Petitioners Reply Brief — Baginsky v. United States

No. 83-3.

In the

Supreme Court of the United States.

Octosper Term, 1983.

SUSANNA BAGINSKY,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

Petitioner's Reply to Memorandum for the United States

in Opposition to Petition for a Writ of Certiorari

to the United States Court of Appeals for the

Federal Circuit.

CuHarctes W. RANKIN,

Dancer & SHenrry, P.C.,

One Post Office Square, Suite 2220,

Boston, Massachusetts 02109.

(617) 423-1100.

Harvey A. SILVERGLATE, *

SILVERGLATE, GeRTNER, BAKER & FINE,

88 Broad Street,

Boston, Massachusetts 02110.

(617) 542-6663

*Counsel of Record

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

Table of Authorities Cited.

CASES.

Commissioner v. Duberstein, 363 U.S. 278 (1960)

Pullman-Standard v. Swint, 456 U.S. 273 (1982)

2,5

No. 83-3.

In the

Supreme Court of the United States.

Octoser TerRM, 1983.

SUSANNA BAGINSKY,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

Petitioner's Reply to Memorandum for the United States

in Opposition to Petition for a Writ of Certiorari

to the United States Court of Appeals for the

Federal Circuit.

In her petition for a writ of certiorari, Dr. Susanna Baginsky

claims that the United States Court of Appeals for the Federal

Circuit erred in setting aside the trial court's finding that her

2

1975 termination was causally linked to the complete failure to

counsel her with respect to the April 1974 proficiency report.

Petitioner also argues that the court of appeals erred in making

its own fact findings on issues as to which the trial court had

made no findings and had not fully developed a record.

The United States seeks to justify this invasion of the trial

court's fact finding role on two bases: first, the trial court com-

mitted legal error and hence its findings are entitled to no

deference. Second, no purpose would be served by remand to

the trial court for further fact findings since only one result

was possible. Neither assertion excuses the failure of the court

of appeals to adhere to this Court's teachings in Pullman-

Standard v. Swint, 456 U.S. 273 (1982), and other cases.

The government contends that the trial court's finding of

“causation” is entitled to no deference since “its analysis assumed

that the Court of Claims had already held that any violations

regarding the 1974 proficiency report undermined the VA's

discharge of petitioner.” Memorandum in Opposition at 4. This

argument suggest that the trial court's finding was based upon an

isolated or technical violation. To the contrary, the trial court

found that the Veterans Administration failed to follow its

regulations “in any material respect” (A. 49a). There is no sug-

gestion by the court of appeals that this finding is erroneous; nor

does the government so contend. Given the correctness of that

finding, it was incumbent upon the court of appeals, once it

decided that the trial court should have addressed the post-April

1974 events, to remand to the trial court to determine whether

those events somehow removed the taint of the wholesale viola-

tions of Veterans Administration regulations.

The court of appeals dismissed the prior finding of the three

judge panel of the Court of Claims that there was a “sufficient

relationship” between the failure to counsel and the termina-

tion to sustain petitioner's claim, stating that the earlier review

was based upon an incomplete record. Similarly, the court of

3

appeals dismissed the finding of the trial court that there was a

causal relationship between the 1974 failure-to-counsel and

the 1975 discharge because it felt the trial court misinterpreted

the remand from the first review by the three judge panel of

the Court of Claims. The trial court focused upon whether

Dr. Baginsky had been shown the April 1974 report or had

been counseled with respect to it. The court of appeals stated

that the trial court should have reviewed the entire time

period, through the 1975 termination.

Instead of remanding, the court of appeals set aside the

finding of the trial court that there was a causal link between

the failure to counsel and the termination and made its own

findings. That action ignored important findings of the trial

court which are not clearly erroneous. The trial court, having

found that the Veterans Administration failed to adhere to its

regulations in any respect, went on to find facts which but-

tressed the earlier ruling of the three judge panel of the Court

of Claims that petitioner's 1975 termination was tainted by the

procedural deficiencies in connection with the 1974 proficien-

cy report (A. §la). The trial court found that most of the rea-

sons raised by the Veterans Administration in connection with

the termination stemmed from incidents covered in the April

1974 proficiency report about which Dr. Baginsky was not in-

formed or counseled. The “Proposed Separation,” submitted

by the hospital's director to the Veterans Administration cen-

tral office in November 1974 (seven months after the defective

report), largely tracked the April 1974 complaints (A. 68a). (In

its Memorandum in Opposition at 2, the government refers to

this Proposed Separation as a “second report,” apparently sug-

gesting it was another proficiency report. That is erroneous.

The proposed separation was the first step taken by Dr. Bagin-

sky’s superiors to initiate her discharge.) These findings

strongly suggest that had there been a remand from the court

4

of appeals to the trial court, it would have found for the peti-

tioner.

The United States contends, Memorandum in Opposition at

5, that remand is unnecessary where the record permits only

one resolution of the factual issue. It furthermore suggests

that this Court should not concern itself with such a “fact-

bound determination.” Jd. Again, the government is incor-

rect. This is not a situation in which the trial court had made

fact findings on all issues in the case, such that the court of ap-

peals could reach its own conclusion. The trial court did not

address the post-April 1974 events, except to the extent they

bore a relation to the April 1974 proficiency report. Indeed,

- the trial court considered the post-April 1974 events “not

directly relevant to the issue here on remand” (A. 68a).

Instead of remanding, the court of appeals examined the

record on its own. It found two instances after April 1974

which it considered to be counseling. The trial court had

made no finding as to the nature of those two conversations,

since the parties at trial did not fully address the issue of the

post-April 1974 events (A. 22a). If the case is remanded under

the appropriate legal standard, petitioner will prove that those

two “instances” were in no way counseling sessions. That

issue was never resolved by the trial court, which is in the best

position to resolve such factual issues. Instead the court of ap-

peals resolved the factual issue as to whether there were coun-

seling sessions.

Based upon these two conversations, as to which the trial

court made no findings, the court of appeals implicitly re-

versed the prior finding of causation. Such a course is im-

proper where the trial court made no findings on whether the

post-April 1974 events attenuated the procedural irregulari-

ties. The “fact finding” by the court of appeals does not

answer the question whether the failure of the Veterans Ad-

ministration to follow its own regulations led to her termina-

5

tion. If the regulatory violations did lead to her firing, then

the “fact” of two counseling sessions cannot remedy the situa-

tion. The question which should have been answered, but

was not, is whether the wholesale regulatory violations tainted

the dismissal. That is a question which the first decision by

the three judge panel of the Court of Claims recognized, even

though it also recognized that the 1975 termination was ap-

parently conducted in compliance with applicable regulations

(A. Sla). The trial court answered the question but was

reversed for not considering the post-April 1974 events. The

court of appeals addressed the post-April events as if it were

the trier of fact, but then did not address the question of

whether the 1974 regulatory violations tainted the termina-

tion. Petitioner is entitled to a ruling, by the trial court in the

first instance, on that question. While it may have been prop-

er for the former Court of Claims to have made such findings

in the first instance, a court of appeals cannot do so.

The causation issue is not a question which is capable of an-

swering in only one way. The trial court’s findings suggest that

on remand it would have found for Dr. Baginsky, since the

reasons proffered for her termination stem in large part from

events prior to April 1974. This Court has recognized the

unique ability of trial courts to resolve issues such as causation

and intent. Commissioner v. Duberstein, 363 U.S. 278, 289

(1960). Indeed, in similar circumstances, the court in Pull-

man-Standard v. Swint, 456 U.S. 273 (1982), squarely held

that a district court's finding as to intentional race discrimina-

tion can only be reversed if clear error is shown.

The government's final contention, that the Court should

not review this matter in its “present interlocutory posture,”

Memorandum in Opposition at 5 n.3, is without merit. Pur-

suant to the direction of the court of appeals, the Claims Court

entered final judgment in this case on October 8, 1982 (A.

85a-86a). The appeal to the Federal Circuit was from that

6

judgment. In no sense then is this case in an interlocutory pos-

ture. Unless this Court reviews the ruling of the court of ap-

peals on count one now, plaintiff's rights will be lost.

Respectfully submitted,

CHARLES W. RANKIN,

DANGEL & SHERRY, P.C..

One Post Office Square. Suite 2220,

Boston, Massachusetts 02109.

(617) 423-1100

HARVEY A. SILVERGLATE.*

SILVERGLATE. GERTNER. BAKER & FINE.

88 Broad Street.

Boston, Massachuetts 02110.

(617) 542-6663

*Counsel of Record

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