laird, 136 U.S.App.D.C. 388, 420 F.2d 230 (1969); Mendelson v. Macy, 123 U.S.App.D.C. 43, 356 F.2d 796 (1966).
Plaintiff raises numerous grounds in support of his motion for summary judgment. Since plaintiff's removal is found to have been achieved in violation of his Fifth Amendment rights, the Court need not raise or pass on plaintiff's other arguments. The record indicates that on or about November 22, 1964, plaintiff was personally informed by an Assistant United States Attorney of the criminal charge against him. On the following day, plaintiff was interrogated by two Internal Revenue Service Inspectors concerning his connections with Albert Goldstein. On advice of counsel, plaintiff declined to answer any questions in the absence of his attorney. This refusal to answer became a significant factor in the administrative appeal of his removal. When plaintiff's case was before the New York Regional Office of the Civil Service Commission, the Regional Director concluded:
"Finally, we consider significant the appellant's refusal to respond to the questions asked of him by the IRS Inspectors at the interview with him held on November 23, 1964. His refraining from answering questions concerning matters of official interest to competent Treasury authority and directly related to his responsibility as a Revenue Agent does not comport with the actions of a person who considers himself innocent."
Transcript of Administrative Proceedings, at 53.
When plaintiff appealed to the Civil Service Commission Board of Appeals and Review, the Board concluded:
"With regard to the merits of the case, basically, the question is one of credibility. . . .