Petition for Writ of Certiorari — Yanopoulos v. Department of the Navy

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FILED

Jun 14 1986

JOSEPH &. SPANIOL, JR.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

THEODORE YANOPOULOS,

Petitioner,

Vv.

DEPARTMENT OF THE NAVY and

MERIT SYSTEMS PROTECTION BOARD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

JEFFREY A. VOGELMAN

BALLENGER AND VOGELMAN

123 South Royal Street

Alexandria, VA 22314

(703) 683-6304

Counsel for Petitioner

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QUESTIONS PRESENTED

Petitioner was removed by the

Department of the Navy, Naval Sea

Systems Command, from his position of

Electronics Engineer for unsatis-

factory performance. He appealed this

removal to the Merit Systems Protection

Board. The Merit Systems Protection

Board thereafter held an oral hearing

at which petitioner appeared pro se and

at which the Department of the Navy,

Naval Sea Systems Command appeared with

counsel. Petitioner was, among other

things, precluded at the hearing from

presenting the oral testimony of

two individuals whom he wished to call

as witnesses and the Department of the

Navy, Naval Sea Systems Command was

permitted to endeavor to prove its case

through the use of extensive leading

questions.

ii

The questions presented are:

1. Whether the Merit System

Protection Board's form orders dealing

with the statutory right of Federal

employees to representation before that

agency sufficiently advise such

employees of the nature of the hearing

held by that agency or of the advan-

tages of having counsel (or other

representative) at such a hearing such

that the employee can make a knowing

and competent determination whether

to obtain a representative or whether

to waive his or her statutory right to

representation.

2. Whether the United States

Court of Appeals for the Federal

Circuit erred in failing to reverse and

remand the final Order of the Merit

Systems Protection Board where peti-

tioner had been deprived of the full

and fair hearing to which he was

iii

entitled before that agency.

Note: The case caption contains

the names of all the parties to the

proceeding in the United States Court

of Appeals for the Federal Circuit.

iv

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

PROVISIONS OF STATUTES

AND REGULATIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

WRIT

I. THE COURT OF APPEALS

FOR THE FEDERAL

CIRCUIT HAS SERIOUSLY

ERRED CONCERNING

NOTICE OF THE RIGHT

TO REPRESENTATION BE-

FORE THE MSPB, AND

THIS MATTER OF NOTICE

AFFECTS NUMEROUS

FEDERAL EMPLOYEES

II. THE COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

ERRED IN FAILING TO

REVERSE AND REMAND THE

MSPB'S FINAL ORDER IN

VIEW OF PETITIONER

HAVING BEEN DEPRIVED OF

A FULL AND FAIR

HEARING

CONCLUSION

21

21

36

41

TABLE OF AUTHORITIES

CASE LAW:

Clark v. Harris, 652 F.2d

399, 402-404 (5th Cir.

1981)

Dobrowolsky v. Califano, 606

F. 2d 403,407 (3rd Cir.

1979)

Floyd v. Schweiker, 550 F.

Supp. 863, 867 (N.D.

Illinois 1982)

Lockner v. Department of

(ASSESS 13 MSPB 45,

46 (1983)

Partible v. Immigration and

Naturalization Service, 600

F. 2d 1094, 1096 (5th Cir.

1979)

Smith v. Secretary of Health,

Education and Welfare, 587

F. 2d 857,859-860 (7th Cir.

1978)

Thomas v. Schweiker, 573 F.

Supp. 327, 329-330 (W.D.

Tex. 1985)

STATUTES:

United States Code, Title 5,

Section 7701 (a)

United States Code, Title 5,

Section 7703

Page

24,26

24

36

37

25,26

24

24

5,23,37

:

vi

REGULATIONS:

Code of Federal Regulations,

Title 5, Section 1201.41(a) 6,37

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No.

THEODORE YANOPOULOS,

Petitioner,

Vv.

DEPARTMENT OF THE NAVY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCVIT

Petitioner Theodore Yanopoulos

prays that a Writ of Certiorari issue

to review the opinion and the judgment

of the United States Court of Appeals

for the Federal Circuit entered on

January 28, 1986. A petition for

rehearing, which included a suggestion

for rehearing in banc, was timely filed

by petitioner to the United States

Court of Appeals for the Federal

Circuit. The Court of Appeals for the

Federal Circuit, following considera-

tion of the petition for rehearing on

the merits, denied the petition for

rehearing (and declined the suggestion

for rehearing in banc) in an Order

entered on March 19, 1986.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Federal

Circuit as to which review is sought

herein was entered on January 28, 1986.

The Order of the Court of Appeals for

the Federal Circuit denying peti-

tioner's petition for rehearing (and

declining petitioner's suggestion

for rehearing in banc) was entered on

March 19, 1986. The opinion of the

Court of Appeals for the Federal

Circuit affirmed the opinion (contained

in a document entitled Order) entered

by the Merit Systems Protection Board

on April 30, 1985, which in turn denied

a petition for review filed with that

agency by the petitioner and made the

initial decision of MSPB Presiding

Official William Jenkins (contained in

his initial decision and in his

subsequently issued supplemental

initial decision) the final decision of

the MSPB. All of the aforesaid Orders

and Decisions are included in the

Appendix hereto, in a separate volume.

JURISDICTION

The opinion of the Court of

Appeals for the Federal Circuit was

entered on January 28, 1986. A timely

petition for rehearing was denied on

March 19, 1986. This petition for

a writ of certiorari is filed within 90

days of that date. This Court's

jurisdiction is invoked under 28

U.S.C. Sec. 1254(1).

PROVISIONS OF STATUTES AND

REGULATIONS INVOLVED

5 U.S.C. 7701(a):

Appellate Procedures

An employee, or applicant 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

accordance with regulations

prescribed by the Board.

5 CFR 1201.41:

Presiding Officials

(a) Exercise of Authority.

Presiding officials shall conduct fair

and impartial hearings and take all

necessary action to avoid delay in the

disposition of all proceedings.

They shall have all powers necessary to

that end unless otherwise limited

by law, including but not limited to,

the authority to:

(1) Administer oaths and affirma-

tions;

(2) Issue subpoenas in accord-

ance with Sec. 1201.81;

(3) Rule upon offers of proof

and receive relevant evidence;

(4) Rule upon the institution of

discovery procedures aS appropriate

under Sec. 1201.73;

(5) Convene a hearing as appropr-

iate, regulate the course of the

hearing, maintain decorum and exclude

from the hearing any disruptive

persons;

(6) Exclude from the hearing

any witness whose later testimony

might be colored by testimony of other

witnesses or any persons whose presence

might have a chilling effect on

testifying witness;

6

(7) Rule on all motions, witness

and exhibit lists and proposed find-

ings;

(8)Require the filing of memor-

anda of law and the presentation of

oral argument with respect to any

question of law;

(9) Order the production of

evidence and the appearance of witness-

es whose testimony would be relevant,

material and nonrepetitious;

(10) Impose sanctions as provided

under Sec. 1201.43 of this part;

(11) Hold prehearing conferences

for the settlement and simplification

of issues; and

(12) File initial decisions.

STATEMENT OF THE CASE

Petitioner Theodore Yanopoulos

(hereafter "Petitioner" or "Yanopou-

los") was removed from his position of

Electronics Engineer with the Depart-

ment of the Navy, Naval Sea Systems

Command (hereafter "NAVSEA" ) for

alleged unsatisfactory performance

effective October 1, 1982. He had held

that position since July of 1951.

A bial Y Be aa A

Re ak Ma cane" es a a

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Re Des ae tee Ye

Using the appeal form supplied by

the MSPB, which form is to be used for

all appeals filed by Federal employees

appealing adverse actions taken by

their Federal employers against them,

petitioner timely filed an appeal to

the MSPB Washington Regional Office

from the action of NAVSEA. Subsequent-

ly, on October 12, 1982 an Initial

Order acknowledging the receipt of the

appeal was entered by the MSPB Washing-

ton Regional Office's Acting Regional

Director. Thereafter, on November 1,

1982, an Order for Hearing was entered

by Stephanie Marks, the MSPB Presiding

Official then assigned to hear the

case, setting oral hearing in the case

to be held on December 14, 1982. The

Initial Order and the Order for

Hearing, like the aforementioned appeal

form, employed by the MSPB in Yano-

poulos' case are form documents sent

out by the MSPB in all unsatisfactory

performance cases which it handles;

only names, places, and dates peculiar

to the particular case are changed from

case to case. For the convenience of

the Court, the Initial Order and the

Order for Hearing are included in the

Appendix hereto.

The aforementioned three docu-

ments, the appeal form, the Initial

Order, and the Order for Hearing, were

the only documents which would in any

way have advised Yanopoulos of the

nature of the oral hearing scheduled in

his case or his right to representation

at the hearing prior to his appearance

at that hearing.

As to the right to have counsel

(or another representative) and the

nature of the MSPB hearing, the Appeal

form solely states the following in its

questions 26, 27, and 28:

ke ae

a i

"26. You have a right to

a hearing on this appeal. If you

do not want a hearing, the Board will

make its decision on the basis of the

documents you and the agency submit.

Do you want a hearing? ...

ry You have the right to

designate someone to represent you on

this appeal if he/she agrees to

do so. This person does not have to be

an attorney. The agency has a right to

challenge your choice of a representa-

tive if there is a conflict of interest

or position. You may change your

designation of 4 representative

at a later date, if you desire,

but must notify the Board promptly of

any change.

28. You may be permitted to

call witnesses at a hearing upon the

approval of the Presiding Official.

If you intend to do so, provide their

names and a brief statement of their

relationship to the case. You will be

permitted to request other witnesses

later if ou do not list them now."

(P.hs BS 3

1

The abbreviation P.A. is used

herein to refer to the Petitioner's

Appendix contained in the back of the

Opening Brief Petitioner filed with the

Court of Appeals for the Federal

Circuit below. The record shall be

referred to herein by reference to

pages of that Appendix.

The form Initial Order solely

states as to the right to have counsel

another representative) in its

paragraph number 3 as follows:

"Parties shall file with the Board

a Designation of Representative

form (enclosed) if they wish to

be represented and have not

previously designated a represen-

tative. Parties are required

to notify the Board and each other

of any change in representative

during any stage of the proceed-

ings. If there is a change in

representative, the party shall

strike the old representative from

the service list and begin to make

service on the new representa-

tive."

The sole statement contained in

the Initial Order as to the nature of

MSPB hearing is in its paragraph

number 6 as follows:

"If a hearing is requested, it will

be conducted approximately two to

six weeks after the agency files

its response to the petition for

appeal as ordered in paragraph 2.

At the time the hearing is

scheduled the parties will receive

information on how to arrange for

presence of witnesses at the

hearing. If a hearing has not

already been requested the parties

el el Be

ll

are provided 15 days from the date

of this order to file a request.

If no request for a hearing is

received within the time limit,

the hearing will be considered

waived and the Presiding Official

will adjudicate the case after

providing the parties with the

opportunity to file written

submissions."

The third document, the form Order

for Hearing, says nothing about the

right to have counsel (or another

representative) and provides no

substantive information as to the

nature of the hearing although it sets

deadlines for filing lists of witnesses

intended to be called, serving objec-

tions to witnesses of the other party,

and for serving copies of hearing

exhibits on the opposing party.

On November 30, 1982, 14 days

before the scheduled hearing date,

Yanopoulos sent a letter to the MSPB's

Presiding Official then set to hear the

case in which he indicated that he

12

would “secure a counsel to conduct

discovery" and requested that the

hearing date be changed to January 14,

1983 (P.A. 24). The Presiding Official

then set to hear the case, Stephanie

Marks, responded to this request and

another request by NAVSEA for a

continuance of the hearing date by

entering an Order dated December 3,

1982 continuing the hearing date for a

mere period of six days, until December

20, 1982. (P.A. 26). The hearing was

held on December 20, 1982 with Yanop-

oulos appearing pro se.

As demonstrated by his sending of

the aforementioned letter on November

30, 1982, Yanopoulos was equivocal and

indecisive as to whether he wanted an

attorney up to the date of the hearing

held by the MSPB. He was also unaware

of the nature of the MSPB hearing at

the time his hearing began. In his

13

Affidavit dated September 4, 1985 which

was filed with the Court of Appeals for

the Federal Circuit pursuant to leave

granted by that Court, Yanopoulos

stated as pertinent to these matters:

at J I did not have any idea of

how the hearing would be conducted

or what procedures would be

followed at the hearing until I

appeared at the hearing. I never

followed through in obtaining an

attorney; I had the impression

until the time the hearing

actually began that I could

properly represent myself at the

hearing.

6. Once the hearing began, I

realized that I needed an attorney

very badly. I was, among other

things, confused and had no

understanding of the proce-

dures to be followed or any idea

how to conduct the hearing."

The oral hearing was’. held by the

MSPB on December 20, 1982 before

Presiding Official William Jenkins.

The Presiding Official did not advise

Yanopoulos of his right to counsel

or even ask him whether he was waiving

his statutory right to representation.

rs

14

At the oral hearing, Yanopoulos,

as the transcript of the hearing

reflects, was thoroughly confused as to

evidentiary matters, as to procedures,

as to the involved law, and as to the

nature of the hearing and how it

was to be conducted. For example, he

did not know how to make an opening

statement (P.A. 33-35), interrupted the

testimony of NAVSEA witnesses with

testimony of his own (P.A. 38), and did

not understand that it was necessary to

ask questions rather than make state-

ments on cross-examination (P.A.

40-43).

Pursuant to the MSPB's Order for

Hearing dated November 1, 1982, both

NAVSEA and Yanopoulos were to file with

the Presiding Official prior to the

hearing a list of the names of the

witnesses they intended to call

at the hearing. NAVSEA filed a Notice

15

of Witnesses listing eight witnesses it

intended to call, all of whom were then

NAVSEA employees (P.A. 22-23).

Yanopoulos on December 7, 1982, sent a

letter to the Presiding Official

stating that "I wish to have available

for me a presently unknown number of

witnesses called by my Agency [NAV-

SEA]", thereby indicating that he

wished to be able to call to the

witness stand any or all of the

witnesses designated by NAVSEA in its

list of witnesses (P.A. 29).

NAVSEA, however, only produced at

the hearing three of the eight employ-

ees it had designated as witnesses in

its list of witnesses. The Presiding

Official acknowledged that Yanopoulos

desired to present the testimony of two

of the other five employees who had not

been produced, Simon Kfoury and

Donald Cross, on matters which were

Pate

ae ery

16

relevant. He refused, however, to

require the appearance of Mr. Kfoury,

who was then in California as he (the

presiding official) had not been

"previously requested to make him

available today" and as requiring his

appearance would delay the hearing.

The presiding official further refused

to require the appearance of Mr. Cross

for oral testimony but instead request-

ed NAVSEA'sS counsel to have Mr. Cross

submit an affidavit addressing the

questions raised by Yanopoulos. NAVSEA

subsequently submitted a two page

Affidavit executed by Donald Cross.

Numerous leading questions were

asked by counsel for NAVSEA of its own

witnesses in the presentation of its

direct case, concerning such matters as

whether Yanopoulos was made aware that

his job performance was considered to

be deficient, whether Yanopoulos

RR ea ow LIAS

17

had been made aware of his performance

standards prior to his having been

advised that his performance was

unacceptable under those standards,

whether military guides and checklists

were available to Yanopoulos as

references in performing his duties,

alleged specific instances of unaccept-

able performance on Yanopoulos' part,

and matters relating to the ‘idebenine

written notice of unacceptable perform-

ance provided by Yanopoulos' supervisor

to Yanopoulos. (P.A. 48, 53-55, 57-63).

Yanopoulos did not object to such

leading questions nor did the Presiding

Official in any way attempt to stop or

dissuade NAVSEA's counsel from asking

such leading questions on direct

examination.

Presiding Official Jenkins

thereafter entered an Initial Decision

on February 17, 1983 sustaining

ae

saielliliiaial heelontatiniamaantted

18

NAVSEA's removal of petitioner from his

position of Electronics Engineer.

Yanopoulos thereupon retained an

attorney to represent him before the

MSPB. Yanopoulos through counsel

requested a new hearing by the MSPB in

a Petition for Review filed with

that agency on March 24, 1983 and ina

letter-motion filed with that agency

dated November 8, 1984 on the basis

that he had not received a full and

fair hearing and had been severely

prejudiced by his lack of counsel and

by the failure of the Presiding

Official to see to it that a fair

hearing was held in his case. The

MSPB, although it on its own motion

reopened the case as to a matter which

was not placed in evidence at the

hearing and which had only become

pertinent as a result of a decision

issued after the close of the hearing,

19

denied such requests for a new hearing

and ultimately affirmed the Presiding

Official and made his initial decision

the final decision of the agency.

Yanopoulos thereupon filed an

appeal from the Order of the MSPB to

the Court of Appeals for the Federal

Circuit pursuant to the provisions of 5

U.S.C. 7703.

The Court of Appeals for the

Federal Circuit in a seven page per

curiam decision affirmed the decision

of the MSPB. The Court of Appeals

found (1) that the MSPB adequately

informed Yanopoulos of his right to

representation, (2) that Yanopoulos

knew of his right to representation in

any event, (3) that the MSPB adequately

informed Yanopoulos of the nature of

the proceedings, (4) that the failure

to obtain the orai testimony of certain

witnesses Yanopoulos desired to

20

call to the witness stand "was peti-

tioner's own fault", and (5) that

petitioner failed to sufficiently show

that he was prejudiced by the use of

leading questions on direct examination

by counsel for NAVSEA. Of particular

importance, the Court found as follows:

"More importantly, however, we

find it incredible that this

petitioner would not know of the

nature of an MSPB hearing. He had

been a Federal employee for 3l

years and had obtained the level

of a GS-12. The agency had

recently removed him from the

Federal service through a very

lengthy and formal process that

must have impressed upon petition-

er the nature of this action. In

light of his tenure as a Federal

employee, the level of intell-

igence presumed from his rank, and

the formality of the process used

to remove him from the Federal

service, petitioner must have

known the nature of the MSPB's

adjudication of his appeal."

21

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS FOR

THE FEDERAL CIRCUIT HAS

SERIOUSLY ERRED CONCERNING

NOTICE OF THE RIGHT TO

REPRESENTATION BEFORE THE MSPB,

AND THIS MATTER OF NOTICE AFFECTS

NUMEROUS FEDERAL EMPLOYEES

The Court of Appeals for the

Federal Circuit, in its opinion below,

decided a precedent setting question

of exceptional importance. That issue

is whether the MSPB's form orders

dealing with the statutory right of

Federal employees to representation

before that agency sufficiently advise

such employees of the nature of the

MSPB hearing or of the advantages of

having counsel (or other representa-

tive) at such a hearing such that the

employee can make a knowing and

competent determination whether to

obtain a representative or whether to

waive his or her statutory right to

Pies,

al

22

representation. The same form orders

sent to Yanopoulos by the MSPB, and the

same Appeal form, are used by the MSPB

in all unsatisfactory performance

cases.

As a result, the issue raised

herein affects not just this case but

many other cases as well. At the oral

argument held by the Court of Appeals

for the Federal Circuit below, Judge

Friedman of that Court stated that he

was loath to reverse the MSPB's

decision concerning Yanopoulos on the

basis of defective notice as to find

the MSPB's form Orders defective in

this regard would have the effect of

invalidating numerous MSPB' decisions

and would affect the cases of a great

number of Federal employees. And this

is precisely why this Court should

grant the sought writ herein. Consid-

ering that the Court of Appeals for the

23

Federal Circuit, pursuant to the terms

of 5 U.S.C. 7703, is the only Court of

Appeals to which an aggrieved federal

employee can appeal a decision of the

MSPB, it is particularly important

that this matter of significance be

considered by this Court herein.

Otherwise, this Significant matter

will in all likelihood, due to the

attitude of the Court of Appeals for

the Federal Circuit articulated by

Judge Friedman, never receive the

level of appellate scrutiny which is

warranted.

As previously shown, the right of

a Federal employee to be represented

in hearings before the MSPB is provided

for in 5 U.S.C. 7701 (a)(2). That

section states that an individual

appealing from an adverse action taken

by his employer agency against him

"shall have the right to be represented

EP PORE

by an attorney or other representa-

tive."

The Courts have consistently held

that a party having a statutory right

to counsel at an administrative

hearing must knowingly waive counsel

or his’ lack of representation is

itself cause for remand for a new

hearing. Dobrowolsky v. Califano, 606

F. 2d 403, 407 (3rd Cir. 1979); Thomas

v. Schweiker, 573 7. Supp. 327,

329-330 (W.D. Tex. 1985); Clark v.

Harris, 652 F. 2d 399, 402-404 (5th

Gae. ages). See also Smith v. Secre-

tary of Health, Education and Welfare,

587 F. 2d 857 (7th Cir. 1978), in which

a social security disability case was

reversed and remanded for a new

hearing and in which the court point-

edly observed at 859-860 that the

appellant had been given only a

minimal explanation of her right to

till

counsel and did not understand the

role a lawyer would play in the

proceeding.

It is fundamental that a party

cannot knowingly waive his right to

counsel or other representative unless

he is made aware of the nature of the

hearing he is going into. For example,

in Partible v. Immigration & Naturali-

zation Service, 600 F. 2d 1094 (5th

Cir. 1979), the Fifth Circuit dealt

with a case in which an individual had

appeared pro se at a hearing of the

Immigration and Naturalization Service

in which she waived her statutory

right to counsel provided for in 8

U.S.C. 1252(b)(2), and was thereafter

found deportable. The Court found

therein that the immigration judge had

abused his discretion in denying her

notion to reopen filed after his

decision was issued and held that she

i ee ee

ee ere ee

26

was entitled to a new hearing at which

she could have the assistance of

counsel. The Court stated as pertinent

at 1096:

its

“Although Partible was informed

at the commencement of the

hearing by the immigration judge

of her statutory right to counsel

and nevertheless elected to

proceed unassisted, she waived her

rights without being provided with

any understanding by the immigra-

tion judge of the complexity of

her dilemma and without any

awareness of the cogent legal

arguments which could have been

made on her behalf and which her

present counsel now presses in

arguing for the reopening of her

proceeding. Thus, in sum we

conclude that Partible's waiver

of counsel was not "competently

and understandingly made", Matter

Gutierrez Board of Immigration

Appeals Interim Decision No. 2587,

May 26, 1977; the outcome of the

proceeding may have been different

if counsel had been present; and

that Partible is therefore

entitled to a new hearing."

The MSPB has, however, through

form Appeal Form, form Initial

Order, and form Order for Hearing

failed to advise countless federal

27

employees (including Yanopoulos) of

the nature of the MSPB hearing. Nor,

Significantly, has it advised such

employees of the role counsel or

another representative can play at

such a hearing.

The oral hearing held by the MSPB

is in fact a full scale administrative

hearing at which knowledge of evidence,

the ability to make evidentiary objec-

tions, and knowledge of the involved

law are critical. Federal agencies

appearing before the MSPB as employers

are normally represented by counsel.

Those few agencies which do not use

counsel are represented by non-lawyers

who, through practice, are very

experienced in MSPB procedures and are

knowledgable about the involved law.

A federal employee who attempts to

represent himself in an MSPB hearing

has virtually no chance of success.

naecartnitilies

28

The MSPB misleads such individuals by

not placing them on notice of the true

nature of the MSPB hearing through the

Appeal Form, the Initial Order, and

the Order for Hearing.

As pertinent to the issues

herein, the MSPB's Appeal Form does no

more than advise the appealing federal

employee that he can designate someone

to represent him before that agency,

that this representative need not be an

attorney, that a hearing may be held

in the case and that witnesses may be

called. The Appeal Form, however,

says nothing about the nature of an

MSPB hearing.

The Initial Order utilized by the

MSPB points out that a hearing may be

held but also says nothing about the

nature of an MSPB hearing. The

Initial Order does provide some

information concerning procedures not

relating to the hearing itself,

primarily concerning discovery proce-

dures. The Initial Order does not,

contrary to the Circuit Court for the

Federal Circuit's finding, "outline the

Board's rules of procedure" but simply

outlines certain limited rules unre-

lated to the nature of the hearing

itself.

The Order for Hearing utilized by

the MSPB sets the place and date of

the hearing, provides information as

to methods to obtain the presence of

witnesses at the hearing, and sets

dates for the filing of exhibits. It

also says nothing about the nature of

an MSPB hearing.

It would be a simple matter for

the MSPB to advise federal employees

appearing before it that the MSPB

hearing is a formal adversary hearing

at which witnesses will testify

30

pursuant to direct examination and

cross examination; that evidentiary

objections may be made and the Federal

Rules of Evidence are in that respect

used as a guide; and that it may as a

result be to the advantage of that

individual (although he may represent

himself) to obtain a representative

experienced in this type of proceeding.

However, the MSPB does not advise

federal employees of any of these

critical matters, either in the Initial

Order, the Order for Hearing, the

Appeal Form, or in any other document.

Without such information, the right to

representation accorded by statute to

federal employees appearing before the

MSPB is meaningless and there can be no

knowing waiver on the part of the

involved federal employee of his or her

right to representation. It should be

kept in mind in this regard that

a great number of federal employees

appear pro se at hearings before the

MSPB; they are being misled just as

Yanopoulos was.

If the Circuit Court of Appeals

for the Federal Circuit's opinion is

reviewed carefully, it soon becomes

apparent that it really premises its

decision as concerns’ the issue of

notice of the nature of an MSPB hearing

on its finding that it is "incredible

that this petitioner would not know of

the nature of an MSPB hearing", due to

the length of his service as a federal

employee, due to his GS-12 rating, and

due to the "formality of the process

used to remove him from the federal

service." This unwarranted supposi-

tion, however, only serves to highlight

the fact that the MSPB simply does not

properly apprise federal employees of

the nature of an MSPB hearing.

Petitioner, it may be noted, was

an Electronics Engineer with the Naval

Sea Systems Command; not an employee

of that agency's Employee Relations

Division or of that agency's office of

General Counsel where he would deal

with MSPB procedures. It was not his

job to appear at MSPB hearings or to

deal with personnel matters for the

agency. His job was to deal with

matters of engineering. As indicated in

his previously discussed Affidavit

dated September 4, 1985, petitioner

had no idea of how the MSPB hearing

would be conducted or what procedures

would be followed at the hearing until

he appeared at the hearing. And there

is no evidence of record to the

contrary which would in any way

Support the Court of Appeals for the

Federal Circuit's unwarranted supposi-

tion that petitioner must have known

of the nature of an MSPB hearing.

33

The overwhelming majority of

federal employees never set foot near

an MSPB hearing. Being a longstanding

federal employee or having a particular

GS rating in no way makes one knowledg-

able of the nature of an MSPB hearing.

Nor does the "formality of the process

used to remove him from the federal

service" in any way acquaint a dis-

charged federal employee with the

nature of an MSPB hearing. The

process used to remove an employee

from the federal service is strictly a

paper process. The employee is

permitted to submit affidavits to the

deciding official in an effort to show

why he should not be dismissed. No

Oral evidentiary hearing is held (in

some cases, the employee may be

permitted to make a type of oral

argument to the deciding official).

This not only does not acquaint the

34

employee with the nature of an MSPB

hearing but, if it does anything,

lulls him into believing that the MSPB

hearing is similarly informal. It is

thus essential that such employees be

apprised of the nature of an MSPB

hearing if their statutory right to a

representative is to be meaningful.

Yanopoulos, like other employees

before the MSPB, Simply was not

apprised by the MSPB, and was not on

notice, of the nature of an MSPB

hearing. And without being so apprised

or on such notice he could not knowing-

ly and competently waive his statutory

right to representation. As such, he

was and is clearly entitled to a new

hearing before the MSPB_ at which he

may have counsel present.

It should further be noted in

this regard that not only did the MSPB

fail to apprise Yanopoulos of the

35

nature of an MSPB hearing through its

Appeal Form and form Orders Lit it in

fact went so far as to frustrate

Yanopoulos in any effort to obtain

counsel by refusing to grant him more

than a six day extension of the

hearing date when he requested a one

month extension of the hearing date

two weeks before the then scheduled

hearing date (P.A. 24-26). Thus, the

instant case presents particularly

compelling circumstances for reversal.

This matter of notice of the

nature of an MSPB hearing is of such

importance to so many affected federal

employees and is of such a recurring

nature as to be worthy of briefing and

reasoned consideration by this Court.

Federal employees are entitled to

proper notice of the nature of an MSPB

hearing so that they can make a

knowing decision as to whether to

36

obtain representation or to waive

their right to representation.

II. THE COURT OF APPEALS FOR

THE FEDERAL CIRCUIT ERRED

IN FAILING TO REVERSE AND REMAND

THE MSPB'S FINAL ORDER

IN VIEW OF PETITIONER HAVING

BEEN DEPRIVED OF A

FULL AND FAIR HEARING

Where a party before an admini-

strative agency has not knowingly

waived his right to representation,

the reviewing Court clearly should

reverse the agency's decision and

remand the case for a new hearing if

it finds that the party did not

receive a full and fair hearing or was

prejudiced by lack of counsel. Clark

v. Harris, supra at 404; Floyd v.

Schweiker, 550 F. Supp. 863,867 (N. D.

Illinois 1982). Yanopoulos did not

receive a full and fair hearing from

the MSPB and was severely prejudiced at

his hearing by the absence of counsel.

A federal employee appealing to

the MSPB from an adverse action taken

against him by his employer agency has

a substantive right to a full, fair

and impartial hearing before the MSPB.

5 U.S.C. 7701; 5 CFR 1201.41(a);

Lockner v. Department of Transporta-

tion, 13 MSPB 45, 46 (1983). The

MSPB's regulations at 5 CFR 1201.41(a)

specifically require its presiding

officials to "conduct fair and impar-

tial hearings."

Yanopoulos, however, did not

receive a full and fair hearing before

the MSPB and was severely prejudiced by

his lack of a representative insofar

as counsel for the Naval Sea Systems

Command wasS permitted, as previously

shown herein, to ask extensive leading

questions as to critical matters and

insofar as Yanopoulos was precluded

from obtaining the oral testimony of

38

two witnesses, Simon Kfoury and Donald

Cross, whom he wished to call to the

witness stand. If Yanopoulos had had

counsel at the hearing, counsel would

have objected to NAVSEA's’ leading

questions and would have specifically

designated witnesses (without doing so

by reference to NAVSEA's list of

witnesses as Yanopoulos did) in such a

way that the oral testimony of Messrs.

Kfoury and Cross would have been

secured.

As the Court of Appeals for the

Federal Circuit found below, the

MPSB's Presiding Official has an

obligation to assume a more active

role in assisting a federal employee

appearing pro se before the MSPB

to the extent necessary to see to it

that the pro se party receives the full

and fair hearing to which he is

entitled.

Petitioner, however, strongly

39

disagrees with the Court of Appeals'

finding that this obligation was

fulfilled in his case. The Presiding

Official had an affirmative obligation

to stop the leading questions and

seriously erred when he failed to do

so; it should have been completely

obvious to the Presiding Official that

Yanopoulos did not know that such

questions on direct examination were

objectionable and did not know how to

object to such questions. The Presi-

ding Official should also have permit-

ted Yanopoulos to call Messrs. Kfoury

and Cross to the witness stand, even if

this required an additional day of

hearing at a somewhat later date,

particularly considering the intentions

expressed in Yanopoulos' previously

described December 7, 1982 letter to

Presiding Official Marks concerning the

witnesses Yanopoulos wished to have

40

available at the hearing (P.A. 29). By

permitting counsel for NAVSEA to submit

an affidavit from Mr. Cross, which of

course was not subject to cross-examin-

ation and which of course was done in

the manner which most favored NAVSEA's

position, rather than requiring his

oral testimony, the MSPB's Presiding

Official grievously erred.

Under these circumstances, it is

clear that the Court of Appeals for

the Federal Circuit erred, by failing

to find that’ the MSPB abused its

discretion and acted arbitrarily by

refusing to permit Yanopoulos to have

the full and fair hearing to which he

was entitled.

And the prejudice to Yanopoulos

from not having counsel at the MSPB

hearing only further highlights’ the

importance of requiring the MSPB to

properly apprise federal employees of

41

the nature of the MSPB hearing.

CONCLUSION

For the foregoing reasons, it is

repectfully submitted that this

petition for a writ of certiorari

should be granted.

JEFFREY A. VOGELMAN

BALLENGER AND VOGELMAN

123 South Royal Street

Alexandria, VA 22314

(703) 683-6304

Counsel for Petitioner