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

89-7 60”

No.

yOSEPH F. SPANIOL, JE

CLERK

> b —

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1989

ROBERT W. WILLS,

Petitioner,

Vv.

THE DEPARTMENT OF THE NAVY,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO

THE U.S. COURT OF APPEALS FOR THE FEDERAL

CIRCUIT

ROBERT W. WILLS

6653 CHILTON COURT

McLEAN, VIRGINIA

22101

(703) 356-9330

Pro Se Petitioner

PETITION FOR WRIT OF CERTIORARI

TO

THE U.S. COURT OF APPEALS FOR THE FEDERAL

CIRCUIT

QUESTIONS PRESENTED

1. Did respondent's procedures for employee

separation deprive petitioner of due process

and equal protection of the law in violation of 5

USC 2301(b)(2) and the fifth and fourteenth

amendments to the constitution?

2. Did respondents deprive petitioner of a

relevant (clean) personnel record in violation of

statute 5 USC 552a(e)(1), rules and regulations

CCPO INSTR 12432.1 and FPM Supplement 296-

33 Subchapter 30?

3. Did U.S. Court of Appeals for the Federal

Circuit depart from accepted and usual course

of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call for

an exercise of supervisory power by the

Supreme Court of the United States?

DESIGNATION OF PARTIES

The parties to the appeal before the U.S.

Court of Appeals for the Federal Circuit were

Petitioner Robert W. Wills and the Respondent,

Margaret L. Baskette, The U.S. Department of

Justice, (Civil Division).

TABLE OF CONTENTS

Page

Questions Presented.....................cccccsees. i

Designation of Parties....................csc0008 ii

RE III i cccnsnencsnansancccsescesonenscees ii

Table OF Authorities...........cccccccccccccccccess iv

I a inchencincthnnnantnrcsseunnsenneenens ]

Jurisdictional Statement.....................0. ]

U.S. Constitutional Provisions,

Statutes, and Rules of Court Involved.. 2

Statement of the Case..............cccccccccceeecceees 10

Argument for Allowance of the Writ Page

1. RESPONDENTS DEPRIVED PETITIONER

OF DUE PROCESS AND EQUAL PROTECTION

OF THE LAW AS SECURED TO HIM BY

5 USC2301(b)(2) AND THE FIFTH

AND FOURTEENTH AMENDENTS

TO THE CONSTITUTION. ..........cccccssesesssseessseeseesneees 17

2. RESPONDENTS DEPRIVED PETITIONER

OF A RELEVANT (CLEAN) PERSONNEL

RECORD IN VIOLATION OF5USC |

552a(e)(1), CCPO INSTR 12432.1 AND

FPM SUPPLEMENT 296-33

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3. U.S. COURT OF APPEALS FOR THE

FEDERAL CIRCUIT DEPARTED FROM

ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS, OR SO FAR

SANCTIONED SUCH A DEPARTURE BY

LOWER COURT, AS TO CALL FOR

EXERCISE OF SUPERVISORY POWER

BY THE SUPREME COURT OF THE

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TABLE OF AUTHORITIES

CASES _

Beatty _v, Department of Agriculture

24 MSPR 658, 662 (1984)............cccccccsssseeeees

Covington _v, Department of Health and

Human Service 750 F.2d 941-42

FUE Goa Be ep cenecenszcnennsnecnsemneersnemnenenenensnenesenereneee

Covington yv, Department of Health and

Human Service 750 F.2d, 943 (Fed Cir

SDD cccszssevesnensnenneennneseomneeenenaneaaseancumnetnenensbeceanenasen

Doe_v, United States 753 F.2d 1092,

DD Gas, ar Cee ecctrtcsncninennernsasnennsceneennnnnnene

Scharf_v, Department of the Air Force

710 F.2d, 1572, 1574-75 (Fed Cir 1983)....

US, CONSTITUTION PROVISIONS

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Page

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21

20

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21

U.S. STATUTES Page

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Py Pe Ce inintianenss-senttntannnrsnunennateniin _

S USC 7703 (C).........0...0000. scupabateniinntietientsiiaiiahiabianaiia 5

FEDERAL RULES OR CIVIL PROCEDURES

U.S. Supreme Court Rule 17...................... . 6

U.S. Court of Appeals for the Federal

SN Wiesdhhisissittnisinitnenanteninicthieneenmnanenins Bie

U.S. Court of Appeals for the Federal

Ra en 8

Combined Civilian Personnel Office

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Federal Personnel Manual Supple-

ment 296-33 Subchapter 30 ..................... 9

OPINIONS BELOW

The opinion of the U.S. Court of Appeals

for the Federal Circuit was not issued and not

documented for publication for WILLS v. NAVY

Case No. 89-3214 docked 16 March 1989,

(MSPB No. DCO07528710415-1). A judgement

was issued on 28 Aug 1989 without opinion.

Denial of a Petition for Rehearing was issued on

19 Sep 1989 without opinion.

The opinions and orders of the Merit

Systems Protection Board (MSPB) are

constructed by Appendices I, II and III, infra .

JURISDICTIONAL STATEMENT

The jurisdiction of this court is invoked

pursuant to Rule 17 of the Supreme Court of

the United States effective 30 Jun 1980.

UNITED STATES CONSTITUTIONAL

PROVISIONS, UNITED STATES STATUTES,

AND RULES OF COURT INVOLVED

The U.S. Constitutional Provisions,

Statutes, and Rules of Court are:

CONSTITUTIONAL:

AMENDMENT V

No person shall hold to answer for a capital, or

otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the militia, when in actual service

in time of war or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation.

AMENDMENT XIV

Section 1.

(Citizenship Rights Not to Be

Abridged by States)

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the state

wherein they reside. No state shall make or

enforce any law which shall abridge the

previleges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

STATUTES:

5 USC 552a(d)(2)(A)

(2) permit the individual to request

amendment of a record pertaining to him and -

(A) not later than 10 days (excluding

Saturdays, Sundays, and legal public holidays)

after the date of receipt of such request

acknowledge in writing such receipt; and

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§ USC 552a(d)(2)(B)(ii)

(B) promptly, either -

(i) make any correction of any-portion thereof

which the individual believes is not accurate,

relevant, timely, or complete; or

(ii) .inform the individual of its refusal to

amend the record in accordance with his

request, the reason for the refusal, the

procedures established by the agency for the

individual to request a review of that refusal

by the head of the agency or an officer

designated by the head of the agency , and the

name and business address of that official;

§ USC S$52a (e)(1)

(e) Agency requirements

Each agency that maintains a system of

records shall -

(1) Maintain in its records only such

information about an individual as is relevant

and necessary to accomplish a purpose of the

agency required to be accomplished by statute

or by executive order of the President;

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§ USC 2301(b)(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.

5 USC 7701(d)(2)

The Board shall promptly notify the Director

whenever the interpretation of any civil

service law, rule or regulation under the

jurisdiction of the office is at issue in any

proceeding under this section.

§ USC 7703(c)

In any case filed in the U.S. Court of Appeals,

the court shall review the record and hold

unlawful and set aside any agency action,

finding, or conclusions found to be -

(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with

law;

(2) obtained without procedures required by

law, rule, or regulation having been followed;

or

(3) unsupported by substantial evicence;

RULES OF COURT:

U.S. Supreme Court

Rule 17

CONSIDERATIONS GOVERNING REVIEW ON

CERTIORARI

.l. A review on writ of certiorari is not a

matter of right, but of judicial discretion, and

will be granted only when there are special and

important reasons therefor. The following,

while neither controlling nor fully measuring

the Court's discretion, indicate the character of

reasons that will be considered.

(a) When a federal court of appeals has

rendered a decision in conflict with the decision

of another federal court of appeals on the same

matter; or has decided a federal question in a

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way in conflict with a state court of last resort;

or has so far departed from the accepted and

usual course of judicial proceedings, or so far

sanctioned such a departure by a lower court,

as to call for an exercise of this Court's power of

supervision.

.2. The same general considerations outlined

above will control in respect of petitions for

writs of certiorari to review judgments of the

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

Court of Claims, of the Court of Customs and

Patent Appeals, and of any other court whose

judgments are reviewable by law on writ of

certiorari.

U.S. Court of Appeals for Federal Circuit

Rule 8

(Guide for Pro Se Petitioners (Fed Cir Rules p.73

of 1 May 1989)

8. Cases dismissed for lack of jurisdiction or for

untimeliness.-- If the board, commision, or

trial court dismissed your case for lack of

jurisdiction or because you did not file on time,

you must limit your petition for review or

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appeal to these issues. In that situation, this

court will not consider the merits of your case

(whether you deserve to win or lose your case

on the facts and the law) and if this court were

to reverse the board, commission, or trial court

on its jurisdictional or timeliness ruling, your

case would be remanded to the_ board,

commission, or trial court to consider the

merits. If jurisdiction or timeliness was the

basis of the decision you are appealing, you will

waste your time and effort, and will unduly

burden this court, if you discuss the merits.

U.S. Court of Appeals for the Federal

Circuit

Rule 19

(Guide for Pro Se Petitioners (Fed Cir Rules p.75

of 1 May 1989)

19. Notice of the court's decision.-- You will be

sent a copy of the court's opinion in your case

by mail on the day it is filed with the clerk. If

you file a petition for rehearing, it must be

received within 14 days of .............

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CCPO-CCINST 12432.1

6. Exclusions. The following actions are

excluded from _ the_ provisions of _ this

INSHTUCTION: oo... eeeeeeeeeeeees

g. A voluntary action initiated by the

employee

h. An adverse action for cause

FPM SUPPLEMENT 296-33

SUBCHAPTER 30. RETIREMENTS

S30-2b.(2) Agency Finding. When the

employee is serving on an appointment that

does not afford him/her appeal rights (for

example, a nonveteran who is serving on an

Excepted Appointment), no agency finding or

reasons for or explanation of the retirement

may be palced on the SF52, SF50, SF7, or in the

employee's OPF/MRPF or EPF. When the

employee does have appeal rights, follow the

instructions below to document the agency

finding.

(a) Disability Retirements _.............

(b) Other Retirements

(iii) When an employee retires after receiving

written notice of a proposed disciplinary or

adverse action, the pending action must be

listed as the agency finding (“Retired after

receiving written notice of ....")

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STATEMENT OF CASE

On 11 Sept 1985, WILLS submitted

retirement papers and departed his civilian job

with Naval Air Systems Command after 33

years of loyal and dedicated federal service as

an aerospace engineer. He had worked his way

up to Branch Head (GM15) with 29 years in the

Same organization.

In Mar 1985, WILLS was accused of

unsatisfactory job performance by his Division

Director (A Navy Captain temporarily assuming

role of supervisor). WILLS had a reputation of

supporting his employees. One controversy

involved a GS4 clerk typist that had been in the

branch for more than 4 years before WILLS

became Branch Head. WILLS had always

considered this employee's performance

satisfactory for a GS4 rating but not worthy of

advancement to a higher rating. This employee

had earned her keeps on many occasions. Top

notch secretaries were not available. The Navy

Captain, without knowledge and appreciation

for past efforts, faulted WILLS for not having

built a better case against this employee for

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removal (he wanted an excuse to get WILLS).

This Captain had refused awards for two top

notch engineers that WILLS had rated as

Outstanding. They left and WILLS was doing

their work. It became convenient and

entertaining for the Captain to remove WILLS.

(Captain's personal life was a mess-alcohol dry-

out tank at Norfolk-separation-a girl friend on

the West Coast- at least 2 bicycle wrecks

requiring days off from work-he remarked to

WILLS that bicycle was _ intoxicated-a

reputation of trouble maker at each duty

Station). For 90 days WILLS was put on a

double duty treadmill under the pretense of an

opportunity to show improved job

performance. WILLS met all of his

unreasonable demands and special

assignments. WILLS provided evidence that his

performance was above standards as _ in

previous 3 years confirmed by this same

Captain thereby making the allegations against

him false. The Captain did not relent. WILLS

then filed a grievance against the Captain

pointing-out his errors and detrimental impact

on branch responsibilities. (For one thing, he

violated ethics code by asking Branch Heads to

solicit airplane models from contractors for his

office) The merits of this grievance were

ignored (Captain is a Naval Academy graduate).

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After receiving the Captain's Notice of Proposed

Removal, counsel for WILLS submitted a

rebuttal showing that agency did not have any

legal basis for WILLS' removal. The merits of

this rebuttal were ignored. WILLS was notified

that he would be separated on 13 Sept 85.

By retiring two days prior to being fired,

WILLS had a right to a clean record. Sole

purpose of Civil Service Reform Act of 1978 is

to make it easy to get employee out of job. If

he goes voluntarily, statute has been satisfied

and does not call for adverse action against

employee's record. If forced removal becomes

effective, agency has a right to dishonor

employee's personnel record since employee

also has an appeal right to MSPB.

WILLS' retirement was classified as

"voluntary" without an appeal right. Agency

representatives had informed WILLS that a

“voluntary” retirement would not have an

appeal right. These representatives did not tell

WILLS that his retirement would also be

considered by agency to be a disciplinary or

adverse action requiring his record to be

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dishonored after his departure. Had WILLS

known what the agency intended to do, he

could have made an informed choice concern-

ing his retirement action and need for an

appeal to clear his record but WILLS was not

informed.

By not informing WILLS, his “voluntary

retirement" was actually an “involuntary

action". An “involuntary action" is tantamount

to removal which is appealable. At the time,

WILLS did not know that an involuntary action

was appealable. It took WILLS until 20 May

87 (20 months) to find out that his “voluntary”

retirement was tantamount to an “involuntary

action". WILLS submitted his appeal to MSPB

on 18 Jun 87, less than one month after finding

out that he had a lega! basis for an appeal.

Agency claimed that dishonored record

was required by OPM personnel manual.

WILLS claimed that this manual applies only to

employees requiring disciplinary action that is

appealable. MSPB is required by statute to

promptly notify OPM whenever interpretation

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of a manual is at issue. Instead, MSPB accepted

agency's claim, without any statutory proof,

that the dishonoring of WILLS' personnel

record was appropriate. MSPB accused WILLS

of a false assumption that there would be a

clean record. MSPB claimed that agency had no

way of knowing that WILLS was relying on

false assumption and_ therefore WILLS'

retirement was "voluntary". WILLS did not

rely on false assumption since rules and

regulations do not require a dishonored record

for a voluntary retirement free of disciplinary

action. WILLS did not have to express an

assumption or broach subject of a clean record

to agency personnel since WILLS had no way of

knowing that agency would misinterpret rules

and regulations after his departure. WILLS

had a right to assume that agency would be

procedurally correct with matters affecting his

record. Knowledge was imparted to agency

that WILLS wanted to preserve his clean

record by his act of submitting retirement

papers two days prior to effective day for

removal. WILLS was not required’ by

regulation to impart this

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knowledge in any other manner. This case is

significant and important since this false

interpretation of manual probably impacts

other cases administered by the agency.

MSPB ruled lack of jurisdiction due to a

"voluntary retirement" thereby ignoring

WILLS' claim to a clean record and due process.

MSPE also ruled “lack of prudence" leading to

untimeliness for filing the appeal. WILLS did

not eontact agency immediately upon receipt of

dishonored record since agency representatives

had told him that he did not have an appeal

right. When WILLS did contact agency later on

2 Mar 87, his request for a clean record was

ignored. WILLS did not immediately contact

his previous attorney since he could not take

legal action if he did not have an appeal right.

For same reason, WILLS did not contact MSPB

since he was not aware of an appeal right at

that time. WILLS did the only thing that he

knew to do. He contacted his congressman

which was slow but effective. Therefore,

WILLS showed good cause for the amount of

time it took to become aware that he had a

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legal basis for filing an appeal. MSPB decisions

On jurisdiction and untimeliness are not

supported by statutes, rules or regulations

thereby violating WILLS' right to due process

and equal protection of the law.

By petition to U.S. Court of Appeals for

the Federal Circuit, with U.S. Department of

Justice as respondent, WILLS _ provided

evidence that lower court (MSPB) did not

comply with statute, rules or regulations and

that his rights were violated. WILLS requested

remand of his case to MSPB for a fair hearing

on merits and substance since he had not

previously received an opportunity to make

informed choice for an appeal during his

retirement proceedings. The lower court's

decisions were affirmed without opinion.

With this writ, WILLS is requesting the

U.S. Supreme Court to confirm, secure and

restore his rights as provided by statute and

amendments to the constitution.

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ARGUMENT FOR ALLOWANCE OF THE

; WRIT

1. RESPONDENTS DEPRIVED PETITIONER

OF DUE PROCESS AND EQUAL PROTECTION

OF THE LAW AS SECURED TO HIM BY-5

USC 2301(b)(2) AND THE FIFTH AND

FOURTEENTH AMENDENTS TO THE

CONSTITUTION.

With entitlement to relief under 5 USC

2301(b)(2) and the fifth and _ fourteenth

amendments, WILLS~ showed: (a) _ that

respondents deprived him of a right secured to

him by the constitution or federal law and (b)

that the deprivations resulted from erroneous

interpretations, decisions and misapplication of

the statute, rules and regulations.

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WILLS was not given an opportunity, at

time of his employment termination, to make

an informed choice concerning his right to an

appeal to clear his name and personnel record

(SF50). WILLS had received agency's Notice of

Decision on 6 Sept 85 to be separated from

employment effective 13 Sept 85. Although

agency's Notice of Decision gave WILLS the

opportunity to appeal substance of the agency

decision as to his performance (within 20 days

after separation), neither the written decision

nor the personnel instructions it cited (CCPO

INSTR 12432.1) gave notice that if WILLS did

not appeal (after separation), but retired

(before separation), the substance of the

agency finding would be memorialized forever

on the record without any requirement by the

agency to prove the truth of its finding nor any

opportunity by WILLS to contest it.

WILLS, only after being separated, could

exercise an appeal right with MSPB on the

substance of his performance (Civil Service

Reform Act of 1978). Instead, WILLS

submitted retirement papers and departed on

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11 Sept 85. WILLS wanted to preserve his

clean record since he still needed to work

within the aerospace industry. By leaving two

days prior to being fired, WILLS exercised a

retirement option fully earned after 33 years

of loyal and dedicated federal service.

Respondents did not let WILLS retire in

peace. Respondents claimed a right to impose

an agency finding that dishonored § and

disgraced WILLS' record (SF50) after his

departure from the job. Imposing this agency

finding violated CCPO INSTR 12432.1. Para 6.g

States that “a voluntary action initiated by the

employee" is excluded from the provisions of

this instruction which is the agency's regulation

for enforcing the 1978 statute. Since WILLS

initiated voluntary retirement action, a

derogatory or adverse agency finding or

further negative action against WILLS was

neither required by statute nor _ instruction.

Imposing an adverse agency finding, without

his knowledge, violated WILLS' right to fair

and equitable treatment without proper regard

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for his privacy and constitutional rights, 5 USC

2301(b)(2). WILLS’ retirement’ was

involuntary because he involuntarily accepted

the agency's terms; he never’ voluntarily

accepted agency terms of retirement that

included adverse and discrediting comments on

his SFSO.

Had WILLS been informed of forthcoming

discrediting agency finding prior. to

employment termination, he could have made

an informed choice for his right to an appeal on

substance with MSPB. WILLS did not have to

allege that agency intentionally misled him.

Beatty v, Department of agriculure. 24 MSPR

658, 662 (1984). Agency had a duty to inform

WILLS of its discrediting agency finding. Doe vy,

United States 753 F.2d 1092, 1106 (D.C Cir

1985). "A decision made...based = on

misinformation or a lack of information, can not

be binding as a matter of fundamental

fairness and due process". Covington vy.

Department of Health and Human Services 750

F.2d, 943 (Fed Cir 1984.

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By not informing WILLS of agency

finding and in violation of instruction, WILLS'

retirement was therefore’ involuntary,

tantamount to removal. A retirement is

involuntary if it is obtained by agency

misinformation or deception. Scharf v.

Department of the Air Force 710 F.2d, 1572,

1574-75 (Fed Cir 1983). Wills showed that he

was deceived thereby making his retirement

"involuntary". The touchstone of analysis of

whether a retirement is voluntary is whether

the employee made an _ informed choice.

Covington. 750 F.2d at 941-42. WILLS showed

that he did not have an opportunity to make an

informed choice. WILLS' right to an informed

choice and due process was not protected by

the respondents.

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2. RESPONDENTS DEPRIVED PETITIONER

OF A RELEVANT (CLEAN) PERSONNEL

RECORD IN VIOLATION OF 5 USC

552a(e)(1), CCPO INSTR 17432.1 AND

FPM SUPPLEMENT 296-33 SUBCHAPTER

36.

Agency's finding to dishonor and disgrace

WILLS' personnel record violated 5 USC

552a(e)(1) since respondents did not establish

a legal or necessary purpose to_ be

accomplished by statute or by executive order.

WILLS was separated under provisions of

CCPO INSTR 12432.1 for alleged unsatisfactory

job performance. WILLS was not separated for

alleged “adverse cause" or "disciplinary action"

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involving a different instruction, rules and

regulations. CCPO INSTR 12432.1 para 6.h

excludes actions for "adverse cause" from these

provisions dealing with unsatisfactory

performance. In violation of para 6.h, agency

related .WILLS' retirement to an “adverse

cause" action as regulated by FPM Supplement

296-33, Subchapter 30-2(2). An agency

finding is applied to an employee's record

when an employee is removed or separated for

"adverse cause" or "disciplinary action" and the

finding is required to accomplish a _ purpose

required by statute. Respondents violated

WILLS' right to a relevant (clean) record since

there was no. Statutory purpose to. be

accomplished by adding adverse agency finding

to his record after his voluntary departure.

Agency classified and accepted WILLS’

departure as “voluntary retirement” and then

proceeded to imposed an agency finding

associated with an adverse separation but

failed to inform WILLS that he was entitled to

an appeal right inherent with an adverse

action. WILLS had properly understood that he

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did not have an appeal right with a

classification of “voluntary retirement" since

agency representatives had so informed him.

WILLS did not know that his "voluntary

retirement" was tantamount to an “involuntary

action" and therefore appealable.

On 2 Mar 87, WILLS formally requested

agency to remove adverse agency finding from

his record. Agency ignored his request in

violation of 5 USC 552a(d)(2)(A). On 20 May

87, WILLS became aware that an “involuntary

retirement" action was appealable. WILLS filed

an appeal with MSPB on 18 Jun 87. In Dec 87,

agency formally replied and refused to amend

WILLS' record and also proceeded to violate 5

USC552a(d)(2)(B)(ii) by not establishing

procedures for WILLS to request a review of

that refusal. Agency used FPM Supplement

296-33, Subchapter 30 as justification for

refusal to amend WILLS' record but did not

establish purpose required by statute. MSPB

accepted respondent's claim that agency

finding was appropriate. This acceptance

violated 5 USC 7701(d)(2) which states: "The

Board shall

promptly notify the director whenever the

interpretation of any civil service law, rule or

regulation under the jurisdiction of the office is

at issue in any proceeding under this section.”

MSPB did not seek OPM intervention. This

violation in procedures had a negative impact

on the outcome of petitioner's case since OPM is

the appropriate expert on FPM Subchapter 30

issues. Accordingly, a Brief of Amicus Curiae

by Mr. Timothy M. Dirks (OPM) in accordance

with Rule 36, would serve as a review of

government policy for SFS50 procedures.

3. THE U.S. COURT OF APPEALS FOR THE

FEDERAL CIRCUIT DEPARTED FROM

ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS, OR SO FAR

SANCTIONED SUCH A DEPARTURE BY

LOWER COURT, AS TO CALL FOR EXERCISE

OF SUPERVISORY POWER BY THE

SUPREME COURT OF THE UNITED STATES.

The appeals court violated 5 USC 7703(c)

by not upholding statute, rules or regulations

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shown to be violated by respondent. The

appeals court did not set aside agency action,

agency finding, or MSPB _ conclusions shown to

be: (1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with

law; (2) obtained without procedures required

by law, rule, or regulation having been

followed; or (3) unsupported by substantial

evidence. ,

Also, appeal court Judges (Markey,

Newman, Archer) deprived petitioner of due

process and equal proteciion of law by

violating their very own court procedures

established for pro se petitioner as guidelines

and ground rules which resulted in a significant

impact on the out come of petitioner's case.

Petition to appeals court involved two

issues and decisions of lower court: (1)

jurisdiction and (2) timeliness of appeal, which

were briefed. During oral argument on 2 Aug

88, WILLS was not asked questions on issues

briefed but rather questions with implications

on whether WILLS was guilty on the merits or

-26-

substance of the case. These questions violated

ground rule no. 8 which specifically warns the

petitioner that only issues under review are to

be discussed. This violation clearly prejudiced

the case against the petitioner. WILLS' petition

for a rehearing respectfully requested Chief

Judge Markey to withdraw from the case. The

petition for a rehearing was denied without

opinion or explanation.

Ground rule no. 19 was also violated by

the court. This ground rule specifically states

that the court will provide an opinion to the

pro se petitioner. The court issued a judgement

against the petitioner without the issuance of

an opinion.

These violations by Judges Markey,

Newman and Archer deprived WILLS of due

process and fair and equitable treatment

under statute and fifth and _ fourteenth

amendments to the constitution requiring the

exercise of supervisory power by the Supreme

Court of the United States.

o27.

ee nine ot

CONCLUSIONS

WILLS did not receive due process and

fair or equitable treatment in view of violations

of statute, rules and regulations. The Naval Ai.

Systems Command, MSPB, The U.S. Department

of Justice and U.S. Court of Appeals for th»

Federal Circuit did not uphold petitioner's

rights as secured by statute and amendments

to the U.S. Constitution. A Brief of Amicus

Curiae by Mr. Timothy M. Dirks (OPM), in

accordance with Rule 36, would review

government policy on SFS5O procedures.

Respectfully submitted,

“het At. ible

Robert W. Wills

Pro Se Petitioner

6653 Chilton Court

McLean, Virginia

22101 —

(703) 356-9330

-28-

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APPENDICES

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APPENDIX I

U.S. COURT OF APEALS FOR THE FEDERAL

CIRCUIT

No. 89-3214

Robert W. Wills,

Petitioner

v.

Department of the Navy,

Respondent

Robert W. Wills, Pro Se Petitioner

Margaret L. Baskette, Department

of Justice, Respondent

Docked: 16Mar 89

Petition submitted: 1 May 89

Oral argument: 2 Aug 89

Adjudged: AFFIRMED WITHOUT OPINION

Per Curiam: (Markey, Chief Judge, Newman and

Archer, Circuit Judges)

Entered by Order: 28 Aug 89

Petition for Rehearing: 6 Sept 89

Adjudged: DENIED WITHOUT OPINION

Per Curiam: (Markey, Newman and Archer)

Entered by Order: 19 Sept 89

Issued as Mandate: 26 Sept 89

-30-

APPENDIX II

MERIT SYSTEM PROTECTION BOARD (MSPB)

Robert W. Wills,

Appellant

v.

Department of the Navy,

Agency

Docket No. DCO07528710415-1

Robert V. Varnum, Esquire, Mehler, Franz,

Conlon, Knapp, Phelan & Varnum, Washington,

D.C., for the Appellant

Ralph E. Olson, Esquire, Washington, D.C. for the

Agency

BEFORE: Daniel R. Levinson, Chairman

Maria L. Johnson, Vice Chairman

Samuel W. Bogley, Member

ORDER: After full consideration, the Board

DENIES the appellant's petition for review of

the initial decision issued on October 18, 1988,

because it does not meet the criteria for review

set forth at 5 C.F.R. 1201.115. This is the

Board's final order in this appeal. The initial

decision in this appeal is now final. 5 C.F.R.

1201.113(b).

Order Date: 21 Feb 1989

-3]-

APPENDIX III

MERIT SYSTEM PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

Robert W. Wills,

Appellant,

¥.

Depariment of the Navy,

Agency

Docket No. DC07528710415-1

Robert V. Varnum, Esquire, Washington, D.C.,

for Appellant

Ralph E. Olson, Esquire, Washington, D.C. for

Agency

BEFORE: Joseph E. Clancy, Administrative Judge

INITIAL DECISION:

By Opinion and Order dated June 13,

1988, the Board remanded this case for further

adjudication. See Wills v. Department of the

Navy, 37 M.S.P.R.137, 141 (1988). A hearing

was held concerning the timeliness of the initial

petition for appeal, as well as the voluntariness

of appellant's retirement.

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For the reasons set forth below, the

appeal is DISMISSED.

The background of this case is fully set

forth in the Board's remand decision and will

not be repeated here. Briefiy, however,

appellant retired, effective September 11,

1985, two days before he was to be removed

for unacceptable performance. Sometime

during the next two weeks, appellant received

a copy of a Standard Form 50(SF50) which

noted that he had retired after receiving a

decision to separate him for unacceptable

performance. On June 18, 1987, more than

twenty-one months after his retirement,

apellant filed a petition for appeal claiming that

his retirement had been involuntary.

In remanding this case, the Board

directed that a determination be made

regarding the existence of good casue for

waiver of the regulatory time limit for appeal.

The Board also stated that, if good cause was

shown, appellant was “entitled to a hearing on

whether appellant assumed that he would

receive an SF5O that did not refer to the

k

decision to remove him and whether the

agency had reason to know that the appellant

was relying on that erroneous assumption.” See

Wills v. Department of the Navy, 37 M.S.P.R. at

141-2.

There is no dispute that, following the

submission of appellant's written” reply,

prepared by his attorney, to the notice

proposing his removal, appellant had a

conversation on August 7, 1985 with March

Price, an Employee Relations Specialist. At that

time, the question of retirement was discussed,

and Ms. Price informed appellant that a

voluntary retirement was not appealable to the

Board. Appellant intended to appeal his

removal, if the dicision on the proposed action

was adverse to him. Their discussion ended

with appellant's stated intention to retire the

day after his removal, thereby perserving his

appeal rights. Neither appellant nor Ms. Price

could recall any discussion regarding remarks

on any SFSO.

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— a ie

Appellant testified that after he received

the agency's decision directing his separation

effective September 13, 1985, he intended to

appeal the action, and therefore still planned to

retire as of September 14, 1985. He also

testified, however, that after discussing the

matter with his wife, he decided to "preserve

his record” and “leave without a fight". He then

informed the agency that he wished to retire

effective September 11, 1985, and, on _ that

date, went through check-out procedures,

ending with a review of his retirement file with

Nancy Wyrick, another Employee Relations

Specialist. Again, neither appellant nor Ms.

Wyrick could recall any discussion regarding

adverse remarks on the SFSO.

Following his receipt of the SF50

sometime between September 17, 1985 and

September 25, 1985, appellant wrote letters to

two members of congress, seeking support and

guidance. Approximately twenty months later,

appellant received a copy of a letter from the

Office of Personnel Management (OPM) to one

Se.

of those members. That letter suggested that

appellant could submit an untimeiy appeal to

the Board concerning his alleged involuntary

retirement, together with an explanation of the

delay in _ filing. Appellant subsequently

retained the services of another attorney, and

Submitted his appeal.

An appeal io the Board must _ be

submitted within twenty days following the

effective date of the action being appealed. See

5 C.F.R. 1201.22. The time limit may be waived

if an appellant establishes the existence of good

cause for an untimely filing. See 5 C.F.R.

1201.12, 1201.22(c); Alonzo v. Department of

the Air Force, 4 M.S.P.R. 180, 184 (1980). One

important factor for consideration is whether

the appellant acted as a reasonably prudent

person and _ exercised due _ diligence’ in

discovering and pursuing a right of appeal. See

Kotulak v. Department of Agriculture, 35

M.S.P.R. 111, 113 (1987); cf. Mason v.

Department of Transportation, 32 M.S.P.R. 138,

141 (1987).

Te

In the instant case, I find what appeilant

did not do, rather than what he did, to be of

particular significance. After receiving the

SFS50 in question and believing himself to have

been aggrieved, he did not contact the agency

to protest or even question the agency's

remarks on the document. Ms. Wyrick testified

that the retirement package given to appellant

contained several telephone numbers, including

her own, for his information and contact for

assistance. He also did not contact his attorney,

an experienced advocate before the Board.

Finally, he did not contact the Board, although

the Regional Office's address, as well as a copy

of the Board's regulations, were provided to

appellant with the September €, 1985 final

agency decision. Contact with any one of these

sources would have provided appellant with

information concerning a potential right to

appeal an alleged involuntary retirement.

Despite the existence of the logical

sources of information cited above, appellant

chose to pursue congressional “support and

guidance” in seeking redress. I find that

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appellant's choice was not one that a

reasonably prudent person, truly believing

himself to have been aggrieved by an agency's

action,- would have made in an effort to

diligentiy pursue relief. See Kotulak v.

Department of Agriculture, 35 M-S.P.R. at 114;

cf. Smith v. Navy, MSPB Docket No. HQ7121804

(August 10,1988). I therefore find that

appellant failed to establish good cause for the

lengthy delay in filing his petition for appeal,

and that it is appropriate for dismissal on that

basis.

The facts and circumstances concerning

the question of the voluntariness of appellant's

retirement, are, to a great extent, intertwined

with those concerning the timeliness issue.

Accordingly, notwithstanding my finding above

that the appeal should be dismissed as

untimely, I will adress the question of Board

jurisdiction in this matter.

It is unclear whether, at the time he

retired, appellant assumed that he would

receive an SFS50O that did not refer to the

agency's decision to remove him. It is clear,

-38-

however, from the testimony of appellant, Ms.

March and Ms. Wyrick, that appellant never

expressed such an assumption to anyone at the

agency, nor was the subject ever broached by

appellant. In addition, Ms. March and Ms.

Wyrick both testified that, had appellant

indicated such a belief, they would have

corrected his erroneous assumption.

Appellant opined that, notwithstanding

the fact that he had not communicated his

erroneous assumption to any agency personnel,

the agency should have known of his desire to

"preserve his record”. He argued that this

"knowledge" was imparted to the agency by

virtue of his disagreement with the merits of

the agency's basis for his proposed removal, as

set forth in his response to the proposal notice.

I am not persuaded by this theory, however,

and I find that the agency did not have reason

to know that appellant was relying on an

erroneous assumption concerning any remarks

on his SFSO. See Wills v. Department of the

Navy, 37

539.

— eo

M.S.P.R. at 141-2. I further find that

appellant's choice to retire was an informed

one, and was freely made. See Covington v.

Department of Health and Human Services, 750

F.2d 937, 953 (Fed. cir. 1984). Such a

voluntary retirement is not a matter within the

jurisdiction of the Board. see 5 C.F.R.

752.401(c)(3); Myslik v. Veterans

Administration, 2 M.S.P.R. 69, 71 (1980).

DECISION

The appeal is hereby DISMISSED.

FOR THE BOARD:

Signed by Administrative Judge:

Joseph E. Clancy

-40-

AFFIDAVIT OF SERVICE

In response to Rule 28.5(c) and in

compliance with Rules 19.3 and 21 of the

Supreme Court, I, Robert W. Wills, hereby

certify that on this 13 ta day of November,

1989 I filed with the Clerk's Office of the

Supreme Court of the United States forty (40)

copies of a Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Federal Circuit

involving Case No. 89-3214. I am a Pro Se

Petitioner. On this day, I personally hand

delivered this petition of forty copies to the

Clerk's office of the U.S. Supreme Court for

docking. I further certify that on the same

date I deposited three (3) copies of the same

petition in a United States post office, with

first-class postage prepaid, to the Respondent

appearing before the U.S. Court of Appeals for

the Federal Circuit as listed below. Further, |

deposited one (1) copy by mail to other parties

for information as listed below:

a

2 ee | |

Affidavit continued:

RESPONDENT BEFORE THE COURT; (Three copies

Margaret Baskette, Esq.

Department of Justice/Civil Division

550- lith Street, N.W.

Washington, D.C. 20580

ALSO: (Three copies)

David M. Cohen, Director

Commercial Litigation Branch/ Civil Div

Department of Justice

Attn. Classification Unit

2nd Floor Todd Building

Washington, D./C. 20530

OTHER; (One Copy each)

Clerk, U.S. Court of Appeals for the

Federal Circuit

717 Madison Place, N.W. ,

Washington, D.C. 20439

Others Continued:

Clerk of the Board

Merit Systems Protection Board

1220 Vermont Avenue, N.W.

Suite 802

Washington, D.c. 20419

Timothy M. Dirks

Office of Personnel Management

Employee Relations Division

1900 E. street, N.W., Room 7635

Washington, D. C. 20415

Ralph E. Olson, Esquire

Office of Counsel

Naval Air Systems Command

JP 1, Room 314

1411 Jefferson Davis Highway

Washington, DC 20361-0002

Y, See

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eet W. WILLS,

Pro Se Petitioner

of9.

NOTARY PUBLIC

STATE OF VIRGINIA:

Fairfax County, to wit:

I, ee Xe ed ee ST , a

Notary Public in and for the jurisdiction

aforesaid, do certify that Robert W. Wills,

whose name is subscribed above, signed and

acknowledged his signature in my _ presence,

and further stated that the statements made

are true to the best of his knowledge and

belief. ae

pork Te eee

Notary Public :

My commission expires: 223 -A>

-44-