Opposition Brief — Schwender v. Department of Labor

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Supreme Court, U.S,

FILED

DEC 38 1908

PH F. SPANIOL, JR.

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COLE RK

—————

Inu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-346

P. CHARLES SCHWENDER, PETITIONER

DEPARTMENT OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CiRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

WILLIAM KANTER

HILLARY STERN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the proceedings leading to petitioner’s discharge

from the Occupational Safety and Health Administration

were procedurally defective.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases: 7

Arnett v. Kennedy, 416 U.S. 134 ............ 5,6

Camero v. United States, 375 F.2d 777 ......... 6

Cleveland Bd. of Educ. v. Loudermill,

Se RE NL OO, CODD oc ccdcececccccess 7

DeSarno v. Department of Commerce,

SUE GHUCR AS ecdNeeesecnnasccces 5, 6,7

Depte v. United States, 715 F.2d 1481 .......... 6

Ryder v. United States, 585 F.2d 482 .......... 6

Sullivan vy. Department of the Navy,

CE Slate Wu eUekbevcievseescnens 6

Taylor v. Hayes, 418 U.S. 488 ................ 5

Welcker v. United States, 752 F.2d 1577 ........ 6

Wisniewski v. United States,

gS ee ee eee 6

(Ii)

Page

Statute and regulations:

Civil Service Reform Act of 1978,

5 U.S.C. (& Supp. IT) 7501-7543 ............. 7

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Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1985

No. 85-346

P. CHARLES SCHWENDER, PETITIONER

Vv.

DEPARTMENT OF LABOR

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A48-A49)

is reported at 770 F.2d 178 (Table). The opinion of the

Merit Systems Protection Board (Pet. App. A43-A46), the

opinion of the New York Regional Office of the Merit

Systems Protection Board (Pet. App. A24-A42), and the

opinion of the Department of Labor deciding official (Pet.

App. A5-A22) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

April 29, 1985. On June 25, 1985, the Chief Justice extended

the time to file a petition for a writ of certiorari to and

including August 27, 1985, and the petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

STATEMENT

1. Petitioner P. Charles Schwender is a former employee

of the Occupational Safety and Health Administration

(OSHA), where he held the position of Safety and Health

Manager in the Albany, New York, area. On December

8-10, 1980, petitioner attended an OSHA Area Directors

conference in New York City. After the conference ended,

petitioner remained in New York City for two days for the

purpose of sightseeing. On December 11, petitioner was

spotted by OSHA Regional Administrator Roger Clark,

one of petitioner’s superiors. When petitioner returned to

his office on December 15, he instructed the office time-

keeper to record that he had not taken annual or sick leave

on December | 1, but had taken eight hours of sick leave on

December 12. Petitioner’s time card came to Clark’s atten-

tion two weeks later. Remembering that he had seen peti-

tioner in New York City on December 11, Clark wem to

Albany to investigate the matter. When Clark asked peti-

tioner about the discrepancy, petitioner replied that he h..J

been sightseeing in New York on December 11-12, that he

should have taken annual leave for those days, and that he

did not know why his time card was in error. However,

petitioner’s explanation was contradicted by other em-

ployees, including the timekeeper, who related petitioner's

instructions as to how his time card should be filled out. Pet.

App. A6-A12, Al7-A18, A27-A30.

On February 11, 1981, Clark sent petitioner a formal

notice proposing to remove him from his position with

OSHA on the grounds that he had falsified his timecard,

instructed a subordinate to prepare a false timecard, and

made false statements to Clark regarding the timecard. Pet.

App. A50-A54. The proposed: notice advised petitioner of

his right to make an oral and written reply to the charges.

Id. at AS2-A53. Clark was designated as the OSHA official

who was to receive petitioner’s oral reply, and John Miles,

an OSHA Field Coordinator and a supervisor of peti-

tioner’s, was designated as the deciding official. See 5

C.F.R. 752.404(c)(2). On March 23, petitioner submitted a

16-page written response to Clark’s charges that contained

a point-by-point denial of each charge, a procedural objec-

tion to the designation of Clark as the oral reply official,

and the allegation that there had been “an apparent lack of

investigation” of the case (Pet. App. A56). The following

day, petitioner, accompanied by counsel, gave his oral reply

to the charge before Clark. Petitioner’s counsel also identi-

fied what he believed were errors or misunderstandings on

Clark’s part and articulated several bases for challenging

Clark’s credibility. Petitioner’s reply was transcribed in full

by a court reporter, and the transcript was later forwarded

to the deciding official (id. at A77-A99).

Thereafter, the deciding official directed Clark to con-

duct a further investigation in order to clarify the record

(Pet. App. A24, A106). Clark did so and later amended his

notice of proposed adverse action (id. at AS, A24-A25,

A102-A105). Petitioner then replied in writing to the

amended notice (id. at AS, A27, A108-A 124), and the decid-

ing official issued his decision to remove petitioner effective

August 3, 1981 (id. at AS-A22).

2. Petitioner appealed to the New York Office of the

Merit Systems Protection Board (MSPB). After a hearing,

the Board’s presiding official found that the evidence sup-

ported the charges (Pet. App. A24-A42). In so ruling, the

presiding official also rejected petitioner’s contentions that

he had been prejudiced by the designation of Clark as the

oral reply official and by allegedly improper ex parte

contacts between Clark and the deciding official (id. at

A34-A37). The presiding official found no evidence show-

ing that Clark was biased against petitioner or that peti-

tioner had been denied a fair opportunity to present his

case, particularly since Clark was merely the proposing, not

the deciding, official (id. at A35-A37). The presiding official

also held that communications between proposing and

deciding officials do not violate an employee's procedural

rights {id. at A37).

The MSPB thereafter denied petitioner’s request to

review the presiding official’s decision, ruling that the

agency had complied with all relevant statutory and regula-

tory requirements, that the presiding official's findings were

supported by the evidence, and that the pex« “ty of removal

was not excessive (Pet. App. A43-A46).

3. The court of appeals affirmed in an unpublished deci-

sion (Pet. App. A48-A49). The court held that “{s]ubstan-

tial evidence supports the board’s findings that the charges

against petitioner were proved by a preponderance of the

evidence” and that his “allegations of procedural error[are]

without legal basis” (id. at A49).

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or of any other

court of appeais. Accordingly, review by this Court of

petitioner’s fact-bound claims is not warranted.

Petitioner argues (Pet. 6-10) that the designation of Clark

as the official who was to receive petitioner’s oral reply to

the charges violated due process. Petitioner contends that

Clark was biased, since he had initiated the adverse per-

sonnel action, and that Clark’s bias denied petitioner the

opportunity to defend against the charges of misconduct.

However, the presiding official found that nothing in the

record supported petitioner’s contention that Clark was

biased (Pet. App. A36), and both the full Board and the

court of appeals declined to ‘disturb that finding (id. at

A43-A45, A49). Petitioner also has cited no specific

evidence showing that Clark was biased. Instead, petitioner

relies entirely on the fact that Clark had initiated the

proceedings against him. But a majority of the Court in

Arnett v. Kennedy, 416 U.S. 134 (1974), held that due

process was not violated where the supervisory official who

had proposed an employee’s removal also served as the

decisionmaker. /d. at 155-156 n.21 (plurality opinion); id. at

170 n.5 (opinion of Powell, J.); see also, e.g., DeSarno v.

Department of Commerce, 761 F.2d 657, 660 (Fed. Cir.

1985).' It necessarily follows that there is no procedural

infirmity in allowing the proponent of an adverse personnel

action to serve merely as the recipient of an employee’s oral

reply and to make a recommendation as to the appropriate

final decision, where the final decision whether to discharge

the employee rests in the hands of a different official.

In addition, petitioner filed written objections to both the

initial and the amended notices of adverse personnel action,

and he has not identified any defense that he was unable to

present in those objections. A transcript of petitioner's oral

reply was sent to the deciding official (Miles), which gave

him an opportunity to evaluate petitioner’s claim that Clark

should not be believed. Finally, the presiding official’s deci-

sion demonstrates that he carefuily considered all of the

evidence and conducted a full, independent, and impartial

review of the charges. Petitioner’s fact-bound claim lacks

merit and warrants no further review.’

'Justice White would have required the proponent of charges against

an employee to be replaced as the initial decisionmaker only where “the

hearing official was the object of slander that was the basis for the

employee's proposed discharge” because, in that situation, “the hear-

ing examiner’s own reputation, as well as the efficiency of the service,

[is] at stake”(416 U.S. at 199). The situation here is not remotely similar

to that one. 7

?With one exception, every decision of this Court cited by petitioner

(Pet. 9-10) to support his claim was also cited by Justice White in his

separate opinion in Arnett (416 U.S. at 198). The only exception, Taylor

v. Hayes, 418 U.S. 488 (1974), involved criminal contempt and did not

purport to overrule Arnett.

Petitioner also claims (Pet. 10-16) that he was prejudiced

by allegedly improper ex parte communications between

Clark and the deciding official. However, communication

between proposing and deciding officials is not prohibited

in the absence of an express statute or regulation forbidding

such conduct. DeSarno v. Department of Commerce, 761

F.2d at 659-661; Welcker v. United States, 752 F.2d 1577,

1582-1583 (Fed. Cir. i985); Depte v. United States, 715

F.2d 1481, 1484 (Fed. Cir. 1983). No statute or regulation

forbids such communications in this situation. On the con-

trary, the oral reply official must offer a recommendation to

the deciding official; in fact, the same individual may serve

as both the proposing and deciding official. See 5 C.F.R.

752.404(c)(2); Arnett, 416 U.S. at 155-156 n.21 (plurality

opinion); id. at 170 n.5 (opinion of Powell, J.).4 Petitioner’s

claim of prejudice also lacks any foundation in the record.

Petitioner has not identified any information that Clark

allegedly conveyed to the deciding official that was not

known tc petitioner beforehand; rather, petitioner’s claim

appears to rest entirely (Pet. 12) on Clark’s inability to recall

whether he had informed the deciding official of facts

alleged by petitioner to support his defense to the charges.

But these facts had already been presented to the deciding

Petitioner erroneously asserts (Pet. 13-15) that the court of appeals’

decision in this case conflicts with its earlier rulings in Sullivan v.

Department of the Navy, 720 F.2d 1266 (Fed. Cir. 1983); Ryder v.

United States, 585 F.2d 482 (Ct. Cl. 1978); and Camero v. United

States, 375 F.2d 777 (Ct. Cl. 1967). The court of appeals has explained

that Camero and Ryder both involved trial-type adversarial proceed-

ings provided by agency regulations that have no counterpart here (see

DeSarno, 761 F.2d at 661; Welcker, 752 F.2d at 1582-1583), and in

Sullivan “the whole structure of th{e] employee-removal system pre-

cluded such communications” ( Welcker, 752 F.2d at 1583 n.3). In any

event, any alleged intracircuit conflict is “or the court of appeals, not

this Court, to resolve. Wisniewski v. United States, 353 U.S. 901, 902

(1957).

official in petitioner’s two written responses (Pet. App.

A55-A76, A108-A124), and petitioner does not claim that

the deciding official failed to consider his defenses.

Finally, petitioner maintains (Pet. 16-19) that this case

provides a suitable vehicle for the Court to set forth

definite procedures for a pretermination hearing for public

employees. To the extent that petitioner’s argument rests on

the premise that the procedures followed in his case were

defective, that claim must fail for the reasons given above.

Cleveland Bd. of Educ. v. Loudermill, No. 83-1362 (Mar.

19, 1985), also does not support petitioner’s argument.

Loudermill expiained that “{t}he tenured public employee is

entitled to oral or written notice of the charges against him,

an explanation of the employer’s evidence, and an oppor-

tunity to present his side of the story.” Slip op. 12. Peti-

tioner clearly received everything that is required by Lou-

dermill and more. Petitione: was twice given written notice

explaining the charges against him in detail (Pet. App.

A50-A54, A102-A1%5; see 5 U.S.C. 7513(b)(1); 5 C.F.R.

752.404(a) and (b)), and he was given the opportunity to

respond both orally and in writing to each set of charges

(Pet. App. A54, Ai05; see 5 U.S.C. 7513(b)(2); 5 C.F.R.

752.404(a) and (b)). Nothing in Loudermill suggests that

due process requires more than the Civil Service Reform

Act of 1978, 5 U.S.C. (& Supp. II) 7501-7543, or its imple-

menting regulations provide. See DeSarno, 761 F.2d at 660.

In sum, four separate reviewing authorities have found

that petitioner’s dismissal was justified. His fact-bound

arguments deserve no further review.

ee 8

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.