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
NICHOLS, Judge
(dissenting):
We have in 5 C.F.R. §§ 752.101 et seq.; 754.101 et seq., 771.201 et seq. (Supp.1966), an overhauling of the adverse actions, grievances and appeal procedure, for civilian employees, adopted in 1963. For some little time before there had been an uneasy sensation that constitutional and statutory support for some customary and usual procedures might be lacking. Loyalty and security cases had monopolized the spotlight, leading to a neglect to keep abreast of the times in other more routine adverse action cases. Since 1963, there has been no excuse for anything short of the most meticulous due process in that area.
But I doubt very much whether in 1959, the date of the action here involved, there was a complete separation of prosecution and adjudication in employee adverse action cases. If there is not this clear separation, those having functions of the two kinds may not fully appreciate they are not supposed to talk to each other. Indeed, the whole concept that such conversations are objectionable ex parte communications seems of doubtful application. In a field installation, prosecuting and adjudicating employee adverse actions are not full time jobs, and usually do not take even a major portion of anyone’s efforts. It is a little hard to expect people who work together constantly with respect to most of their duties to wall themselves off with respect to a kind of work which is to them unusual and unfamiliar. For these reasons, a proper conformity with the standards the court so eloquently stresses most likely would have required clear, written directives from headquarters, and in many cases, temporary loan of experienced personnel from outside. I find it, therefore, a little hard to imply from a regulation calling just for a hearing, a commitment that the General shall not talk to Mr. Kostos. It ought to be construed as those who used it would have naturally interpreted it at the time.
*782 Hence, I think all the indignation, the references to the ABA Code of Ethics and the Administrative Procedures Act, are misplaced. It is conceded that plaintiff, a nonveteran, was not in 1959 entitled to any procedure at all except as the regulation accorded it; absent its strained construction of the regulation, the court has no basis to say the General’s action, or Mr. Kostos’, however reprehensible, deprived him of any legal right. And there is nothing to show the General was not capable of evaluating Mr. Kostos’ natural bias as prosecutor and discounting anything he might say. It has not been my experience that the views of civilian lawyers have exactly overpowering weight with Generals. Nor is there anything to show he would have refused to receive an ex parte communication from the other side, if proffered. We are imposing sophisticated techniques on a relatively primitive procedure which, for all we know, had its own due process and was not fundamentally unfair.