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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1023

## Text

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

ek RE eran ree eee eee 22

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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U.S. STATUTES Page

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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
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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;

—

§ 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.

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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

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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:

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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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0583%3A1. Public record. Not legal advice.