Petition for Writ of Certiorari — Thomas v. General Services Administration

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Office - Supreme Ceurt, U.S.

85 - 14. FILED

JUL 2 1985

No.

ALEXANDER — STEVAS

CLERK.

IN THE

SUPREME COURT OF THE UNITED STATES

CHARLES A. THOMAS,

Petitioner

Vv.

GENERAL SERVICES ADMINISTRATION

and

MERIT SYSTEMS PROTECTION BOARD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

ELLIOT B. PLATT, ESQUIRE

Attorney for Petitioner

1700 Mellon Bank Center

Philadelphia, PA 19102

(215) 563-5909

QUESTIONS PRESENTED FOR REVIEW

1. Where the Merit Systems Protection

Board incorrectly held that it did rot have

jurisdiction over petitioner's apveal from a

suspension from his federal employment and

thus did not reach petitioner's defenses, did

the Federal Circuit err in ordering the

suspension affirmed without any review of

petitioner's defenses when it held the

Board had jurisdiction?

2. Did the Federal Circuit below err

in holding that substantial evidence

supported the Merit Board's findings where

those findings were based on written hearsay

statements that were recanted at the hearing

by their authors?

3. Where petitioner was suspended

from his federal employment vending a

decision on his employing agency's applica-

tion for his involuntary retirement, does

the Backpay Act require that he be awarded

his full compensation for the suspension

period when the application for involuntary

retirement is denied?

PARTIES IN THE UNITED STATES COURT OF

APPEALS

Charles A. Thomas, petitioner herein,

filed as petitioner in a Petition for Review

in the United States Court of Appeals for

the Federal Circuit His petition named

the Merit Systems Protection Board and

General Service Administration as respon-

dents. The court below referred only to

General Services Administration as respon-

dent.

iii

TABLE OF CONTENTS

Questions Presented for

Review >. >. o . J . 7. > J . - . >. >. . e i

Parties in the United

States Court of Appeals ....... ii

Cr” << « 6 «6 6 6 se ee ell

Jurisdictional

rite . sk © s 6a ee et ele

Constitutional Provisions

and Statutes Involved ........ 2

Statement of the Case “Yr a ero ee 3

Reasons for Allowance of 16

eas

1. The Action Of The Court

Below Forecloses Petitioner

From Administrative And Judicial

Review of Statutory And Constitu-

tional Defenses To His Suspension

Prom Meploveent. . . 6. 6s ew tw 16

2. Rebutted Hearsay Statements

And Hearsay Statements Recanted

By Their Authors Cannot Constitute

Substantial Evidence ........ 22

3. The Backpay Act Requires

That Petitioner Be Afforded

CCE k se 5 Gwe et wl}!

Gg a 29

CONTENTS OF APPENDIX

Opinion of the Court Below ....... la

Order Denying Rehearing ....... . 19a

Opinion and Order of Merit

Systems Protection Board ....... 21a

Initial Decision of Merit

Systems Protection Board ....... 39a

Constitutional and Statutory

eget | a i a a er ee, ee 86a

U.S. Const. Amend. Vi. .+s+ + 5s «6 # s 86a

S$ U.6.€ @ 2oGeto = « « e & © 8 so 86a

5 U.S.C. g 5596(b) (1) . . ~~ © ws . 88a

S$ U.S.C. @ 7S43TO) «ss 8 ee 88a

Pee Oy. a ae

5 ¥.8.€. | F793 «se © es we 8 ee 90a

TABLE OF CITATIONS

Cases

Arnett v. Kennedy, 416 U.S.

ee EE 0 ae ee Gl ie Se ee 23

Brown v. Dep't of Justice, 715

F.2d 662 (D.C. Cir.

Soe ee ANG eet ee a we ite 29

Bush v. Lucas, 462 U.S. 367

(1983) ae on oe oe ee ee ae ae eee

Cleveland Bd. of Educ. v.

Loudermill, -U.S.-, 105 Ss.

Ct. 1487 (1985) eae! ee) 6 ee oe 19

Consolidated Edison Co. v.

Nat'l Labor Relations Bd.,

pee Gsm BE? Pewee 6.6.6. 6 @ «ee 24

Consolo v. Fed. Maritime Comm'n,

Dea. Sse Cet Ceeee i «. « e * « 4 6s 24

Goldberg v. Kelly, 397 U.S.

Zee Geeta. bs ¥ we 6 6 es Se eS 23

Greene v. McElroy, 360 U.S.

eee. Saneee 6 «6 ue 6 eee Ce Ne 4S 4 23

Grittin v. tilinois, 351 U.8. 12

(1956) eat oe ee “ee ee ee ae ee ee 20

Kleinfelter v. United States, 162

Cas Ghe Be 240 £48 San

(1963) Be Sia as la eit ads ae ae A ae eae 29

Lindsey v. Normet, 405 U.S.

56 (1972) ;* « © © © @ 8-6. -tye 20

Pickering v. Bd. of Eauc., 391 U.S.

563 (1968) ara eo ae er oe a a ee 18

Seebach v. United States, 182 Ct.

Cl. 342 (1968) ar Se in ee ee ae ee 29

Thompson v. City of Louisville,

S62 U.S. O99 CE9EC) . 2 ew we we sw we te el CUS

Vitarelli v. Seaton, 359 U.S.

535 (1959) ~ht Se e Seee e e ee ee

Willner v. Committee on

Character and Fitness, 373

U.S. 96 (1963) fags, Goer eee ee eee ee 23

Constitution

U.S. Const. amend. I «es © & Se es 18

U.S. Const. amend. V i i” eo Bee a ee ae

Statutes

26 U.8.C. § 125001) .. «ee 8 2

S 0s8.¢. 8: 2902) «sw we ee 3, 18

5 0.8.6. © SSGCtR) «8 ee 8 ee 3, 2

S CO... © PELE)... « w « +. «0. de Ae

5 u.S.c. § 7701 ; <a Ss + eae oe

Smit. BOTT nas ws a ee, Be ee ee OS

Regulation

i ee Se ES ee ee ae ee 28

————————————eeee

Vii

Other

48 Fed. Reg. 30401-30402

(July 1, 1983)

49 Fed. Reg. 1321, 1327,

1328 (Jan. 11, 1984)

39 Decis. Comp. Gen. 154

(1959) on ae

No.

IN THE

SUPREME COURT OF THE UNITED STATES

CHARLES A. THOMAS,

Petitioner

Vv.

GZSNERAL SERVICES ADMINISTRATION

and

MERIT SYSTEMS PROTECTION BOARD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

The petitioner, Charles A. Thomas,

respectfully prays that a Writ of Certiorari

issue to review the judgment and opinion of

the United States Court of Apveals for the

Federal Circuit entered in this proceeding

on March 4, 1985.

OPINIONS BELOW

The opinion of the Court of Appeals is

reported at 756 F.2d 86. The opinion and

Order of the Merit Systems Protection Board

is not officially reported; it is unofficial-

ly reported at 1984 Fed. Mer. Sys. Rep. para.

84-5391. The initial decision of the Merit

Board is not reported. The opinion of the

court below, the opinion and order of the

Merit Poard and the initial decision of the

Merit Board are set out in the Avpendix here-

to.

JURISDICTIONAL STATEMENT

Petitioner seeks revie of the judgment

of the Court of Appeals entered on March 4,

1985. A timely petition for rehearing or

rehearing en banc was denied by the Court of

Appeals on Avril 5, 1985. The jurisdiction

of this Court is invoked pursuant to U.S.C.

S F220 a?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

This case involves the due process

clause of the Fifth Amendment to the United

States Constitution, and the following

statutory provisions which are set out in

the Appendix hereto: 5 U.S.C. sg§ 2302(b),

5596(b) (1), 7513(b), 7701(c), 7703.

STATEMENT OF THE CASE

Petitioner, Charles A. Thomas, was

a federal employee from 1968. He was

first an archivist trainee and later a

journeyman archivist with the General

Services Administration (hereinafter, GSA)

National Archives in Washington, D.C. In

1976, he made public disclosures about a

series of issues, most importantly about

what he considered the alteration of

materials and evidence presented to the

Scranton Commission investigating the

1970 deaths of students at Kent State

University. A number of employment dif-

ficulties arose for him after that which

culminated in his transfer to GSA's Phila-

delphia Regional Office as the Training

Officer for the Federal Protective Service

in March, 1980. His outspokenness in Wash-

ington was well-known to the veople at his

Philadelphia office.

In Philadelphia, he became concerned

about other problems. He criticized what he

considered unsubstantiated adverse actions

against Federal Protective Officers. In

addition, he had reason to believe that some

guards provided by private security

companies under contracts with GSA to guard

federal installations were ineffective, had

criminal records and were seriously lacking

in training. He also questioned the

quality of training vrovided to Federal

Protective Officers. Petitioner tried to

discuss his concerns with his supervisors,

but he was ignored. Finally, on January

18, 1982, petitioner reported his concerns

about the adverse actions and the security

guards to the Inspector General of GSA.

Almost immediately thereafter, a series

of actions commenced that culminated in the

instant case. On January 22, 1982, John

MacDonald, a supervisor of petitioner whom

petitioner named in the Inspector General

letter, imposed a one-day suspension on

petitioner for "insubordination" alleged to

have occurred earlier. On January 26, 1982,

MacDonald sent petitioner a record of infrac-

tion, recommending petitioner's removal for

preparing training materials that were part

of petitioner's official function. No

further action was taken on that notice, but

on January 29, 1982, a discivlinary panel of

GSA convened. Although the panel believed

that petitioner should have been removed, it

decided to require a psychiatric fitness-for-

duty examination and attempt to secure his

involuntary retirement. In February, 1982,

John Thompson, Regional Director of the

Federal Protective Service and petitioner's

supervisor, asked his staff to document

"unusual behavior" on vetitioner's part.

Thereafter, three memoranda were prepared by

other supervisors in the office on April 7,

1982.

In March and April, 1982, petitioner met

with Zigmond M. Lebensohn, M.D., for his

fitness-for-duty examination. On May 3, 1982,

Dr. Lebensohn issued his "Psychiatric Evalua-

tion" of petitioner; he diagnosed petitioner

as having a paranoid personality disorder,

but made no recommendation as to petition-

er's fitness for duty. The report, although

some eleven pages in length, was replete with

internal contradictions. For example, it

stated that it was impossible to obtain any

accurate data from petitioner, although the

report included pages of petitioner's

history related by him. It concluded that

he was without tender or sentimental feel-

ings, but it also noted petitioner's concern

for his father's health and petitioner's

apology for having to cancel a meeting with

Lebensohn. The report was also full of

conclusory statements, for example that

petitioner would tend to avoid blame when

warranted and that he would tend to retali-

ate against people he thought were

adversaries. There was no support in the

revort for those or similar statements.

According to exvert testimony in the record,

the diagnosis of paranoid personality dis-

order is a highly subjective one.

John Thompson decided to apply for

petitioner's involuntary disability retire-

ment based on the psychiatric report. GSA

applied to the Office of Personnel Manage- 2

ment (hereinafter OPM) for that determina-

tion. On May 18, 1982, Thompson notified

petitioner that he placed him on enforced

sick leave and involuntary leave. On May

27, 1982, Thompson also served advance

notice of intent to suspend petitioner

indefinitely, pending the decision by OPM

on the disability application. Although

the notice stated that it was to take effect

in no less than thirty days, petitioner was

already involuntarily out of the office,

having been placed on enforced leave ten

days earlier.

The advance notice of suspension claimed

that the “specific reasons" for it were

Your behavior has had an adverse

impact on productivity and morale.

Those employees affected the most

by your actions are your co-workers.

Their fears are based on your

bizarre behavior, specifically,

your constant display of a pre-

occupation with the martial arts,

including your display of martial

acts on vending machines in the

building. You have also been

Observed on numerous occasions

pointing a realistic replica of a

-45 caliber revolver at various

members of the staff and directing

comments such as, "this is even too

good for her," while slashing a

cardboard box with a pair of scissors.

Your constant staring, argumentative

nature, preoccupation with the

martial arts, revolutionary state-

ments and vracticing sight alignment

with your replica revolver perpetu-

ates fears in your fellow workers and

has affected the efficiency and

morale of your co-workers.

The final notice of suspension relied

upon the reasons set out in the advance

notice.

Petitioner appealed the suspension to the

Merit Systems Board (hereinafter, the Merit

Board or the Board) pursuant to 5 U.S.C. §

7701(a). He denied that any of his actions

Or statements posed a threat to anyone. He

also claimed that there were procedural

defects in the suspension in that the

advance notice was not properly specific and

that it denied him his right to continue

working until a final decision, that the

suspension was in reprisal for his whistle-

blowing, and that he was being punished for

activities protected by the First Amendment.

After three days of hearings, a presiding

official of the Merit Board held that GSA

had failed to prove, by a preponderance of

the evidence, that petitioner was a threat to

anyone and reversed the suspension. She

found that he was a whistleblower, but that

petitioner had failed to vrove that the sus-

pension was in reprisal for his activities.

She did not reach the procedural issues peti-

tioner raised.

At about the same time that the

presiding official rendered her initial

decision, OPM denied the application for

petitioner's involuntary disability retire-

ment on March 11, 1983. On June 20, 1983,

OPM denied GSA's request for reconsideration.

OPM considered essentially the same evidence

that was adduced at the Merit Board on the

suspension appeal, and concluded that

petitioner's ". . . psychiatric condition is

not, on its face, incompatible with continued

useful service and retention in the

regional training specialist position he

now holds with the Federal Protective

Service." GSA did not seek review of that

determination.

Both sides sought review of the pre-

siding official's initial decision by the

full Merit Board. The Board held that the

evidence adduced at the hearing showed that

petitioner did present a threat. It held

that he was not suspended and therefore that

it did not have jurisdiction over the appeal.

The Board relied heavily on the hearsay

psychiatric fitness-for-duty report. It

ignored the internal inconsistencies of the

revort and the fact that its conclusions were

not supported. It also ignored the fact that

even that report took no position on peti-

tioner's fitness, for duty. The Board also

ignored the lengthy live testimony of a

psychiatrist, Dr. Richard Lonsdorf, and the

report submitted by a psychologist, Dr.

Anthony Pisa. Both Dr. Lonsdorf and Dr.

Pisa asserted that petitioner had no mental

disability and that there was no reason to

consider him threatening.

The Board also held, overruling the

presiding official's findings, that the

evidence established " .. . several inci-

dents illustrative of appellant's inappropri-

ate, disruptive, and threatening behavior in

;

the workplace." First, it relied upon a

memorandum of a co-employee that stated that —

petitioner told her he would be a leader of

a revolution that would begin soon and that :

she and other supervisors in the office would |

be victims of bloodshed. The Board, relying |

on that hearsay memorandum, ignored the |

fact that the author of the memorandum tes-

tified at the hearing that petitioner's

reference to a revolutionary grouv was about

a "philosophical group" that did not exist,

that petitioner suggested no time frame for

the “revolution” and that he did not state

that he intended to harm anyone.

The Board also relied on a hearsay

memorandum submitted by a secretary in the

office, stating that petitioner had cut a

box with scissors and said "even this is too

se lati Cr 2

good for her. He was referring to a fellow

female employee." The secretary testified on

cross-examination that petitioner never said

who "her" was, that it could have been Marie

Antoinette or even a cat. The secretary, based

on nothing from petitioner, concluded that the

reference was to a fellow employee. Petition-

er denied that the incident occurred.

The Board also found that petitioner

telephoned the same secretary and told her

that he could come into the office, kill

everyone and return to work because he could

plead insanity. The alleged telephone call

took place after the advance notice of

suspension, and it was not referred to as a

ground for suspension in the final notice.

The principal evidence memorializing the

call was a memorandum written by Thompson,

not the secretary, which purported only

to paraphrase the substance of the call.

Petitioner denied making the call.

Finally, the Board relied upon a hear-

say memorandum submitted by another employee

in the office, John Ramos, stating that he

had seen petitioner executing martial arts

movements in the office. There is no

evidence that anyone was placed in fear

because petitioner showed an interest in

martial arts. The Board also found "Mr.

Ramos also reported that appellant period-

ically aimed a realistic replica of a pistol

that he kept in his desk at co-workers'

heads." Ramos' memorandur -ceferred to a

"toy/mock pistol." The memorandum stated

that Ramos observed that petitioner

"periodically 'plays' with it, i.e., holding,

fondling and pointing it in the direction

of others." No evidence, in the Ramos

memorandum or elsewhere, establishes that

petitioner "aimed" the toy "at co-workers'

heads," as the Merit Board found. There is

no evidence that anyone believed the toy

gun was real or felt threatened by it.

Petitioner explained his use of the toy

gun as necessary for him to understand the

skills required of Federal Protective Of-

ficers as to their use of firearms..

Petitioner sought timely review in the

—

United States Court of Appeals for the Federal

Circuit pursuant to 5 U.S.C. S 7703(b) (1).

On March 4, 1985, that court reversed the

Merit Board on the jurisdictional issue and

held that petitioner was suspended and that

the Board had jurisdiction over his appeal.

Nevertheless, it held that the facts showed

that petitioner presented a threat and that

the suspension was properly imposed. [In its

review, the Federal Circuit found that the

Board “summarized the testimony of and memor-

anda written by Thomas' co-workers -- all of

which were found to be credible by the

presiding official . .. ." The Board, how-

ever, had failed to acknowledge the admis-

sions made by the witnesses who wrote memor-

anda. (Ramos did not testify.) The

presiding official did not find them all

credible, and expressly made judgments

based upon her observation of the demeanor

of the witnesses. Without itself evaluating

the record, the court below held that sub-

stantial evidence supported the findings. :

The Federal Circuit denied petiticner's

timely Petition for Rehearing or Rehearing

En Banc on April 5, 1985. Neither the full

Board nor the Federal Circuit has ever ruled

on the affirmative defenses advanced by

petitioner.

REASONS FOR ALLOWANCE OF THE WRIT

1. THE ACTION OF THE COURT BELOW

FORECLOSES PETITIONER FROM ADMINISTRATIVE

AND JUDICIAL REVIEW OF STATUTORY AND

CONSTITUTIONAL DEFENSES TO HIS SUSPENSION

FROM EMPLOYMENT.

The Civil Service Reform Act of 1978

requires that, in an adverse action, the

agency must establish grounds for the

action by a preponderance of the evidence.

5 U.S.C. §$7701(c) (1) (B). Here, the

presiding official found that the agency,

GSA, had not met its burden as to its claims

against petitioner. When the Board reversed

on the basis of jurisdiction, it did not

evaluate that decision to determine whether

the preponderance of the evidence supported

GSA's claims. Indeed, it could not have

done that, because that inquiry would be

appropriate only once it agreed that it had

jurisdiction. Accordingly, the only ruling

as to whether the agency has met its burden

is that of the presiding official, holding

that it did not. As a result of the decisions

of the Board and the court below, petitioner

has effectively been deprived of his statu-

tory right to have charges against him

established by a preponderance of the

evidence.

Central to the reforms intended in the

Civil Service Reform Act of 1978 is protec-

tion for whistleblowers. Among other

wrotections, Conaress explicitly proviced

that, even if an agency makes out the

elements to justify an adverse action, the

action must not be sustained if the employee

can prove that the action was nevertheless

taken in reprisal for whistleblowing

activities. See U.S.C gg 7701(c) (2) (B);

2302 (b).

Petitioner also claimed that the

suspension was in reprisal for protected ,

speech and therefore barred by the First

Amendment. See Pickering v. Bd. of Educ.,

391 U.S. 563 (1968). And he asserted that _

procedural irregularities in the imvosi-

tion of the suspension invalidated the

suspension. The statute provides that an

adverse action may not be sustained, even :

if the agency proves its case, if there

was harmful procedural error. See 5 U.S.-

C. g 7701(c) (2) (A). Petitioner claimed

that the advance notice lacked the

specificity required by 5 U.S.C. g 7513 -

(b) (1). The lack of specificity (the

notice accused him of, inter alia, "staring

’

an argumentative nature, preoccupation with

the martial arts, revolutionary statements")

deprived him of the advance notice required

by both the statute and due process.

See Cleveland Bd. of Educ. v. Loudermill,

-U.S.-, 105 S.Ct. 1487 (1985). And he

claimed that he had been unlawfully placed on

enforced leave before the advance notice,

thus cCepriving him of his right under 5

U.S.C. § 7513(b) (1) to continue in his employ-

ment during the 30 days' notice period.

The presiding official acknowledged the

prohibited personnel practice and the First

Amendment defenses, albeit holding against

petitioner. Petitioner raised all those

defenses again in seeking review of the

presiding official's decision. The Merit

Board expressly did not reach contentions

other than as to its jurisdiction when it

vacated the presiding official's initial

decision. See Appendix at 25a, n. 3. In

briefs and argument to the court below,

petitioner made it clear that his defenses

had not yet been ruled upon by the Merit

Board and that remand to the Board would be

appropriate once the court held that the

Board had jurisdiction. Nevertheless, the

Federal Circuit affirmed the suspension on

the merits without even acknowledging that

petitioner had claimed affirmative defenses

which the full Merit Board had not reached.

Petitioner raised again the presence of

defenses in his petition for rehearing or

rehearing en banc. The Federal Circuit

summarily denied that petition.

Once the jurisdictional issue was

resolved, petitioner was entitled to

full Board and judicial review of his

defenses. He has been denied that oppor-

tunity and has thus been deprived of his

clear statutory right to have those

defenses determined. Moreover, the failure

to permit him to have an adjudication on

those defenses constitutes a denial of due

process of law. See Lindsey v. Normet, 405

0.8. 56 42972); Gritéin @. BiRinois, 351

U,S. 12 (1956).

Pee een

The issue thus presented is of major

importance in the administration of the

rights granted to federal employees by the

Civil Service Reform Act, the First Amend-

ment and the due process clause. If the

decision below were to stand, an erroneous

decision by the Board on its jurisdiction

could be reversed with the Federal Circuit

being permitted to affirm the action

against an employee without any considera-

tion of the defenses authorized by the

statute and the Constitution. In this case,

and in any similar case to follow, the

Federal Circuit has effectively repealed

the provisions of the Act granting

employees defenses. Petitioner may not

seek an adjudication of his claims that his

supervisors acted illegally in instituting

the adverse action against him other than

through the Merit Board appellate process.

See Bush v. Lucas, 462 U.S. 367 (1983). z¢

the decision below is permitted to stand,

that forum will remain closed to him leaving

him without remedy for his claim of violation

of well established rights.

2. REBUTTED HEARSAY STATEMENTS AND

HEARSAY STATEMENTS RECANTED BY THEIR AUTHORS

CANNOT CONSTITUTE SUBSTANTIAL EVIDENCE.

The statute sets out the substantial

evidence test as applicable on judicial

Se ee ee

review of Merit Board cases. See 5 U.S.C.

$ 7703‘c) (3). The court below purported to

rule on the basis of substantial evidence,

but it did not evaluate the evidence. Had

it done so, it would have found that the

Pee

Board relied selectively on unreliable hear-

say and ignored the admissions of the authors ©

on the hearsay statements. The statute

creating the Merit Board and the right to

appeal to it is silent as to whether tradi-

tional rules of evidence should apply. In

that event, the Board has no authority to

dispense with the requirement of the

right of confrontation and cross-examination as

to all evidence presented. See Greene v.

McElroy, 360 U.S. 474 (1959); Vitarelli v.

' Seaton, 359 U.S. 535 (1959). Petitioner had

a property right in his continued employ-

ment with GSA; that right could be de-

feated only in accordance with due process

procedural protections. See Arnett v.

Kennedy, 416 U.S. 134 (1974). Where loss

of income is involved, due process requires

the opportunity to confront and cross-

examine adverse witnesses. Goldberg v.

Kelly, 397 U.S. 254 (1970); Willner v.

Committee on Character and Fitness, 373 U. S.

96 (1963). In the instant case, the Merit

Board relied almost exclusively on hearsay

to find the "facts" against petitioner.

That reliance denied petitioner due

process.

Even if hearsay were properly admis-

sible before the Board, that would not

" . . . Justify orders without a basis

in evidence having a rational probative force.

Mere uncorroborated hearsay or rumor does not

constitute substantial evidence." Consoli-

dated Edison Co. v. Nat'l Labor Relations

Bd., 305 U.S. 197, 230 (1938). Substantial

evidence ". . . means such relevant evidence

as a reasonable mind might accept as

adequate to support a conclusion." Id. at

219. See also, Consolo v. Fed. Maritime

Comm'n, 383 U.S. 607 (1966).

In upholding the facts found to show

that petitioner constituted a threat, the

Federal Circuit ignored the established

definitions of substantial evidence. When

the author of a memorandum testifies and

recants important elements of the content

of the memorandum, the memorandum cannot

constitute substantial evidence. Indeed,

‘in such a situation, there is no evidence

to support the allegations, and the conclu-

sions of the Board and the Federal Circuit,

without an evidentiary basis, constitute

denials of due process of law. See

Thompson v. City of Louisville, 362 U.S. 199

(1960). Further, the Board found that

petitioner pointed the toy gun at co-work-

ers' heads, with nothing in the record to

support that conclusion. Indeed, whatever

petitioner did with the toy gun, no live or

hearsay evidence provides a basis for find-

ing that anyone was put in fezr as a result.

The factual findings implicate serious

issues as to petitioner. After OPM denied

the disability application, GSA noticed

petitioner's removal, proceeding on

essentially the same allegations as it did

in the suspension action. Petitioner

appealed to the Board. On August 30, 1984,

the presiding official reversed the removal,

holding again that GSA had not proven the

allegations by a preponderance of the

evidence. On April 29, 1985, the full Board

reversed, deciding that the doctrine of col-

lateral estoppel required that the facts

established in the suspension appeal would

apply in the removal. (Charles A. Thomas v.

General Services Administration, MSPB, No.

PHO7528310635.) That ruling is now on

appeal to the Federal Circuit (Ne. 85- ys

While it is not directly involved in the

instant petition, it makes clear that the

mis-reading of the record by the Board and

the court below in the suspension case may

result in even more loss to petitioner than

the 13-month suspension he suffered.

Because the facts have been applied to his

removal, he has been left unemployed and

falsely branded as a dangerous person.

3. THE BACKPAY ACT REQUIRES THAT

PETITIONER BE AFFORDED RELIEF.

Petitioner was suspended pending

a determination by OPM of GSA's applica-

tion for his involuntary psychiatric

disability. OPM denied that request on

March 11, 1983. OPM, based on much of the

same evidence adduced before the Merit Board,

found that petitioner was not disabled.

(The regulations permitting involuntary

disability retirement in the absence of a

simultaneous removal of the employee were

subsequently repealed by OPM, which noted

that federal agencies had abused the

earlier provisions utilized against veti-

tioner. See 49 Fed. Reg. 1321, 1327, 1328

(Jan. ll, 1984); 48 Fed. Reg. 30401-30402

(July 1, 1983).)

Petitioner claimed before the Federal

Circuit that, separate from the merits of

his appeal, he was, at a minimum, entitled

to backpay once OPM denied the disability

application. The Backpay Act provides that

an employee is entitled to backpay if an

“appropriate authority" finds that he has

been “affected by an unjustified or unwar-

ranted personnel action which has resulted

in the withdrawal or reduction of all or

part of the pay, allowances, or differentials

of the employee. . ." 5 U.S.C. g 5596(b) (1).

This Court has noted that the Act extends

". . . the right to backpay and lost benefits

to every employee affected by a personnel

action subsequently found to be unjustified

- -" Bush v. Lucas, 462 U.S. 367, 385

n.25 (1983).

In this case, petitioner was deprived

of his pay because GSA believed that he was

suffering from a psychiatric disability.

The effect of OPM's ruling is that GSA was

mistaken. In such situations, g 5596

requires that backpay be granted by an

"appropriate authority." The Federal

Circuit is an "appropriate authority." 5

C.F.R. g 550.803.

The Federal Circuit ignored petition-

er's backpay claim. It has thus placed

itself in conflict with those courts that

have granted backpay in similar situations.

See Brown v. Dep't of Justice, 715 F.2d 662

(D.C. Cir. 1983); Seebach v. United States,

182 Ct. Cl. 342 (1968); Kleinfelter v. United

States, 162 Ct. Cl. 88, 318 F.2d 929 (1963).

See also 39 Decis. Comp. Gen. 154 (1959).

As a result of the Federal Courts Improvement

Act, the Federal Circuit will now hear the

vast majority of appeals from the Merit

Board. See 5 U.S.C. g§ 7703(b) (1). Only

cases presenting claims of unlawful discrim-

ination in addition to Civil Service issues

are channelled to the District Courts. See

5 U.S.C. g 7703(b) (2). Given the Federal

Circuit's near-monopoly on review of the

Merit Board, intervention by this Court is

essential.

CONCLUSION

For the reasons stated, a Writ of

Certiorari should issue to the United

States Court of Appeals for the Federal

Circuit.

Respectfully submitted,

ELLIOT B. PLATT

Attorney for Petitioner

1700 Two Mellon Bank

Center

Philadelphia, PA 19102

(215) 563-5900

APPENDIX

Opinion of the Court Below

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

CHARLES A. THOMAS,

Petitioner,

Vv.

Appeal No. 84-1487

GENERAL SERVICES

ADMINISTRATION,

me eee ee ee ee ee

Respondent.

DECIDED: March 4, 1985

Before RICH, DAVIS, AND NIES, Circuit Judges.

DAVIS, Circuit Judge.

Charles A. Thomas seeks review of a firal

decision of the Merit Systems Protection Board

(MSPB or Board). MSPB , 84 FMSR Par.

5391 (1984), Case No. PHO75210608. The Board

concluded that it had no jurisdiction to hear

petitioner's appeal from a decision by the

General Service Administration (GSA) placing

petitioner on enforced leave status. We dis-

agree with the Board's conclusion regarding

its jurisdiction, but hold that the record

developed below, and the Board's own findings,

require that the agency's action be sustained.

We therefore reverse the decision of the Boar¢

on the matter of its jurisdiction and affirm

as to its findings of the facts and remand

with instructions to sustain the agency's sus-

pension action.=—

Background

Petitioner was a training specialist with

the Federal Protective Service (FPS), the

division of GSA responsible for law enforce-

ment on government property. In this capacity,

he was responsible for training other FPS

1/ This case solely concerns peti-

tioner's attack on his suspension. We do not

consider or pass upon petitioner's subsequent

removal from his position.

officers, training and evaluating contract

security guard services, and similar duties

involving FPS personnel.

Problems within his office arose because

petitioner repeatedly exhibited what has been

said to be bizarre behavior. Specifically,

the agency's charges allege, inter alia, that

petitioner would level a realistic-looking

toy pistol at fellow employees to practice

his aim; that petitioner would practice mar-

tial arts on soda machines and other objects;

and that petitioner on one occasion hacked at

a cardboard carton with a scissors while say-

ing “even this is too good for her" --

allegedly referring to a fellow employee.

According to GSA, petitioner also discussed

an incipient revolution (of which he would be

a part) with such conviction and in such

detail that his fellow employees became ner-

vous in petitioner's presence.

In January 1982 GSA ordered petitioner

to submit to a psychiatric fitness-for-duty

examination. After the examination, at which

the osychiatrist found him to be highly para-

noid, GSA placed him on involuntary sick

leave. Soon thereafter, on May 22, 1982, the

GSA proposed petitioner's suspension from the

federal service, citing both his behavior

around the office and its adverse impact on

the other employees as the cause. In a notice

to petitioner, GSA said that the proposed sus-

pension would run until GSA decided whether

to apply for disability retirement on peti-

tioner's behalf; if the GSA decided so to

apply, the notice continued, the suspension

would remain in effect pending a decision on

the application. On June 10, 1982, GSA sent

petitioner final notice that it had decided

to proceed with a disability retirement appli-

cation. Two weeks later, GSA notified him of

its decision to place him on indefinite sus-

pension pending a decision on that application.

Petitioner appealed that GSA decision to

the MSPB. In the initial decision, the

presiding official reversed the agency's

action. He found that none of the particular

charges of bizarre behavior supported the

action, as each was either in itself explain-

able in the circumstances or otherwise not

sufficiently disruptive as to affect the effi-

ciency of the service. 5 U.S.C. S$ 7513(a)

(1982). The presiding official also concludeé

that, even if one considered all of the alle-

gations together, the evidence did not sup-

port the conclusion that petitioner had a

disruptive impact on his office.

The full Board vacated the oresiding

official's opinion and ruled that it had no

jurisdiction to hear the appeal. Relying on

its decision in Mosely v. Department of the

Navy, 4 MSPB 220 (1980) aff'd, 229 Ct. Cl.

718 (1981) (per curiam), the Board held that,

in order to be an appealable action, the

placement of an employee in non-pay status

must: (1) be involuntary; (2) occur at a

time when the emvloyee is ready, willing and

able to work; and (3) stem from a "discipli-

nary-type situation." The Board canvassed the

record and determined that, viewing peti-

tioner's behavior in the aggregate, he "was a

disruptive, threatening force in his workplace

and his behavior was frightening to his co-

workers." Because petitioner was not "able

to work" as the Board defined it, the MSPB

considered that GSA's action did not fit into

the category of an “appealable suspension,"

and the Board dismissed the appeal to the MSPB

for lack of jurisdiction.=—

Il.

Board Jurisdiction

Under the Civil Service Reform Act of

1978 (the Act), a federal employee has the

right to “submit an appeal to the [MSPB]) from

2/ The agency's application for dis-

ability retirement was denied by OPM and he

was subsequently removed by his agency. His

challenge to that removal is not at all in-

cluded in the current appeal. See note l,

supra.

any action which is appealable to the Board

under any law, rule or regulation." 5 U.S.C.

Sec. 770l(a) (1982). The Act sets forth cer-

tain adverse actions from which employees may

appeal, including, inter alia, removal, sus-

pension for more than fourteen days, and

reduction in pay. Id. at ~ 7513(a), (da)

(detailing procedures to govern certain

actions and providing for appeal to the MSPB

therefrom). The Act also sets forth the

nature of these adverse actions. It defines

"suspensicn” as "the placing of an employee,

for disciplinary reasons, in a temporary

status without duties or pay." Id., g§§

7501(2), 7511l(a) (2), 7512(2). We must deter-

mine whether GSA's decision to place peti-

tioner on enforced leave constituted an

appealable "suspension"; if it did, the Board

had jurisdiction over the appeal.

The legislative history of the Act adds

little to the statutory definition of "suspen-

sion." Congress stated only that it intended

Ledeen aida etas cian daienciaiiiiaiimaiiill

to enact "the definition of the term previ-

ously adopted by the Civil Service Commission

in its policy issuances." S. Rep. No. 969,

95th Cong. 2d Sess. 47 (1978), reprinted in

1978 U.S. Code Cong. & Ad. News 2723, 2769.

The Board in Martin v. Department of the

Treasury, 10 MSPB 568 (1982), discussed the

prior administrative definition; the Civil

Service Commission had defined a suspension

as "an action placing an employee in a tem-

porary non-duty and non-pay status for dis-

ciplinary reasons or for other reasons pending

inguiry." Id. at 571 (emphasis in original),

quoting the former Federal Personnel Manual

Supp. 752-1, S1-6(a). The Board emphasized

the disciplinary aspect of a suspension in

Tyndall v. Department of the Navy, 5 MSPB

247, 247 (1981) ("A suspension, as described

in 5 U.S.C. s 7501(2) [and incorporated

into $ 7511(2)], is the placing of an

employee, for disciplinary reasons, in a tem-

porary status without duty and pay."

. 9a

(Emphasis in original)).

We hold that GSA's action in this case

falls within the jurisdiction of the MSPB,

whether that action be deemed taken for purely

disciplinary motives (in the sense of punish-

ment) or whether it was taken because it was

necessary in order to place petitioner apart

from his fellow workers during the period

until the disability application could be

acted upon by OPM. If the agency suspended

petitioner simply because of his objective

conduct -- without regard to the possible

source of that conduct in some psychiatric

condition -- the suspension plainly had a

disciplinary base. The full Board in its

Opinion said that Thomas had engaged in "“inap-

propriate, disruptive, and threatening behavior

in the workplace"; it further concluded that

he was a "disruptive, threatening force in the

workplace and his behavior was frightening to

his co-workers." The suspension was because

of this conduct -- and, significantly, not

10a

because of his own work record. This sort of

suspension can fall within the normal meaning

of “discipline,” i.e., punishment intended as

a sanction for improper conduct. See 30 Comp.

Gen. 342, 343-44 (1951) ("The term ‘suspension

from the service’ as used in [the correspond-

ing statute prior to the Act] primarily is

concerned with charges arising out of an

employee's conduct").

On the other hand, if, as the Board

thought and appears probable, the suspension

occurred because of Thomas' psychiatric prob-

lems as disclosed by the psychiatrist's

fitness-for-duty report, this appeal to the

MSPB was still proper because the suspension

was to await the OPM decision as to the dis-

ability application. An OPM regulation

5 C.F.R. g 831.1206 provides:

An agency shall retain an employee

in an active duty status until it

receives the initial decision .

On an agency application for dis-

ability retirement, except that the

agency on the basis of medical evi-

dence, may place an employee on

lla

leave with his/her consent, or

without his/her consent when the

circumstances are such that his/

her retention in an active duty

status may result in damage to

Government property, Or may be

detrimental to the interests of

the Government, or injurious to

the employee, his/her fellow wor-

kers, or the general public.

(Emphasis added.)

If, as may very weil be the case, GSA suspended

petitioner (until the decision on the applica-

tion for disability retirement), this was

because the quoted regulation authorized GSA

to take that course if the circumstances were

such that his retention in duty status might

be detrimental to the Government's interests

and injurious to Thomas’ fellow employees.

The question then is (on this understand-

ing of GSA's action) whether such a "non-dis-

ciplinary" suspension (in the narrow sense of

"disciplinary") is appealable to the MSPB

under the Reform Act. As we have pointed out

supra, an employee can appeal "from any action

which is appealable to the Board under any

law, rule, or regulation". (Emphasis added.)

12a

As for the "law" here, the prime problem is

that the Civil Service Reform Act seems on its

face to define an appealable suspension as

having a "disciplinary" component. However,

the legislative history indicates that Con-

gress wished to continue the practice of the

former Civil Service Commission, and that

Commission had specifically defined 2 “suspen-

sion" as including the placing of an employee

in a temporary non-duty and non-pay status

"for disciplinary reasons or for other reasons

pending inguiry" (emphasis added). The latter

standard squarely covers the type of involun-

tary suspension envisaged for disability

retirement cases by the emphasized portion of

5 C.F.R. § 831.1206 supra. We conclude

that Congress did not intend, in the Reform

Act, to preclude appeals of involuntary sus-

pensions of that character. Such suspensions

-- which are ordered because the agency

believes that the employee's retention on

active duty could result in damage to federal

13a

property, or be detrimental to governmental

interests, or be injurious to the employee,

his fellow workers, or the public -- are

"disciplinary" in the broader sense of main-

taining the orderly working of the Government

against possible disruption by the suspended

employee (pending the determination of that

employee's disability retirement). 3/

In addition, the regulation embodied in

5 C.F.R. g§ 831.1206 can be interpreted --

in combination with the statutory right to

appeal a suspension longer than 14 days -- as

3/ One accepted meaning of the noun

"discipline" reflects this concept of maintain-

ing order. See Webster's Third New Interna-

tional Dictionary (1968): "behavior in accor-

dance with the rules (as of an organization)";

"systematic, willing and purposeful attention

to the performance of assigned tasks"; “orderly

conduct." See also Ballentine's Law Dictionary

(3rd ed. 1969): “The maintenance of good order

in a voluntary association or club

l4a

implicitly authorizing an appeal to the Board

from an agency suspension (of this type) that

the employee considers wholly unwarranted. 4/

It is hard to believe that this regulation

intended to permit a prolonged suspension

(i.e., Of more than 14 days) to be left wholly

to the agency's own judgement even though a

comparable suspension of purely "disciplinary"

character (in the strict sense) would clearly

be appealable. The actual impact on the

employee would be the same, and there would

be no adequate reason for distinguishing

4/ We have noted supra that the Reform

Act authorizes appeals from decisions made

appealable under a "rule or regulation.'

15a

between the two (on the question of appeala-

bility) .2/

We hold, for these reasons, that the

Board did have jurisdiction -- contrary to

its holding -- over Thomas' appeal to it from

his suspension.

III.

The Merits

Nevertheless, we need not remand to the

Board to determine again whether the suspen-

sion was proper. In deciding (on an erroneous

5/ Neither Mosely v. Department of the

Navy, 229 Ct. Cl. 718 (1981) nor Johnson v.

Orr, 747 F.2d 1353 (10th Cir. 1984), nor any

of the prior decisions of this court, involved

a suspension of the character of the current

suspension or a suspension covered by 5 C.F.R.

$ 831.1206. In the present type of situa-

tion there is no need -- for an appealable

suspension to be present -- of the requirement

stated in those decisions that (a) the employee

be ready, willing and able to work, and that

(b) the suspension grow out of a "disciplinary-

type situation” (in the strict sense).

16a

legal ground) that it did not have jurisdic-

tion, the Board thoroughly appraised the

record and found facts which have a direct

bearing on the propriety of GSA's action under

the correct theory of jurisdiction. There is

no need for a further determination. On the

record, the Board would make no other fact

findings if we remanded for direct considera-

tion of the merits.

For one thing, the Board considered and

accepted the psychiatric fitness-for-duty

report of the examining psychiatrist (chosen

by petitioner himself) who concluded that

Thomas' paranoid personality disorder would

tend to lead him to retaliate against fellow

workers "in the event of real or fancied mis-

treatment." The Board also found that "[t]he

record is replete with ample, corroborated

evidence warranting the agency action in plac-

ing [petitioner] in enforced leave without pay

[sic] status in order to remove him from the

workplace,” and that GSA had "presented

17a

evidence of several incidents illustrative of

[petitioner's] inappropriate, disruptive, and

threatening behavior in the workplace." In

that connection the MSPB summarized the testi-

mony of and memoranda written by Thomas'

co-workers -~- all of which were found to be

credible by the presiding official -- in which

they described vetitioner's actions and

expressed anxiety regarding petitioner's abil-

ity to control his behavior.

The Board acted well within its compe-

tence in evaluating the impact of the credible

evidence on the propriety of petitioner's

remaining on active duty with FPS. We cannot

disturb these findings and conclusions because

they are supported by substantial evidence on

the record as a whole. 5 U.S.C. $ 7703(c)

(1982).

We therefore reverse the holding of the

Board that it lacked jurisdiction over peti-

tioner's appeal. We affirm the Board's

18a

fact-findings and remand with instructions to

Sustain the agency's suspension action.

REVERSED AND REMANDED WITH DIRECTIONS.

19a

Order Denying Rehearing

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

CHARLES A. THOMAS,

Petitioner,

GENERAL SERVICES

ADMINISTRATION,

)

Vv. ) No. 84-1487

)

Respondent.

ORDER

A petition’ for rehearing and a suggestion

for rehearing in banc having been filed in his

case, |

UPON CONSIDERATION THEREOF, it is Ordered

by the court that the petition for rehearing

be, and the same is hereby, Denied.

The suggestion for rehearing in banc is

20a

declined.

FOR THE COURT

/s/ George E. Hutchinson

George E. Hutchinson,

Clerk

April 5, 1985

Date

cc: Elliot B. Platt

Sharon Y. Eubanks

2la

Opinion and Order of

Merit Systems Protection Board

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHARLES A. THOMAS

)

3 DOCKET NUMBERS

; ) PHO7528210608

GENERAL SERVICES ) PH07528310635

)

ADMINISTRATION

OPINION AND ORDER

On May 14, 1982, the General Services

Administration, Federal Protective Service

(agency), placed appellant in enforced sick

and annual leave status from his position as

Training Specialist, pending the agency's

decision whether to file an application for

disability retirement on appellant's behalf.

On May 27, 1982, the agency gave appellant

notice that it proposed to indefinitely sus-

pend him,+/ no earlier than 30 days from his

1/ The agency erroneously denoted its

placing of avpellant in an enforced leave with-

Out pay status as a suspension. For purposes

of clarity, we will continue to refer to the

action as a suspension in this Opinion and Order.

22a

receint of the notice, by placing him in an

enforced leave without pay (LWOP) status upon

the expiration of his enforced annual leave.

Agency File, Tab 30. This suspension was to

be effective until the agency decided to apply |

for disability retirement on appellant's be- ,

half, and, if it did so, until a decision was |

issued on the application by she Office of

Personnel Management (OPM) .2/ Based on the

results of a psychiatric fitness-for-duty

examination and appellant's alleged acts of

misconduct, the agency initiated an application

2/ On January 29, 1982, the agency had

convened a disciplinary panel in order to

determine whether certain alleged acts of

misconduct by appellant warranted disciplinary

action. The members of the panel instead

concluded that there was reason to believe

that appellant's misconduct was a result of

emotional or mental illness and recommended

that appellant undergo a psychiatric fitness-

for-Ccuty-examination. Agency File, Tabs 10-

16.

23a

for disability retirement for appellant on

June 10, 1982. Agency File, Tab 35.

The specific reasons for the agency's

action placing appellant in enforced leave

without pay status were:

Your behavior has had an adverse

impact on productivity and morale.

Those employees affected the most by

your actions are your co-workers. Their

fears are based on your bizarre behavior,

svecifically, your constant display of a

preoccupation with the martial arts,

including your display of martial acts

on vending machines in the building.

You have also been observed on numerous

occasions pointing a realistic replica of

a .45 caliber revolver at various members

of the staff and directing comments such

as, “this is even too good for her,"

while slashing a cardboard box with a

vair of scissors. Your constant staring,

argumentative nature, preoccupation

with the martial arts, revolutionary

statements and practicing sight alignment

with your replica revolver perpetuates

fears in your fellow workers and has

affected the efficiency and morale of

your co-workers.

Agency File, Tab 30.

Appellant filed a petition for appeal

from the agency's action with the Board's

Philadelphia Regional Office, and a hearing

was held. In an initial decision issued on

April 15, 1983, the presiding official found

24a

that the agency did not have reasonable cause

to believe that appellant's continued presence

in the workplace constituted a hazard to his

co-workers or adversely affected their

efficiency, and, as a result, the agency had

failed to prove by a preponderance of the

evidence that appellant's suspension was for

the efficiency of the service. She therefore

reversed the agency's action. Both parties

have filed timely petitions for review, and

appellant also has filed a resvonse to the

agency's petition.

In his petition for review, appellant

contends, inter alia, that the presiding

official erred in failing to find that the

agency had susvended appellant in retaliation

for his activities as a whistleblower. In its

petition, the agency argues, inter alia, that

the Board lacks subject-matter jurisdiction

because its suspension action was not

disciplinary in nature but was instead an

indefinite suspension pending OPM's decision

25a

on appellant's disability retirement. 3/

During the pendency of the suspension

action, on March 18, 1983, OPM denied the

agency-filed retirement application. The

agency requested OPM to reconsider its denial;

then, on April 12, 1983, vorior to the issuance

of the Board's initial decision on the

suspension action, the agency provosed to

remove appellant based on charges that

appellant's acts and statements conveyed

threats of bodily injury to his co-workers.

OPM denied the agency's request for recon-

sideration on June 30, 1983. The agency's

removal action was taken on July 13, 1983.

Appellant filed a petition for appeal

from his removal to the Board's Philadelphia

Regional Office, arguing that the charges and

evidence in the removal action were identical

3/ Because of our disposition of this appeal,

we need not and will not address the remain-

ing arguments of the parties.

26a

to those previously brought in the suspension

action. Apvellant argued that the doctrine of |

collateral estoppel svecifically precluded the ©

agency from bringing and relitigating the

same charges in the removal action. The

agency did not dispute that the charges and

the evidence in support of its action were the |

same in both actions but asserted that because —

it had filed a petition for review of the

initial decision of April 15, 1983, reversing

the suspension action, that initial decision

was not a final judgment, which precludes the

application of collateral estovpel.

In an order issued October 25, 1983, the

presiding official granted appellant's motion

prohibiting the agency from introducing any

evidence concerning the charges brought

against appellant. The presiding official

concluded thet despite the fact that the prior

initial decision was not final, as both

appellant and the agency had filed petitions

for review, the doctrine of collateral

27a

estoppel barred the agency from relitigating

the charges. Citing the interests of justice

and judicial economy, the presiding official

then issued a second order on October 25, 1983,

certifying an interlocutory appeal on her own

motion to the Board. This interlocutory

appeal presents three questions:

(1) Does collateral estoppel apply

between initial decisions of

different presiding officials?

(2) Is this case an avpropriate one

for the application of collateral

estoppel?

(3) What effect does the filing of a

petition for review have upon

the use of a decision for collateral

estoppel purposes?

We hereby GRANT the appellant's and the

agency's petitions for review of the initial

Gecision in Charles Thomas v. General Services

Administration, MSPB Docket No. PH0752821068

(April 15, 1983), pursuant to 5 U.S.C. g 7701

review of these petitions with our review of

the Order and Interlocutory Appeal in the case

28a

of Charles Thomas v. General Services Admin-

istration, MSPB Docket No. PHN7528310635

(October 25, 1983), pursuant to 5 C.F.R. §

1201.36(a) (2).

Suspension Action

The presiding official characterized the

agency's action of placing appellant in an

enforced leave status pending OPM's decision

on the agency-filed disability retirement

application as a suspension as defined at 5

U.S.C. § 7501(2). We disagree. The agency's

action was authorized by 5 C.F.R. § 831.1206,

which provides that:

An agency shall retain an employee in

an active duty status until it receives

the initial decision of the Associate

Director for Compensation on an agency

application for disability retirement,

except that the agency on the basis

of medical evidence, may place an

employee on leave with his/her consent,

Or without his/her consent when the

circumstances are such that his/her

retention in an active duty status

may result in damage to Government

property, or may be detrimental to the

interests of the Government, or

injurious to the employee, his/her

fellow workers, or the general public.

If the leave account of the employee

is or becomes exhausted, any suspension

29a

Or involuntary leave without pay shall

be effected in accordance with

applicable laws, Executive orders, and

regulations.

At the time the agency placed appellant

in an enforced leave status pending a decision

on his disability retirement, it had before

it a medical report by Dr. Zigmond Lebensohn,

who evaluated appellant for a psychiatric

fitness-for-duty examination. Dr. Lebensohn

diagnosed avpvellant as suffering from a para-

noid personality disorder. He stated that

appellant was "hypervigilant” and would take

"precautions against any perceived threat" and

that he was “defensive and would tend to

retaliate in the event of real or fancied mis-

treatment." See Agency File, Tab 27. In

addition, the agency had several reports from

appellant's co-workers of his unusual and

allegedly threatening acts and statements.

See Agency File, Tab 25. Thus, the agency

action placing appellant in an involuntary

leave status was properly taken under the

30a

exception at 5 C.F.R. § 831.1206 in reliance

on the psychiatric fitness-for-duty evalua-

tion.

In Mosely v. Department of the Navy, 4

MSPB 220 (1980), the Board set out three

questions that must be answered affirmatively

for enforced leave to constitute an appealable

suspension:

(1) Was the appellant placed on

leave involuntarily?

(2) Was the appellant, in fact, ready,

willing, and able to work during

the period in auestion?

(3) Was the enforced leave used in a

personal, disciplinary-type

situation?

Appellant bears the burden of establish-

ing every element of the Board's jurisdiction

over his alleged suspension. 5 C.F.R. § 1201.

56(a) (2). The first question, whether apnpel-

lant was placed on leave without his consent,

must be answered affirmatively. The second

question, whether appellant was ready, willing,

and able to work, requires evaluation of the

3la

medical evidence and other documentation of

appellant's unusual and threatening behavior.

As employed in Mosely, supra, the term

"able" must be interpreted to mean what the

word is generally understood to mean, that an

individual is fit or competent to verform all

of the duties of his position. Johnson v.

Department of the Air Force, MSPB Docket No.

DA07528090040 (November 5, 1982). Not only

must an employee be willing and able to per-

form his assigned duties, but also his conduct

or his physical or mental condition must not

create a situation incompatible with the

orderly operation of the workplace. Under the

circumstances of this case, we find that,

although appellant may have been ready and

willing, his ability to perform was, in fact,

hindered by his mental condition.

In his psychiatric fitness-for-duty

report, Dr. Zigmond Lebensohn diagnosed

appellant as suffering from a paranoid person-

ality disorder. Dr. Lebensohn stated that

32a |

appellant had "a pervasive attitute of sus- .

piciousness and a tendency to accuse all those |

who did not agree with him ... of attempting

to block his.efforts to expose corruvtion and

to indulge in ‘retaliatory’ action.'" Agency

File, Tab 27 at 9-10. He also concluded that

appellant suffered from "gross defects” in

insight and judgment, was "hypervigilant,"

"takes precautions against any perceived

threat," and "tends to avoid blame even when

it is warranted and tends, rather, to blame

others." Appellant also "would tend to

generate uneasiness or fear in his contacts

with those he views as potential adversaries."

Furthermore, Dr. Lebensohn stated that "al-

though he [appellant] talks about retaliation

on the part oi GSA, it is really he who is

defensive and would tend to retaliate in the

event of real or fancied mistreatment." Id.

St iss

The agency also presented evidence of

several incidents illustrative of appellant's

33a

inappropriate, disruptive, and threatening

behavior in the workplace. For example, Sara

McColgan, Chief, Programs and Support Services

Branch, prepared a memorandum detailing a

counseling session she arranged with appellant

to discuss how appellant needed to achieve a

mode of behavior acceptable and appropriate to

a professional workplace. She stated that, at

this meeting, appellant told her that a revo-

lution, of which he would be a leader, would

soon begin, and that victims of bloodshed

would include her and four other supervisors

(John Thompson, John McDonald, John Ramos, and

Jo Hogan), apparently because they were

"guilty of crimes against the people." Agency

File, Tab 25. At the hearing, Ms. McColgan

testified that she became afraid that appel-

ieee would “lose control and carry out some

acts he would later be sorry for." Hearing

Transcript (H.T.) at 92. Ms. McColgan also

reported in the memorandum that appellant

stated that it was his duty to right the

34a

wrongs of the ruling class and that he was

like a hangman who could eat a large breakfast

after a hanging.

Nancy Zawadsky, a secretary, described

her witnessing of appellant stabbing and

slashing a box with scissors while saying

"even this is too good for her." Agency File,

Tab 25. Ms. Zawadsky testified that she

believed appellant was referring to Jo Hogan,

an administrative officer. She also testified

that appellant telephoned her and told her

that he could come into the office and kill

everyone and be back at work within a year

because he would plead insanity. H.T. at 159-

161; Agency File, Tab 32.

John Ramos, a supervisor, prepared a

memorandum detailing his observations of

appellant's unusual behavior. He stated that

he had seen appellant at various times

executing martial arts movements in the office

involving punching, twisting, and turning.

Mr. Ramos also reported that appellant period-

35a

ically aimed a realistic replica of a pistol

that he kept in his desk at co-workers' heads.

Agency File, Tab 25.

The appellant testified at the hearing

that he believes that one of his obligations

is “to protect that weak from their-oppres-

sors" and that, in a just society, his super-

visors and co-workers would be brought to

justice and punished. H.T. at 744-47. Appel-

lant denied that he told Ms. McColgan anything

about victims of bloodshed during a revolution,

that he slashed the box and threatened a

female employee, or that he telephoned Ms.

Zawadsky and made death threats. H.T. at 743-

45, 756-58. Appellant acknowledged that he

performed martial arts movements in the work-

place, H.T. at 721, and that he kept a replica

of a gun in his desk with which he practiced

grip and sight alignments, H.T. at 733.

We conclude that the cumulative effect

of the evidence, especially the psychiatric

fitness-for-duty report, establishes that

36a

appellant was not ready, willing, and able

to perform the duties of his position because

of his mental condition during the period in

question. The record is replete with ample,

corroborated evidence warranting the agency

action placing appellant in enforced leave

without pay status in order to remove him from

the workplace. Appellant was a disruptive,

threatening force in the workplace and his

behavior was frightening to his co-workers.

Accordingly, we find that appellant was unable

to perform his duties in the structure of the

workplace without constituting a threat to the

well-being of his co-workers. The presiding

official's contrary findings were erroneous

and are reversed. Consequently, the agency's

action was not an appealable suspension within

the Board's jurisdiction. See Mosely, supra.

Accordingly, the initial decision in

Thomas v. General Services Administration,

MSPB Docket No. PHO7528210608 (April 15, 1983)

is VACATED and the appeal is DISMISSED for

37a

lack of jurisdiction.

This is a final order of the Merit Systems

Protection Board in this appeal. 5 C.F.R. §

1201.113(b).

Order and Interlocutory Apveal

Because of our disposition of the first

ection between the parties, the order of the

presiding official prohibiting the agency from

presenting evidence in the removal action,

based on her avvlication of the doctrine of

collateral estoppel, is erroneous. We hereby

VACATE the order of the presiding official,

and REMAND the removal action for full adjudi-

cation of all charges and appellant's affirma-

tive defenses. Furthermore, the questions

presented by the interlocutory appeal as to

the application of collateral estoppel between

initial decisions have become moot. According-

ly, we hereby VACATE the interlocutory appeal.

Appellant is hereby notified of the right

under 5 U.S.C. g 7703 to seek judiciai review

of the Board's action dismissing Thomas v.

38a

General Services Administration, MSPB Docket

No. PHO7528210608 (April 15, 1983), by filing

a petition for review in the United States

Court of Appeals for the Federal Circuit, 717

Madison Place, N.W., Washington, D.C. 20439.

The petition for judicial review must be

received by the court no later than thirty

(30) days after the appellant's receipt of

this order.

FOR THE BOARD:

May 17, 1984 /s/ Robert E. Taylor

(Date) Robert E. Taylor

Secretary

Washington, D.C.

39a

Initial Decision of Merit Systems

Protection Board

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PHILADELPHIA REGIONAL OFFICE

CHARLES A. THOMAS

Vv.

GENERAL SERVICES ADMINISTRATION

Initial Decision Number: PH07528210608

Date: 15 APR 1983

INTRODUCTION

This is an appeal from an indefinite suspen-

sion. On June 28, 1982, Charles A. Thomas

filed an appeal from the action taken by the

General Services Administration (GSA) suspend-

ing him for an indefinite period from his

position as a Training Specialist for the

Federal Protective Service in Philadelphia,

Pennsylvania. Tab l. The indefinite

suspension became effective on June 29, 1982.

Tab 4.

At the appellant's request, a hearing of this

' 40a

matter was held. The hearing took place on

December 8, 9 and 10, 1982, in Philadelphia,

Pennsylvania. The parties were allowed to

present evidence, argument, testimony of

witnesses and summation. The record of the

case remained open at the conclusion of the

hearing in order to allow the parties an

Opportunity to submit memoranda of law. Both

parties submitted memoranda of law.

JURISDICTION

Merit Systems Protection Board (Board) regu-

lations require appeal petitions to be filed

"anytime during the period beginning with

the day after the effective date of the action

being appealed..." 5 C.F.R. Section 1201.22.

Here, the effective date of the action appealed

was June 29, 1982. The first day for filing

an appeal was June 30, 1982, yet the appellant

filed his appeal on June 28. Even though two

days premature, I have decided that for the

sake of administrativ2 efficiency, to accept

the appeal as timely filed.

4la

I find that since the appellant was indefinite-

ly suspended pursuant to 5 C.F.R. Section 831.

1206 and 5 U.S.C. Section 75, that the

agency's action must comply with applicable

laws, Executive orders and regulations. Those

applicaple laws, Executive orders and regula-

tions include the provisions of: 5 U.S.C.

Section 7501 (which provides definitions of

the terms employee and suspension); 1/ 5 U.S.

C. Section 7511 (which also defines the term

1/ Under 5 U.S.C. Section 7501(2), a suspen-

sion is defined as a means of placing an

employee for disciplinary reasons, in a temp-

Orary status without duties and pay. The

appellant here was suspended pending a deter-

mination by OPM on an agency-initiated disa-

bility retirement application. Appeal File,

Tab 4, Agency File Tab 37.

The Board recognizes that suspensions for

other than disciplinary reasons were meant to

be included in the statutory meaning of "sus-

pension," so suspensions of more than 14 days

for disciplinary reasons or for other reasons

pending inquiry, are appealable to the Board.

Martin v. Department of the Treasury, MSPB

Docket No. AT075209044 at 6 (June 1, 1982).

42a

employee); and 5 U.S.C. Section 7513 (which

describes cause and procedure).

Since the Board has appellate jurisdiction

over suspensions of employees for more than 14

days, I find that the Shaes has appellate

jurisdiction over this case. 5 U.S.C. Section

1205 and 5 C.F.R. Section 1201.3.

ANALYSIS AND FINDINGS

On May 27, 1982, the agency issued its advance

notice of proposed indefinite suspension which

informed the appellant of the reasons the

suspension was being proposed. Agency File,

Tab 30. Those reasons were stated as follows:

The tentative notice was dated May

14, 1982, and was based on medical

findings developed by Dr. Zigmund

Lebensohn as a result of a Fitness-For -

Duty examination and the evidence of

record. Upon receipt of that tentative

notice, you were placed on enforced

sick leave, at the expiration of which

you would be placed on enforced annual

43a

leave. You were advised you would

remain in this enforced leave status

until a decision on the tentative

notice was made.

Your behavior has had an adverse

impact on productivity and morale.

Those employees affected the most by

your actions are your co-workers.

Their fears aré based on your bizarre

behavior, specifically, your constant

display of a preoccupation with the

martial arts, including your display

of martial acts on vending machines

in the building. You have also been

observed on numerous occasions

pointing a realistic replica of a .45

caliber revolver at various members

of the staff and directing comments

such as, "this is even too good for

her," while slashing a cardboard box

with a pair of scisscrs. Your constant

staring, argumentative nature, preoccupa-

44a

tion with the martial arts, revolutionary

statements and practicing sight alignment

with your replica revolver perpetrates

fears in your fellow workers and has

affected the efficiency and morale of

your co-workers.

Appeal File, Tab 4, Agency File, Tab 30.

The appellant was given 15 days from the

date he received the notice, to respond

personally or in writing. On June 9, 1982,

the appellant responded in writing. Appeal

File, Tab 4, Agency File, Tab 33. Neverthe-

less, on June 24, 1982, the agency decided to

indefinitely suspend the appellant effective

June 29, 1982.

In order to have its action sustained, the

agency bears the burden of proving its case

by a preponderance of the evidence. 5 U.S.C.

Section 77961(c)(1)(B). <A preponderance of

the evidence is that degree of relevant

evidence which a reasonable mind, consider-

ing the record as a whole, might accept as

45a

sufficient to support a conclusion that the

matter asserted is more likely to be true

than not true. 5 C.F.R. g 1201.56(c) (2).

In addition to proving its case by a

preponderance of the evidence, the agency

must also prove that its action was taken

for the efficiency of the service. 5 U.S.-

C. g 7513(a); Phillips v. Bergland, 586 F.2d

1007, 1010-11 ( 4th Cir. 1978); Young v.

Hampton, 568 F. 2d 1253, 1257 (7th Cir.

1977); Martin v. Department of the Treas-

ury, MSPB Docket No. AT075209044 at 10

(June 1, 1982) (employee indefinitely sus-

pended because agency believed he had con-

mitted imprisonable offense).

Once established that the action was taken

for the efficiency of the service, the

agency must then show that the penalty

chosen was reasonable in light of the circun-

stances. Douglas v. Veterans Administration,

5 MSPB 313, (April 10, 1981). 2/

2/ The reasonableness of the penalty need

not be proven by a preponderance of the

evidence.

46a

On June 10, 1982, the agency issued a decision

to file a disability application with OPM on

the appellant's behalf. Agency File, Tab 34.

The notice of decision stated the agency's

opinion that the appellant could not effec-

tively function in his position or any other

position in the agency due to mental or

emotional illness or disease. That same

notice informed the appellant that he would

be carried on enforced leave, and when his

leave expired, the agency intended to suspend

him. Agency File, Tab 34.

When the appellant's leave balance expired,

was suspended for an indefinite period pemd-

ing OPM's decision on the agency-filed disa-

bility application. It is from the suspemsion

that this appeal stems.

The Board has determined that "the most essen-

tial criterion of an action, if it is to meet

the definition of ‘suspension’ set forth ait

5 U.S.C. Section 7501(2), is that it be

temporary." Martin at 6. The Board went on

47a

to say: "“(W)hile the exact duration of an

indefinite suspension may not be ascertainable,

such an action must have a condition subse-

quent such as the completion of a trial or

investigation which will terminate the suspen-

sion." Martin at 6-7. In the instant case,

the tnéefinite suspension was imposed with a

condition subsequent (OPM's decision). Agency

File, Tab 37. Thsrefore, it meets the temp-

Orariness criteria of a suspension.

I will now examine each of the reasons the

agency set forth for the indefinite suspen-

sion. First, the proposing official, John C.

Thompson, testified that he proposed the

suspension: "Because of all the documents

that were before me, the atmosphere in the

office, the safety of the employees, and the

efficiency of the service..." H.T. 341. One

of the documents before him was a report from

Dr. Zigmond Lebensohn.

The agency required the appellant to undergo

a fitness-for-duty examination. Agency File,

48a

Tab 16. The decision to order the appellant

examined was the result of a discivlinary panel}

which convened to determine whether certain

alleged acts of misconduct warranted discip-

linary action. However, instead of proposing

disciplinary action, the panel determined that

there was reason to believe that the appel-

lant's alleged misconduct was a result of

emotional or mental illness. Agency File,

Tabs 10-16. The appellant underwent a fit-

ness-for-duty examination by Dr. Zigmond

M. Lebensohn. Dr. Lebensohn's psychiatric

evaluation of the appellant was filed on May

3, 1982. Agency File, Tab 27. Dr. Lebensohn

diagnosed "paranoid personality disorder,"

but made no conclusion regarding the appel-

lant's fitness for duty. Agency File, Tab 27.

Mr. Thompson testified that he read and relied

upon Dr. Lebensohn's report before he decided

to propose the indefinite suspension. H.T.

348. Mr. Thompson also testified that he

noticed no internal inconsistencies in the

ack

49a

report, nor any inconsistencies between the

report and his personal observations of the

appellant. H.T. 348-355.

The other documents that Mr. Thomoson stated

that he examined were memoranda from Sara

McColgan dated April 7, 1982; a memorandum from

John Ramos dated April 7, 1982, and a memoran-

dum from Nancy Zawadsky dated May 21, 1982.

Agency File, Tab 25. There were also two

documents in the group (reviewed prior to

Thompson's proposal) from the appellant.

Those two documents were a copy of an

editorial the appellant had written for the

Federal Times newspaper, and a copy of a

diagram drawn by the appellant titled: 0O.B.:

Operation CANNAE. Agency File, Tab 25.

When questioned about his consideraticn of

the documents, Mr. Thompson stated that he had

discussed the contents of Ms. McColgan's

memoranda before she submitted it, but that ~-

he had not told her what to write. H.T. 337.

He also stated that Ms. McColgan had been very

50a

anxious, upset and emotionally wrung out by

the comments. H.T. 340.

Mr. Thomoson then testified that Mr. Ramos had

not discussed the contents of his memorandum

before submitting it. H.T. 338. Mr. Thompson

diu discuss the contents of Ms. Zawadsky's

memorandum with her before she submitted it.

H.T. 340 and 356. Mr. Thompson said that

during his discussion of the contents of Ms.

Zawadsky's memorandum, she appeared to be

pale and very frightened. H.T. 340.

On cross-examination, Mr. Thompson recalled

that in February 1982 he had requested the

branch chiefs to document any unusual

behavior by the appellant. H.T. 362.

The memoranda submitted by the three above

named employees reported several different

instances of allegedly unusual behavior.

Ms. McColgan prepared 2 memoranda dated

April 7. One was a letter of counseling in

which she admonished the appellant for refer-

rimg to John Thompson as a clown and a

5la

criminal. The other memorandum documented the

appellant's behavior when she presented him

with the letter of counseling. Agency File,

Tab 25. Ms. McColgan wrote that the appel-

lant's behavior caused her to be concerned

for her safety, and the safety of other

management officials and the appellant's co-

workers.. Agency File, Tab 25. When she

appeared at the hearing, Ms. McColgan testi-

fied that when she heard the comments the

appellant made when she gave him his letter

of counseling, she became afraid that he

would “lose control and carry out some acts

he would later be sorry for." H.T. 92. On

cross-examination, Ms. McColgan testified

that the conversation which included the

derogatory remarks about Mr. Thompson, had

begun as advice against the appellant's taking

on the role of an EEO counselor, but the

conversation strayed to other things. H.T.

117-119. Ms. McColgan testified that the

conversation did not escalate into an argument.

52a

H.T. 118. However, appellant later testified

that he and Ms. McColgan had on that day argued

over Ms. McColgan's performance regarding EEO,

and that she had become defensive and hostile.

H.T. 737, 742, 752.

The second conversation which Ms. McColgan

documented, if true, is more damaging to the

appellant's case. Ms. McColgan wrote that

the appellant told her he was a revolutionary

leacer, H.T. 125, that he was forming the

group, H.T. 125, though the group did not

really exist. H.T. 126. Ms. McColgan also tes-

tified that the appellant said he was going to

kill people. H.T. 126. Then Ms. McColgan

said that the appellant told her people would

be killed through the revolution though he did

not say he was personally going to murder. H.

T. 126. When asked whether the appellant told

her he was going to harm anyone, Ms. McColgan

replied, "He did not say he would personally

carry out that.” H.T. 126. Ms. McColgan

also admitted that even after the conversa-

tions that allegedly distressed her,

em 0 tac TRC OT Ns. ICN NRE

53a

she continued to have light moments of joking

and talking with the appellant in the office.

H.T. 128. In Broadnax v. U.S. Postal Service,

MSPB Docket No. SF0752990950 (February 9,

1982) the Board discussed what constitutes a

threat. In Broadnax, the Board cited Watts v.

United States, 394 U.S. 705, 708 (1969), for

the proposition that "in order to determine

whether utterances cennbiviee a threat, con-

sideration must be given to the context in

which they occurred, the conditional nature

of the statement, and the reaction of the

listener." Broadnax at 17. In our case,

Ms. McColgan testified that the appellant

said he was a leader of a revolution and

that people would be killed, but the appel-

lant never said * ~*~’ he personally would carry

out the acts, nor did he specify when the

revolution was going to occur. H.T. 149.

Ms. McColgan said that she concluded that

the threat might be real because the avpel-

lant spoke about the revolution as if it was

54a

already planned. H.T. 150

The appellant testified that he may have

spoken to Ms. McColgan about revolution,

but never told her that it would begin soon.

H.T. 743. The appellant's version of the

incident is that he told Ms. McColgan "if

this were a just society she should have been

punished or admonished in some way." H.T. 744.

The other allegedly threatening statements

Ms. McColgan recounted in her memorandum

were that the appellant spoke "obsessively

and at length about Hitler and gas chambers,"

specifically with regard to Josephine Hogan.

Agency File, Tab 25. The appellant allegedly

told Ms. McColgan that it was his duty to

right the wrongs of the ruling class. He

likened himself to a hangman who was able to

eat large breakfasts afterwards and also

stated management needed to be heaipprean for

crimes against the people. Agency File, Tab

25.

The appellant denied mentioning Hitler or gas

55a

chambers. H.T. 747. He testified that Ms.

McColgan s version of what he said was a

little garbled, and that he told her that one

of his obligations was to protect the weak

from their oporessors. H.T. 747. The appel-

lant admitted to talking about hangmen but in

the context of pointing out "that some people

do things to other people that are so bad that

they don't generate much sympathy." H.T. 749.

The appellant also stated that Ms. McColgan

was vigorously defending Ms. Hogan when he

made the hangman analogy. H.T. 749.

Finally, Ms. McColgan testified that on one

occasion the appellant confided that he once

had an overwhelming urge to rape an unidenti-

fied woman in an elevator. H.T. 84. Ms.

McColgan said that the appellant made the

comment while he was talking about articles

he had read on rape. H.T. 84. Ms. McColgan

testified that the appellant was "talking

about how he understood how rape is an act

of pure agression and not really a sexual

56a

attack on a woman per se." H.T. 84. Ms.

McCoigan testified that when she heard the

statement she became apprehensive, but that

her apprehension extinguished "to some degree"

as time passed. H.T. 86-87. I find that the

appellant's remarks about rape did not

constitute a threat.

After examining the demeanor of both Ms.

McColgan and the appellant, and comparing

their versions to the statements made by the

appellant which allegedly caused Ms. McColgan

to fear for her life, I find that the state-

ments made by the appellant did not consti-

tute a threat. See Weaver v. Devartment of

the Navy, 2 MSPB 297 (1980). The appellant's

statements to Ms. McColgan abourc the revolu-

tion contained no indication that the appel-

lant intended to carry out any acts. Further-

more, it appears that Ms. McColgan failed to

take into account the context or the circum-

stances around which the statements were made

when she wrote her memorandum. She and the

57a

appellant vigorously disagreed over manage-

ment's actions regarding EEO and other person-

nel matters. The fact that the appellant's

views may have distressed Ms. McColcan, does

not mean that what he said constituted a

threat. Watts at 708. I find that the agency

has failed to prove that Ms. McColgan had

reason to fear the avpellant.

Now I will examine the memorandum submitted

by John Ramos on Avril 7, 1982. Agency File,

Tab 25. Mr. Ramos reported to Mr. Thompson

that he — Observed the appellant for over

a year and had observed "a number of strange

and unusual things." Tab 25. Specifically,

Mr. Ramos' memorandum stated that the appel-

lant has a toy pistol which he keeps at his

desk and periodically plays with it, holding,

fondling and pointing it in the direction of

others. Another example cited by Mr. Ramos

was the appellant's executing martial arts

routines in the office or hall when he thinks

he is alone. Finally, Mr. Ramos opined that

58a

the appellant was preoccupied with violence,

terrorism, and war. Mr. Ramos' memorandum

said" "His conversations all seem to be

centered around, or contain comments on

these topics." Mr. Ramos did not testify at

the appellant's hearing, so I must determine

how much weight to give his memorandum which

is uncorroborated hearsay. Borninkhof v.

Department of Justice, 5 MSPB 150 (1981)

Mr. Thompson testified, regarding Mr. Ramos'

memorandum. Mr. Thompson said that he was

not sure he discussed Mr. Ramos' memorandum

with Mr. Ramos after he received it. H.T.

362. Mr. Thompson also testified that he

assumed that the "strange and unusual things"

Mr. Ramos referred to were the same type of

things (Mr. Thompson) had observed." H.T.

363. However, Mr. Thompson's further tes-

timony showed that he was not exactly sure

what things Mr. Ramos was referring to. H.T.

363-372. .Mr. Thompson testified that he did

not know what Mr. Ramos meant when he alleged

59a

that the appellant fondled the mock pistol.

H.T. 363. Similarly, Mr. Thompson was not

exactly sure what Mr. Ramos meant when Mr.

Ramos reported that the appellant had a pvre-

occupation with violence, terrorism, and war.

H.T. 364. Mr. Thompson admitted that in his

experience with the appellant, that all of

the appellant's conversations had not centered

on those topics, contrary to what Mr. Ramos

alleged. H.T. 371.

Next, Ms. McColgan testified that she had

noticed the mock pistol, but could not recall

whether the mock pistol had made her nervous.

H.T. 135-136. She also testified in essence

that in the office where she and the appellant

worked, other people had real: guns on, and

after examination she knew that appellant's

gun was not real. H.T. 136.

Mr. Federico Cabanes, a firearms instructor,

testified that he would not keep a replica

like the appellant's on his desk. H.T. 555.

Mr. Cabanes also testified that the replica

60a

was realistic. H.T. 555. The avpellant

testified that he may have told Ms. McColgan

that he kept the replica to make people

nervous, as a joke. H.T. 736. However, the

appellant testified that he kept the replica

in his desk, but occasionally took it out to

practice grip, and sight alignment. H.T.

753. When questioned why a person who, as

a part of his duties, is not required to

handle a firearm would need to practice

those skills, the appellant testified that

he had to understand the skills in order to

"keep abreast of the latest in police

science and tactical situations...and to vass

it on through me to my field training

officers, my firearms instructors, and thence

to the men in the field." H.T. 735. The

Board has found that an agency need not prove

that a pistol is real in order to establish an

apparent threat of physical harm and an

attendant apprehension. Sierra v. Department

of the Army, 5 MSPB 514, 515 (1981) (employee

6la

claimed incident in which pointed fake gun at

Others was a joke). However, when there is no

evidence of attendant avorehension, there is

no threat. Id. at 515.

I find that the agency has failed to prove

that anyone was threatened by the appellant's

use Of a mock pistol at work. Finally, with

regard to Mr. Ramos' comments on the appel-

lant's practicing martial arts routines when

he thought he was alone, the appellant

admitted that he occasionally practiced a

form in order to kill dead time such as when

waiting for an elevator or when he is "on

hold" on the teiephone. H.T. 723.

Mr. Cabanes testified that he too, on

occasion, practices kicks and punches in

order to relax at work. H.T. 549-50. Mr.

Cabanes said that he does not practice in

public, but instead does his exercises in the

men's room. H.T. 550. No evidence was

presented to show that anyone felt avoprehen-

sive about the appellant's practicing martial

arts forms at work.

No evidence was proffered that the appellant

is preoccupied with terrorism and war. In

fact, Mr. Thompson testified that he did not

know what Mr. Ramos was referring to and his

Own experience with the appellant did not

reflect a preoccupation with those topics.

Ms. Zawadsky's memorandum will now be

examined. Ms. Zawadsky wrote a memorandum

dated May 21, 19£2 in which she reported that

in May 1982 she had observed the appellant

stabbing a box with a pair of scissors saying

"even this is too good for her." She also

wrote “he was referring to a fellow female

employee." When Ms. Zawadsky testified at

the appellant's hearing she admitted that

she did not know who the appellant was refer-

ring to when he made the alleged statement,

and she was not positive that he was refer-

ring to a human being, but she had concluded

that the appellant was referring to Ms.

Josephine Hogan as he allegedly stabbed the

63a

box. H.T. 167. The appellant denied ever

slashing a box with scissors, though he

occasionally cuts tape to open boxes. H.T.

755-756. The appellant admitted repeating a

comment he allegedly heard from another

employee regarding that employee's desire for

the "Hatchet Woman to fall on her own knife."

H.T. 756. The appellant opines that Ms.

Zawadsky may have heard him repeat the comment.

H.T. 757. After pony perpen the conflicting

testimony, I find that even if the appellant

slashed a box and said “even this is too good

for her," that does not reflect an intention

to commit any act of violence. See Williams

v. Veterans Administration and Merit Systems

Protection Board, No. 82-1372, slip op. at

4 (8th Cir. March 16, 1983). It therefore

falls short of a threat, and does not consti-

tute behavior which would form the basis for

a reasonable belief that the apvellant intend-

ed to harm any one.

Later, Ms. Zawadsky reported another incident

64a

to Mr. Thompson. Mr. Thompson wrote a memor-

andum dated June &, 1982 documenting what Ms.

Zawadsky reported. Agency File, Tab 32. Mr.

Thompson's memorandum states that the appel-

lant telephoned Ms. Zawadsky and told her

that he could come into the office and kill

everyone and be back at work within a year

because he would plead insanity. Agency File,

Tab 32. At the hearing Ms. Zawadsky testified]

that the caller had never identified himself,

but she recognized the voice as that of the

appellant. H.T. 160. The appellant denies

making both the call and the statement. H.T.

758. I find that even if he did make the

statement, that it was not indicative of an

intent to commit an act, so it should not

have been considered a threat. Williams at

4. Therefore, I find that the two inci-

dents reported by Ms. Zawadsky did not form

the basis for a reasonable belief that the

appellant intended to harm any one. Similar-

ly, the diagram the appellant drew titled

65a

"Operation Cannae" does not evidence an intent

to commit a violent act. It does not form

the basis for a reasonable belief that the

appellant was planning an actual battle. The

appellant testified that the diagram was a

plan of how the appellant could "stop the

worst abuses in GSA and Federal Civil Service

under the Reagan Administration." H.T. 776.

He further testified that he wanted to "stop

them" by using litigation hearings, civil

trials and legislation. H.T. 776. Again, I

find that the agency did not have reasonable

cause to believe that the appellant intended

to commit an act of violence. Williams at 4.

Even though none of the above discussed

documents, standing alone, provide grounds

for a reasonable belief that the appellant's

presence in the workplace jeopardized the

safety of his co-workers, I must consider the

cumulative effect of the evidence. Altemose

Construction Company v. NLRB, 514 F.2d 8, 16

(3d Cir. 1975). The agency asserts that the

66a

appellant causes fear in his co-workers, yet

one of the co-workers who allegedly fears for

her life testified that she had maintained a

good relationship with the appellant even

after he committed the sts which caused her

to fear him. Specifically, Ms. McColgan testif

fied that she continued to talk and joke with

the appellant even after she reported that the

appellant was a potential threat to other

government employees. H.T. 127-128. However,

Ms. Josephine Hogan testified that she was

frightened by the appellant's hostility toward

her. H.T. 219. ‘She testified that "she

really became concerned for her own safety"

after Ms. Zawadsky told her about the alleged

box slashing incident. H.T. 219. Ms. Hogan

stated that she may have discussed the matter

with Ms. McColgan, but believes that Ms.

Zawadsky discussed it with Ms. McColgan. H.

T. 220. Ms. Hogan testified that she found

it difficult to work with the appellant in

the office constantly staring and always

67a

making remarks. H.T. 221. Ms. Hogan said she

"was getting to the point where I was almost

thinking about just asking for a leave of

absence, I was afraid." H.T. 221. Yet, Ms.

Hogan also said "Maybe I was just too sensi-

tive to it." H.T. 221.

The evidence shows that Ms. Hogan and the

appellant had, at one time, had a friendly

relationship. The appellant bought Ms.

Hogan a toy dog which she named "Little

Charlie" after the appellant, and they

occasionally lunched together. H.T. 224-227.

At work, they engaged in the office horseplay.

H.T. 227. They also argued about their

different political views. H.T. 214. Ms.

Hogan testified that they discussed her role

regarding adverse personnel éctions and

RIF's in the office, and that the appellant

held her responsible and called her "hatchet

woman". H.T. 217-218,267. Ms. Hogan testi-

fied that after the discussion with Ms.

Zawadsky, she was under added stress and

68a

found it difficult to function. H.T. 282.

Ms. Hogan testified that she was able to carry

out her daily duties. H.T. 282.

I find that the evidence presented did not

prove that Ms. Hogan's complaints of fear for

her safety were reasonable. What was proven

instead was that information Ms. Hogan

received from Ms. Zawadsky caused Ms. Hogan

to believe that the appellant had made threat-

ening remarks. Yet, when the information from

Ms. Zawadsky is closely examined, it shows

that she gave Ms. Hogan an inaccurate account

of the facts impregnated with her own mislead-

ing conclusions. The appellant should not be

penalized because office gossip got out of

hand.

In summary, based upon the testimony and the

documentary evidence of record, I find that

the agency did not have reasonable cause to

believe that the apvellant's continued

presence in the work place presented a hazard

to employee safety, or adversely impacted

69a

the efficiency of those employees. Therefore,

the agency has failed to prove by a preponder-

ance of the evidence that the avpellant's

indefinite suspension was for the efficiency

of the service. See Martin at 7.

I will now examine the appellant's allega-

tions of reprisal for whistleblowing. The

appellant's claim of reprisal constitutes an

allegation of prohibited personnel practice.

See 5 U.S.C. Section 2302(b) (9); Valerino v.

Department of Human Services, 7 MSPB 347

(1981). Under 5 U.S.C. Section 7701 (c) (2)

and 5 C.F.R. Section 1201.56(b) (2), the

Board is required to overturn the action of

an agency even where the agency has met the

evidentiary standard, in any case where the

appellant demonstrates that the decision was

based on iid prohibited personnel practice

described in 5 U.S.C. Section 2302(b). To

establish that the agency has violated 5 U.S.

C. Section 2302(b) (8), the appellant must

demonstrate that he was engaged in a protec-

70a

ted activity, that he was treated in an

adverse fashion by the employer, and that

there is a causal connection between the

protected activity and the adverse action.

Buercklin v. Department of the Air Force,

1 MSPB 375 (1980); In the Matter of Robert

J. Frazier, Jr., 1 MSPB 159, 186 (1979).

In order to show that he was engaged in a

protected activity, the appellant must prove

that he disclosed information which he

reasonably believed evidences mismanage-

ment, a gross waste of funds, an abuse of

authority or a substantial and specific

danger to public health and safety. 5 U.S.

C. Section 2302(b)(8). He must go on to

prove by a preponderance of the evidence

that the disclosure was a substantial or

motivating factor in the agency's action of

suspending him. Monczewski v. Department

of the Air Force, MSPB Docket No.

DA07528110443 (July 1, 1982). After the

appellant has shown that he was engaged in

<<<

7la

protected conduct and that protected conduct

was a motivating factor in the agency's action,

the burden then shifts to the agency to prove

by a preponderance of the evidence that it

would have taken the same action even if the

protected conduct had not taken place.

Gerlach v. Federal Trade Commission MSPB

Docket No. DC07528010020 (December 15, 1981).

The first element for analysis is whether

the appellant has proven by a preponderance

of the evidence that he was engaged in a

protected activity. In order for the appel-

lant to prove a prima facie case of reprisal

for whistleblowing he would have to show that

he engaged in the protected activity of dis-

closing information which he reasonably

believed evidenced mismanagement, abuse of

authority, gross waste of funds or a substan-

tial and specific danger to public healtn or

safety. 5 U.S.C. Section 2302(b) (8). In

Pickering v. Board of Education, 391 U.S. 563,

568 (1968) the court explained that conduct of

72a

government employees is protected when after

balancing the interests of the employee and

employer, it is concluded that the employee's

interests in speech outweighs the government's

interest as an employer in efficient manage-

ment. Pickering at 568.

After examining the serious allegations made

by the appellant on January 18, 1982, and afte

considering the sincerity of his testimony

on this issue, I find that the appellant's

January 18, 1982 request for an investigation

constituted activity protected by his First

Amendment rights.

I will next examine whether his protected ~

conduct constituted whistleblowing. State-

ments of mere disagreement with management

policies and oractices may be protected

conduct, but such conduct is not necessarily

whistleblowing. Whistleblowing requires the

disclosure of information which the employee

reasonably believes evidences wrongdoing.

Prescott v. Department of Health and Human

73a

Services 6 MSPB 216, 220 (1981). Here, the

appellant disclosed that he believed manage-

ment "blocked" what the appellant asserts

was necessary training for Federal Protective

Officers; took reprisal actions against the

appellant; and abused the personnel system by

using adverse actions to reduce personnel

ceiling. Agency file, Tab 6.

It is undisputed that the appellant often

publicly criticized GSA. His criticisms of

the National Archives were known throughout

the Federal Protective Service in Phila-

delphia. 3/ H.T. 141, 584, 603-606. How-

ever, the appellant's most recent criticism

was of management of the Federal Protective

Service. Specifically, the appeilant testi-

fied that sometime prior to January 18, 1982,

3/ National Archives and Federal Protec-

tive Service are both subagencies of GSA.

74a

he wrote to the Administrator of GSA and

reported "misuse of adverse action by Thompson

and Hogan." H.T. 717. The Inspector General

of GSA responded by inviting the appellant

to inform him immediately regarding manage-

ment irregularities in GSA Region III. H.T.

717. On January 18, 1982, the appellant sub-

mitted a request for investigation to the

Inspector General and was interviewed shortly

thereafter by the Office of the Inspector

General, GSA Region III. Agency File, Tab

Gt Gade Fats

Mr. Thompson testified that he saw the report

the appellant sent to the Inspector General,

but could not recall when he first saw it.

H.T. 588, 601. Mr. Thompson testified that

he received a call from the Office of the

Inspector General, Region III, about the

appellant's January 18, 1982 allegations.

H.T. 595, 598.

Mr. Thompson testified that he was not upset

by the call. H.T. 599. He said: “I felt

ieee

75a

that what was being alleged was totally

fallacious, so I didn't regard it. I regard-

ed it in that vein." H.T. 598. "I considered

the source." H.T. 599. "Since I had nothing

to hide, I wasn't worried about it." H.T.

599.

The appellant also wrote an editorial for the

Federal Times which Mr. Thompson reviewed

before he proposed the avpellant's suspen-

sion. When questioned about the editorial,

Mr. Thompson testified that he considered it

an example of the appellant's attitude, which

was “the attempt to be identified as a

whistleblower." H.T. 601-602. Mr. Thompson

also said that the appellant's editorial

reflected dissatisfaction with the system,

with the administration, with the agency,

and with Congresswoman Patricia Schroeder.

H.T. 602. Mr. Thompson indicated his dis-

agreement with the appellant's contentions.

H.T. 602.

Mr. Thompson verified that the appellant may

76a

have also mentioned that he had made allega-

tions against Mr. Thompson to the FBI and to

Congress. H.T. 600. Mr. Thompson denied

being worried about the allegations. H.T. 600.

After examining the information in the appel-

lant's request for investigation and upon

considering the appellant's and Mr.

Thompson's testimony, I find that the matters

about which the appellant complained were

serious enough if true, to outweigh the

agency's determination that the appellant

was simply "attempting to be identified as

a whistleblower." While the appellant

clearly disagreed with management's decisions,

he went beyond disagreement, and disclosed

specific incidents which he reasonably

believed evidenced wrongdoing.

I find that the evidence shows that the

appellant engaged in whistleblowing when

he made allegations of management abuse to

the Office of the Inspector General in

January 1982. The next question is whether

a ee

77a

the appellant established a causal connec-

tion. Whether a causal connection exists

between the protected activity and appellant's

Suspension requires consideration of various

factors. Valerino at 348. Those factors

include: (1) the employee's reaction to the

protected activity, (2) the closeness in time

of the suspension to the protected activity,

(3) the extent of the charges and dis-

closures forming the basis of the protected

activity, (4) the seriousness of the charges,

and (5) the time during which the matters

raised by the charges and disclosures were

left unresolved. Valerino at 348.

The record shows that the appellant filed a

request for investigation with the Office of

the Inspector General on January 18, 1982.

In his request he alleged that John MacDonald,

Chief, Programs and Support Services Branch,

had taken a whole series of reprisal actions

against the appellant. Agency File, Tab 6.

Two weeks earlier, on January 6, 1982, the .

;

78a

appellant was given an official warning notice

for failure to follow proper procedures in

requesting leave and absence without leave.

Agency File, Tab 7. The warning was signed

by John MacDonald, Chief, Programs and Support

Services Branch. Also on January 6, 1982,

the Field Inspections Office of the Office

of the Inspector General issued a report of

investigation into allegations of the appel-

lant's misconduct. Agency File, Tab 8. The

report stated that the appellant had "obtain-

ed the social security number (SSN) of a GSA

employee and furnished that information to

another GSA employee for the vurpose of gain-

ing versonal information about the employee.

He denied giving the SSN to anyone, but

admitted making statements of a defamatory

nature about a GSA employee." Agency File,

Tab 8. The person whose social security

number was in issue is John MacDonald.

Agency File, Tab 8.

79a

On January 20, 1982 Mr. MacDonald issued the

appellant a record of infraction for repro-

ducing and/or distributing training bulletins

without first submitting them for review and

approval. Agency File, Tab 9. The appel-

lant responded to both the warning notice and

the record of infraction (regarding the

bulletins) by charging that they were

retaliatory. Agency File, Tabs 7 and 9.

On January 22, 1982, Mr. MacDonald issued

the appellant notice of proposed suspension

for deliberate refusal to comply with

authorized instructions issued by a super-

visor. Agency File, Tab 13.

The facts of this incident are that Mr.

MacDonald requested the appellant to prepare

a training nomination. The appellant refused

to prepare the nomination because the appel-

lant believed to do so would have been

improper. Agency File, Tab 13. Before the

suspension became effective, a disciplinary

panel was convened to determine whether there

80a

is "1) enough material for a removal action

based on sufficient acts of misconduct and

2) does management have an obligatior to

send Charles Thomas for a Fitness-for-Duty

examination?" Agency File, Tab 10. The

panel determined that it had enough material

on which to base a removal, but recognizing

its duty to initiate dis bility retirement

for the appellant, would proceed with a Fit-

ness-for-Duty examination. Agency File,

Tab 10. The appellant was indefinitely

suspended by Mr. Valerie who apparently

based his decision solely on the recommenda-

tion he received from John Thompson. H.T.

402. |

After examining the cross fire between the

appellant and GSA, it is apparent that there

was mutual friction. The agencv receives an

IG report on alleged misconduct by the

appellant, then the appellant requested that

the IG investigate the agency's alleqed mis-

conduct. Then, in quick succession, the

8la

appellant is disciplined for three separate

infractions. The vroposing official, one of

the persons named in the appellant's corres-

pondence recommended indefinite suspension

and the deciding official concurred in the

recommendation. The sequence of events is

suspenct but, there is no evidence of record

other than the appellant's allegations, to

show that the agency manufactured the dis-

Ciplinary actions to cover a retaliatory

intent. I find that the aopellant failed to

establish by a preponderance of the evidence

that retaliation was the motive for the

indefinite suspension.

In summary, I find that the agency has

failed to vrove that the indefinite suspen-

sion of the anvpellant promotes the efficiency

of the service. I also find that the appel-

lant failed to establish revrisal for whistle-

blowing as the motive for his indefinite

suspension.

82a

DECISION

The agency's decision to indefinitely suspend

the appellant pending decision on the agency-

filed disability application is reversed.

The agency is ordered to return the apvel-

lant to his position.

NOTICE

This is an initial decision. It will

become a final decision of the Merit Systems

Protection Board on 20 May 1983 wakene a

petition for review is filed with the.

Board or the Board reopens the case on its

own motion.

Any varty to this appeal, the Director of

the Office of Personnel Management, or the

Special Counsel may file a petition for

review of this decision with the Merit Sys-

tems Protection Board. The petition for

review must set forth specific objections

to the initial decision, supported by

references to applicable laws or regulation,

and with specific reference to the record.

83a

The petition for review must be filed with the

Secretary to the Merit Systems Protection

Board, Washington, D.C. 20419, no later than

the date set forth above.

After providing an opportunity for response

by other parties, the Board may grant a

petition for review when it is established

that:

(1) New and material evidence is

available that, despite due dili-

gence, was not available when the

record was closed; or

(2) The decision of the Presiding

Official is based on an erroneous

interpretation of statute or regula-

tion.

The appellant has the right to petiticn the

Equal Employment Opportunity Commission to

consider the Board's final decision on the

issue of discrimination, either when this

initial decision becomes final on the-date

set forth above or after final Board action

84a

when appellant has petitioned the Board for

review or the Board has reopened the case

on its own motion. The appellant may file

a civil action in court without either

petitioning the EEOC or the Board or after

either body has rendered a final administra-

tive decision. Either a petition or a civil

action may be filed, but not both, no later

than 30 days after the Board's decision has

become final. Apvellants who choose to file

an action in a district court also have the

right to request the court to appoint a

lawyer to represent them, and to request that

prepayment of fees, costs, or security be

waived.

Except for actions filed under the anti-

discrimination laws, the appellant has the

right to seek judicial review of the Board's

final decision on this appeal voursuant to

5 U.S.C. Section 7703(b) (1). A petition

requesting such review must be filed with the

United States Court of Appeals for the Federal

85a

Circuit no later than thirty (30) days after

receipt of the Board's final decision or

order.

REPORT OF COMPLIANCE

The appropriate administrative officer of

the agency is requested to furnish documenta-

tion of the required corrective action within

five (5) days after the date the initial

decision becomes final, assuming the appeal

is not opened on petition by either party or

an intervenor. Such documentation should

be sent to the Regional Director, Phila-

delohia Regional Office, Merit Systems

Protection Board, Room 501, U.S. Customhouse,

2nd and Chestnut Streets, Philadelphia,

Pennsylvania 19106, unless a petition for

review of this initial decision is granted.

For the Board:

/s/ Eve Montgomery

Eve Montgomery

Presiding Official

86a

CONSTITUTIONAL AND STATUTORY PROVISIONS

Constitution

U.S. Const. amend. V:

No person shall be .. . deprived of

life, liberty, or property, without due

process of law; ..

Statutes

5 U.S.C. g 2302(b):

Any employee who has authority to

take, direct others to take, recommend,

Or approve any personnel action, shall

not, with respect to such authority -

(8) take or fail to take a personnel

action with respect to any employee

Or applicant for employment as a

reprisal for -

(A) a disclosure of information

by an employee or apvlicant which

the employee or applicant reasonably

believes evidences -

(i) a violation of any law,

rule, or regulation, or

(ii) mismanagement, a gross

waste of funds, an abuse of

authority, or a substantial

and specific danger to public

health or safety,

if such disclosure is not specifi-

cally prohibited by law and if

such information is not specifi-

cally required by Executive order

to be kept secret in the interest

of national defense or the conduct

of foreign affairs; or

87a

(B) a disclosure to the Special

Counsel of the Merit Systems Protec-

tion Board, or to the Inspector

General of an agency or another

employee designated by the head of

the agency to receive such dis-

closures, of information which the

employee or applicant reasonably

believes evidences -

(i) a violation of any law, rule,

Or regulation, or

(ii) mismanagement, a gross waste

of funds, an abuse of authority,

or a substantial and specific

danger to public health or safety;

(9) take or fail to take any personnel

action against any employee or applicant

for employment as a reprisal for the

exercise of any appeal right granted by

any law, rule, or regulation;

(10) discriminate for or against any

employee or appiicant for employment on

the basis of conduct which does not

adversely affect the performance of the

employee or applicant or the verformance

of others; except that nothing in this

paragraph shall prohibit an agency from

taking into account in determining suit-

ability or fitness any conviction of the

employee or applicant for any crime

under the laws of any State, of the

District of Columbia, or of the United

States; or

(ll) take or fail to take any other

personnel action if the taking of or

failure to take such action violates

any law, rule, or regulation implement-

ing, or directly concerning, the merit

system principles contained in section

2301 of this title. :

88a

5 U.S.C. g 5596 (b) (1):

An employee of an agency who, on the

basis of a timely appeal or an adminis-

trative determination (including a

decision relating to an unfair labor

practice or a grievance) is found by

appropriate authority under applicable

law, rule, regulation, or collective

bargaining agreement, to have been

affected by an unjustified or unwar-

ranted personnel action which has

resulted in the withdrawal or reduc-

tion of all or part of the pay,

allowances, or differentials of the

employee -

(A) is entitled, on correction

of the personnel action, to

receive for the period for which

the versonnel action was in

effect -

(i) an amount equal to all

Or any part of the pay,

allowances, or differentials,

as applicable which the

employee normally would have

earned or received during the

period if the personnel action

had not occurred, less any

amounts earned by the employee

through other employment during

that period; . . « »

5 U.S.C. § 7513(b):

An employee against whom an action

is proposed is entitled to -

(1) at least 30 days' advance

written notice, unless there is

reasonable cause to believe the

employee has committed a crime

for which a sentence of imprison-

89a

ment may be imposed, stating the

specific reasons for the proposed

action;

(2) a reasonable time, but not

less than 7 days, to answer orally

and in writing and to furnish

affidavits and other documentary

evidence in support of the answer;

(3) be represented by an attorney

or other representative; and

(4) a written decision and the

specific reasons therefor at the

earliest practicable date.

5 U.S.C. g 7701

(a) An employee, or avoplicant for

employment, may submit an appeal to

the Merit Systems Protection Board

from any action which is appealable

to the Board under any law, rule, or

regulation. An appellant shall have

the right -

(1) to a hearing for which a

transcript will be kept; and

(2) to be represented by an attorney

Or other representative.

Appeals shall be processed in accor-

dance with regulations prescribed by

the Board.

subsection, the decision of the

agency shall be sustained under sub-

section (b) only if the agency's

decision -

(A) in the case of an action based

On unacceptable performance described

in section 4303 of this title, is

supported by substantial evidence, or

90a

(B) in any other case, is supported

by a preponderance of the evidence.

(2) Notwithstanding paragraph (1), the

agency's decision may not be sustained

under subsection (b) of this section if

the employee or applicant for employ-

ment -

(A) shows harmful error in the

application of the agency's procedures

in arriving at such decision;

(B) shows that the decision was based

on any prohibited personnel vractice

described in section 2302(b) of this

title; or

in accordance with law.

5 U.S.C. § 7703

(a) (1) Any employee or avovlicant for emmloy-

ment adversely affected or aggrieved

by a final order or decision of the

Merit Systems Protection Board may

obtain judicial review of the order

or decision.

(2) The Board shall be the named

respondent in any proceeding brought

pursuant to this subsection, uniess

the employee or applicant for em-

ployment seeks review of a final order

or decision issued by the Board under

section 7701. In review of a final

order or decision issued under section

7701, the agency responsible for taking

the action appealed to the Board shall

be the named respondent.

(b) (1) Except as provided in paragraph (2)

of this subsection, a petition to review

a final order or final decision of the

Board shall be filed in the United States

Court of Appeals for the Federal Circuit.

a Te

9la

Notwithstanding any other provision

of law, any petition for review must

be filed within 30 days after the

date the petitioner received notice

of the final order or decision of the

Board.

States Court of Aopeals for the Federal

Circuit, the court shall review the

record and hold unlawful and set aside

any agency action, findings, or conclu-

sions found to be -

(1) arbitrary, capricious, an

abuse of discretion, or otherwise

not in accordance with law;

(2) obtained without procedures

required by law, rule, or regula-

tion having been fllowed; or

(3) unsupported by substantial

evidence; .« « «a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.