Petition for Writ of Certiorari — Anderson v. United States Department of Agriculture

Supreme Court brief1986

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86 ba | on Supreme Court, U.S,

FILED

JUL 26 1966

JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE

UNITED STATES

October Term, 1986

Arthur J. Anderson

Petitioner,

- vs -

United States Department of Agriculture,

Forest Service

Heaspondent

On Writ of Certiorari To The

Court of A als

For The Federal Circuit

Petition For Writ of Certiorari

STEVEN B. UNGAR, ESQ.

Ungar Law Office, P.C.

101 East Mendenhall

Bozeman, Montana 59715

Telephone: (406) 586-4341

Attorney for Petitioner

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

QUESTIONS PRESENTED FOR REVIEW

a Pursuant to statutes protecting

“whistleblowers, “ when reprisals,

including a removal, have been taken

against a “whistleblowing" employee, does

an agency have an affirmative duty to

reverse the effects of reprisals and

reinstate the employee tc a workable and

reasonable position?

2. Whether constitutional and

statutory due process rights of a federal

employee require an impartial and unbiased

person to preside over and rule at agency

removal proceedings.

» Whether constitutional and

statutory due process rights of a federal

employee are violated when the MSPB

denies: (a) the right to obtain relevant

evidence through discovery, or (b) the

right to subpoena witnesses.

PARTIES TO PROCEEDINGS

All parties are listed in the caption.

TABLE OF CONTENTS

stax Page

QUESTIONS PRESENTED --------------- 1

PARTIES TO PROCEEDINGS - - 1

TABLE OF AUTHORITIES ss)

REPORTS OF COURTS AND AGENCIES 7

JURISDICTIONAL STATEMENT ~*

STATUTORY AND CONSTITUTIONAL PROVISIONS 9

First Amendment

Fifth Amendment -- g

> U.8.C. S3a0, 10

5 U.S.C. §2302 -—- -- 12

5 U.S.C. §7701 - - 17

Forest Service Manual, Title 6163.11 19

59 C.F.R. §1201.70 et seq. ---------- 20

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 2

ARGUMENT FOR ALLOWANCE OF WRIT 21

The Civil Service Reform Act Of

1978 Mandates That Whistleblowers

Be Protected From Reprisals. To

Effectuate This ongressional

Intent, Agencies Required To

Reinstate A Fired Whistleblower

Must Take Reasonable And

opriate Action To Reverse The

Effects Of Reprisals And

Reinstate The Employee To A

Workable And Reasonable Postion.

The Agency's Choice Of a

Sensitive Assignment Followed By

Agency And MSPB Inaction,

Assured The Failure Of

Petitioner's Reinstatement. ua

II. Constitutional And Statutory Due

Process Rights Of A Federal

Employee Require That An

Impartial And Unbiased Person

Preside Over And Rule At Agency

Removal Proceedings, Rather Than

A Person Serving Dual Roles Of

Prosecutor And Judge, Who Was

Also The Agency's Defeated

Advocate From A Recent Action

Involving The Same Employee And

The Same Issues.

es Constitutional And Statutory

Due Process Rights Of A Federal

loyee Are Violated When The

MSPB Denies: (A) The Right To

Obtain Relevant Evidence Through

Discovery; And (B) The Right To

Subpoena Witnesses.

Dismissing Petitioner's

Evidentiary Requests, The MSPB

Allowed The Agency To Completely

Control The Record And Denied

Petitioner A Fair Opportunity To

Prove Reprisals Had Continued.

APPENDIE

Initial [Final] Decision, by the

MSPB, Entered November 10, 1980

Opinion and Order = the MSPB Board

affirming the inal Decision],

Entered January 18, 1982

Initial Decision on Compliance, by

the MSPB, Entered November 10, 1980

-- ---- o-l

Opinion and Order [of the MSPB Board

remanding the Compliance Decision],

Entered June 25, 1984 :

Initial [Removal] Decision, by the

MSPB, Entered September 11, 1984 7

Initial {Last } Decision on

Compliance, by the MSPR, Entered

November 20, 1984 \

“ -- F-1

Decision, by the United States Court

of Appeals for the Federal Circuit,

Entered February 18, 1986

- G-1l

Order, by the United States Court of

Appeals for the Federal Circuit,

Denying Petition for Rehearing,

Entered April 14, 1986 —

Order, by the United States Court of

Appezls for the Federal Circuit,

oe Petition for Rehearing En

Banc, Entered April 28, 1986 _

Judgment, by the United States Court of

als for the Federal Circuit, Entered

April 28, 1986

-- - J-1

TABLE OF AUTHORITIES

CASES Page

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

—----------~--------------- 39

Chicago Teachers’ Union v. Hudsan,

_U.S._, 89 L.Ed.2d 232 (1986)

saleniaatinaiann 34, 35, 36, 38, 39

Cleveland Bd. Educ. v. Loudermill,

_U.S._, 94 L.Ed.2d 494 (1985)

------------- 34, 36, 38, 39

DeSarno v. Department of Commerce, 161

F.2d 657 (Fed. Cir. 1985)

Green v. County School Board, 391 U.S.

430 (1968)

~------- = 27

Groppt v. Wisconsin, 400 U.S. 505

(1971)

~-------- + ~~ ------------- 42

Hanifan v. United States, 354 F.2d 385

(Ct.Cl. 1965)

a---- ~~~ ----- - -- ----- +--+ 44

Hormel v. Helvering, 312 U.S. 552

(1940)

--------- +--+ +--+ +--+ 40

Toa Re Frazier, 1 MSPB 159 (1979)

nae a= ----— 24

Nebraska Press Association v. Stuart,

427 U.S. 539 (1976),

—-----~------ - - - -- ++ 42

aaa ee

Re Murchison, 349 U.S. 133 (1954)

--------- 23, 36, 37, 3, 43

Swann v. Charlotte-Mecklenburg Ad. ot

&¢7., 402 U.S. 1, (1971)

a 26, 27

STATUTES AND REGULATIONS

Civil Service Reform Act of 1978

aimeiients 21, 23, 24

5 U.S.C. §2302

ecunenenenenenanerarenanenmasasasenenenanas 7, 41

5 U.S.C. §7701

en 7

§ C.F.R. 1201.71-75

SE ee a eee 44

Civil Service Reform Act of 1978,

Report of the Committee on Governmental

Affairs, United States Senate, Report

No. 95-969.

----- - -— 24

Civil Service Reform Act of 1978,

Report, Supplemental Views Hon.

_ Patricia Schroeder, Report No. 95-1403,

David Espo, Associated Press, as

inted in the “Bozeman Daily

onicle”, June 9, 1986 (emphasis

added) .

------ - ~ 28-29

REPORTS OF COURTS AND AGENCIES

All decisions by the United States

Court of Appeals for the Federal Circuit

and the Merit System Protection Board

appear in the Appendix berets. Decisions

entered by the Agency itself appear in

Petitioner's Appendix presented to the

United States Court of Appeals for the

Federal Circuit.

JURISDICTIONAL STATEMENT

The judgment sought to be reviewed

herein, issued by the U.S. Court of

Appeals for the Federal Circuit

(hereinafter, the “Federal Circuit"), was

entered on February 18, 1986. Petitioner

herein, Arthur J. Anderson, filed in the

Federal Circuit a “Petition for A

Rehearing or A Rehearing En Banc" on

February 28, 1986, which was duly

considered by the Federal Circuit. The

Petition for A Rehearing was denied on

April 14, 1986. The Petition for

Rehearing En Banc was denied on April 28,

1986. Thereafter, the Federal Circuit

issued its Judgment as a mandate on April

28, 1986.

Jurisdiction is properly before the

United Statez Supreme'Court pursuant to 5

v.23 .c. §7701 which establishes MSPB

jurisdiction over removal actions brought

against federal employees and 5 U.S.C.

§7703 which provides that an appeal from a

final order of the Merit Systems

Protection Board shall be filed with the

Federal Circuit. Petitioner herein duly

perfected his appeal to the Federal

Circuit which issued its final judgment on

the merits.

Therefore, the United States Supreme

Court may now properly assert jurisdiction

upon a Petition for Writ of Certiorari

purguant to 28 U.S.C. §1254(1). Further,

all matters presented herein involve

construction and interpretation of

statutes enacted by the United States

Congress and/or of the United States

Constitution.

PERTINENT STATUTORY AND

CONSTITUTIONAL PROVISIONS

United States Constitution,

Amendment I.

“Congress shall make no law

abridging the freedom of speech ... or

the right of the people... to petition

the government for redress of grievances

or the right of the people. ... to

petition the government for redress of

grievances

United States Constitution,

Amendment V.

No person shall be .. . deprived of

life, liberty, or property, without due

process of law.

§2301. Merit system principles!

(a) This section shall apply to --

(1) an Executive agency;

(2) the Administrative Office of the

United States Courts; and

(3) the Government Printing Office.

(b) Federal personnel management

should be implemented consistent with the

following merit system principles:

(2) All employees and applicants for

employment should receive fair and

equitable treatment in all aspects of

personnel management without regard to

political affiliation, race, color,

religion, national origin, sex, marital

status, age, or handicapping condition,

and with proper regard for their privacy

and constitutional rights.

a a ®

Zz. The full text of sections 2301 and

2302 is set forth in the appendix hereto

at K-1 et seq.

)

(4) All employees should maintain

high standards of integrity, conduct, and

concern for the public interest.

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(7) Employees should be provided

effective education and training in cases

in which such education and training

would result in better organizational and

individual performance.

a hh

(9) Employees should be protected

against reprisal for the lawful

disclosure of information which the

employees reasonably believe evidences-

(A) a violation of any law, rule,

or regulation, or

(B) mismanagement, a gross waste of

funds, an abuse of authority, or a

substantial and specific danger to public

health or safety.

5 2302. Prohibited personnel

practices

(a)(1) For the purpose of this title

([S USCS §§ 1 et seq), “prohibited

personnel practice” meanzg any action

described in subsection (b) of thig

section.

(2) For the purpose of this section-

(A) “personnel action“ means-

(i) an appointment;

(ii) a promotion;

(iii) an action under chapter 75 of this

title [5 USCS §§ 7501 et seq.} or other

disciplinary corrective action;

(iv) a detail, transfer, or

reassignment ;

(v) a reinstatement ;

(vi) a restoration;

(vii) a reemployment ;

(viii) a performance evaluation under

chapter 43 of this titie [5 USCS §§

4301 et seq.};

(ix) a decision concerning

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pay, benefits, or awards, or

concerning education or training if the

education or training may reasonably be

expected to lead to an

appointment, promotion, performance

evaluation, or other action described in

thig subparagraph; and

(x) any other significant change in

duties or responsibilities which is

inconsistent with the employee's

salary or grade level;

with respect to an employee in, or

applicant for, a covered position in an

agency ;

(B) “covered position" means any position

in the competitive service, a caresr

appointee position in the Senior Executive

Service, or a position in the excepted

service

a mk Ot

the Administrative Office of the United

States Courts, and the Government Printing

Office

a wR

{b) Any employee who has authority to

take, direct others to take, recommend, or

approve any personnel action, shall not,

with respect to such aut srity -

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(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 informaticn by an

employee or applicant which the employee

or applicant reasonably believes

evidences-

(i) a violation of any law, rule, or

regulation, or

(ii) mismanagement, a grosz waste of

funds, an abuse of authority, or a

substantial and specific danger to

public health or safety, if auch

disclosure igs not specifically

prohibited by law and if such

information is not specifically required

by Executive order to be kept secret in

the interest of national defense or the

conduct of foreign affairs; or

(B) a disclosure to the Special Counsel

of the Merit Systems Protection Board, or

to the Inspector General of an agency or

another employee designated by the head of

the agency to receive such disclosures, 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;

ae ®

(11) 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 implementing, or

directly concerning, the merit system

principles contained in section 2301 of

this title [5 USCS § 2301).

This subsection shall not be construed to

authorize the withholding of information

from the Congress or the taking of any

personnel action against an employee who

discloses information to the Congress.

responsible for the prevention of

prohibited personnel practices, for the

compliance with and enforcement of

applicable civil service laws, rules, and

regulations, and other aspects of

personnel management. Any individual to

whom the head of an agency delegates

authority for personnel management, or for

any aspect thereof, shall be similarly

responsible within the limits of the

delegation.

§ 7701. Appellate procedures.

(a) 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.

(c)(i) Subject to paragraph (2) of

this subsection, the decision of the

agency shall be sustained subsection (b)

only if the agency's decision-

(A) in the case of an action

based on unacceptable performance

described in section 4303 of this titie [5

USCS § 4303], is supported by substantial

evidence, or

(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

employment-—

(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

practice described in section 2302(b) of

this title [5 USCS § 2302(b); or

was not in accordance with law.

ax me &k

Forest Service Manual, Title 6163.11 -

Employee Requests for Absence-

2. Requests should be made to

the work supervisor as far in advance of

each anticipated basence as practical.

For unalterable absences, notice should

reach the work supervisor during the first

day of such absence, and preferably during

the first hour of the workday. Failure to

inform the work supervisor as early as

practical could result in the absense

being considered unauthorized.

a. Excused absence for

voting or registration.

b. Excused absence for

tardiness and other brief periods.

c. Sick leave for three

workdays or less when it is feasible for

the employee to initial the time and

attendance report.

d. Annual leave for which

it is feasible for the employee to initial

iciacasicgs

the time and attendance report, except

that prior written approval is required |

before planned and approved leave which is

later canceled may be considered for

restoration.

e. Authorized absence of an

employes not entitled to earn leave when

the period of absence is one week or less.

2 Leave without pay

resulting from receipt of injury

compensation from the Office of Worker's

Compensation Programs (OWCP).

g. Leave without pay for

three workdays or less for which it is

feasible for the employee to initial the

time and attendance report.

Code of Federal Regualtions

5 C.F.R.§1201.70 et seq. Discovery

§ 1201.71 Statement of purpose.

Discovery is designed to enable

a party to obtain relevant information

needed for presentation of the party's

case. These regulations are intended to

provide a simple method of discovery.

They will be interpreted and applied so as

to avoid delay and to facilitate

adjudication of the case. The parties are

expected to initiate and complete needed

discovery with a minimm of Board

intervention.

§ 1201.72 Explanation and scope.

(a) Explanation: Discovery is the

process apart from the hearing whereby a

party may obtain relevant information from

another person, including a party, which

has not otherwise been provided. Relevant

information means evidence having any

tendency to make the existence of any fact

that is of consequence to the

determination of the action more probable

or less probable than it would be without

the evidence. . . . The federal rules

shall be interpreted as instructive rather

than controlling in any event.

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by . . . production of documents or things

for inspection or copying .

“ 1201.73. Procedures governing

discovery.

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(1) A party, or a federal agency which

is not a party, shall answer a discovery

request within the time provided by §

1201.73(d)(2) of these reguiations either

by furnishing te the requesting party.

(2) Upon the failure or refusal of a

party to respond in full to a discovery

request, or a nonparty to respond in full

to Board-approved discovery, the

requesting party may file with the

presiding official a motion to compel.

aaa ale

x & ®

§ 1201.31 Motions for subpenas.

(a) Motzon. A motion for the issuance

of subpenas requiring the attendance and

testimony of witnesses or the production

of documents or other evidence under 5

U.S.C. 12059(b)(2)(A) shall be submitted

to the presiding official.

hk ®

(b) Form. . . . shall specify with

particularity the books, papers, or

testimony desired and shall be supported

by a showing of general relevance and

reasonable scope and a statement of the

facts expected to be proven thereby.

presiding official has the authority

he/she shall rule directly on the request.

(d) Stowrag. All requests for subpenas

shall be supported by a showing of general

relevance, reasonable scope and

materiality of the evidence south.

xn ee ®

235

STATEMENT OF THE CASE

Petitioner's appeal herein involves

two cases which were adjudicated by the

Denver Regional Office for the United

States Merit Systems Protection Board

(MSPB). One case, the Petition For

Enforcement of Order (hereinafter referred

to in general as the "Compliance Action"),

further involved a 1980 hearing and

adjudication that became final in 1982

after the MSPB Board rejected an appeal by

the United States Department of

Agriculture, Forest Service, (the Agency)

and an initial decision by the Regional

MSPB became final (hereafter this decision

and order hy the MSPB is referred to

generally as the "Final Decision"). The

Final Decision upheld charges and

disclosures made by Petitioner concerning

Agency mismanagement, and found that

because of Petitioner's disclosures the

Agency took actions of reprisal and

harassment against him. Therefore, in the

SSN

Final Decision the MSPB ordered the Agency

to reinstate Petitioner and to cease all

reprisals. The Compliance Action, filed

by Petitioner May 25, 1982, alleged that

the Agency did not obey the Final Decision

and order.

The second case involves a recent

action brought by the Agency which

resulted in the Petitioner's removal from

the Agency for alleged “insubordination”

(hereinafter referred to generally as the

"Removal Action”). The MSPB' denied

Petitioner relief in the Compliance Action

and affirmed the Removal Action. Both

pending causes were consc:idated on appeal

to the Federal Circuit.

Upon briefing and oral argument before

the Federal Circuit, judgment was entered

against the Petitioner affirming both

decisions entered by the MSPB. Because

the Federal Circuit did not directly

address the first two issues presented for

review herein, Petitioner filed a

"Petition for A Rehearing or A Rehearing

En Banc,” both of which were denied by the

Federal Circuit.

STATEMENT OF FACTS

Petitioner has been employed by the

federal civil service since October of

1961. He worked initially for the Federal

Highway Administration, starting as a

temporary GS-4 engineering aid. Just nine

years later he had worked his way up to a

GS-9 supervisory civil engineering

technician position. During 1974,

Petitioner transferred to a similar GS-9

civil engineering technician position with

the Agency on the Lolo National Forest,

Superior Ranger District. Petitioner's

Appendix in the Federal Circuit

(hereinafter "F.C. App.") at 199, and

Appendix to Petition for Writ of

Certiorari (hereinafter "“App.") at a-2.

Petitioner was generally responsible

for assuring compliance with contract

specifications for roads built by

purchasers of timber on the Superior

Ranger District. After about a year at

his new job, Petitioner, having noted

numerous instances where timber sale

purchasers failed to construct roads

complying with contract specificationz,

began to call this noncompliance to the

attention of his supervisors. improper

safety and environmental concerns. (App.

a-2 -- a-3, a-7 -- a-9)

Initially, Petitioner had the

cooperation of his immediate supervisor in

his efforts to enforce contract

specifications, but a ohange of

supervisors resulted in a changed attitude

for contract enforcement, which also

resulted in Petitioner being reprimanded.

Petitioner therefore filed a formal

grievance on May 10, 1976, setting forth

specific instances of contract violations

and other irregularities in the Lolo

National Forest, and an Office of

Investigation report on the grievance was

requested. Though the matters raised in

his grievance were substantiated by the

investigation, the letter of reprimand was

not removed from Petitioner's file, little

action was taken by the Agency on the

matters raised by Petitioner, and he was

not advised of the results of the

investigation at that time. (App. a-7 --

a-12)

Agency mismanagement centered mainly

on: (a) violations of road construction

specifications; (b) acceptance of roads

which did not comply with specifications;

contract specifications after roads were

already built (thug, any road construction

work performed, whether in accord with the

contract specifications or not, was

routinely accepted and approved); and (d)

improper approval of roads (that

Petitioner had refused to accept due to

incorrect construction) without even

conducting a field inspection for

compliance. The Agency never evaluated or

corrected the mismanagement pointed out by

Petitioner; instead, it ignored these

deficiencies and attempted through

reprisals to silence Petitioner. (App. a-7

~- a-12, a-28 -- a-31) Reprisals included

reassignments, rejection of several sick

leave claims, and, after 1978, adverge

actions for alleged insubordination. (App.

a-7? -- a-17)

In 1979, Petitioner contacted the

Office of Special Counsel which requested

an investigation by the Secretary of

Agriculture. (App. a-3) This investigation

was conducted by Thomas Beaumont

(Bezumont), and resulted in the “Bergland

Report" which substantiated the majority

E Petits , imitted

Petit; had rT: 1 4 =

action. Upon concluding the investigation,

in a letter to the Office of Special

iii a

Counsel signed by Secretary of Agriculture

Bob Bergland, the remedial action the

Agency proposed was to reassign Petitioner

to California. (App. a-1, a-36 -- a-39)

Petitioner believed reassignment would

simply be a final act of reprisal for his

disclosures. He did not accept the

reassignment and was removed. (App. a-1)

In a hearing in 1980, Petitioner

claimed his reassignment and removal were

Prohibited Personnel Practices which

violated 5 U.S.C. §§ 2302 and 7701(c)(2);

this contention was affirmed by the MSPB.

The MSPB's Final Decision first addressed

the accuracy and validity of Petitioner's

disclosures and charges.

{Beaumont} {[fjinding substantial

support to many of Mr. Petitioner's

whistle-blowing claims, {sic} the

Secretary [Bob Bergland] directed

follow-up audits on these

claims .

[Petitioner's] contentions

regerding lack of strict compliance

with the specifications of the

contract on road construction and

use were upheld as substantiall

correct by Inspector Genera

auditors and Mr. Beaumont

(App. a-4, a-8)

Addressing the Agency's purported

justification for reassigning Petitioner

the Final Decision stated:

The Agency] approach{]) to Mr.

etitioner contrasts sharply with

ite review of Forest Service

management which shows a pattern of

excusing individual actions or

looking at them in isolation.

Little significance was attached to

y woes

applying regulations to Mr.

Petitioner while loosely observing

or to

management's inability to support

ite disciplinary actions time and

time again. In its April 25, 1980,

letter the Acti Special

Counsel, pom ns > Fe igen

devoted _to _Mr.__ Petitioner's

in the future. Mr. Petitioner

‘rr

alone has taken the brunt of the

Department's “corrective action."

(emphasis added) (App. a-40 --

a-4i, a-46)

lated date ioe 1 bs

t « 1

taint isal | ive. (App. a-46,

a-47) The Final Decision ordered that

Petitioner's reassignment be set aside and

"that the Forest Service and the

D ) ) of bead oma

Petitioner .. ." (emphasis addad) (App.

a-47)

In February of 1982, Petitioner was

reinstated to a road design job at the

Ninemile Ranger District on the Lolo

National Forest (Ninemile). (F.C. App. 54)

Petitioner's assignment to Ninemile in

1978 was called unexplainable and held by

the MSPB to be a reprizal. Petitioner's

”

—

reassignment to this same job site is

similarly unexplainable. Both his

immediate supervisor to be, Kirk Thompson

(Thompson), and the District Ranger, Jerry

Covault (Covault), held considerable

animosity against him. (F.C. App. 55, 181)

Covault, the District Ranger at the job

site at the time of both of Petitioner's

assignments to Ninemile, on May 29, 1979,

responding by letter to the investigation

of Petitioner's charges, began by stating:

Permit me an introductory comment

on this inquiry into the contention

of mismanagement of Forest Service

activities.

(Petitioner }

who is counter - productive,

intimidating, and obviously

dedicated to misusing his position

being destructive to

individuals, organization and

projects.

(emphasis added). (F.C. App. 74)

Thompson, Petitioner's immediate

supervisor at Ninemile at the time of both

of Petitioner's assignments, stated in a

grievance filed on September 12, 1979:

pieara Mins

[When] I applied for the position

of area engineer on the Nine-Mile

Ranger District .. . I had heard

from several sources that there was

a certain re employee

[Petitioner] i_was assured

I was

convinced the situation with the

problem employee wa [sic] serious

enough that

there more than a couple of weeks

comer added) . (F.C. App. 77)

Nor did Petitioner have the necessary

training or experience for the road design

job. Petitioner was not versed in the

Agency's road design methods including its

computer-aided design system. (F.C. App.

102, 179, 199, 200) Thus, the Agency had

created what one MSPB hearing examiner

called a “sensitive situation,“ (App.

F-14) and when difficulties arose shortly

Upon learning of Petitioner's

reinstatement to Ninemile, after

consultation with Agency officials,

Thompson drafted a job description with

specific performance standards because he

viewed Petitioner as a “problem” with whom

he anticipated "doing things a little

@ifferently." (F.C. App. 195) The

specific performance standard of one mile

of road designed every ten work days, and

was set by Thompson without even

consulting any documents or prior work

performance by other employees. (F.C. App.

177, 182-185)

In early March of 1982, Thompson began

actions and complaints against Petitioner

for not meeting this performance standard.

(F.C. App. 101, 104) Petitioner responded

by noting his inexperience at road design,

both to Thompson and in a formal protest

letter to the Secretary of Agriculture

(which was copied to the Lolo Forest

Supervisor, Orville Daniels (Daniels)).

(F.C. App. 83-89) No xsesponse to his

si‘ (i titititié# lle

formal protest was ever received. (F.C.

App. 90) The Agency, rather’ than

initiating or making a good faith effort

to train Petitioner to improve his

performance, as in the past, placed all

blame on Petitioner. Thereafter,

Petitioner continued to receive negative

job evaluations,! and he continued to

protest that inadequate training was

adversely affecting his ability to perform

adequately. (F.C. App. 105-126, 167)

Petitioner was trained entirely

"on-the-job," and never received training

from the Agency relating directly to his

job, despite continuous negative

evaluations and his correspondent requeets

for training. Based on events occurring

in August of 1982, Petitioner was

suspended for, among other reasons, his

1. It is not clear from the record that

Petitioner's performance was as poor as

Thompson stated. One of Petitioner's

co-workers, Bob Herron, stated his

“progress has been very good or really

good.". (F.C. App. 197-198)

failure to timely complete ai work

assignment.2 (F.C. App. 152-156) To

Petitioner this action was unfair, and on

his next project he documented his work

progress in exhausting detail.

Petitioner's records indicate a deadline

being initially set by Thompson and

subsequent work progress by Petitioner

which would have allowed him to timely

complete the projects, but necessary

review of the project, by Thompson, was

not completed at any time. Thompsor let

the work sit for months past his deadline,

gave Petitioner no feedback which could be

2. After his reinstaement, Petitioner was

suspended on four occasions ior to his

removal in May of 1984. spectively,

these suspensions were based on his

failure to use an SF-71 form to apply for

sick leave, to state why he was in a local

lounge for two minutes while on an absence

without leave, to specifically schedule

all of his restored annual leave for three

years in advance, and to timely complete a

work assignment sad being absent without

leave. Petitioner contends these adverse

actions were taken in reprisal, but the

specific circumstances are too voluminous

to set forth herein.

incorporated into the projects on an

interim basis, and finally refused to do

the review, assigning it instead to a

person from another office. (F.C. App.

110-125) At the same time, Thompson

refused to allow Petitioner to attend

training seminar on computer-aided road

design which was directly applicable to

his work while allowing others on the

staff to attend. (F.C. App. 119)

Complicity of other Agency officials

in refusing Petitioner relevant training

also appears in the record. First,

Petitioner's protest to Daniels that his

lack of training and experience did not

allow him to meet performance standards

was never responded tc by the Agency.

(F.C. App. 90) Second, in 1979 an Agency

supervisory engineer, Sig Stavron

(Stavron), approvei the witholding of

Petitioner's pay increase for alleged poor

performance, which action was reversed by

Beaumont's investigation. (F.C. App.

164-166) Stavron egain approved the

withholding of Petitioner's pay increase

in 1982 and 1983 while rebuffing

Petitioner's objection that the action was

unfair because of Thompsons's refusal to

review Petitioner's work and the Agency's

refusal to provide training. (F.C. App.

167) Finally, after Earl Applekamp

(Applekamp) replaced Thompson, Applekamp

initially agreed to train Petitioner on

data input for the road design computer.

However, Stavron overturned this decision

and refused to allow Petitioner this

training. (F.C. App. 201, 202)

In the Agency's response to

Petitioner's Compliance Action, it claimed

that Petitioner had received training

after his reinstatement, and entered

documents into the record indicating

Petitioner had attended workshops in

employee ethics, defensive driving, first

aid and stress management! (F.C. App.

127-131) The Agency's claim that

Petitioner's training needs were

adequately met by this training (while

denying his wage increases for poor

performance) is duplicitous. Beaumont in

his testimony stated "“[when}) the emplcyee

is in a particular job and has a

performance problem, then, you should

assist the employes in dealing with the

problems." (F.C. App. 212) The Agency

ignored this affirmative duty knowing of

Petitioner's alleged poor performance.

There is no justification for this

inaction after placing Petitioner in a job

for which he was not trained.

In his first week of work Petitioner

missed three days due to a work-related

injury and was summarily placed on sick

leave restrictions by Thompson. ~ Other

than the few days Petitioner missed in

3. In a 1986 claim, the Office of Workers

Compensation Programs held Petitioner had

proven his absence on two of these days

was caused this work-related injury.

Inadequate ccumentation resulted in

disallowance of a claim for the other day.

a 7 NN E_-— e

App. 81) However, Beaumont found

Petitioner had not abused sick leave and a

prior act of placing” sick leave

restrictions against Petitioner was held

by the Final Decision to be an act of

harassment and reprisal. (App. a-15 --

a-16) Thereby, the Agency violated the

order in the Final Decision to cease

reprisals.

Another controversy between Petitioner

and the Agency concerned the correct form

on which to apply for three days or less

of sick and annual leave. The Agency

insisted on the use of the "SF-71" form,

(F.C. App. 99), but Agency regulations

required only a proper entry on the

employee's "T & A" form. (F.C. App. 100,

186, 187) However, Thompzon continually

insisted that the SF-71 be used.

Petitioner used the SF-71 in those

instances where it was required by the

Forest Service Manual, and otherwise used

the T & A. Thompson admitted he never

= lat; baind )

Late 3 tati bef en)

ler Petit: ' } ith _h;

instructions. (F.C. App. 194)

The Removal Action was premised on

Petitioner's failure to use the SF-71 in

applying for two fifteen minute periods of

sick leave. (F. C. App. 159-162) In early

1984, the Agency “ordered” Petitioner to

use the SF-71 for all sick leave, even

less than three days, and, when Petitioner

did not obey this "order," he was removed

for insubordination. At least two

co-workers at Ninemile did not use the

SF-71; in contrast, Petitioner was treated

differently and disciplined for not using

the form. (App. E-10) Further, Beaumont

stated that an employee not obeying an

"order" would be “insubordinate” only if

the order was a proper one. (F.C. App.

207-208)

This sick leave form issue cannot be

abstracted from Petitioner's prior

problems with the Agency. Before his

first removal, Petitioner was frequently

“ordered” to disobey Agency road contract

specifications and regulations.

Petitioner's refusal to disobey

regulations resuited in his disobeying

“orders,” which was then contrived to form

the basis of Agency insubordination

charges. Beaumont and the MSPB found that

the J ld Petit;

disobey Agency regulationg. However, the

Agency, within the first week after

Petitioner's reinstatement, again ordered

him to disobey one of its regulations,

i.@. the regulations pertaining to sick

leave forms. The Agency's iatraniepence

was incredible. Running through

Petitioner's whole case is the simple fact

that the Agency has never admitted any

error despite the fact that both Beaumont

eer eer EE

}

and the MSPB made explicit findings to the

contrary.

ARGUMENT FOR ALLOWANCE OF THE WRIT

I. The Civil Service Reform Act

Of 1978 Mandates That Whistleblowers

Be Protected From Reprisals. To

Effectuate This Congressional

Intent, Agencies Required To

Reinstate A Pired Whistleblower Must

Take Reasonable And Appropriate

Action To Reverse The Effects Of

Reprisals And Reinstate The Employee

To a Workable And Reasonable

Postion. The Agency's Choice Of A

Sensitive Assi mnt Followed By

ency And HMSPB Inaction, Assured

The Failure Of Petitioner's

Reinstatement.

Petitioner presents this Court with an

issue of exceptional, far-reaching

importance, viz. in order to effectuate

statutes protecting whistleblowers, mst

agencies, which are required to cease

reprisals and reinstate a fired

whistleblower, take reasonable and

appropriate action to reverse the effects

of reprisals and reinstate the employse to

a jworkable and reasonable postion?

Herein, the Agency selected a sensitive

assignment, and through inaction in the

face of numerous problems rendered the

assignment unworkable and unreasonable. |

The Court of Appeals found against |

Petitioner on this issue simply by not :

addressing it, despite a petition for

rehearing thereon.

Thi issue is also of great importance

because Petitioner's subetantial rights,

as determined by the clear intent of

Congress in passing laws requiring the

protection of employees involved § in

protected whistleblowing activities, have

been abridged. The issue is of

extraordinary and far-reaching

significance beyond the present case

because statutory protection for

employees’ protected activities will be

meaningless if an agency, which was

required to reinstate an employee against

whom it took reprisals, need have no

concern that the reinstatement be fair and

reasonable. By refusing to rule on this

22 |

issue the Federal Circuit has so far

departed from the accepted and usual

course of judicial proceedings as to call

for this Court's power of supervision.

In the Civil Service Reform Act of

1978 Congress enacted and declared a

13 ) bent shistleblari }

thereby assuring integrity and proper

management in the federal government.

Often the whistle blowers's reward

for dedication to the highest moral

inciples is harassment and abuze.

istle blowers frequent ly

encounter severe damage to their

careers and substantial economic

dogs.

Http spplecee_ sins

a oe

the vast Federal bureaucracy it is

not difficult to conceal

wrongdoing provided that no one

summons the courage to disclose the

truth. Whenever misdeeds take place

in a Federal agency, there are

employees who know it has occurred,

and who are outraged by it. What

as needed is 2 means to assure them

;

Civil Service Reform Act of 1978, Report

of the Committee on Governmental Affairs,

United States Senate, Report No. 95-969,

p. 8 {emphasis added). This statement

clearly indicates that the Civil Service

Reform Act was intended to protect

whistleblowers. The Report prepared by

members of the House cf Representatives is

in accord.

ht now, a Federal employee who

ows the whistle" (sometimes even

to a congressional committee) on

activities at his agency which are

a violation of law, abuse of

authority, waste of funds or a

danger to the public my be more

dikely to bet [sic] harassed or

fired than praised or rewarded.

Ti efecti 5]

than drawn out administrative and

court—__proceedinga for a

We all lose when reasonable and

constructive criticism of agencies

by thoze who know them best is

stifled.

Civil Service Reform Act of 1978, Report,

Supplemental Views By Hon. Patricia

Schroeder, Report No. 95-1403, p. 386

(emphasis added). See also, Ja Fe

Frazier, 1 MSPB 159, 186 (1979).

Petitioner was reinstated to the same

job site where he had worked just prior to

his first removal. Petitioner's

supervisors at this location held

considerable animosity against him, and

the MSPB decision ordering reinstatement

held Petitioner's prior assignment to this

same job site was inexplicable. Further,

Petitioner's immediate supervisor

testified that just prior to Petitioner's

return he discussed Petitioner with his

own supervisors (including Stavron), and

decided that titioner 6 a

" " t M"

lift tly." Und t) , ,

h isi , ) eral

" Fas die +s

had been created. This is a blatant

admission of Agency discrimination and bad

faith.

The mandate of Congress and the

statutory rights of innumerable government

employees are now in jeopardy because the

Agency again removed Petitioner after he

“failed" in an admittedly difficult

assignment contrived by the Agency. The

Agency must be charged with a duty to

prepare a reasonable and functional

reinstatement for the wrongfully fired

whistleblowing employee lest the Civil

Service Reform Act be rendered a nullity

in the face of contrary Congressional

intent.

Reprisals are actually a unique form

of deliberate discrimination designed to

injure the employee who refuses to "look

thr other way" and countenance agency

mismanagement and wrongdoing. Once

reprisals are proven, the violation of a

right has been shown, and equitable powers

are proper to remedy the wrong. Swann v.

Charlotte-Mecklenburg Bd. of Ed, 402 U.S.

1, 15 (1971). Similar to instances of

proven discrimination, Agencies which have

taken reprisals have a “burden... today

to come forward with a plan [fof

26 |

reinstatement] that promises realistically

to work germ... =," Green v. County

School Board, 391 U.S. 430, 439 (1968)

{italisized emphasis in the original,

underlined emphasis added) .

In Swana this Court noted that in the

face of proven discrimination "it is the

responsibility of local authorities and

district courts to see to it that

[discrimination is not] perpetuate([d],”"

402 U.S. at 21, that "[w)hen school

authorities present a district court with

a ‘loaded game board,' affirmative action

is proper," 402 U.S. at 28, and

concluded:

[Wjords are poor instruments to

convey the sense of basic fairness

inherent in equity. Substance, not

semantics, mist govern . "is

402 U.S. at 31.

These principles apply with equal

force to proven reprisal activity, when,

as here, local officials fail in their

duty to offer a realistic and feasible

reinstatement plan, and instead present

the whist leblower with a “loaded,”

“sensitive situation,” which is designed

to fail. Equity and fairness demand an

affirmative, substantial remedy.

The recent circumstances surrounding

the renowned Challenger space shuttle

accident are particularly pertinent to

this Court's consideration of the present

Petition for Certiorari. Consider the

following news article:

pe gen, ee (AP) - The destruction

of Challenger and the death of its

seven crew members had a single

cause - the failure of a seal in

the space shuttle booster rocket,

the Rogers Commission said today.

Ite report faulted NASA for

—a a "silent safety" program

that concealed well-documented

problems from top launch managers.

Calling the disaster “an accident

reoted in history,” the Commission

eaid of the sequence of events

“began with the faulty design,” a

situtation worsened “as both NASA

and contractor management first

failed to recognize it as a

problem, then failed to fix it and

finally treated it as an acceptable

flight risk” f

The 256-page report singled out the

Marshall Space Flight Center, the

facility which oversees the booster

rocket ar The report said

dgolation” which needs to be

andoctrination or all three.

David Espo, Associated Press, as

—— in the “Bozeman Daily

onicle”, June 9, 1986 (emphasis

added).

One could ask why those persons who

knew of shuttle problems did not come

forward to express their concern with the

solid rocket boosters. The answer,

however, lies in the very circumstances of

the case at bar. Persons disclosing flaws

or disagreeing with management cannot

expect to be protected from reprisals,

even after having proven that reprisals

have occurred.

This Court should grant Petitioner's

request for review of his case because of

the exceptional importance, now evidenced

by the circumstances surrounding the

Challenger disaster, of the protection of

persons disclosing government waste and

mismanagement . The record of this case

amply demonstrates that a federal employee

simply cannot rely on the letter or spirit

of the law which forbids reprisais,

because of the ease with which an Agency

can ignore a remedial order. This Court's

order and opinion definitively

establishing the federal employee's right

to protection from reprisals, and the

agency's duty to assure such reprisals do

not continue upon an employee's

reinstatement after reprisals are proven,

is necessary to protect the pwblic

interest and all government employees who

may wish to disclose future problems or

agency mismanagement. Therefore, the Writ

of Certiorari should issue herein.

+ nto GE. “Ae erate kt Pe eee em - “s

II. Comstitutional And Statuto

Dee Process Rights Of A /Federa

Ruployee Require That An Impartial

And jdased Person Preside Over And

Bule At Agen Removal Proceedings,

Rather Than Person Serving Dual

Roles Of Prosecutor And J e, Whe

Was Also The Agency's feated

Advocate From é Recent Action

Involving The Same Employee And The

Same Issues.

Petitioner contended before the

Federal Circuit that he was denied basic

constitutional due process in the Removal

Action because the charging and deciding

official at Agency removal proceedings was

not only the same person, but was also the

Agency's defeated advocate from the first

removal action in which the Agency's

removal decision was overturned by the

MSPB because Petitioner proved the Agency

had taken reprisals against hin. The

action of the Agency, in thrusting its

recently defeated advocate into the role

of an “impartial” decisionmaker where the

very issues upon which he was defeated,

viz. Agency reprisal, would again be

directly at issue, was so fundamentally

unfair that Petitioner was not afforded

basic due process protection. The Federal

Circuit resolved this issue against

Petitioner simply by not addressing it,

despite a petition for rehearing thereon.

Thus, Petitioner presents this Court

with a constitutional issue of exceptional

and far-reaching importance, viz. whether

as a matter of fundamental constitutional

due process an employee is entitled to an

unbiased, impartial decisionmaker, capable

of making a bona fide and fair decision,

at the first level of an agency's

disciplinary process. This Court's ruling

on this issue impact on all federal

employees.

The constitutional basis for requiring

the decisionmaker to be impartial was

succinctly stated by this Court in Je

Murchison, 349 U.S. 133 (1954).

A fair trial in a fair tribunal is

a basic requirement of due process.

Fairness of course requires an

absence of actual bias in the trial

of cases. But our system of law

has always endeavored to prevent

even the probability of unfairness.

To this end no man can be a judge

in his own case and no man is

permitted to try cases where he haz

an interest in the outcome. That

interest cannot be defined with

ecision. .. . But to perform its

high function in the best way

justice mist satisfy the appearance

of justice.

A single “judge-grand jury” is even

more a part of the accusatory

process than an ordinary lay grand

juror.

process 4 ‘judge cannot be, in the

very nature of things. wholly

disinterested in the conviction or

acquittal of thoge accused. While

he would not likely have all the

zeal of a osecutor, it can

certainly not gaid that he would

have none of that zeal. Fair

trials are too important 2 part of

¢ ce hn ta

judges be trial judges of the

charges they pretex.

349 U.S. at 136 - 137 (Citations

omitted, emphasis added).

In Cleveland Bd. Educ. v. Loudermill

~ U.S._, 84 L.Ed.2d 494 (1985), the Court

emphasized the importance of assuring

against erronecus decision-making by an

agency during the removal of an employee.

The Zovdermr]] Court first balanced the

interests of both parties in a

pre-employment-termination hearing, and

noted that the employee's great interest

in maintaining his employment was beyond

legal dispute and that fyll due process

must be afforded the fired employee before

he is deprived of his significant property

interest in employment. Thus, the

Loudermili Court held that pre-termination

proceedings required notice and an

opportunity to respond to implement “an

initial check against mistaken decisions."

84 L.Ed.2d at 506. Loudermill did not

decide whether the agency official

considering an employee's response and

rendering a decision must be impartial;

however, if non-erroneous decision-making

is to be assured, impartiality is

necessary.

In the recent case of Chioage

Teachers’ Union v. Hudson, _ U.S. 89

L.Ed.2d 232 (1986), in a dispute

concerning the allocation of

non-union-member dues to union activities,

this Court ruled that non-union-members

challenging the allocation of dues must

receive a2 reasonably prompt opportunity to

challenge the amount of dues before an

impartial decisionmker. § The Hudson

Court noted that the result was necessary

because of the First Amendment rights at

stake therein.

When disciplinary action is brought

against a federal employee, the action

effects property interests equally as

crucial as union dues allocation. Also

impacted in cases involving whistleblowers

and agency reprisals are the employee's

First Amendment free speech and petition

rights. To protect the aforesaid

constitutional rights a federal employee

must be afforded a hearing and decision by

an impartial decisionmaker, at the agency

level, pursuant to the clear holdings of

Murchison, Hudsan and Loudermi ll.

Erroneous decision-making will not be

avoided if an agency is free to appoint an

official to serve a dual role as

prosecutor and judge, and is free to

appoint a blatantly biased official to

enter its removal decision.

In the present case, Petitioner was

denied an impartial decisionmaker at the

agency level in two distinct respects

which jointly operated to deny Petitioner

his constitutional right to a decision by

an impartial and unbiased judge before a

deprivation of property occurred. First,

Robert Quade (Quade), an Agency personnel

specialist, was both the charging and

deciding official when Petitioner's second

removal was proposed. After extensive

information is submitted to him, Quade

brought the removal action against

Petitioner by signing a "letter of

charges.” Petitioner was assigned an

“oral reply officer” and given opportunity

to respond to the charges. Quade then

reviewed the charging documents, the

employees oral reply, the recommendation

of the oral reply officer, and made a

decision on the propriety of the charges

and the proposed penalty. (F.C. App.

159-162)

During initial stages Quade acted as

the government's prosecuting attorney or

police officer. When the hearing process

reaches a later stage, Quade has changed

his hat and enters the picture as judge of

the chargez he brought and the penalty he

proposed. Quade thus acted similar to the

"judge-one man grand jury" of Murchison

and, in violation of Murchisan, became a

decisionmaker who, having prepared the

charges, is not impartial.

Second, Quade was the government's

losing advocate when Petitioner

successfully challenged his first removal

from the Agency by proving that reprisals

had been taken against him because of his

protected digclosures. Under Murchssan,

Hudzon, and Joudermil]], a person s0

recently in the position of an adversary

could not, as a matter of law, be expected

to set aside his adversarial role and give

the present case impartial and objective

consideration. This is particularly true

because the present removal = action

involved many of the same issues of

reprisal which Quade had the duty of

disproving in the first removal action.

As a matter of law, the basic fairness

inherent in the guarantee of due process

and the policy of non-erroneuos

decision-making have both been violated by

Quade's multiple roles in the present

case. Therefore, this Court's Writ should

issue and a remedial order entered.

The Federal Circuit in JDeSarno vy.

Department of Cammerce, 161 F.2d 657 (Fed.

Cir. 1985), held that it did not violate

due process for the charging and deciding

official at the agency level to be the

same person. Petitioner contends that

DeSarao was wrongly decided in the Federal

Circuit. The issue of aie federal

employes's due process right to an

impartial decisionmaker in Agency removal

proceedings was considered by this Court

in Arnett v. Kennedy, 416 U.S. 134 (1974),

but the action resulted in a plurality

opinion and a definitive opinion did not

issue. The intervening enactment in 1978

of the Civil Service Reform Act, and the

intervening decisions of Jouderm?ri] and

Hudson, suggest the Aroett issue should be

reconsidered and definitively decided.

The present cass amply demonstrates that

agencies proposing an employee's removal

mist be required to appoint an impartial

decision-maker; otherwise, the quarantee

of a fair proceeding will be hollow.

Anderson did not raise the issue of

Quade's non-impartiality before the MSPB.

Rather, this issue was first raised in his

appeal before the Federal Circuit. The

Agency challenged Petitioner's right to

first raise this issue os appeal, but the

Federal Circuit did not rule on the issue

The requirement that issues not he

raised for the first time on appeal is not

absolute. Generally, it is held that the

issue will not be barred when a pure

question of law is raised and refusal to

consider it would result in a miscarriage

of justice. In Hormel v. Helwering, 312

U.S. 552 (1940), this Court stated:

Ordinarily an appellate court does

not give consideration to issues

not raised below. ar ae But

those cases do not announce ar

inflexible actice ... There

; whick will

prompt a reviewing or appellate

court,

otherwise result,

to consider

questions of law which were neither

pressed nor passed upon by the

court or administrative agency

below. . . . Rules of practice

and procedure = ar. devised to

promote the ends of justice, not to

defeat them. ae!

of procedure _do not require

sacrifice of _the rules of

The present case fits squarely within

these exceptions. Petitioner's

contentions raise no issues of fact which

do not plainly appear in the record.

Thus, a clear issue of law has been

raised. Secondly, a manifest injustice

will result if the issue is not considered

since Petitioner's claim is based upon a

clear due process right to a fair hearing

and an impartial decisionmaker. The

Agency's action contravenes the

legislative scheme which envisions fair

and equitable personnel practices, 5

U.S.C. 2301(2), and important public

policy issues affecting litigants beyond

the present controversy are i raised.

Therefore, this Court's Writ of Certiorari

should issve.

Iil. Constitutional And

Statutory Due Process Rights Of A

Federal loyee Are Viclated When

The MSPB nies: A) The ht To

Obtain Relevant vidences ou

Discovery; And (B) The Right Zo

s ena Witnesses. By uiidnetes

a tioner's Ewvidentiary Requests,

MSPB Allowed The Agen To

Completely Centrol The Record And

Denied Petitioner A Fair Opporcunity

To Prove Reprisals Had Continued.

A basic requirement of due process is

a fair trial in a fair tribunal, Gropp rv.

Wisconsin, 400 U.S. 505 (1971), Nebraska

Press Association v. Stuart, 427 U.S. 539

(1976), Fe Murchison, 349 U.S. 133 (1954),

which principle includes administrative

disciplinary hearings, /rtedmn v. Fogers,

440 U.S. 1 (1979).

Petitioner contends he did not have

even a semblance of a full and fair trial

before the MSPB in both of the actions now

on appeal, because the MSPB summarily

denied him relevant discovery evidence and

a hearing in the Compliance Action, and

denied his subpoena request in the Removal

Action.

This issue is of exceptional

A? ea ~ + on

importance because an aggrieved employee,

upon whom the reprisal burden of proof

rests, mist have fair and meaningful

access to relevant documents and

testimony. 4 Otherwise, the MSPB hearing

process will become a charade in which the

agency creates a record, easily supported

on appeal under the substantial evidence

rule, while the employee is powerless to

contest agency accusations through

relevant employment documents (which are

completely under agency contro)) or

witness testimony. The facts of

Petitioner's case demonstrate MSPB

disinterest in assuring a full and fair

forum for federal employees.

Discovery is a basic right of an

appellant before the MSPB which is

4. By order of the MSPB_ Board,

Petitioner's allegations of repisal were

heard piecemeal, rather than as a whole

picture of Agency action. The MSPB

rd's order to consider’ reprisal

evidence on a piecemeal basis was legally

incorrect and denied Petitioner a Pos gres

fair hearing of his reprisal allegations.

established by the regulations. 5 C.F.R.

1201.71-75. Constitutional due process

also demands that an appellant be allowed

reasonable access to information relevant

to the presentation of his case; to hold

otherwise would make a mockery of the MSPB

system. Discovery requests mst >be

granted where they relate to a material

issue of the case, and failure to grant

such discovery is plain error warranting

reversal and remand. Golden v. Dept. ot

Navy, 1 MSPB 326 (1981), Hanifan v. Unitec

States, 354 F.2d 385 (Ct.Cl. 1965).

Petitioner's discovery request in the

Compliance Action was summarily denied,

purportedly because the documents were

irrelevant. (F.C. App. 62-65) Yet, the

Compliance Decision itself clearly

demonstrates the relevancy of the request.

Petitioner requested production of, among

other documents, job descriptions and

flexi-time requests submitted by other

employees within the local Agency, to

amc ae ic len

Se BA

evidence that his job description was

unusually specific and that he was not

allowed to use his flexi-time in the same

manner as other employees. Plainly, had

Petitioner been able tc so demonstrate

disparte treatment a strong inference of

retaliation would have been raised.

After the MSPB denied Petitioner's

discovery request, the Agency submitted

one job description and one flexi-time

request for other employees. (F.C. App.

166-176) These two documents were then

utilized in the Compliance Decision as

proof that the Agency had no

discriminatory practices against

Petitioner. (F.C. App. 49, 51) The

relevancy of Petitioner's discovery

request was demonstrated by tha MSPB's own

decision. The Federal Circuit admitted the

MSPB was in error by denying this

discovery, but held the error was

harmless. Jt is simply incorrect that a

plain error of law can be harmless when

evidence, which evidence could _have

plainly demonstrated retaliatory intent.

The denial of Petitioner's discovery

request is 2 clear violation of

Petitioner's constitutional and statutory

due process rights.

The Compliance Action was decided

soley upon written submissions, because

Petitioner's request for a hearing was

denied. Thus, being denied access to the

Agency's pertinent employment documents

was exceptionally prejudicial to

Petitioner. Petitioner was expected to

prove Agency non-compliance, but could

process of law is not provided by a

process that denies a party any means to

prove his case.

In the Removal Action, Petitioner

requested approximately twelve witnesses,

all federal employees, to appear and

testify in support of his case at the

removal hearing. His witness request was

essentially denied in full with only those

witnesses requested by both the Agency and

Petitioner being allowed. (F.C. App.

68-72) Such wholesale denial in a removal

action of testimony relevant to the

appellant's reprisal defense denies due

process of law. Essentially, Petitioner

had to prove his reprisal case through a

series of hostile, adverse witnesses, i.e.

his first and second-line supervisors and

local Agency personnel officers.

Many, if not all, of the witnesses

Petitioner requested would have presented

testimony relevant to the propriety and

reasonableness of the Agency's enforcement

of sick leave procedures at Ninemile, and

to the reprisal allegations made. The

testimony of two witnesses denied by the

MSPB, Thomas Beaumont and Don Nelzon, was

particularly damaging to the Agency at the

first removal action. See, App. a-3 --

a-9, a-32 -- a-33.

The Federal Circuit held that

Petitioner failed to prove retaliatory

intent, but did not address his further

contention that he was denied any

realistic opportunity to prove retaliatory

intent in all MSPB proceedings.

Petitioner was placed in a "no-win"

situation, and has thereby been denied the

fair hearing which is his right under the

Due Process Clause. This Court's Writ of

Certiorari should issue so that the

actions of the MSPB herein, and its

hearing procedures, can be reviewed and a

remedial order issued.

Dated this 4°7% day of July, 1986.

Steven a j)

CERTIFICATE OF SERVICE

I, Steven B. Ungar, a member of the

bar of this Court, hereby certify that one

copy of the forgoing was served upon

Respondent's counsel of record before the

Federal Circuit, Hillary Stern, at the

Commercial Litigation Branch, Civil

Division, United States Department of

Justice, Washington, DC, 20530, which is

the aforesaid counsel's last known address

of record and that three copies of the

forgoing were served upon the Solicitor

General of the United States, at the

De tment of Justice, Washington, CC,

20530, all as required this Court's

Rule 28, by placing the forgoing in the

United States Mail postage prepaid, this

“7, day of July, 1986. further certify

that all parties required to be served

have been served.

Steven B. Ungar / \

aT PALS hth aA Ta aR eA

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER FIELD OFFICE

ARTHUR J. ANDERSON )

)

v. ) CASE NO.

) DE 07528010123

)

DEPARTMENT OF AGRICULTURE )

INITIAL DECISION

Mr. Arthur J. Anderson vas employed by

the U.S. Forest Service as a Civil

Fngineering Technician in the Lolo

National Forest, located in the vicinity

of Missoula, Montana. Mr. Anderson was

removed on July 21, 1980, for failing to

report for a directed geographic

reassignment to the Klamath National

Forest in northern California. The

reassignment, was based on the poor

working relationship Mr. Anderson had with

supervisors and their employees. He

challenges the legitimacy of the reasons

for his reassignment and alleges that the

action is but the latest of a long history

a=-2

of reprisal actions resulting from his

whistle-blowing activities on the Lolo.

CUSSION

I. BACKGROUND

Mr. Anderson was employed by the Forest

Service in June 1974 as a Civil

Engineering Technician, GS-9, under a WAE

appointment. One year later he was given

aA permanent appointment to the same

porltion. During this year, there was no

indication of other than satisfactory work

performance and working relationships with

supervisors and fellow employees. li/

Shortly after his permanent appointment,

Mr. Anderson raised guestions about the

enforcement of timber sale road

construction contracts and the

organizational difficuities occurring

between foresters and engineers. These

questions were soon followed by a draft

letter of admonishment for unacceptable

——————————

a= 3

+e ere

working relationships with contractors in

July of 1975. Mr. Anderson and a number

of Forest Service superiors have not been

on good working terms since.

The difficulties between Mr. Anderson

and his superiors culminated on March 20,

1979, wath his proposed discharge for

insubordination. Mr. Anderson protested

that mismanagement and waste of funds had

been going on for some time in the forest,

that he had complained about it and that

the proposed discharge was reprisal for

his whistle-blowing complaints. The

Special Counsel of the Merit Systems

Protection Board, to whom these protests

were directed, asked the Department of

Agriculture to report on the Appellant's

allegations. 2/ Action on the discharge

was tabled until the report to the Special

/Counsel was completed. Mr . Thomas

Beaumont, an Employee Relations Specialist

Witch the Office of Personnel of the

a= 4

Department, gathered all the documents

bearing on Mr. Anderson's complaints and

employment history and conducted an

extensive investigation by interrogatory.

On the basis of this material, christened

“the 48-inch file” during this proceeding,

he prepared the report, and recommendation

Signed and issued by Secretary Bob

Bergland on September 19, 1979. Finding

substantial support to many of Mr.

Anderson's whistle-blowing claims, the

Secretary directed follow-up audits on

these claims, rescinded some but not all

of the disciplinary actions taken against

Mr. Anderson, including the proposed

discharge, because they were unsupported

by evidence, and directed that Mr.

Anderson be assigned out of Region 1 to a

transportation planning position because

of the management-employee relationship

which had been “rendered inoperable. ”

The appellant protested the geographic

ee ee

————————— Cr ——

a- 5

reassignment. He particularly questioned

being reassigned before all the follow-up

audits had been completed and because Mr

Beaumont had concluded that Mr. Anderson

and his superiors had rendered the work

environment inoperable. The Special

Counsel then asked for the factual

incidents to support the conclusion about

the work relationship of the appellant and

his supervisors.

On April 25, 1980, Mr. Beaumont, over

the Secretary's signature, replied with a

list of 15 atems for which Mr. Anderson

was alleged to be responsible, to support

the Department's conclusion that the work

relationship had deteriorated. These

included Mr. Anderson's use of leave,

method of asking for leave, complaints

about resolved matters, refusal to accept

Guidance, refusal to cooperate and, not

the facts of his having grieved, but that

his methods and attitudes as reflected in

a- 6

his grievances and complaints. The

Department opined that these demonstrated

that Mr. Anderson lacks trust in all of

the managers on the Lolo National Forest.

On the management side, mention was made

only that some unwarranted actions had

occurred. The report continued that no

single blame for the situation could be

found but the relationships were not

salvageable and the reassignment was

designed to “enable Mr. Anderson to make

new work relationships based on trust and

respect so that he would be able to

establish a healthy work environment *

IL FINDINGS OF FACT

While only after the prehearing

conference and three days of hearing on

this case did I come to this conclusion, I

find that the facts as found by Mr.

Beaumont are not really in dispute.

Indeed, many of the factual findings he

made were offered by either of the parties

ae /

as proposed findings of fact, albeit

differently phrased The testimony of the

Department's witnesses and in some

instances the appellant's witnesses, in

many instances duplicated or corroborated

information well documented in the 48-inch

file which supported Mr. Beaumont 's

findings. A summary of the pertinent

factual findings, which I adopt as my own,

are given below What is rigorously

challenged are the conclusions Mr.

Beaumont drew from these findings.

Whether these conclusions are supported is

discussed subsequently.

From 1975 through 1979, Mr. Anderson

has persistently complained that contracts

were not being enforced on road

construction related timber to [sic]

sales. Roads not meeting the contract

specifications were accepted over his

recommendation or without his knowledge.

The latest incident involved a Rock Creek

salvage sale in 1978. His conten!ions

regarding the lack of strict compliance

rith the specifications of the contract on

oad construction and use were upheld as

substantially correct by Inspector General

suditors and Mr. Beaumont, although no

management official was found to have been

improperly motivated to disregard the

sontract.

Appellant's other inquiries during this

eriod related to alleged safety

riclations, conflicts of interest,

improper use of i § funds, cover-up of

complaints and violations of travel

regulations. Although his complaints on

-hese matters were not consistently

ipheld, it was found that his pursuit of

-hese matters was not unreasonable when he

fas never advised of the outcome of the

audits or investigations. In other

instances, his complaints as supplemented

sy Mr. Beaumont’s inquiry, were scheduled

\ =

a~9

‘or further investigation Mr. Beaumont

noted that the appellant “met resistance

‘rom his supervisors and less than

complete support and information from

chose responsible for the general

vorrection of these deficiencies” on the

rontract enforcement sales investigated in

977.34

While Mr Anderson was complaining

luring this period, management was taking

ictions with respect to his employment

nm March 1976, he was relieved of his

issignment as a construction inspector

secause he could not get along with the

rontractors or purchasers. Mr. Beaumont

1oted that there was an adversary [sic]

‘elationship this time. Mr Anderson

rould insist upon the contract being

enforced His supervisors would allow

Less than the contract required

Maintaining an amicable relationship with

-he contractors Essentially, the

a-10

supervisors were allowed to function in a

manner about which Mr. Anderson complained

and was later upheld Mr. Beaumont found

that the substance of Mr. Anderson's

complaints and his attempts to attain

contract compliance were the cause of his

being relieved of his assignments in March

1976 and being on a successive series of

details for two years thereafter 4/ For

the first of his two years on detail, it

was also conceded that Mr. Anderson did

not have any meaningful assignment In

1977, he was put in a_ transportation

planning position in which he performed

satisfactorily and had no significant

problems with his superiors.

Although advised that he would not see

construction inspector duties again until

he changed his ways, Mr. Anderson was

reassigned to a construction inspection

position following a reorganization of the

Forest in 1978. Mr. Beaumont could find

en nS Se

eet. De ak RR le er bies WOE, ee rig ites .«

a- 11

no reason to explain such ae move,

particularly when the appellant had been

performing satisfactorily in

transportation planning He conceded that

this reassignment was at least partially

based on Mr Anderson's previous

activities and complaints, however, he

rejected the idea that it was for reprisal

and suggested that the action was

motivated ‘simply (by) a desire to move

someone who was not part of the team

approach. “S/

Not only was Mr. Anderson's position

assignment kept up in the air for two

years, he was also subjected to a series

of disciplinary actions during this time

Shortly after his first complaint in 1975,

he was reprimanded for his adverse

relationships with purchasers. This

reprimand led to the changed assignment

under the details. Two reasons were

offered in the reprimand, the first, in

a-12

effect, insisted that he was being

insubordinate by enforcing the contract

specifications as he was supposed to and

not deal inflexibly with the purchasers as

everyone else was doing. This reason was

held improper by Mr. Beaumont. The second

reason, failure to follow instructions in

regard to other work assignments, was

upheld.

While on detail, Mr. Anderson was not

disciplined for anything. In March 1978,

two months after his assignment to the

Nine Mile District on a _ construction

inspector job, he was admonished for

writing a seven-line memo to his superior

instead of following the iess formal

process of resolving things orally. When

the admonishment was challeged, it was

rescinded on the basis that Mr. Anderson

had the right to document a_ simple

disagreement with his supervisor, although

he appeared to be questioning the

» sie! —

DRS

no 7 Fee er NRK.

, Se

Rae Se

ae 13

decisions of his supervisor at every

opportunity and rapport between them was

lacking.

Somewhat later in the year, Mr.

Anderson was suspended for

insubordination. He refused and continues

to refuse to answer about a _ telephone

conversation in April 1978 on a government

telephone. This suspension stands.

In June of 1979, Mr. Anderson argues

that he was threatened with a suspension

for preparing a letter to Orville Daniels,

the Forest Supervisor concerning the

undermanning of the Rock Creek sale

Nothing came of the threat; however, it

was noted that the supervisor regarded an

employee's questioning his instructions to

be insubordination. A second suspension

was taken in November 1978 for

insubordination and neglect of duty. The

Supervisor verbally ordered Mr. Anderson

to construct Y approaches on the Rock

a-14

Creek sale. Since this was in violation

of the manual instructions, Mr. Anderson

refused to do so unless the direction was

put in writing. He argued that he had no

authority to change the intersection and

that it was not a proper order. Mr.

Anderson's stand on this matter was

supported and this suspension was

rescinded.

The proposed removal which precipitated

his ovscuet with the Special Counsel, was

prompted by the appellant's refusal to

accept and read all official

correspondence unless it was directed to

his representatives. He was also directed

to prepare a summary of why he had taken a

certain action. He submitted a letter but

this was not considered a summary and

therefore he was held to be insubordinate.

Mr. Beaumont found that these instances of

insubordination might be technically

sustainable but would never rise to the

a= 15

level warranting termination.

Consequently, the proposed discharge was

rescinded.

Other disputes were occurring between

Mr. Anderson and his superiors over

evaluations, leave, change in duty hours,

the submission of doctor's certificates to

cover sick leave, and other miscellaneous

matters. In some instances Mr. Anderson's

viewpoint was upheld; in others, his

superior’ s viewpoint was. Some of the

grievances that Mr. Anderson did file were

rather petty and completely unsupportable.

For instance, he insisted that the agency

give him administrative leave to cover

personal business which he would have been

able to handle without leave had he

attended a training course which had been

cancelied. In other instances, management

reacted in a similarly petty manner.

After being advised that his insistence

upon a sick leave certificate had not been

a-16

appropriate, his supervisor insisted on

renewing the instruction, which even Mr.

Beaumont. characterized as harassment of

Mr. Anderson. Repeatedly, Mr. Beaumont

comments that Mr. Anderson and his

supervisors contributed to an environment

that led to confrontation. He stated many

of these situations were initiated by Mr.

Anderson and responded to by an

application of the regulations albeit a

rather rigid application. 6/ In sum, Mr.

Beaumont expressed the finding with which

I cannot disagree:

It is apparent in the record,

particularly from Mr. Anderson's

individual comments, that he does

not trust his supervisors and is in

a continual position of doing

battle with his supervisors rather

than working with them. It is also

readily apparent that Mr.

Anderson's supervisors for the past

year were also nonoompromising and

made a situation a win-lose or

either-or situation. In addition,

previous actions taken in regard to

continually reassigning and

detailing Mr. Anderson were

motivated by some improper

considerations. Both supervisory

personnel and Mr. Anderson

. Lt

cath ie Th tte eine 5.

ile eet, CG a ama pe RS,

SO EE nee PET a MIE Tee TY) Se SEO Ny Sm Pane sie es TAP TET ne Wis bean pe

aA@ ie

infringed upon the proper

management-employee relationship.

IIL. __THE APPLICABLE LAW

A discharge of an employee may be taken

only for such cause as will promote the

efficiency of the service. 8/ An agency's

decision to discharge will be upheld only

if it is supported by the preponderance of

the evidence. 9/ The Board has held that

to meet this burden, the agency must

support each and every element of the case

by the preponderance of the evidence. 1]0/

What those elements are and how the burden

of proof may be met in a discharge case

resulting from a geographic reassignment

were addressed by the Board in the

decision of Ketterer v. Department of

Agriculture, MSPB Order No. SL075299021

(July 2, 1980). The Board held that proof

that a removal promotes the efficienoy of

the service “necessarily includes a

demonstration that the agency's decision

to reassign the employee was a bona fide

a- 18

determination based on legitimate

management considerations in the interests

of the service. [sic] ]]/ The agency must

make out a prima facie case by showing

that the employee had adequate notice of

the decision to reassign and refuses to

accept the reassignment, and by presenting

some evidence of legitimate management

reasons prompting the decision to

reassign. If the agency satisfies this

burden, the appellant must come forward

with credible evidence that is sufficient

to cast doubt on the existence of any

legitimate management basis for the

reassignment. Should the appellant do

this, the agency must come forward with

further evidence relating the reassignment

to the efficiency of the service. ]2/

In this case, Mr. Anderson has raised

the claim that the reassignment is a

prohibited personnel practice under 5

U.S.C. §2302(b)(8) because the Department

a- 19

reassigned him for reasons which are

tainted by reprisal for whistle-blowing on

mismanagemant by the Forest Service Even

if the Department was able to show by the

preponderance of the evidence that the

appellant's discharge promoted the

efficiency of the service, its decision

could not be upheld if the appellant was

able to show that the decision was based

on a prohibited personnel practice. 13/

This 1s an affirmative defense upon which

Mr. Anderson bears the burden of proof

py Fa

The elements of proof on a reprisal for

whistle-blowing were discussed in the

Board's decision in Frazier v. Hall, MSPB

Order No. SCC-80-1 (December 17, 1979)

To establish reprisal for whistle-blowing

under Frazier, the appellant must have

made protected disclosures of

mismanagement, waste of funds, etc. For

the protections to attach, the appellant

a- 20

must show that he held a reasonable belief

that the disclosures of information

evidenced mismanagement or waste; the

appellant must next show that retaliation

resulted. This inciudee a demonstration

that the protected disclosures were known

to the management officials taking action

and that there is a retaliatory motive

which can be inferred from the

circumstances surrounding the action. 15/

As discussed below, the facially

legitimate management reasons offered to

support the reassignment of Mr. Anderzgon

are intertwined with adverse reactions by

management officials to his

whistle-blowing and other complaints.

Therefore, a crucial issue is what proof

is necessary to show a prohibited practice

when mixed motives for the agency action

are evident. The Board did not discuss

this issue in Frazier in relationship to

reprisal for whistle-blowing since the

a= 2)

evidence in that case failed to support a

finding that the manager who took the

actions at issue knew of the employees’

protected disclosures. However, the Board

addressed the question of mixed motives in

analyzing the reprisal for exercise of

appeal rights issued in Frazier. 16/

Since the Board's analysis on this point

was based on a review of analogous

statutes, such as Title VII of the Civil

Rights Act of 1964 and the National Labor

Relations Act, all of which contain

provisions designed to protect the

integrity of the complaining process, I

find the Board's holding on the mixed

reason issue in an exercise of appeal

rights case to be applicable to the

reprisal for whistle-blowing issue in this

case.

The Board noted the cases which held

that if a prohibited reason in any way

played a part in the action, the whole

a- 22

action was tainted. It also noted the

more stringent view, that the prohibited

reason must play a dominant or primary

part in the decision to render the action

illegal. It adopted neither of these

approaches, but fashioned a “significant

factor” criteria which was not

specifically defined. 17/ In the context

of the Board's analysis, I find the

“significant factor" approach to require a

showing of influence over and above a de

minimis level, yet not reaching a dominant

motive level. This comports with the

Board's later holding in the case that

mere knowledge of protected activity will

not support an inference of retaliatory

motive. 18/ If, then, the appellant can

show that his protected activity had a

significant influence on the Department's

decision to reassign him, he succeeds in

supporting a findixg that a prohibited

personnel practice of reprisal for

a~ 23

whistle-blcowing occurred in this case.

The Department argues that the analysis

of the evidence should not stop at this

point hut be considered further under the

holding in Mount Healthy City School

District v. Doyle, 429 U.S. 274 (1977).

Under Mt. Healthy, should the appellant

show that reprisal was a significant, or

even a substantial, factor in the

reassignment decision, the Department my

still support the reassignment if it is

able to show that the action would have

been taken anyway for reasons independent

of the protected activity. The Board

acknowledged in Frazier that the Mount

Healthy argument could be raised, but did

not decide its applicability to a

prohibited personnel practice case. 19/

Mount Healthy dealt with

constitutionally protected free speech

activity, consideration of which was a

substantial and impermissible reason in

a-24

the district's decision not to rehire

Doyle. The Supreme Court held that to

limit analysis of the case to the rule of

substantial causation could place an

employee in a better position as a result

of the protected activity than he would

otherwise have been and require his

reinstatement even if the same decision

would have been reached apart from the

protected activity. It held that the

constitutional principles were vindicated

if the employee is in no worse a position

than if he had not engaged in the conduct.

I find that once the appellant shows

that his protected activity as a

whistle-blower played a significant part

in the Department's decision, the analysis

should proceed, as the Department argues,

to the independent reason test of Mount

Healthy. Whistle-blowing has the

trappings of the free speech activity at

issue in Mount Healthy. There is nothing

in the Reform Act which suggests that

whistle-blowing carries greater

protections than free speech. Rather, as

discussed by the Board in the Frazier

decision, the Reform Act contains the

“complimentary, but sometimes

countervailing” purposes of protecting

whistle-blowers while improving the

efficiency of the service by facilitating

the removal of employees who do not

perform acceptably. 20/ The Mount Healthy

test is an appropriate means of striking

that balance. In this respect, the

Department argues that its evidence shows

that the appellant had poor’ working

relationships apart from his protected

activities and that these present an

independent reason which would support his

reassignment.

Alternatively, the Department maintains

that it can support the reassignment,

under the theory advanced in Hernandez v.

a- 26

Alexander, 607 F.2d 920 (1979) In

Hernandez, the court held that there comes

& point when protected activity pursued to

a great extent in continuing resistence to

an agency or an agency action, may take

the protected activity out of the coverage

of the usual retaliatory standards and

become a realistic factor in assessing an

employee's ability to perform where he is.

The Department argues that Mr. Anderson's

complaints, grievances and allegations of

reprisal have reached that point to

present a legitimate management reason for

ordering his reassignment to another

region.

III. ANALYSIS

Upon receipt of Secretary Bergland's

September 19, 1979, report, Mr. Anderson

was on notice that he would he reassiged

[sic] out of the region. In a directive

dated January 11, 1980, Mr. Daniels

advised the appellant of the specific

a a So a

a-27

location and of his February 24, 1980,

reporting date. He received this

directive on January 16, 1980. On

February 22, 1980, Mr. Anderson declined

the reassignment and he did not report for

duty at the Klamath National Forest on

February 24, 1980. The legitimate

management reason offered all along by the

Department to support the reassignment was

the adversarial relationship between Mr.

Anderson and his supervisors, which was of

a long-standing nature. As I have noted

above, the adversarial relationship was

supported by the September 19, 1979,

report, the summary attached to it and the

grievances and complaints, all of which

were well documented in the 48-inch file.

While the parties do not agree on the

causes or the accountability for the

relationship, it does exist; its existence

is sufficient evidence to establish a

prima facie case under Ketterer supporting

the reassingment .

The appellant's challenge to the

legitimacy of this reason for reassignment

rests on his reprisal ter whistbecbecing

claim. He asserts that the adversarial

relationship at least in part was prompted

by impermissible reaction to his

complaints on the part of management. it

was stipulated that Anderson made

protected disclosures of mismanagement and

waste of funds. It was precisely

Secretary Bergland, Mr. Beaumont, any

intervening Department officials and local

Forest Service officials once Mr.

Anderson's claims concerning the Rock

Creek sale hit the newspapers on October

2c, 1978. It was not stipulated and is

now contested that local Forest Service

officials knew of protected disclosures

before 1978, and could, therefore, be held

accountable for reprisal action or any

taint to the working relationship. The

a-29

lack of knowledge by local officials of

protected activity is unsupported by the

evidence. The first grievance Mr.

Anderson filed on March 10, 1978, clearly

protests “fiscal irregularity,“ “lack of

contract enforcement, “lax contract

administration.“ This grievance followed

informal resolution attempts with local

officials on the letter of reprimand,

which was directly concerned with Mr.

Anderson's contract relationship with

contractors and his reassignment for his

attempted contract enforcement activities.

It resulted in an Inspector General

inspection sometime later.

Mr. Anderson may not have used the

magic word “whistle-blower” but the

substance of his complaints dealt in great

part with whistle-blowing type activity.

Substance, not the invocation of magic

words, carries the protection of the Act.

Early on, then, Mr. Anderson's immediate

a- 30

supervisors had actual knowledge of

protected disclosures, even if the label,

“whistle-blower,” had not been affixed to

Mr. Anderson's activities yet. 2i/ # The

Department makes the indirect suggestion

that since Mr. Anderson's disclosures were

only in the Forest Service or made to

local officials before 1978, he was not

really protected. Although the Board did

not specifically address this point in the

Frazier decision, such a narrow reading of

the provisions of 5 U.S.C. §2302(b)}(8)

would not be consistent with the Board's

holding in Frazier that the remedial

aspects of the statute require broad

reading. 22/ The whistle-blowing section

of the Act contains no such restriction.

Moreover, Mr. Anderson's concerns were

brought to the attention of the IG was

early as 1977 and this is clearly

protected by subsection® (8)(b). 23/ I

conclude the appellant has shown that from

a ee ae eee, es

a-3)

about the time he started making protected

disclosures, local Forest Service

officials were aware of then.

The appellant must next show that

Department officials acted with a

retaliatory motive. As noted above, there

were consistent findings that a lot of the

actions taken by local officials with

repsect to Mr. Anderson's position

assignments and discipline and, to some

extent, the handling of his grievances,

were in part prompted by the reaction to

his complaints. Mr. Beaumont rejected

reprisal as a motivation, however, since

under his theory management officials were

not aware of the protected disclosures, a

conclusion on which I have made a contrary

finding. There is, as the appellant

argues, a coincidence in time between the

complaints and the disciplinary actions or

details taken against Mr. Anderson.

Whereas in many other matters, management

a= 32 .

was notoriously loose in its observation

of rules, regulations and policies, when

it came to dealing with Mr. Anderson, it

assumed a “rather rigid“ approach. Mr.

Robert Peterson, another construction

inspector, encountered similar

difficulties with his superior over

attempts to enforce the contract. After

insisting upon contract compliance, he

received an evaluation substantially below

that which he had ever been given. It was

later raised on a grievance. Mr. Peterson

testified that his supervisor told him

many times not to enforce the contract as

written. Mr. Donald Nelson met at some

unspecified time with the Chief of the

Forest Service and testified that he was

told not to associate with Mr. Anderson,

who had been a troublemaker for 10 years.

Mr. Peterson's and Mr. Nelson's

testimony reveal a propensity on the part

cof some Forest Service officials to react

&-53

adversely to those who question their

management . The coincidence of Mr.

Anderson's complaints and the subsequent

discipline and the manner in which the

Forest Service dealt with Mr. Anderson,

support a finding that reprisal by local

management officials played a part ia

creating the adversarial relationship upon

which Mr. Anderson's reassignment was

based.

The Department makes a telling point

when it notes that the Forest Service did

not make the decision to reassign Mr.

Anderson. The Department did. There is

no evidence that Mr. Anderson or any

Department official shared an adversarial

relationship. Mr. Beaumont testified that

he never dealt with Mr. Anderson before to

his recollection. There is not sufficient

evidence to conclude that Secretary

Bergland, Mr. Beaumont or any of the

intervening Department officials

a-354

participated in direct reprisals against

Mr. Anderson. Nonetheless, even if they

chose not to regard it as reprisal, Mr.

Beaumont and the Secretary knew of the

reaction of management to protected type

activity, acknowledged that reaction

contributed to the adversary relationship,

and relied on the adversary relationship

to reassign Mr. Anderson. That adversary

relationship was in part due to reprigal

for whistle-blowing. Their reliance on a

tainted reason for the action tends to

perpetuate the reprisal. Thus, while

these individuals may not have formed an

intent to take reprisal action against Mr.

Anderson, I find a retaliatory motive has

not been eliminated from the decision

since they relied heavily on tainted

reasons to support the reassignment.

The Department all along and lately the

appellant have conceded that there was an

adversarial relationship between Mr.

a-35

Anderson and management to which both

parties at various times contributed. Mr.

Anderson was less than politic in handling

of some of his grievances. Management

reacted to his construction compliance

complaints with shifts in his position

assignment and discipline. Neither party

has clean hands in this case. When

management had legitimate reasons for

acting, the question is whether’ the

prohibited reasons played a significant

part in the action at hand. The

Department bases its reassignment decision

on this adversarial relationship. Yet,

even after its extensive investigation,

the Department could not distinguish

whether Mr. Anderson or management were

mnore accountable for the deterioration of

that relationship. I do not believe it

necessary to decide whe is accountable for

the deterioration. Even were I to find

Mr. Anderson responsible, this would not

a- 36

justify management taking reprisal action

against him. Since both parties

contributed to the adversarial

relationship and management's contribution

was tainted by reprisal, I cannot dismiss

reprisal as an insignificant factor in the

reassignment decision.

The Department may still support the

action if it can show that it had

independent reasons for making the

reassignment. In this regard, the

Department argues that the record amply

demonstrates a pattern of dealing with

others, including those outside the

supecvisory chain, in which Mr. Anderson

refuses to follow instruction, makes

unwarranted accusations and indulges in

vulgar name _ calling. The types of

activities are best exemplified by the

listing in the April 25, 1980, response to

the Acting Special Counsel describing the

factual incidents that support that the

a-37

management-employee relationship has been

“rendered inoperable”:

? Mr. Anderson repeatedly

characterized his supervisors and

coworkers as incompetent, inept and

unethical.

2. Mr. Anderson complained in 1979

about safety violations on the Cedar

Creek Road on September 25, 1975, that

he knew had been previously handled

administratively.

a. Mr. Anderson took leave on short

notice on days when inspections were

planned or necessary on the Rock Creek

sale, necessitating the performance of

the tasks by others.

4. Mr. Anderson then complained about

the actions taken by those who replaced

him.

¥ Mr. Anderson established the

practice of taking leave by merely

informing the supervisor he was on

leave, and not by requesting approval

of leave in advance.

6. Mr. Anderson used considerable

amounts of sick leave and on one

occasion, was found in Forest Service

offices conducting apparent personal

business during time for which he

attempted to claim sick leave.

7. Mr. Anderson established a practice

of notifying the Forest Service of hig

desire and intent to use annual leave

at the last minute.

8. In filing injury claims, Mr.

a- 38

Anderson refused to cooperate by

completion of the proper form.

9. When difficulty on his injury

claims subsequently ensued due to the

form filing question, Mr. Anderson

filed grievances alleging lack of

proper supervisory assistance.

10. Mr. Anderson refused to accept

guidance on using the negotiated

grievance procedure in 1977,

unnecessarily turning most of the

paperwork on the grievance to the

question of procedures rather than the

merits of the matter, particularly

after most of his concerns were

resolved at the informal stage.

11. Mr. Anderson continually raised

minor work concerns to the attention of

the Forest Supervisor, several layers

of supervision removed from him. He

objected when he was instructed to deal

with the questions informally with his

supervisor first. Subsequently, when

he was asked to put his grievance A9-1

formally in writing at the informal

stage, he complained that this was

reprisal.

12. Mr. Anderson filed a considerable

number of formal grievances over small

questions of leave and travel advance

administration. The number and nature

of the grievances signified a

communication/confidence gap between

Mr. Anderson and his supervisors.

13. Mr. Anderson did not fully

cooperate with his supervisors in

either requesting sick leave or

documenting it as requested due to its

length.

a- 39

14. Mr. Anderson demanded that all

correspondence of an official nature,

to him, be sent to his Congressional

representative. Material sent to Mr.

Anderson was forwarded by hin,

apparently, unopened, to his

Congressional representative.

15. Mr. Anderson demanded that

instructions on even the most routine

and single task be placed in writing

for him.

Interestingly, many of these items were

pulled out of context from the September

1979 report in which Mr. Anderson's

activities were characterized as

understandable. For example, his practice

of notifying his supervisor of use of

annual leave at the last minute was a

practice which had been tolerated for

sometime and for which Mr. Anderson had

been disciplined without any notice chat

the practice had to be changed. 24/ Mr.

Anderson's turning grievances into a

question of procedure rather than merit

was something of which management was also

culpable. 25/ For Mr. Anderson to fully

cooperate with his supervisors in

SS hee re ee .

a-40

requesting sick leave and documenting it,

he would have had to report for work to

say he was sick, which the Department held

to be unreasonable. 26/ In any event, the

matter cited by the Department as its

“independent” reasons for reassigning Mr.

Anderson are still intertwined with his

protected activity, were already the

subject of discipline, or were not

considered so significant when’ they

occurred as to warrant some type of action

by management staff that was none too

reluctant to discipline Mr. Anderson on

other matters. Moreover, the Department

has consistently stated that while Mr.

Anderson in many oof his = individual

complaints vas supported, its action is

based on the pattern of his activity.

This approached to Mr. Anderson contrasts

sharply with its review of Forest Service

management which shows a pattern of

excusing individual actions or looking at

a-4]

them in isolation. Little significance

was attached to such matters as management

rigidly applying regulations to Mr.

Anderson while loosely observing them in

all other matters, or to management's

inability to support its disciplinary

actions time and time pede. In its April

25, 1980, letter to the Acting Special

Counsel, two and one-half pages are

devoted to Mr. Anderson's. proclivities

while a one-liner recognizing some

unwarranted actions were taken by his

superiors summarized management's

contribution to the devastated employment

relationship. Recognizing that the

September 1979 report and the April 25,

1980, letter to the Acting Special Counsel

were prepared essentially in anticipation

of proceedings on Mr. Anderson's case, I

find reason to believe Mr. Anderson's

activities may have been exaggerated and

management's toned down. Since many of

a42

the reasons still relate to protected

activity as a whistle-blower of ([sic}

agrievant and those which don't carry

little weight, I find the Department has

not shown by the preponderance of the

evidence that it had an independent reason

for reassigning Mr. Anderson.

The Department's final attempt to

support its reassignment decision relates

to what it calls Mr. Anderson's excessive

grieving. “ It maintains that under the

Hernandez decision, Mr. Anderson's

constant resort to the grievance procedure

removes him from the realm of protected

activity. It contends that it has the

right to be justifiably incensed when Mr.

Anderson uses the grievance procedure

solely out of opposition to management

decisions and this excessive use results

in a relationship fraught with contention.

A finding that protected activity at some

point loses its protection should he

a-43

cavalierly made. While Hernandez does not

expressly say so, I regard the decision as

requiring some clear abuse of the process

before the activity is removed from the

realm of protection. Admittedly, Mr.

Anderzon has filed some silly grievances.

For instance, I am puzzled on what basis

he expected the Department to underwrite

his personal business with administrative

leave when a training course was cancelled

at the last momnent. However, many of Mr.

Anderson's grievaaces and complaints,

particularly those on more significant

issues, were upheld at least in

substantial part. In those instances when

he raised matters again and again, the

reptition was explained on a few occasions

by the Forest Service not advising him of

the results of his first complaints. He

was also receiving inconsistent

instructions on the use of the grievance

system. At one point he is told to deal

a- 44

informally before pressing a grievance.

At another, he is told to write everything

down. Sometimes he resorted to the

grievance procedure to cover himself when

he had the choice between “a rock and a

hard place, " e.g., charges of

insubordination for refusing to compromise

on contract specifications or potential

charges of unacceptable performance were

he to do so. It is difficult to imagine

how an employee can be said to be filing

too many complaints when he is upheld on

so many of then. Moreover, no one

disagrees that an employee has to be right

all the time in his complaints. Each

employee has the leeway for a few wrong

calls. There is no doubt that a lot of

time was spent on handling Mr. Anderson's

grievances and that this interfered with

getting to the main mission of the Forest.

The evidence also shows, however, that on

a number of occasions when Mr. Anderson

a- 45

was not satisified with the results of his

first complaint and pressed fer additional

inquiry, he was frequently upheld when

that second inquiry occurred. This, too,

may have contributed to his raising

matters over and over. The substance of

his complaints and these factors which

contributed to their reptition persuade me

that no clear abuse of the process has

been found.

There is another factor in the

Hernandez case which is not present here.

Not only was Mr. Hernandez reassigned when

he abused the complaint process, but the

manager who had contributed to their

adversary relationship was also

reassigned. In the Frazier case, one of

the supervisors who was responsible for

the aura of conflict or reprisal was also

moved. Other managers were specifically

instructed on the steps to be taken to

improve the management of the office and

a- 46

avoid a repetition of the events occurring

in that case.

Throughout this case, Mr. Anderson and

the management officials have been held

responsible for their deteriorating

working relationship. While the Forest

Service was directed to look into training

or discipline of management officials

involved in the adversary relationship, no

evidence was presented to show that any

management official of the Forest has been

moved, reassigned, reprimanded or even

mildly admonished on the error of his ways

or at least how to improve or avoid the

same kind of activity in the future. Mr.

Anderson alone has taken the brunt of the

Department's “corrective action."

Since reprisal was a significant factor

in the aversarial relationship and thus

tainted the decision to reassign, and

since a reason apart from protected

activity was not shown to support the

eee te

a- 47

reassignment, I conclude that the

appellant has demonstrated that a

prohibited personnel practice under 5

U.S.C. § 2302(b)(8) formed a basis for the

reassignment decision. This is sufficient

under the Ketterer decision to challenge

the legitimacy of the management reasons

for the reassignment, a challenge which

the Department has not overcome. Thus, I

conclude that the reassignment has not

been supported by the preponderance of the

evidence and would, therefore, not promote

the efficiency of the service.

V. [sic] CORRECTIVE ACTION

It ais ordered that the involuntary

reassignment of Arthur J. Anderson to

Region 5S be set aside. It is further

ordered that the Forest Service and the

Department of Agriculture cease

immediately from retaliating against Mr.

Anderson for his protected activities.

This is an intial decision and order.

)

a- 48

It will became a final decision and order

of the Merit Systems Protection Board on

December 15, 1980 unless a petition for

review is filed with the Board or the

Board reopens the case on its own motion.

An appropriate official of the agency

must furnish this office with evidence of

its compliance with this order within

fifteen calendar days of the date the

decision and order became final.

Any party to the proceeding, the

Director of OPM, and the Special Counzel

may file a petition for review. The

Director may request review only if he/she

is of the opinion that the decision is

erroneous and will have a substantial

impact on any civil service law, rule, or

regulation under the jurisdiction of the

Office of Personnel Management. The Board

may grant a petition for review, after

providing an opportunity for response by

other parties, when it is established

a-49

that:

(1) New and material evidence is

available that, despite due diligence,

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

regulation.

All petitions for review shall set

forth objections to the initial decision,

supported by references to applicable laws

or regulations, and with specific

reference to the record. The petition for

review must be filed with the Secretary of

the Merit Systems Protection’ Board,

Washington, D.C. 20419, no later than

December 15, 1980. Three copies of the

petition must be filed with the Secretary.

A petition for judicial review of a

final Board decision must be filed in the

appropriate US. Court of Appeals or in

the U.S. Court of Claims no later than 30

days after receipt of notice of the

Board's final decision.

For the Board:

/a/

a-50

Jacqueline R. Bradley

Presiding Official

Date: November 10, 1980

F REE

~ “~ oh.

se a

om ~i™

| ome

tht

“~

—

~—

~~)

“

a- 5]

5 U.S.C. §7513.

5 U.S.C. §7701(c)(1)(B).

In re Willi V iver.

MSPB Order No. $L075299021 (July 2,

1980).

Ketterer, at 4 citing McClelland v

Andrus, 606 F.2d 1278, 1291 and

note 61 (D.C. Cir. 1979).

, at 5-6.

5 U.S.C. §7701(c)(2)(B).

> U.S.C. $7513.

5 U.S.C. §7701(c)(1)(B)

In re William Van Sciver.

K at 4, referencing

KRetterer,

McClelland v. Andrus, 606 F.2d

1278, 1291 and note 61 {D.C. Cir.

1979).

Ketter, at 5 - 6.

5 U.S.C. [§]7701(c){(

5 C.F.R. §1201.56(b)

Frazier, at 36.

Such reprisal is a prohibited

personnel practice under 5 USC.

§2302(b)(9).

Frazier, at 54.

Frazier, at 56.

Frazier, at 56, footnote 52.

Frazier, at 1, footnote 1.

Since the disclosures were being made

in the context of a grievance, known

protected activity under 5 USC.

§2302(b)(9) might also be asserted.

at 46, footnote 37.

See footnote 21 supra

Government's Exhibit D, pp. 85-86.

Government's Exhibit D, p. 92.

Government's Exhibit D, pp. 94-95.

2)(B).

(2) (

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ARTHUR J. ANDERSON,

_ ae

DEPARTMENT OF

AGRICULTURE,

eee eee eee ee

OPINION AND ORDER

Appellant, a Caval Engineering

Technician, GS-9, for the Lolo Nationai

Forest, Department of Agriculture

("Agency") in Massoula, Montana, was

reassigned to the Klamath National Forest

in Northern California. Appeilant did not

accept the reassignment, and on July 21,

1930, he was removed for failing to report

for a directed geographic reassignment

Appellant appealed the agency s

removal action to the Board's Denver Field

Jtface where he alleged that the

reassignment was in reprisal for his

whistleblowing activities. 1/ After a

three-day hearing, the presiding official,

B-2

in an initial decision dated November 10,

1980, found that reprisal was a

“significant factor” in the reassignment

and that no independent reason for the

action was shown. The agency was ordered

to cancel appellant's reassignment and to

cease retaliating against him.2/ The

agency filed a timely petition for review

alleging that the initial decision is

based upon an erroneous interpretation of

statute or regulation, 3/ and appellant

responded in opposition.

The petition for review is GRANTED.

The agency alleges that the initial

decision in this case is based upon the

presiding official's erroneous

interpretation and application of the law,

as well as several procedural errors.

Specifically, the agency argues that: (1)

reprisal was not demonstrated as a motive

by a preponderance of the evidence; (2)

reprisal was not determined to be a

PEN Ree Coe Cee eee On

“significant factor” in the reassignment,

(3) the agency had a valid independent

basis for reassigning appellant, (4)

appellant's reassignment was the agency s

only alternative under the circumstances

of this case; (5) the presiding official

failed to state the bases and reasons for

each finding of fact and conclusion of

law; (6) the presiding official failed to

give proper consideration to the Special

Counsel's report resulting from his

investigation of appellant's allegations,

and (7) the presiding official's

disqualification of Thomas Beaumont, an

agency official, as a technical advisor or

co-representative of the agency was

harmful error.

Appellant contends that the presiding

official applied the proper legal

standards, and that the record supports

the presiding official's finding that the

agency action was taken in reprisal for

B-4

whistleblowing. He also argues that the

agency's alleged independent reasons for

the reassignment were inadequate; that the

agency had laternatives to reassignment;

and that disqualification of the agency

official as a representative or technical

advisor was proper.

In Ketterer v. Department of

Agriculture, 4/ the Board held that on

appeal of a removal resulting from failure

to accept a geographic reassignment the

agency must prove by the preponderance of

the evidence that its decision to reassign

the employee was a bona fide determination

based on legitimate management

considerations.5/ Nonetheless, the action

may not be sustained if the employee shows

that the reassignment was based on a

prohibited personnel practice. 5 U.S.C. §

7701(c)(2).

Here, appellant clearly engaged in

disclosure protected under 5 USC. §

scr od AND lA aes RAB rings Lae donate

B-5

2302(b)(8) and reasonably believed that

the disclosures evidenced mismanagement

and waste of funds. The presiding

official correctly found that agency

officials were aware of the protected

disclosures when they were made. The

testimony of apellant and his witnesses

conflacted wath that of the agency

officials 1¢ to their motives for

reassigning the appellant. The presiding

official, however, found appellant's

evidence more credible than that of the

agency and determined that reprisal was a

Significant factor’ in the

reassignment 6/ She also found that the

agency had not established that it had an

independent reason for the reassignment.

Based upon a careful review of the record,

we find that the presiding official's

determinations are sound.?/

The agency further argues that the

initial decision is based on several

B-6

procedural errors. None of these

positions is well taken. The agency

alleges that the presiding official failed

to state the basis for each finding of

fact and conclusion of law in the initial

decision. It is evident from the initial

decision, however, that the presiding

official carefully considered the issues

presented in this case, and made findings

of fact and conclusions of law on all

material issues of fact and law presented

in the record as required by the Board's

regulations. 8/

The agency's argument that the

presiding official failed to give proper

weight to the Special Counsel's report is

also without merit. In Frazier, supra, we

held that we are not bound by the findings

of the Special Counsel. Moreover, the

initial decision shows that the presiding

official did consider the Special

Counsel's report .9/

woe a

rial DS pl pa —

B-7

The agency's tinal argument 10/ is

that the presiding official's

disqualification of Thomas Beaumont 1i1/ as

a representative or a technical advisor to

the agency subsequent to his testimony at

the hearing resulted in harmful error.

The Board's regulations provide that a

party may challenge his opponent's

representative on the grounds of conflict

of interest or conflict of position. 12/

The Board finds no error ain the presiding

official's order disqualifying ae.

Beaumont as either a technical advisor or

a representative of the agency in response

to the appellant's motion. 13/ Moreoever,

the record clearly shows that the agency

was adequately represented and that it has

tailed to show that the presiding

official's disqualification of Mr.

Beaumont affected his substantive rights.

Accordingly, the initial decision of

the presiding official is AFFIRMED as

B-8 1

modified to cancel the removal action.

The agency is hereby ORDERED to submit

written verification of its compliance

with this Order to the Office of the

Secretary of the Board within twenty (20)

days of the date of this Order. In the

event of agency non-compliance, a petition

for enforcement may be filed with the

Denver Regional Office pursuant to 5

C.F.R. § 1201.181(a).

This is the final order of the Merit

Systems Protection Board in this appeal.

Appellant is hereby notified of. the

right to seek judicial review of the

Board's action as specified in 5US.C. §

7703. A petition for review must be filed

in the appropriate court no later than

thirty (30) days after appellant's receipt

of this order.

FOR THE BOARD: |

January 18, 1982

/s/

Washington, D.C. Herbert E. Ellingwood

jun

B-9

These activities and the events

precipitating his reassignment are

set out ain the inatial decision.

The presiding official did not

specifically reverse the removal

action for failure to accept

reassignment which was the subject of

Anderson's appeal, rather she only

reversed the transfer of appellant

initiated by the agency.

Under 5 C.F.R. § 1201.115(b), thas

Board may grant a petition for review

when at ais @stablashed that the

decision of the presiding official is

based on an erroneous interpretation

of statute or regulation

2 MSPB 459 (1980)

When the agency makes out a prima

facie case by presenting some evidence

of legitimate management reasons for

the decision to reassign, and by

showing that the employee had adequate

notice of the decision and refuses to

accept the reassignment, the burden

shifts to the appellant to come

forward with credible evidence

sufficient to cast doubt as to the

existence of any legitimate management

basis tor the reassignment Tt

appellant does so, as here, the agency

must produce further evidence relating

the reassignment to the efficiency of

the service to meet its burden of

proof. id. at 462-463.

When questions of credibility are

presented, we must necessarily give

due deference to the assessment of the

presiding official who was present to

hear and observe the demeanor of the

witnesses. Weaver v. Department of

Navy, 2 MSPB 297 (1980)

Since the agency's evidence failed to

establish that appellant's

reassignment was ordered tor bona tide

management reasons, it obviously fell

B-10

far short of a showing that, even if

retaliation played a substantial part

in the decision, the agency would have

taken the same action in any event for

legitimate reasons.

Gerlach v. r Cc

No. DC7528010020, Dec. 15, 1981.

See 5C.F.R. § 1201.111(b)(1)

See Initial Decision, at 1 and 2.

Although other issuses are raised by

the agency in its petition, we need

not address them since their

resolution would not affect the

outcome of this case.

Mr. Beaumont was an employee relations

specialist with the Office of

Personnel, US. Dept. of Agriculture.

S$ C.F.R. § 1201.31(b).

See presiding official's Order dated

October 2, 1980, which details the

reasons for Mr. Beaumont s

disqualification as a technical

advisor or a representative for the

agency on the grounds of conflict of

interest. As noted by the presiding

official, Mr. Beaumont is an attorney

and the Code of Professional

Responsibility clearly prohibits an

attorney from being both a witness and

a representative.

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER REGIONAL OFFICE

ARTHUR J. ANDERSON )

)

v. ) CASE NO

) DEO7528010123

) ADD

)

DEPARTMENT OF AGRICULTURE )

INITIAL DECISION ON COMPLIANCE

Appellant, a Civil Engineering

Technician, GS-9, for the Lolo National

Forest (agency), Missoula, Montana, filed

an appeal from the action of the agency in

removing him from his position on July 21,

1980. On November 10, 1980, the Board's

Denver Regional Office issued an Initial

Decision finding that appellant's removal

was in retalliation {sic} for his

“whistleblowing" activities and, thus, a

prohibited personnel practice. That

initial decision ordered the retroactive

cancellation of appellant's removal.

Reconsideration was subsequently requested

by the agency and on January 19, 1982,

e-2

after reopening the pny the Board issued

an Opinion and Order affirming the Initial

Decision.

On May 28, 1982, appellant submitted a

Petition for Enforcement, arguing that

since his reinstatement he has continued

to suffer harassment and reprisal.

Specifically, appellant argues that in

taking the following actions the agency

has failed to comply with the Board's

reinstatement order: (1) upon his

reinstatement, appellant was assigned to a

position at the Ninemile Zone, some 32

miles (one-way ) from Missoula; (2)

appellant was required to obtain a doctors

leave slip for sick leave; (3) appellant's

use of annual leave was restricted; (4)

appellant's us? of flexi-time was

restricted; (5S) appellant's job

description was unusually specific; (6)

the agency failed to provide appellant

with adequate training; (7) apellant's

rates aia a

c-3

performance appraisal was unusually

specific; (8) the agency has not paid

appellant his back-pay; (9) appellant was

not allowed time to review audits done on

his back-pay; (10) the agency has failed

to pay appellant for a suspension effected

subsequent to his reinstatement; (11) the

agency has failed to pay appellant for 57

hours of sick and annual leave taken since

his reinstatement ; and (12) other

unspecified instances of harassment.

In reviewing appellant's contentions, I

would note that except for items 1 and 8,

all contentions relate to problems

occurring since reinstatement. Further,

from my review of the appeal file, these

problems seem to be a continuation of the

difficulties between appellant and

management officials which led to

appellant's removal in 1980

Without attempting to assess the blame

for this situation I would simply note

c-4

that none of these contentions raised by

appellant are, in and of themselves,

appealable to the Board. That is, I can

find no authority for the Board to review

appellant's position description,

performance appraisal, agency restrictions

on the use of sick and annual leave or

flexi-time. Further, the suspension

actions taken against appellant since his

reinstatement have not exceeded 14 days

and, thus, are not appealable to the

Board. Clark v. Department of State, 3

M.S.P.B. 94 (1980); Marks v. Department of

the Air Force, 2M.S.P.B. 17 (1980).

Appellant is clearly contending that the

agency's continuing harassment is a

continuation of the earlier reprisal

action culminated by his removal.

Appellant further argues that this

harassment constitutes a furtherance of

the “prohibited personnel practices” taken

against him. However, an allegation of

e-5

“prohibited personnel practices" mst be

raised in conjunction with a matter

otherwise appealable to the Board. Crary

Vv. Vv t 1

M.S.P.B. 458 (1980); Chleapag v.

Department _-.of Health, Eduction and

Welfare, 1M.S.P.B. 464 (1980); Alford v.

D t t ° Health E ation an

Welfare, 1M.S.P.B. 305 (1980); Wren v

Department of the Army, 2 M.S.P.B. 174

(1980). Here, since the contentions

raised by appellant are not directly

related to his reinstatement and since the

contentions raised are not, in and of

themselves, appealable actions, I find

that the raising of an allegation of

“prohibited personnel practice" does not

place these contentions: within the Board's

jurisdiction. Accordingly, these

contentions will not be considered

further. I would note, however, that

appellant's contentions have been referred

c= 6

to the Board's Office of Special Counsel

for any action it deems appropriate.

As noted, two contentions raised by

appellant relate to the agency 3

compliance with the Board reinstatement

order: (1) appellant's reassignment to

Ninemile Zone, some 32 miles from his

residence; and (2) the agency's failure to

pay appellant his back pay. With regard

to appellant's assignment to the Ninemile

Zone, the agency argues that during the

pendency of appellant's appeal, his

previous position had been discontinued

because of lack of work. Further, there

was a need for a Civil Engineering

Technician in the Ninemile Zone and, thugs,

appellant was assigned to this position.

Arguments raised by the agency, in this

regard, show that it was in a quandry

concerning appellant's assignment upon hig

reinstatement. Prior to appellant's

removal an Office of Special Counsel

c-7

evaluation had apparently found

appellant's earlier assignment to Ninemile

Zone was an act of reprisal. However,

this same report had also found that

assignment of appellant to a position in

Missoula or to an “unsupported” position

would also be an act of reprisal. In

fact, this Office of Special Counsel

evaluation recommended that appellant be

reassigned to a position outside of the

National Forest. It was appellant's

failure to take the reassignment offered

by the agency which led to appellant's

removal. Upon reinstating appellant, the

agency felt that it could justify

appellant's assignment to the Ninemile

Zone based on need, while any assignment

to a postion in Missoula would be to an

“unsupported” position.

Probative evidence here is the agency's

statement that there was a need for

appellant in the Ninemile Zone while there

c-8

was no need for appellant at hig previous

location. I can find nothing in

appellant's submissions which can be

construed as a direct challenge to this

assertion. Accordingly, I find that the

agency had a bona fide reason for placing

appellant in the Ninemile Zone. Further,

such an assignment, which was to a

position of like grade and pay as the one

occupied by appellant at the time of his

removal, was in compliance with the Board

order of January 19, 1982

Finally, in reviewing appellant's claim

that he has not received “back pay" I note

that his submissicns contain nothing more

than this bare assertion. However, the

contention is specific enough for the

agency to respond. No direct response was

received from the agency on this clain,

but the agency did state that it had

“cancelled the removal action." Because

of the lack of a response by the agency, I

am unable to determine whether appellant

has, in fact, received back pay for the

time he was off the agency's employment

rolls. Further, since this is a matter of

compliance with as [sic] Board Order, I

find that the burden is on the agency,

once the allegation is raised, to show

such compliance. Here, there has not been

the requisite showing of compliance.

In summary, I find that, except for the

following, contentions raised by appellant

are not within the Board's jurisdiction

and are therefore DISMISSED. I further

find that the agency's action of assigning

appellant to a Civil Engineering

Technician position in Ninemile Zone was

in compliance with the Board's

reinstatement order. Finally, I find that

the agency has not submitted evidence of

compliance with that order on the issue of

back pay. The agency is ORDERED to comply

with the order by providing appellant with

c- 10

his back pay or, if it has already done

so, provide this office with evidence of

such compliance.

This is an initial decision. It will

become a final decision of the Merit

Systems Protection Board on November 12,

1982, unless a petition for review is

filed with the Board or the Board reopens

the case on its own motion.

Any party to the proceeding, the

Director of OPM, and the Special Counsel

may file a petition for review. The

Director may request review only if he/she

is of the opinion that the decision is

erronecus and will have a_e substantial

impact on any civii service law, rule, or

regulation under the jurisdiction of the

Office of Personnel Management. The Board

may grant a petition for review, after

providing an opportunity for response by

other parties, when it is established

that:

ce 71

(1) New and material evidence is

available that, despite due diligence,

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

regulation.

All petitions for review shall set forth

objections to the $$initial decision,

supported by references to applicable laws

or regulations, and with specific

reference to the record. The petition for

review must be filed with the Office of

the Secretary, Merit Systems Protection

Board, 1220 Vermont Avenue, N.W.,

Washington, D.C. 20419, no later than

November 12, 1982. Three copies of the

petition must be filed with the Secretary.

Purusuant to 5 U.S.C. 7703(b)(1)--as

modified by Section 127 of the Federal

Court Improvement Act of 1982, to he

codified at 28 U.S.C. 1295(a)(9)--the

appellant has the right to seek judicial

review of the Board's final decision on

this appeal.

c- 12

A petition requesting such review mst

be filed with the U.S. Court of Appeals

for the appropriate federal circuit no

later than 30 days after appellant's

receipt of the Board's final order or

decision.

For the Board:

/s/

Steven L. Chaffin

Presiding Official

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ARTHUR ANDERSON

DOCKET NUMBER

DEO 7528010123

COMP

DEPARTMENT OF AGRICULTURE

OPINION AND ORDER

Appellant petitioned for appeal from the

action of the Department of Agriculture,

Lolo National Forest (agency) removing him

from his position as a Civil Engineering

Technician, GS-9, effective July 21, 1980,

based on the charge of failing to report

for a directed reassignment.

The Chief Appeals Officer of the then

Denver Field Office (now Regional Office),

acting in her capacity as a presiding

official, issued an initial decision

reversing the removal, finding that the

reassignment was ordered in reprisal for

appellant's protected whistleblowing

d-2

activity and that no independent reason

for the action was shown. This action

constituted a prohibited personnel

practice under 5 U.S.C. §2302(b)(8). The

presiding official ordered that the agency

set aside appellant's reassignment and

further ordered “that the Forest Service

and the Department of Agriculture cease

immediately from retailiating against Mr.

Anderson for his protected activity.” See

Initial Decision at 13 (November 10,

1980).

The Board denied the agency's petition

for review of the initial decision in an

Opinion and Order dated January 18, 1982.

The Board affirmed the initial decision,

modifying it to require the agency to also

cancel the removal, and ordered the agency

to furnish evidence of compliance with the

Board order to the Denver Regional Office

within twenty days of the date of the

order. See Anderron v. Department of

d-3

Agriculture, MSPB Docket No. DE07528010123

(January 18, 1982).

On May 28, 1982, appellant submitted a

petition for enforcement to the Denver

Regional Office in which he contended that

since his reinstatement, the agency has

continued to engage in retaliatory

conduct against him. Specifically,

appellant alleged that: (1) he was

reinstated to a position in the Ninemile

Zone, approximately thirty-two miles from

his former position; (2) the agency has

failed to pay him his back pay; (3) he has

been required to obtain a doctor's excuse

for any sick leave taken; (4) his annual

leave has been restricted; (5) his use of

flexi-time has been restricted; (6) his

job description is usually specific; (7)

he has not been provided adequate

training; (8) he has not been allowed to

review audits done on his back pay; (9) he

has not been paid for a suspension

d-~4

effected subsequent to his reinstatement ;

(10) the agency has failed to pay him for

57 hours cf sick and annual leave taken

since his reinstatment ; (11) his

performance appraisal was unusually

specific; and (12) other unspecified

instances of harassment.

Although the presiding official believed

that appellant's difficulties were a

continuation of the difficulties between

the agency and the appellant which ied to

his earlier removal, he found the Board

had jurisdiction only over the allegations

concerning placement and back pay 1i/ He

explained that since the other allegations

of prohibited personnel practice were not

raised in conjunction with an otherwise

appealable action, the Board did not have

the jurisdiction to consider then. See

#.g., Crary v. Federal __ Aviation

Administration, i MSPB 438 (1980). The

1/ Allegations (1) and (2) noted above.

e-3

presiding official found that appellant's

reassignment to the position in the

Ninemile region was bona fide as his

former postion had been abolished

subsequent to his removal and ordered the

agency to pay appellant the back pay to

which he was entitled By letter dated

October 27, 1982, the agency notified the

Board that appellant had been provided

back pay.

Appellant has petitioned the Board for

review of the compliance decision alleging

that the initial decision is based on an

erroneous interpretation of statute or

regulation. He alleges that the Board's

jurisdiction over these actions arises

pursuant to 5 C.F.R. §1201.181 et geg. and

is not based upon its appellate

jurisdiction. He states that the

compliance decision fails to comport with

the order contained in the initial

decision that the agency cease retaliatory

d-6

activity against him.2/

The petition for review is GRANTED.

The Board's authority to review agency

compliance with its decision is not

limited to reviewing actions which are

otherwise appealable to it. Section

1205(a) of Title 5, United States Code,

grants the Board power to give effect to

its decision. See Kerr v. National

Endowment for the Arts, Appeal Nos. 83-865

and 83-866 (Fed. Cir. January 24, 1984).

Since an improper or unwarranted

personpnsei action is void ab initio, the

Board finds that the most effective method

to insure that all of the ill effects of

the improper action have been undone is to

render the action null and void by

cancellation, and Board orders giving

effect to its decisions will ordinarily

2/ Appellant also states that the number

of hours for which he has not been paid is

now 120 for suspensions (three) and 172

for unpaid leave.

ad- 7

require the agency to take such action,

Meier v. Department of the Interior, 3

MSPB 341, 349 (1980).

Further, the Board stated in Meier

that:

Ordinarily the Board's

participation in a matter will end

upon receipt of a certification of

compliance with its order. In many

circumstances such compliance can

be effectuated merely by

cancellation of the personnel

action in question. However, in

determining what future action

should be taken with respect to

appellant, the agency is cautioned

that any personnel action taken in

reprisal for the exercise of an

appeal right is a prohibited

personnel

practice. 5 USC. § 2302(b)(9).

Under 5 C.F.R. § 1201.181(a) an

appellant may petition the Board

for enforcement of any final

decision. Under 5 CFR. §§

1201.181 and 1201.184(a) the Board

may take "all necessary action to

ascertain [compliance and) 5S

under take efforts to obtain

compliance." In giving effect to

the purpose of these provisions the

Board's power is both broad and

continuing in nature. See S. Rep.

No. 95-969, 95th Cong., 2d Sess. 29

(1978). Thus, subsequent agency

action concerning a prevailing

appellant even if not constituting

d-8

a matter otherwise directly

appealable to the Board, may be the

subject of a petition under 5

C.F.R. § 1201.181, if for example,

the agency's formal cancellation of

appellant's removal is a_ mere

subterfuge while other actions are

taken to avoid substantive

compliance.

3 MSPB at 350 n.8.

In this case, appellant has alleged

that the actions taken by the agency since

his reinstatement have undermined

compliance with the order issued by the

Board that the agency cease taking

retaliatory actions against him. Although

the actions complained of hy appellant

would not be otherwise appealable to the

Board pursuant to its appellate

jurisdiction, they are reviewable under

its authority to assure continuing

compliance with its decision. Therefore,

it was error to dismiss these claims for

lack of jurisdiction.

Additionally, the Board notes that

subsequent to filing the instant petition,

d- 9

appellant filed an appeal from an agency

action suspending him for 30 days for his

refugal to comply with instructions,

failure to complete a work assignment and

unauthorized absence. The initial

decision in that appeal indicates that

appellant has raised and the presiding

official has heard evidence concerning

several of the reprisal allegations

appellant asserts herein.3/ See Anderson

v. Department of Agriculture, Case No.

DE07528310173 (January 23, 1984).

Appellant therefore has been afforded his

due process rights to have these arguments

considered by the Board and these

arguments need not be considered again.

Accordingly, the initial compliance

decision is AFFIRMED in part and VACATED

in part. The action is REMANDED to the

3/ In the initial decision, the presiding

official found that the suspension action

was not taken in reprisal for appellant's

filing this successful appeal to the

Board.

an Sn ear ee

d- 10

Denver Regional Office for further

proceedings in accordance with 5 C.F.R. §

1201.181. The presiding official shall

take all necessary action to ascertain

whether the final decision of the Board is

being complied with and shall issue a

conmprehensive decision on the matter. In

that decision, the presiding official need

not consider any allegations of reprisal

which were heard by him and considered in

the initial decision in the subsequent

suspension action. |

Finally, the Board notes that the agency is

again being represented by Thomas M4.

Beaumont in these proceedings. By Order

dated October 2, 1980, Beaumont was

disqualified to act as a representative or

technical advisor in these proceedings

because of a conflict of interest. This

order has not been withdrawn by the Board.

Therefore, on remand, Beaumont shall not

represent the agency or act as a technical

d-11

advisor.

FOR THE BOARD:

June 25, 1984

PAULA A. LATSHAW

Washington, D.C. Acting Secretary

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER REGIONAL OFFICE

ARTHUR J. ANDERSON

¥.

)

CASE NO.

) DEO7528410149

)

DEPARTMENT OF AGRICULTURE

FOREST SERVICE

DATE :

11 SEP 1984

INITIAL DECISION

INTRODUCTION

On May 14, 1984, Mr. Arthur J.

Anderson (appellant) filed an appeal from

the action of the Department of

Agriculture, Nine Mile Ranger Station,

Lolo National Forest, Missoula, Montana

(agency) removing him from his position of

Civil Engineering Technician, GS-082-09.

The action was effective May 11, 1984. As

an employee in the competitive service who

has completed one year of current,

continuous service and who is not serving

a probationary period, appellant my

appeal his removal action to the Merit

Systems Protection Board (Board) pursuant

e- 2

to 5 U.S.C. 7701 and 7511-7513 (1983).

The agency action is AFFIRMED.

BACKGROUND

AppelJant was previously removed from

his position on July 21, 1980, for failing

to report for a directed geographic

reassignment to the Klamath National

Forest in orthern California. The

presiding official in that matter found

that the action was taken for prohibited

personnel practice reasons and reversed

the agency action. Appellant was

reinstated to his position and the agency

was avebeus to cease retailiating against

appellant for his protected activities.

Appellant was subsequently suspended

from his position from May 1, 1983, to May

25, 1983, for refusal to comply with

instructions; failure to complete a work

assignment as directed by his supervisor;

and unauthorized absence from duty (AWOL).

The presiding official found the charges

were supported by the avidence and

affirmed the agency action. Apellant

filed a petition for review of the initial

decision and the Board has not yet issued

a final decision in this matter.

In addition to the above matters, the

record in this matter also shows that

appellant was suspended from his position

from September 20, 1982, through October

1, 1982, for refusal to comply with his

supervisor's instructions. He was also

suspended from his position on May 31

through June 11, 1982, for failure to

comply with instructions from his

supervisor to provide the supervisor with

information pertaining to appellant's

alleged sickness during work hours.

Finally, appellant was also suspended from

duty from April 5, 1982 through April 9,

1982, for refusal to comply with

instructions and unauthorized absence from

duty.

————

The notice of proposed removal charges

appellant with two instances of

insubordination. Specifically, the agency

states that appellant refused to submit a

Standard Form 71 (SF-71), Application for

Leave, for his absences from the work

place on Tuesday, November 8, 1983, and

Monday, January 30, 1984

On November 8, 1983, when appellant

was about to leave, he was reminded by his

supervisor of the need to submit the SF-71

requesting leave for the time involved in

accordance with organizational policy.

Appellant did not submit the SF-71;

therefore, his supervisor charged the time

involved to Absence Without Leave.

On January 30, 1984, appellant was

again absent from the work place from 1445

to 1500. On February 3, 1984, appellant's

supervisor asked him to submit an SF-71

for the sick leave appellant was

s-o

requesting for that absence in accordance

with organizational policy. Appellant

refused to do so. Appellant's supervisor

thereafter issued a letter of instruction

to appellant to comply with the agency

leave policy and submit an SF-71 for the

leave taken on January 30, 1984.

Appellant again refused to do so (Agency

Tabs 12 and 13).

Appellant admits that he refused to

request leave by submitting an SF-71. He

claims, however, that he was not required

to do so by the agency service manual. He

states that the agency service manual

permits him to initial the Time and

Attendance record rather than requiring

him to complete the SF-71; therefore, the

order from his supervisor to complete an

SF-71 for approval of leave isa illegal.

With respect to appellant's obligation

to obey an order based upon the alleged

————- - . were ~

P13 aint ETT AE Piet te shit, eather,

E-6

invalid policy i/, the Board has held 2/

that an employee is obliged to obey the

agency's order while taking whatever

necessary steps which are appropriate to

challenge the ultimate validity of the

order and policy. “To find otherwise

would have the effect of undermining the

statutory scheme established to preserve

employee rights without unreasonably

preventing agencies from carrying out

their missions. “3/ Under limited

circumstances, employees may disobey an

order which would place them in a clearly

dangerous siveuties At Furthermore, an

employee does not have the right to

disregard a law, rule or regulation merely

because substantial reason exists

regarding the validity of that law, rule

1/ See Walker v. Birmingham, 388 U.S. 307.

2/ Gragg v. United States Air Force, 11

MSPB 546, 547 (1982).

3/ Id.

at See —Mhiclpeel Corp. vy. _Hareball. 100

S.Ct. 883 (1980).

or regulation

In the instant case appellant admits

that he deliberately disobeyed an order

from his supervisor. Moreover, the record

(agency tab 5) shows that appellant had

previously filed an unfair labor practice

regarding the agency's policy of not

allowing employees at some work stations

to initial time and attendance (T/A)

records for leave taken However, the

unfair labor practice was dismissed. 5/

Therefore, I find that appellant had

previously taken appropriate steps to

S/ By letter dated May 5S, 1983, the

Regional Director of the Federal Labor

Relations Authority, Denver Regional

Office, found that neither the collective

bargaining agreement nor the agency's

regulations preclude the practice of using

the SF-71 for annual leave in amounts less

than 40 hours or for sick leave in amounts

less than 24 hours where it is feasible

for the employee to initial the time and

attendance report.

E-@

challenge the validity of the agency

policy and/or procedure for requesting

leave. Furthermore, appellant was on

notice as early as May 1983 that the

agency policy of requiring an SF-71 from

employees when requesting leave was a

valid agency management dciscretionary

decision. Therefore, I find that the

agency has sustained its charge of

insubordination by the preponderance of

the evidence. Moreover, I find that

appellant's allegation that the order to

complete an SF-71 when requesting leave

was improper, therefore, invalid is

without merit. I find it was his duty to

obey the order while taking appropriate

steps to challenge the validity of the

agency leave policy. See Gragg, supra.