invalidat- ing removal despite concluding that the deciding official “made up his own mind when he decided to sustain plain- tiff's removal” because “decisions were made, at least in part, on the basis of the ex parte communication”
How later courts described this case
- invalidat- ing removal despite concluding that the deciding official “made up his own mind when he decided to sustain plain- tiff's removal” because “decisions were made, at least in part, on the basis of the ex parte communication”
- attorney, who represented agency at hearing reviewing agency’s discharge of employee, engaged in on-going ex parte discussion of case with officials who reviewed that hearing committee’s recommendation
- “After listening to and discussing with each attorney his views on the case, Wolverton stated that he formed his own opinion.... We have no doubt that Wol-verton formed his own opinion on what recommendations he should make to General Anderson, just as we have no doubt that General Anderson made up his own mind when he decided to sustain plaintiffs removal. The problem is, however, that both decisions were made, at least in part, on the basis of the ex parte communication ... ”
- “one of the fundamental premises inherent in the concept of an adversary hearing ... is that neither adversary be permitted to engage in an ex parte communication concerning the merits of the case with those responsible for the decision”
Written by the judges who cited it.
The opinion
DAVIS, Judge
(concurring):
I join in the result and in the second half of the court’s opinion discussing ex parte communications. I do not concur in the first half because I am not willing, even if one accepts the trial testimony at face value and discounts the agency’s pre-trial statements that Mr. Kostos either prepared or participated in the preparation of the general counsel’s memorandum, to say that Mr. Kostos’ activity fell short of participation in the actual process of decision. The ex parte communications which the court finds that he made would seem to amount to such intervention — there is no real separation in this case between the charge of participation in the decision and the charge of ex parte communications. In view of the disposition of the case, the matter is now academic but I do not want to appear to agree to the narrow definition the court apparently gives to the concept of “participation in the actual decision.”
SKELTON, Judge, joins in the foregoing concurring opinion.