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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 843

## Text

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

ii

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

iv
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

Vv

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

vi

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

29

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

4

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

5
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.

10

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

1l

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

12

:
;
j

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

13
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

14
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

—

15
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-

16

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

17

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

18

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.

19

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

20

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

21

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¢

22

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

23

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

24

" . . . 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,

25

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

26

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

27

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

28

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.

29

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

¢

ee

30

Circuit.

Respectfully submitted,

ELLIOT B. PLATT

Attorney for Petitioner

1700 Two Mellon Bank
Center

Philadelphia, PA 19102

(215) 563-5900

APPENDIX

la

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

2a

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-

1/

pension action.=—

he

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.

3a
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

4a
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

5a

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

6a
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

2/

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.

7a
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

8a
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
(c) (1). In addition, we hereby join our

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.

a

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

ss

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

pe

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

a

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.

(c) (1) Subject to paragraph (2) of this
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

(C) shows that the decision was not

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.
(c) In any case filed in the United
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0410%3A1. Public record. Not legal advice.