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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 851

## Text

~, ) 7
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
Q

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

Z.

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

2

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

3

Opinion and Order [of the MSPB Board
remanding the Compliance Decision],
Entered June 25, 1984 :
re

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,

25
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:
a
(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.

10

)

(4) All employees should maintain

high standards of integrity, conduct, and
concern for the public interest.
ah kk
(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.

1

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

12

rn |

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
(C) “agency” means an executive agency,
the Administrative Office of the United

States Courts, and the Government Printing

13

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 -

hk ®
(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 ®

15

>

(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.

(c) The head of each agency shall he
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

16

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.

a

(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

17

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

(C) shows that the decision

was not in accordance with law.

ax me &k

16

Forest Service Manual, Title 6163.11 -
Employee Requests for Absence-
hk
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

19

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.

ae

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

21

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.

hk ®

(c) Methods: Discovery may be obtained
by . . . production of documents or things
for inspection or copying .

“ 1201.73. Procedures governing
discovery.

hk oh

(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.

22

j

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.

(c) Aulisags. : Where the
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

a

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

we

"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

3

:

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

4

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;
(c) improper approval of changes in
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

5

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

6

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 .

ak
[Petitioner's] contentions

regerding lack of strict compliance
with the specifications of the
contract on road construction and

7

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:

10

pieara Mins

4
i
id
i
&
a
4

[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

1i

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

12

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)

13

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.

14

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.

15

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

16

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.

17

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

i8

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.

19

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

20

eer eer EE

j
-
é
:
re
5
A
4
s
3
}

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

21

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

ye
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).

24

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

25

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

27

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

28

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.

29

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.

30

+ nto GE. “Ae erate kt Pe eee em - “s

ET

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,

31

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).

32

_
2
Ne
y)
7

#
:
4
:
:

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

33

+
$

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

ee

34

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

35

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

36

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

37

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

38

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

39

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

40

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.

41

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

42

ee

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.

43

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

44

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

45

as

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.

46

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

47

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)

48

oe

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

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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

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————————— 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

ee

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

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

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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

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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

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infringed upon the proper
management-employee relationship.
VW

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

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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

ae

“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 —

:
%
A

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

lp

i>

!

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.

7
|

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 assign

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2244%3A1. Public record. Not legal advice.