Opposition Brief — Cain v. Virginia

| FILED

2 MAY 18 25

——

IN THE SUPREME COURT OF THE UNITED STATES

No. 84-1374

October Term, 1984

C. MACK CAIN,

Petitioner,

V.

THE COMMONWEALTH OF VIRGINIA, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS

IN OPPOSITION

Gerald L. Baliles

Attorney General of Virginia

Guy W. Horsley, Jr.

Senior Assistant Attorney General

Neil A. G. Mephie

Assistant Attorney General

Office of the Attorney General

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-3809

May 10, 1985

_ BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIERg g.

OPINIONS BELO(CCVVWU0LwLwb?

JURISDICTION .......6.. (G— 2

QUESTION PRESENTED ......... —

STATEMENT OF FAcfccs es.

ARGUMENT

CONCLUSION .

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TABLE OF AUTHORITIES

Cases

Bowens v. North Carolina

Department of Human Resources,

710 F.2d 1015 (4th Cir. 1983).........

Duffield v. Charleston Area

Medical Center, Inc., 503

F.2d 512 (4th Cir. 1974) ........00es

Fuentes v. Roher, 519, F.2d

379 (2nd Cir. 1975) ........ —

Goldberg v. Kelly,

397 U.S. 254 (197 o

Hortonville Joint School

Dist. No. I v.

Hortonville Education Assn.,

426 U.S. 482 (1970):

Hoska, III v. United States

ment of Army, 694

F.2d 270 (D.C. Cir. 198ꝝꝝ/77ʒ7

Nevels v. Hanlon, 656 F.2d 372

Wer. 1081) wc cece cccscccscees

Obrien v. Digrazia, 544 F.2d

543 {ist Cir. 1976) ))))

PATCO v. FLRA, 685 F.2d 547

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Schweiker v. McClure, 456

b

United States v. Grinnell

Co tion, 384 U.S.

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ii

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16

16

12

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Vanelli v. Reynolds School

District No. 7, 667 F.2d

een... . 5 „ „ „ „1017

Ward v. Johnson, 690 F. 2d 1098

II 6 0 6 60 66 0 17

Withrow x. Larkin, 421

U.S. 35 (1975) . eeeeevee eo eee eeeee -11,12,13,17

Wolkenstein v. Reville, 694

F.2d 35 (2nd ä —

cert denied,

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Statutes Page

United States Constitution,

Amendment XX... 5 6 066 00060 Passim

United States Code: 5

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42 U.S.C. Ss 1983 „„ „„ „„ „„ „ „„ „„ QQ W 7

42 U.S.C. 8 19988. —— —— 7

Virginia Grievance Procedure,

Code of Virginia, 1950 as amended

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No. 84-1374

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1984

C. MACK CAIN,

Petitioner,

Vv.

THE COMMONWEALTH OF VIRGINIA, et al.

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondents, The Commonwealth of Virginia, et al.,

respectfully request that this Court deny the petition for a

writ of certiorari, which seeks review of the Fourth Circuit's

orcer in this case.

| OPINIONS BELOW

The opinion in which certiorari is sought is aot

reported. A copy of that opinion appears at Pet. app. 24a.

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The opinion of the district court (Pet. App. la) is reported at

574 F.Supp. 559 (W.D. Va. 1983).

JURISDICTION

The judgment of the Fourth Circuit was entered on

October 5, 1984, and a petition for rehearing and suggestion

for rehearing en banc was denied on November 16, 1984.

(Pet. App. 24a & 42A). A petition for a writ of certiorari was

first filed on January 16, 1985. Subsequent filings were made

on January 23, 1985, and March 1, 1985. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254.

U N PRESENTED

Whether The Court Of Appeals Erred In Its Holding That

Constitutional Due Process And The Virginia Grievance

Procedure Were Not Violsted When The Agency

Appointee To The Grievance Panel Had Participated In

A Pre-Termination Discussion But Had Exercised No

Authority In The Subsequent Termination Or Grievance.

14

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STATEMENT OF FACTS

Petitioner was employed by the Virginia Department

of Rehabilitative Services as a counselor. In April, 1982, he

requested the Department's permission to engage in outside

employment as a vocational expert. (App. at 106). His

request was denied on the basis that such outside emplcyment

would constitute a conflict of interests. (Id.). Unknown te the

Department, petitioner then sought and obtained the informal

opinion of the Virginia Attorney General's Office that such

employment during vacation or leave time, and limited to

inactive departmental cases, would not constitute a conflict

of interests. The opinion directed Petitioner to seek the

necessary departmental approval before engaging in such

outside employment. (App. at 96). Nonecheless, petitioner

subsequently engaged in such employment during work hours,

without taking annual leave, and without getting

departmental approval. (App. at 99-105). Such activity, if

proved, would constitute serious infractions of the Employee

Standards of Conduct and could result in termination. (App.

at 86-87).

—

When the Department learned that petitioner had

engaged in outside employment, it conducted an

investigation. (App. at 99-105). The investigation confirmed

that on two occasions petitioner had testified in cases before

Administrative Law Judges of the Social Security

Administration in West Virginia, that he was compensated for

each of these appearances, that they occurred during his

normal working hours, and that he had left his work site

without permission. (Id.).

Sudsequently, the matter concerning petitioner was

brought up in an informal conversation during a coffee break

at a routine meeting of departmental supervisors. These

were John Bergeron, Director of Personnel and Training,

David Ziskind, Deputy Commissioner, Charles H. Merritt, an

Assistant Commissioner, James Snow, Regional Director, and

Kenneth Smith, petitioner's immediate supervisor. The group

reviewed the written material at that time, prepared by both

agency personnel and by petitioner, and offered their views as

to appropriate discipline. Merritt offered his opinion that, on

the basis of the material he saw, petitioner should be

terminated. Only Kenneth Smith had the responsibility to

make the initial decision regarding disciplinary action. (App.

at 121-129, 136-140).

On August 20, 1982, petitioner was given a written

notice of the reasons for his discharge. The notice was signed

by his immediate superior, Mr. Smith. (App. at 109). That

1 The decision to

same day, petitioner initiated a grievance.

terminate was upheld at three successive management steps

by agency officials other than Merritt. The three

management steps in this case involved (1) petitioner's

immediate supervisor, Kenneth Smith; (2) the next direct

level of management, James Snow, Region I Director; and,

finally, (3) Mr. David Ziskind, Deputy Commissioner. (App. at

112).

Merritt holds the position of Assistant Commissioner.

In that capacity, he is required to provide the Deputy

Commissioner with the agency documentation pertinent to

contemplated personnel action. This documentation is then

Ire State Grievance Procedure is set forth at S 2.1-1 14.521,

Code of Virginia, 1950, as amended.

independently reviewed and a decision rendered by the

Deputy Commissioner or Commissioner. Merritt met this

responsibility by giving documentation relevant to petitioner's

termination to the Deputy Commissioner. Merritt neither

had nor exercised authority over the decision of the Deputy

Commissioner to sustain the termination of petitioner in the

third management step of the State Grievance Procedure.

(App. at 136-138). John Bergeron, Director of Personnel, has

the authority to review all recommended terminations for

consistency and mitigating circumstances. (App. at 82).

After the decision to terminate was upheld at three

successive management steps, petitioner requested a

hearing. In accordance with the grievance procedures,

petitioner designated a member of the grievance panel, and

the Department selected Merritt as iis panel member. (App.

at 116). Merritt conferred with the Attorney General's

Office and the Department of Personnel and Training

concerning his eligibility to sit on the panel. Both sources

determined Merritt to be an eligible panel member. (App. at

132, 135).

Before the panel convened, petitioner filed a civil

rights action under 42 U.S.C. §§ 1983 and 1985, seeking a

temporary restraining order to enjoin the grievance hearing.

(App. at 10). Petitioner claimed that Merritt was not an

impartial panel member, alleging that Merritt had

participated in the decision to terminate petitioner. The

motion was denied. (App. at 14).

The grievance hearing on petitioner's termination

commenced on December 14, 1982. Before any evidence was

taken, Merritt testified that he could make a fair and

impartial decision based on the information to be presented

to the panel. (App. 121-122, 125). This testimony was

unrebutted. The Chairman of the panel determined that the

State policy and procedures preclude an individual from

serving on a grievance panel if one has been involved in any

of the steps in the grievance procedure, Merritt's involvement

occurred prior to the filing of the grievance and therefore,

Merritt was a duly authorized member of the panel. (App.

129-130). The hearing then proceeded.

The hearing consisted of approximately 21 hours of

testimony over three days during which both sides were

represented by counsel. Exhibits were presented and

witnesses examined. On January 3, 1983, the panel issued a

decision upholding the termination. The majority decision

stated that the

Evidence presented did not substantiate

grievant's claims or beliefs. Mr. Cain

testified he did not report leave, but he

did appear as a vocational expert in

Princeton, West Virginia, on the days in

question and that he did have a meeting

with his supervisor concerning his

violations of the Standards of Conduct.

(App. at 116).

Petitioner's panel member issued a dissenting opinion based

on the severity of the punishment, and the appearance of

unfairness by virtue of Mr. Merritt serving on the panel. The

dissenter stated that he “agreed with the reasons for the

decision" and that he did not question the integrity of Mr.

Merritt...“ (App. at 117).

After receiving the adverse panel decision, petitioner

filed an Amended Complaint in which he alleged a deprivation

of due process based upon Merritt's participation on the panel

and moved for summary judgment. The District Court

reasoned that any prior participation by Merritt in the facts

under review by the grievance panel deprived petitioner of an

impartial panel. The Court granted summary ju.dgment,

reinstated petitioner to his prior position pending the

appointment and decision of a new grievance panel, directed

Merritt, not the agency, to pay petitioner back wages from

the date of his dismissal and awarded petitioner his attorney's

fees and costs. (App. at 31, 65).

The Fourth Circuit reversed. That Court refused to

adopt the per se rule on bias of the District Court. Based on

its review of the reecrd, the Court concluded that Merritt did

not make the decision to terminate petitioner and did not

influence those who did. The Court determined that there

was no evidence of actual bias on Merritt's part; rather, the

evidence demonstrated Merritt's impartiality. Accordingly,

Merritt could sit on the panel. The Court determined that

the panel made its decision based on a review of all the

evidence, including that which Merritt had seen earlier. The

Court also concluded that the record was devoid of any

indication that the Office of the Attorney General and the

Department of Personnel and Training erred in their

assessment that Merritt could sit.

ARGUMENT

MERRITT'S SITTING ON PETITIONER'S GRIEVANCE PANEL

WAS NOT PROHIBITED BY THE DUE PROCESS CLAUSE OF

THE CONSTITUTION OR THE GRIEVANCE PROCEDURE.

Petitioner essentially asks this Court to do three

things, none of which is a basis for review: (1) to overlook

settled principles as constitutional law and, in their place, to

adopt a rule that prior involvement with the facts under

review is per se impermissible; (2) disregard uncontested

findings of the Fourth Circuit and to conclude, based on

petitioner's slanted version of the record, that the agency

panel member was biased; and (3) to disregard the consistent

interpretation Virgin i has given its grievance procedure

regarding the composition of grievance panels.

1. There Was No Violation Of The Due Process

Clause Of The Constitution.

Petitioner's arguments are based on two erroneous

conclusions of law: (1) a decision maker cannot review his

own decision under Goldberg v. Kelly, 397 U.S. 254 (1970);

10

and (2) the information which Merritt had from his

pre-termination discussion was knowledge from an "extra

judicial source" and, under United States v. Grinnell

Corporation, 384 U.S. 563 (1966), amounted to impermissible

bias. |

a. Review Of A Decision By The Decision Maker

It is undisputed that Merritt participated in one

informal pre-termination discussion during which he stated

that petitioner should be terminated. In Goldberg v. Kelly,

supra, 397 U.S. at 271, this Court remarked in closing that a

decision maker should not participate in making the

determination under review. In Withrow v. Larkin, 421 U.S.

35, 58 n.25 (1975), this Court explained thet "when review of

an initial decision is mandated, the decision maker must be

other than the one who made the initial decision." The

Fourth Circuit held that Merritt did not make the decision to

terminate. This conclusion is supported by the evidence.

Smith recommended termination. (App. at 109). Ziskind

terminated petitioner after independently reviewing the

investigative facts. (App. at 137). Bergeron reviewed the

11

decision for consistency and mitigation. (App. at 82).

Furthermore, the grievance panel does not sit as an appeal

board, see, Va. Code § 2.1-114.5:1(D)(4), and therefore, under

Withrow, could in fact be composed of individuals who may

have participated in the initial decision under review. See

e.g-, Hortonville Joint School Dist. No. 1 v. Hortonville

Education Assn., 426 U.S. 482, 493 (1976); Vanelli v. Reynolds

School District No. 7, 667 F.2d 773, 780 n. 12 (9th Cir. 1982);

Obrien v. Digrazia, 544 F.2d 543, 546-547 (lst Cir. 1976);

Fuentes v. Roher, 519 F.2d 379, 388 (2nd Cir. 1975).

Moreover, the Fourth Circuit found no evidence to suggest

that Merritt's statement had any binding effect on Smith,

Ziskind or Bergeron.

Even if Merritt's opinion could be considered a

decision, this Court has held that administrators may review

their prior administrative decisions without violating an

individual's due process rights. Withrow, supra, 421 U.S. at

35. In Withrow, the Court held that mere exposure to

evidence in non-adversarial proceedings is insufficient to

disqualify an administrator from later participating in the

12

adversarial hearing. 421 U.S. at 55. The Court held there is

no incompatibility between an agency filing a complaint of

probable cause and a subsequent decision on the merits.

Withrow, supra, at 57. To adopt a rule which would

absolutely bar an adjudicator from deciding a matter with

which he was previously involved would bar any judge who

ruled on a motion for a temporary restraining order in a civil

action or a motion for bail in a criminal case ... from later

hearing the case." Duffield v. Charleston Area Medical

Center, Inc., 503 F.2d 512, 517 (4th Cir. 1974). The governing

rule, which the Fourth Circuit followed, is that absent

evidence of actual bias, an adjudicator is not disqualified

simply because of prior involvement with the decision under

review.

b. Bias

Petitioner slants Merritt's testimony to make it appear

that Merritt had already made up his mind to terminate

petitioner prior to the panel hearing, regardless of the

evidence presented. Merritt's open-mindedness, which the

13

Fourth Circuit found persuasive, is well documented in his

testimony. On direct examination he testified as follows:

Q.

A.

2

Are you personally acquainted with the grievant?

Yes, I am.

Do you have any personal vendetta against him or

any personal dislike of him?

No.

Did you make the decision to terminate Mr.

Cain?

No.

Do you believe that you can fairly and

impartially make the decision ... engage in a

panel decision based on the facts presented here

today?

Yes, I think I can make a fair and impartial

decision based on the information presented

here. (App. at 121-122).

Merritt's reply to questioning by counsel for petitioner

on cross examination further reinforces Merritt's lack of

partiality:

Q.

And let me ask you one more question. From

what you have said, you are of the opinion that

we are here today to see if anything else can be

offered rather than to review all of those factual

circumstances?

14

A. Well, I see it as both. I think obviously that. I

would hope there would be a complete review of

what has transpired, and | would suspect and

hope, certainly for the Grievant, that if he has

additional information that, you know, that will

be presented. (App. at 125).

Petitioner submits that Merritt's one pre-termination

statement does not vitiate his statements of impartiality at

the time of the panel hearing. Petitioner did not meet his

burden of proof to show actual dias. See, Schweiker v.

McClure, 456 U.S. 188, 196 (1982).

Merritt's initial knowledge of the case stemmed from

exposure to investigative findings prior to the panel hearing.

On this basis, petitioner contends that he was prejudiced from

an extra-judicial source. in the first place there was no

prejudice. Moreover, petitioner's contention ignores the fact

that the findings were incorporated into the written notice

issued to petitioner and were presented verbatim to the

Petitioner contends that Merritt's partiality is evident from

the fact that a second panel reinstated him. The second

panel was convened pursuant to the district court's order and

is of no legal significance. Moreover, under the Virginia

Grievance Procedure a panel decision is final and binding.

See, Virginia Code § 2.1-114.5:1(D)(4), 1950 as amended.

15

-_

entire panel during three days of testimony. This contention

also ignores the case law which has refused to categorize the

knowledge gained through prior administrative involvement in

a matter as “extra judicial”.> The contention also would

prohibit any employee, with any knowledge of a case, gained

through the employment relationship, from sitting on panels.

Such a result would essentially dismantie the grievance

procedure and is not required for due process.

e. Merritt's Participation on the Panel Did Not

int the Proceeding.

The essential fairness of the hearing petitioner

received is manifest. petitionar had at least four

opportunities to confront all the evidence administratively as

well as three days of panel hearings during which each

witness for the Department was fully cross examined. (App.

F.2d 35 (2nd Cir. 1982),

2482, 77 L.Bd.24 1333 (1

1 $47 (D.C. Cir. 1982), Vane ane

1 667 F.2d 773, v.

) Cir. 1981).

16

at 101, 106, 112). Nonetheless, petitioner contends that

Merritt's presence tainted the panel because petitioner was

denied an opportunity to confront all the evidence. In support

of this contention, petitioner points to certain evidentiary

submissions which the panel refused > whole or in part.

These allegations do not demonstrate prejudice. The

underlying submissions of which petitioner complains were

denied by a unanimous panel. (R. Vol. 1, No. 12, pp. 42-46).

Moreover, the lower court made no findings that the panel's

conduct was improper. Accordingly, the Fourth Circuit

correctly concluded "any hazard arising out of the potential

for such bias was alleviated by the fact that all three

members of the grievance panel were, at the hearing, made

aware of all the same information heard by Merritt during the

pre-termination discussion." See Vanelli, supra, 667 F.2d at

780.4

‘Petitioner contends that Ziskind's presence as an agency

witness tainted the panel under Withrow v. Larkin, supra, and

Ward v. Johnson, 690 F.2d 1098 (4th Cir. 1982). Ziskind had

no investigative or prosecutorial duties. Although he made

the decision to terminate and acted as third step management

official, he neither investigated nor prosecuted. Billings and

(Continued)

17

2. There was no Violation of the Grievance Procedure

The Fourth Circuit noted that there was nothing to

suggest that opinions of the Attorney General and the

Department of Personnel and Training that Merritt could sit

were incorrect. Accordingly that Court gave the opinions

great deference. The evidence supports the correctness of

the ruling.

The grievance procedure does not prohibit persons who

have participated in the underlying facts of a grievance from

sitting on a panel; the statute and the implementing

regulations expressly prohibit persons with direct involvement

in the grievance itself from sitting on a panel. See, Virginia

Code § 2.1-114.5:1(D)(4), 1950, as amended; (App. at 91).°

Smith investigated and Assistant Attorney General Flippen

represented the agency. (App. at 99). Thus, there is no

evidence that Merritt was influenced by persons engaged in

investigative and prosecutorial functions. Moreover, there is

no evidence to suggest that Ziskind's appearance or conduct

at the hearing influenced Merritt.

Petitioner also contends that the trial court

admonished Merritt not to sit. The court denied petitioner's

motion suggesting that his participation was proper (App. at

10) and explicitly refused to tell Merritt he could not sit.

(App. at 45).

SSection 2.1-114.5: 1(D)(4) states in part, "such panel shall not

(Continued)

18

The regulations identified the directly involved individuals to

be the grievant, supervisors hearing the grievance at the

three management steps, representatives of the grievant at

the third step, and witnesses who have appeared at any

management step. (App. at 91).

The Virginia Code defines a grievance as a dispute or

complaint by an employee relating to, among other things,

disciplinary actions taken by the agency. Virginia Code

§ 2.1-114.5:1(A), 1950, as amended.

Accordingly, persons who participated in petitioner's

grievance after it was filed on August 20, 1982, would be

prohibited from sitting on the panel. Merritt is not such a

person. He was not a supervisor replying at any management

steps or witness at any management step. Although he

participated in a single imyromptu pre-termination discussion

pertaining to the agency's investigative facts and the

be composed of any persons having direct involvement with

the grievance being heard by the panci." The regulations

provide in part, "such panel shall not be composed of any

person having direct involvement with the grievance being

heard, such as a grievant's supervisor replying at the three

management steps, representatives of the grievant at the

third step and the witnesses.” (App. at 91).

19

available disciplinary actions, such participation does not

preclude him from sitting on the panel. Indeed, it could not,

under any interpretation, be "participation in a grievance,"

because there was no grievance until after petitioner's

dismissal.® Merritt's participation occurred prior to

petitioner's initiation of the grievance, was therefore not

"direct involvement in the grievance," and was permitted

under the statute.

6a grievance is statutorialy defined as "a complaint or

dispute by an employee relating to ... disciplinary actions,

including dismissals ...... Hence, a discussion before the

dismissal giving rise to a grievance simply cannot be "direct

involvement in the grievance." See, § 2.1-114.5:1(A), 1950 as

amended.

20

CONCLUSION

For the reasons stated above, respondents request that

the decision of the Circuit Court be affirmed and the petition

for certiorari be denied.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

et al.

a ee

Counsel

Gerald L. Baliles

Attorney General of Virginia

Guy W. Horsley, Jr.

Senior Assistant Attorney General

Neil A. G. Mephie

Assistant Attorney General

Office of the Attorney General

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-3809

Counsel for Respondents

21

CERTIFICATE

In accordance with Rule 28 of the Rules of the United

States Supreme Court I hereby certify that three copies of

the foregoing Brief for the Respondents In Opposition were

mailed, postage prepaid, this e L day of May, 1985, to Mary

Lynn Tate, Esquire, Yeary & Tate, P.C., 161 East Main

Street, Abingdon, Virginia 24210, counsel for petitioner.

A, xD 408

A227-P288