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

Supreme Court, U.S.

87 1623 ' "FILED

MAR 16 1988

JGSEPE =. SP4NIOL, JR.

hi | CLERK

ne

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1987

LOUIS SZTAN,

Petitioner,

VS.

DEPARTMENT OF THE NAVY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

RICHARD MURRAY

LAW OFFICES OF RICHARD MURRAY

1401 New York Avenue, N.W.

Suite 820

Washington, D.C. 20005

(202) 775-0280

Attorney for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Whether the decision of the Court of Appeals to

affirm the removal of a federal employee for unac-

ceptable performance, is contrary to the legislative

intent underlying an employee’s right to be repre-

sented by an attorney, pursuant to the Civil Service

Reform Act of 1978, where such employee’s repre-

sentation at the removal proceeding was rendered in-

effective by the failure of the proposing agency to

disclose to that employee the existence of ex parte

communications between the proposing and deciding

officials?

2. Whether the Court of Appeals erred in affirming

the removal of Louis Sztan, in spite of ex parte com-

munications containing new allegations of unaccept-

able performance not included in the proposed notice

of removal, thus violating his due process rights under

this Courts’ holding in Hannah v. Larche?

TABLE OF CONTENTS

Page

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NEN HUMANE 2 JL ahs catuausobectdepucuouescuucudebaveucens l

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STATUTORY PROVISIONS INVOLVED .Q......c.ccccccccessseeees 2

BOR MET SPP FUE SAGE scnsccessscnsaccsvecceccsveccessscs 3

NO es ccaccusdoncase 4

REASONS FOR GRANTING THE WRIT .................0000. 5

A. THE DECISION BY THE COURT

APPEALS TO AFFIRM LOUIS SZTAN’S

REMOVAL IS CONTRARY TO THE LEG-

ISLATIVE INTENT UNDERLYING AN

EMPLOYEE’S RIGHT TO BE REPRE-

SENTED BY AN ATTORNEY, PURSUANT

TO THE CIVIL SERVICE REFORM ACT

OF 1978, SINCE SUCH REPRESENTA-

TION WAS RENDERED INEFFECTIVE

BY THE DEPARTMENT OF THE NAVY'S

FAILURE TO PROVIDE COPIES OF AN

EX PARTE COMMUNICATION TO

PETITIONER'S COUNSEL. ........cccccsscocessse: 5

B. THE COURT OF APPEALS DECISION

CONDONING THE WITHHOLDING OF EX

PARTE COMMUNICATIONS IN A _ RE-

MOVAL PROCEEDING FROM AN EM.-

PLOYEE’S COUNSEL CONSTITUTES A

DENIAL A DUE PROCESS UNDER THIS

COURT'S HOLDING IN HANNAH YV.

a eae aa ante at gs dada hace tbaesVeeaes 8

a En 14

il

TABLE OF AUTHORITIES

CASES Page

Cafeteria & Restaurant Workers Union, ete., v.

McElroy, 367 U.S. 886 SUMED dcipasnccasicscisatens 9

Federal Communications Commission v. Schreiber,

329 F.2d 517 (9th Cir. 1964), modified, 38]

U.S. 279 RIE sicsasaiclie Kee 10

Goldberg v. Kelly, 397 U.S. 254 ERIWOP - cxcvsssccscones. 4

Hannah v. Larche. 363 U.S. 420 (1960) 0... 911,12

Joint Anti-Fascist Refugee Committee +. McGrath,

B41 U.S. 128 (1951) once ccecscecesesesoecses.... )

Tiffany v. Department of Navy, 795 F.2d 67 (Fed.

a et Rea RO TY EASIER Bihin Tin et 10

OTHER AUTHORITIES

The Administrative Procedure Act. 5 I S.C. Sec

tion 1005(a) (current version at 5 U.S.C. See-

Metis an Me NE SR Se iE 10

The Civil Service Reform Act of 1978, Title 5

U.S.C.A. Sections 4303(a)-(b) (West Supp.

ecaadel Ie RCAC Sintateae 2,6,7

The Performance Rating Act of 1950, Ch. 1123,

Section 7, 64 Stat 1098, 1099 6

Title 28 U.S.C. Section tt an ett td tian we 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

Louis SZTAN,

Petitioner,

VS.

DEPARTMENT OF THE Navy,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Louis Sztan, Plaintiff and Petitioner, prays that a

writ of certiorari issue to review the decision of the

United States Court of Appeals for the Federal Cir-

cuit, filed December 18, 1987, in this proceeding.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Federal Circuit, which is unpublished, appears

in Appendix A hereto.

JURISDICTION

The decision of the United States Court of Appeals

for the Federal Circuit was filed on December 18,

1987. This petition for a writ of certiorari is filed

within ninety days of that date. This Court’s juris-

diction le invoked under Tithe 28 LLL, Reetion

iuhdih)

STATUTORY PROVISIONS INVOLVED

Title 6 U.S.CLA, Sections 490M%a)(b) (West Supp.

1087):

“Actions based on unacceptable performance

(a) Subject to the provisions of this section, an

agency may reduce in grade or remove an employee

for unacceptable performance.

(bX1) An employee whose reduction in grade or re-

moval is proposed under this section is entitled to—

(A) 30 days advance written notice of the pro-.

posed action which identifies—

(i) specific instances of unacceptable performance

by the employee on which the proposed action is

based; and

(ii) the critical elementa of the employee's pos:

tion involved in each instance of unacceptable

performance;

(B) be represented by an attorney or other rep:

resentative,

(C) a reasonable time to answer orally and in

writing; and

(D) a written decision which-

(i) in the case of a reduction in grade or

removal under this section, specifies the in-

stances of unacceptable performance by the

employee on whieh the reduction in grade

or removal ie based, and

(ii) unless proposed by the head of the

agency, has been concurred in by an ern

ployee who is in a higher position than the

employee who proposed the action.”

STATEMENT OF THE CASE

On March 20, 1986, Petitioner, Louis Sztan, was

issued » Notice of Unacceptable Performance, by R.A.

Findley, regarding several of the critical elements of

his position as senior value engineer of NAVAIR.

(Director of the Naval Air Systems Command, Value

Engineering Program). The Notice advised Petitioner

that he would have sixty (60) days to demonstrate

acceptable performance.

On June 13, 1986, Findley issued Petitioner a No-

tice of Proposed Removal based on his alleged un-

satisfactory performance during the 60-day

performance improvement period Following

Petitioner's written and oral replies to the proposed

notice, Admiral Calvert issued a decision on August

5, 1986 to remove the Petitioner based upon the rea

sons specified in the proposed notice.

Petitioner filed a Request for Review of the Agency

decision on August 28, 1986. A hearing was held

before Administrative Law Judge Paul Streb on No-

vember 14, 1986. On December 29, 1986 the Admin-

istrative Law Judge rendered his decision in favor of

the Agency and against Petitioner, Louis Sztan. On

February 2, 1987 Petitioner, Louis Sztan, filed a

\

Petition for Heview with the Merit ee Prater

tion Hoard whieh was denied on May 6, 1087,

Petitioner, filed hie Petition for Review with the

United States Court of Appeals for the Federal Cir

cuit on June §, 1087, Oral Argument was heard on

December 2, 1987, On December 18, 1987, the Court

announced its decision in which it affirmed the De-

partment of the Navy's decision to remove Louis

Sztan for unacceptable performance. Appendix p. A-

1.

STATEMENT OF FACTS

Petitioner, Louis Sztan, was an employee of the

federal government for twenty-five (25) years prior

to termination and was last assigned to the Depart-

ment of the Navy, Naval Air Systems Command (AIR-

516). Mr. Richard A. Findley became the supervisor

of AIR-516 and Louis Sztan’s immediate supervisor

on or about October 15, 1985, At this time, Dr, So-

moroff and Mr, Bettino, Findley's immediate super:

visors, informed Mr, Findley that he “ought to remove

(Dr, Setan} him.” Thereafter, on March 20, 1086,

Richard Findley sent Loula Setan a Notice of Unac

ceptable Performance which he had ostensibly writ

ten, On June 13, 1986, Loule Sztan was sent a Notice

of Proposed Removal for Unacceptable Performance

which was prepared by Richard Findley, A written

reply was submitted by Louis Sztan through his cho-

sen counsel, Richard Murray, on July 7, 1986, An

oral hearing on the proposed removal was held before

RADM. J.F. Calvert on July 14, 1986.

Sometime between July 15, 1986 and July 28, 1986,

and prior to the Admiral’s decision, Richard A. Fin-

dley, the charging official, discussed the proposed re-

moval of Louie Metan with HADM Calvert, and

Heeiding offielal, orally and without notifying counsel

for Louie Metan, Thereafter, Richard Findley prepared

and sent a derogatory memorandum via De, Somoroff,

Hie immediate supervisor, to RADM Calvert concern

ing Louis Satan's continuing performance, a eopy of

which was not sent to Louis Sztan nor his legal rep:

resentative but was provided specifically to Sylvia An-

derson, counsel for the Agency. Appendix A-4, The

memorandum was received and reviewed by RADM

Calvert on Thursday, July 31, 1986. Three working

days later, on Tuesday, August 5, 1986, RADM Cal-

vert rendered his decision ordering the removal of

Louis Sztan from his position, thereby terminating

his employment effectively on August 15, 1986.

REASONS FOR GRANTING THE WRIT

A. THE DECISION BY THE COURT OF APPEALS TO

AFFIRM LOUIS SZTAN'S REMOVAL IS CONTRARY

TO THE LEGISLATIVE INTENT UNDERLYING AN

EMPLOYER'S RIGHT TO BE REPRESENTED BY AN

ATTORNEY, PURSUANT TO THE CIVIL SERVICE

REFORM ACT OF 1078, SINCE SUCH REPRESEN.

TATION WAS RENDERED INEFFECTIVE BY THE

DEPARTMENT OF THE NAVY'S FAILURE TO PRO:

VIDE COPTES OF AN EX PARTE COMMUNICATION

TO PETITIONER'S COUNSEL,

The deciding official ordered the removal of Louis

Sztan from his position as Senior Value Engineer with

the Department of the Navy based on Sztan's alleged

unacceptable performance. The Administrative Law

Judge affirmed this decision. The Merit Systems Pro-

tection Board denied Sztan’s Petition for Review and

the United States Court of Appeals for the Federal

Circuit affirmed the decision below. Those decisions

are in direct conflict with the legislative intent un-

derlying the Civil Service Reform Act of 1978 (Title

5 U.S.C.A. Section 4303(b)(1)(B) (West Supp. 1987)),

which guarantees an employee the right to be rep-

resented by an attorney at a removal proceeding. (em-

phasis added)

The Civil Service Reform Act of 1978 provides for

the removal of a federal employee based on unac-

ceptable performance. 5 U.S.C.A. Section 4303 (West

Supp. 1987). Such removal! however, is statutorily sub-

ject to specific procedural safeguards. See 5 U.S.C.A.

Sections 4303(a)-(b) (West Supp. 1987).

The ex parte communication between_R.A. Findley,

the proposing official, and Admiral Calvert, the de-

ciding official, and the subsequent failure to disclose

the substance or even the existence of that commu-

nication to petitioner’s counsel, rendered Louis Sztan’s

legal representation ineffective and thereby violated

Sztan’s right to be represented by an attorney pur-

suant to 5 U.S.C.A. 4303(b)(1)(B) (West Supp. 1987).

(emphasis added)

The legislative history of the Civil Service Reform

Act of 1978 reveals that the Act’s predecessor, the

Performance Rating Act of 1950, contained no right

to be represented by an attorney during a removal

proceeding. Ch. 1123, Section 7, 64 Stat 1098, 1099

(1950). However, with the passage of the Civil Service

Reform Act of 1978, Congress implemented new pro-

cedures to govern the removal of federal employees.

These procedures were designed, ‘‘to expedite dis-

missals of federal employees whose performance (was)

below an acceptable level established by a compre-

hensive framework of performance evaluation, while

at the same time fully protecting the due process rights

of employees.”’ 1978 U.S. Code Cong. & Ad. News

2723, 2746. (emphasis added) Moreover, the legislative

history also sets forth a review of the merit system

principles embodied in The Civil Service Reform Act.

The history demonstrates that these principles, along

with The Act as a whole, are intended not merely to

protect some broad notion of an employee's due proc-

ess rights, but specifically, ‘‘An ... employee is also

to be protected against any infringement of due proc-

ess.’ Id. at 2741. (emphasis added)

By including the term ‘‘represented” in 5 U.S.C.A.

4303(b)(1B), Congress intended such representation

to encompass more than merely the giving of legal

advice. Such intent is made clear by examining the

language employed by the Senate version of this sec-

tion which stated that an employee was entitled to,

“be accompanied by an attorney ...’’ 1978 U.S. Code

Cong. & Ad. News 2723, 2764-2765. (emphasis added)

The term accompanied was not adopted. In fact, the

final language of The Civil Service Reform Act states

that an employee is entitled, ‘to be represented by

an attorney.” 5.U.S.C. 4303(b\1)(B) (West Supp.

1987). (emphasis added) Congress therefore strength-

ened this procedural protection in order to utilize the

concept of legal representation in the fullest sense of

the term.

The purpose of this procedure ... is to permit

the employee to reply to the proposed action and

the reasons for the action, ... and [uJnless the

particular failure to perform acceptably is cited

in the advance notice, the agency may not rely

upon it as a grounds for demoting or removing

the employee.

1978 U.S. Code Cong. & Ad News 2723, 2765.

The decision of the Court of Appeals to permit any

ex parte communications that contain new allegations

of unacceptable performance, between the proposing

and deciding officials, without the knowledge of an

employee’s counsel, thus renders that employee’s legal

representation ineffective, and is therefore contrary

to the legislative intent underlying the right to be

represented.

The instant case presents the precise concern which

prompted Congress to strengthen the procedural pro-

tections afforded an employee subject to a removal

proceeding. The decision of the Court of Appeals to

affirm Louis Sztan’s removal, in spite of a serious

infringement of due process which rendered his legal

representation ineffective, is in direct conflict with

the underlying legislative intent. Petitioner therefore

respectfully urges that the decision affirming his re-

moval be reversed.

B. THE COURT OF APPEALS DECISION CONDONING

THE WITHHOLDING OF EX PARTE COMMUNICA-

TIONS IN A REMOVAL PROCEEDING FROM AN EM-

PLOYEE’S COUNSEL CONSTITUTES A DENIAL OF

DUE PROCESS UNDER THIS COURT'S HOLDING IN

HANNAH V. LARCHE.

The Court of Appeals affirmed the Board’s conclu-

sion that since ex parte communications are not ex-

pressly prohibited by statute or regulation, Louis

Sztan’s argument that ineffective representation as a

result of such communication constituted a denial a

due process, was without merit.

The holdings of this Court expressly provide for

full due process protection to be accorded an individ-

ual subject to a removal proceeding and guaranteed

a right to be represented during that proceeding. In

Cafeteria & Restaurant Workers Union, etc., v.

McElroy, 367 U.S. 886 (1961), this Court stated that:

[c]onsideration of what procedures due process

may require under any given set of circumstances

must begin with a determination of the precise

nature of the government function involved as

well as of the private interest that has been af-

fected by governmental action.

Id. 367 U.S. at 895.

In addition, this Court has also noted that:

The extent to which procedural due process must

be afforded the recipient is influenced by the ex-

tent to which he may be ‘‘condemned to suffer

grievous loss,’’ and depends upon whether the

recipients’s interest in avoiding that loss out-

weighs the governmental interest in summary ad-

judication.

Goldberg v. Kelly, 397 U.S. 254, 262-263 (1970)

(quoting Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123, 168 (1951) (Frankfurter,

J., concurring)).

In Hannah v. Larche, 363 U.S. 420 (1960), this

Court enunciated the general principle that:

... it can be said that due process embodies the

differing rules of fair play, which through the

years, have become associated with differing

types of proceedings. Whether the Constitution

requires that a particular right obtain in a specific

proceeding depends upon a complexity of factors.

The nature of the alleged right, the nature of the

proceeding and the possible burden on that pro-

10

ceeding, are all considerations which must be

taken into account.

Id. 363 U.S. at 442.

The U.S. Court of Appeals for the Federal Circuit

has only had occasion to review Title 5 U.S.C.A.

4303(b)(1)(B) (West Supp. 1987) one time, in a context

quite different from the present one. In Tiffany v.

Department of Navy, 795 F.2d 67 (Fed. Cir. 1986),

the Court was confronted with the issue of whether

adequate notice of an individual’s right to be repre-

sented in connection with a demotion had been given.

That Court has not otherwise reviewed this specific

subsection of Title 5 U.S.C.A. Section 4303 nor has

it considered the term represented within that sub-

section.

This Court has also not reviewed the meaning of

represented within the context of Title 5 U.S.C.A.

Section 4303(b)(1)(B) (West Supp. 1987). However, the

term represented has been interpreted by the United

States Court of Appeals for the Ninth Circuit within

the context of the Administrative Procedure Act (Title

5 U.S.C. Section 1005(a) (current version at 5 U.S.C.

555(b) (1982)). In FCC v. Schreiber, 329 F.2d 517 (9th

Cir. 1964), modified, 381 U.S. 279 (1964), the Court

held that, ‘“‘the word ‘represented’ must be read in light

of the Due Process clause of the Fifth Amendment and

therefore varies in meaning depending upon the nature

of the function being exercised.’”’ Id. at 526.

In light of this Court’s opinion in Hannah and the

Court of Appeals’ holding in Schreiber, in order to

determine whether the failure to provide petitioner

with the ex parte communication rendered his legal

representation ineffective and was thus a denial of

1]

due process, the Court of Appeals below should have

analyzed the underlying protection of Title 5 U.S.C.A.

Section 4303(b)(1)(B) (West Supp. 1987) in conjunction

with those factors outlined by this Court in Hannah.

Such an analysis would have concluded that the

nature of the alleged right to be represented, effec-

tively, by an attorney, is statutory. Congress created

this right and as discussed in part A of this petition,

deemed it of paramount importance in protecting an

employee’s due process rights.

Furthermore, the nature of the proceeding is ad-

judicatory. In Hannah, this Court held that due proc-

ess under the Fifth Amendment of the United States

Constitution required that agencies adjudicating or

making binding determinations that,‘‘directly affect

the legal rights of individuals ... use procedures

which have traditionally been associated with the ju-

dicial process.” Hannah, 363 U.S. at 442. The Court's

opinion expressly found that the function of the pro-

ceeding carried a great amount of weight in deter-

mining whether a particular right obtained in a

specific proceeding. In analyzing the nature of the

proceeding in Hannah, the Court noted that:

[The Commission’s] function is purely investiga-

tory and fact-finding. It does not hold trials or

determine anyone’s civil or criminal liability. It

does not issue orders. Nor does it indict, punish,

or impose any legal sanctions. It does not make

any determinations depriving anyone of his life,

liberty or property. In short, the Commission does

not and cannot take any affirmative action which

will affect an individual’s legal rights. The only

purpose of its existence is to find fact which may

12

subsequently be used as the basis for legislative

or executive action.

Id. 363 U.S. at 441.

The Court’s opinion emphasizes the important dis-

tinction between adjudicative and investigative fact-

finding proceedings and concludes that since the na-

ture of the proceeding constituted the latter, due

process protections did not attach. In the present case

however, the fact that the nature of the proceedings

are adjudicatory and that the Agency may take, ‘‘af-

firmative action which will affect an individual's legal

rights,”’ clearly demonstrates the significant due proc-

ess rights viewed by this Court to have attached.

The Court of Appeals below has affirmed an agency

decision which completely overlooks actions (the mak-

ing and withholding of ex parte communications) that

bear directly on an individual’s statutory right to be

represented by an attorney by rendering that rep-

resentation ineffective. Under this Court’s holding in

Hannah, such a direct violation of an individual’s due

process rights cannot be permitted to stand. There-

fore, since this removal proceeding was being held,

not for fact-finding investigative purposes, but rather

in order to make a final adjudication on the merits

of Louis Sztan’s removal, the procedure that rendered

petitioner’s right to representation ineffective is in

direct contravention of the holding in Hannah.

Finally, any possible burden on the proceeding that

providing the ex parte communication to Petitioner

could have imposed, would have been minimal. In fact,

the proposing official deemed the memorandum he

sent to admiral Calvert important enough to provide

a timely and separate copy of it to counsel for the

13

agency in the belief that a copy would be transmitted

to Petitioner. However, neither Louis Sztan nor his

counsel was given a copy of the memorandum or in-

formed of its existence until it was discovered by

chance during a deposition of R.A. Findley held after

the Agency decision was rendered. Furthermore, this

document was within the discovery requests of Louis

Sztan, which were continuing in nature.

The communication between R.A. Findley and Ad-

miral Calvert was such that it bore directly on Cal-

vert’s decision whether or not to order Petitioner's

removal. That is why the memorandum was sent. As

a result of withholding the fact of its existence how-

ever, Louis Sztan’s due process rights were tram-

meled upon. Sztan’s counsel was unaware of the new

allegations that were being raised by the ex parte

communication and was therefore unable to rebut

them. In addition, failure to provide a copy of the ex

parte communication to petitioner’s representetive de-

nied counsel an opportunity to address a serious pro-

cedural irregularity. Thus, had petitioner’s counsel

been aware of the ex parte communication, there were

a number of things he could have done in order to

protect Louis Sztan’s right to be represented.

The decision of the Court of Appeals to dismiss this

incursion on the due process rights of a federal em-

ployee departs from the established parameters gov-

erning adjudicatory proceedings. This Court should

correct such a complete failure to abide by its holding

in Hannah and reverse the decision below.

14

CONCLUSION

The decision of the United States Court of Appeals

for the Federal Circuit, affirming the removal of Louis

Sztan, in spite of ex parte communications that ren-

dered his legal representation ineffective, is contrary

to the legislative intent underlying an employee’s right

to be represented by an attorney in a removal pro-

ceeding, guaranteed by the Civil Service Reform Act

of 1978, and constitutes a denial of due process under

this Court’s holding in Hannah and therefore must

be reversed.

FOR THESE REASONS, petitioner prays that a

writ of certiorari issue to review and reverse the

decision of the United States Court of Appeals for

the Federal Circuit.

RICHARD MURRAY

LAW OFFICES OF RICHARD MURRAY

Attorney for Petitioner

NOTE: This opinion has not been prepared for publication

in a printed volume because it does not add sig-

nificantly to the body of law and is not of wide-

spread legal interest. It is a public record. It is

not citable as precedent. The decision will appear

in tables published periodically.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

87-34439

Louis SZTAN,

Pe titione rr

v.

DEPARTMENT OF Navy,

Respond nt.

DECIDED: December 18, 1987

Betore Bissell, Circuit Judge, Cowen, Senior Circuit Judge,

and Mayer, Circuit Judge.

PER CURIAM.

DECISION

The decision of the Merit Systems Protection Board

(Board), No. DC04328610498 (MSPB Dec. 29, 1986), af-

firming the Department of the Navy’s decision to remove

Louis Sztan for unacceptable performance, is affirmed.

OPINION

Petitioner argues that his attorney and constitutional

rights were violated as a result of an ex parte memoran-

dum sent by R.A. Findley, the charging official. to RADM

J.F. Calvert, the deciding official. The one-page memio-

randum stated that petitioner's work performance contin-

ued to be deficient, and cited several examples in support

thereof. According to petitioner, the Board erred in con-

cluding that the memo did not invalidate the removal pro-

ceedings, relying on Sullivan ¢. Lh partment of Navy, 720

F.2d 1266 (Fed. Cir. 1985).

A careful review of the entire record demonstrates that

petitioner's argument is without merit. Firstly, as the

Board recognized, ““[t}here is no statutory or regulator)

prohibition on ex parte communications between proposing

and deciding officials.” Sztan ¢. Department of Navy, No.

DC O4328610498, at p. 15 (MSPB Dec. 29, 1986) (citing

Farris ¢. Department of the Air Force, 26 M.S.B.P. 299.

23 (1085), afd, TSS F.2d 232 (Fed.Cir. 1985) (unpublished

opinion). Whether such communications are improper, de-

pends upon the circumstances of each case.

Secondly, petitioner's reliance on this court's decision in

Sullivan is misplaced. In Sullivan, the court reversed a

removal action after concluding that multiple ex parte com-

munications from an adversary to the deciding official vi-

tiated the entire removal proceedings. As found by the

court, “a true adrersarywith motives of reprisal sought to

pressure the deciding official into making a decision to

remove the petitioner from his employment.” Sullivan, 720

F.2d at 1272 (emphasis added).

In the present case, substantial evidence supports the

Board's finding that there was not an adversarial rela-

tionship between Findley and petitioner. There was no

evidence that Findley, in proposing petitioner's removal,

“was out to get’ petitioner, or that the agency attempted

to conceal the memorandum.

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A-4

NAVAL AIR SYSTEMS COMMAND

NAVAL AIR SYSTEMS COMMAND HEADQUARTERS

WASHINGTON, DC 203619

IN REPLY REFER TO

29 July 1986

From : AIR-516

To : AIR-05

Via : AIR-5l

Subj : VE SUPPORT BY DR. SZTAN

1. My issue with Dr. Sztan is not improving. On Thursday,

24 July, I received a VECP disapproval letter with Dr.

Sztan’s comment (in writing) that the letter was unsatis-

factory and required rewriting. I reviewed the proposed

letter and agreed. I met with Lou, told him of my agree-

ment and asked him to rewrite it, to improve it. Friday

morning I received a rewrite which was no better and |

returned it to Dr. Sztan with verbal comments. Only after

I had done that did I receive a call from Bob Martin, a

support contractor for the F/A-18 Class Desk, asking what

had to be rewritten. He had been tasked by Dr. Sztan to

rewrite the letter, both the first and second time, and was

confused. I apologized for the confusion and told him I

was unaware that he had been tasked by Dr. Sztan to

rewrite the letter. I offered to meet with him Monday

morning to get the letter moving.

2. When I met with him, he showed me some documen-

tation about the VECP which sowed serious doubt in my

mind that we should recommend disapproval. More infu-

riating was his statement that all this material had been

provided to Dr. Sztan. I further found out that Dr. Sztan

had received a draft memorandum from AIR-546 last

Thursday which seeks to provide clarification on another

VECP for which we have recommended disapproval. Dr.

Sztan had not mentioned this to me even though he knows

of my high interest in this particular VECP.

3. Dr. Sztan continues to present information which sup-

ports his predetermined solution to an issue and does not

give me full facts. It is no wonder that industry, per Jim

Quinn's letter to VADM Wilkinson recently, thinks NA-

VAIR’s responsiveness to VECP’s is “in the dark ages

compared to one of the Army’s Commands.” AIR-516 con-

tinues to provide arbitrary and at times conflicting direc-

tions to decisions on VECP’s!

R.A. FINDLEY