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ROEMER v. HOFFMANN

September 20, 1976

MARTIN L. ROEMER, Plaintiff
v.
MARTIN HOFFMANN, Secretary of the Army, et al., Defendants



The opinion of the court was delivered by: SIRICA

The plaintiff Martin L. Roemer is a manufacturer's representative. He specializes in offering the products of a variety of businesses to the armed services exchanges. On August 23, 1976, the plaintiff, in an order from Brig. Gen. Bruce T. Coggins, Assistant Judge Advocate General for Civil Law of the Department of the Army, was debarred from doing any business with any instrumentality of the Department of Defense, including the armed forces exchanges, for a period of three years. Roemer has brought this action to set aside that order. He alleges that:

 (1) Coggins failed to observe the procedures required by governing debarment regulations, 32 C.F.R. § 1-600 et seq. (1975);

 (2) Coggins exceeded his authority in that the debarment was imposed as punishment;

 (3) Coggins's decision was "arbitrary and capricious;"

 (4) Coggins's decision was unconstitutionally based at least in part on factors not disclosed to the plaintiff or not related to the reasons stated in the order for debarment;

 (5) Coggins failed to comply with the full procedural requirements of 5 U.S.C. §§ 554-58, in violation of the Constitution and statute.

 On September 1, this Court granted the plaintiff's motion for a temporary restraining order forbidding the government from publishing in any way the fact of his debarment. On September 10, the plaintiff petitioned this Court to extend this relief and to enlarge it to prevent the government from interfering with the plaintiff's offering of products to the armed services exchanges. Because time was short, the plaintiff addressed only the first three of his theories for recovery. On that showing, and because the government had not shown that it would be appreciably harmed by an enlargement of the order for a short time, the Court granted the plaintiff's petition and enlarged the relief for ten more days.

 The Court has now had an opportunity to study the pleadings and supporting papers more closely. For the reasons which follow, it concludes that this case must be returned to the decision-maker for a fuller explanation of his reasons for imposing the three-year debarment.

 I.

 These basic facts are not in dispute. In July of 1965, the plaintiff, while he was employed by the Army and Air Force Exchange Service, accepted $2,500 from a manufacturer's representative. About a year afterward, he left the government and became himself a manufacturer's representative. In February of 1970, however, he was indicted for accepting the $2,500. Shortly after that, he was suspended from doing business with the armed forces exchanges pending the outcome of that case. But the prosecution got bogged down and after 29 months, since there had been no disposition of the case, the suspension was lifted. Subsequently, the case did come to trial, and in December of 1974, Roemer was convicted.

 Also at about this time the government instituted a civil action against Roemer to obtain the monies he received illegally. In April of this year, a settlement decree was entered in that case in which Roemer agreed to pay the government $3,600.

 In June of this year, the plaintiff received a letter from the Department of the Army. The letter noted the conviction and advised Roemer that the Department was considering debarring him.

 On July 27, counsel for the plaintiff appeared personally before the one who would decide the question, Brig. Gen. Coggins, and made an oral argument in his client's behalf. The next day, counsel submitted a written summary of those arguments.

 On August 23, Coggins sent a notice of debarment to Roemer. In it, Coggins stated that the plaintiff was forbidden from doing business with the ...


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