Petition for Writ of Certiorari — Tooni v. Zuckert
Supreme Court brief1969
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IN THE pH F. DAviG, CLERK
- ian te of the United d States.
(ae 3 OCTOBER TERM, 1968 -
/ i i
ia No. 138]
JOSEPH N. TOONI and DANIEL L. EDWARDS, JR.,
’ Petitioners, 7
. : a A °
: “ta laeon Vv.
EUGENE ZUCKERT, SECRETARY ‘OF THE AIR |
FORCE,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
: UNITED STATES COURT OF APPEALS FOR THE
PEELE DONE NOOR TVS BUCO Ne ary CARAS Mee Th UA: Fogel Ns UNE MMrERET e osaSteSy
: SIXTH CIRCUIT
1a
t
: :
- ;
|
: WILLIAM R. COEN, ’
. CoEN & Way,
4 1117 Talbott Tower, ©
Dayton, Ohio 45402, :
Counsel for Petitioners. ’
May 8, 1969
Tue Jounson & Harpin Co., Law PRINTERS
CINCINNATI, On10 4
Citations to Opjgions SLs ce vw os aie veld we uacaen
TABLE OF CONTENTS
PAGE
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit ....:.... 1
SN By oo ap 40 63ST O ow RRMA Oa OO me ey
~ Questions eo oe, hee ae
; Constitutional, Provisions and Statutes Involved .... 2
Statement of the Cases ......:.... Sat a ne ee a ae 4
Reasons for Granting the Writ .................. 12
Joseph N. Tooni (Separate Argument) ... cis es 14
Daniel L. Edwards; Jr. (Separate Argument) ...... 19°
1. Is agency removal of Federal Civil Service em- _
ployees subject to meaningful judicial review? .. 12
2. Whether constitutional, statutory and procedural —
rights provided by applicable law and government
regulations were provided to Petitioners. ........ 14
3. Did material issues of fact prevent Summary Judg-
ment against Petitioners? .........5......00005: 30
(a) Tooni contends that purported removal for
intentional false statements and omission of an
arrest contained genuine issues of material
ee Te eee <eh Ge Si Seen eae K 30
(b) Edwards contends he was rated efficient in -
May 1961, but was later alleged to be inefficient _
in watching Bob Hope movies, creating genuine
: «femmes OF mintertal Tete... ww. ce ewes 31
‘4. Was the Veterans Preference law violated? .-..... 31
COMCHUBION 2.20... eee eee cence ee ree dee enes 33
TABLE @F AUTHORITIES
Cases
: Or PAGE
Baum v. Zuckert, 342 F.2d 145 (C@A, 6th, 1965) .. 18
Camero v. U. S., 875 F.2d 777 (Ct. Cl. 1967) ..... 23, 30
Fass v. Ruegg, 379 F.2d 216 (CCA, 6th, 1968) ..7, 11,12 °
Louks v. U. S., 395 F.2d 993 (Ct. Claims 1968) .... 18
Paterson v. U. S., 319 F.2d 882 (Ct. Ck, 1963) .... 20
Scott v. Macy, 349 F.2d 182 (CCA, D. C. 1965) . 13 .
Seligman v. The Toledo Motion Pictures, 88 Ohio a
MF CON eh a ees 14
Stringer v. United States, 117 Ct. Cl. 30 ......... .
Witorelli v. Seaton, 359 U. 8.585 ...........0..00e 29
Weinberg v. Macy, 360 F.2d 816 (CA, D.C. 1965) .. 16
Williams v. Zuckert, 372 U. S. 765, ee ee hte Coe 28
CONSTITUTION, STATUTES: AND REGULATIONS
Constitution of the oe Fifth Amendment 2, 12a
5 U.S. Code, Sec. 7512 (Weterans Preference Act) .. 8
28 U. S. Code Sec. 1254 -........... ee 2
28 U.S. Code, Sec. 1861 .............. Ser ere oe
‘AMC Manual 40-2 dated 29 July 1959 ..... Roe 4
Air Force Manual 40-1 (AF A-1, Sec. . dated 31
Se GE 5 cn bbw a 6k Oe eee eee es ea 4
Air Force Manual 40-1 (AF A-12.5) dated 31 on
DO BOR ow ceccccnrvesseess ery reer es 4
DAAFDM 40-1 dated 1 September 1961 ........... 4
OTHER AUTHORITIES
id eR Se 13
M
Civil Service Regulations, Sec. 102: (a) (1) of Sec. 9
(non-existent but cited by Government) see eeeee 25 ©
PAGE
TABLE OF CONTENTS OF APPENDIX—Tooni
Affidavit of ies vices ss la
Letter of Proposed Removal .......... re wants Shao Ta
Memorandum Deeision and Order ................ 14a
Judgment, District Court ......... auart ere 16a
- Judgment, C. C. A., Sixth, October 16, 1968 ........ 39a
Order os Rehearing, December T0, 1968. ..... 40a
TABLE OF CONTENTS OF APPENDIX—Edwards
Letter; Request for Grievance =. P ay. 1961 .. 17a
AFM 40-1, A-12.5, 31 December See earner 18a
DAAFDM 40-1 .... 20... eee eee eee eee eee cases oe
AMCM, 40-2, P. 14 (4- 7; 4-8) ae caakia 19a, 20a, 21a,
Letter, Col. Lawton, dated 20 April ene 25a
AFM 40-1, Chapter AF, A-1, Sec. 5 .............05. 26a
Standard Form 50 .............. % Leave een 30a
Special Order Appointing Committee .............. 32a
Letter, Col. Lawton, MAHQI ............2. 60... 33a:
- AFM 40-1, Chapter AF, A-1, P. 20 ........ , 28a, 29a
Memorandum Decision and Order ............... . 84a
Judgment, District Court ...................005. 35a
Letter, AFLC, W-P AFB, Ohio, dated 13 Dec. 1962 .. 35a
Letter, Col. North, 2907th Air Base Group (DAAFD) 37a
_ Judgment, C. C. A., Sixth, October 16, 1968 ........ 39a
Order Denying Rehearing, December 10, 1968 ...... 40a
iii |
,
IN THE
Supreme. Court of the United States
. OCTOBER TERM, 1968. |
{
No. \
>
; JOSEPH N. TOONI and DANIEL L. EDWARDS, JR.,
ae Petitioners,
-“
V. .
EUGENE ‘ZUCKERT, SECRETARY OF THE AIR
; FORCE,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
~- UNITED STATES COURT OF APPEALS FOR THE =»
‘SIXTH CIRCUIT
Joseph N. Tooni and Daniel L. Edwards, Jr., pray that
a writ of certiorari. issue to review the:judgment of the
ers aie States Court of Appeals for the Sixth Circuit,
entered in the above entitled cases ‘. December 10, 1968.
| CITATIONS TO OPINIONS BELOW ~
The decisions of the Court below, the Petitions for Re-
héaring, the District Court Orders and the Orders of the .
Sixth Circuit Court of Appeals are unreported, but are ~
included in the record and are appended hereto.
A
JURISDICTION
The judgments of the Court of Appeals were entered
October 16, 1968. Petitions for Rehearing were denied
77
ie)
\
a
December 10, 1968. An extension of time until May 9,
- 1969, for filing a Petition for Certiorari was granted by
this Court on March 8, 1969. The jurisdiction of this Court
is invoked under 28 U.S. Code, § 1254.
QUESTIONS PRESENTED
1. Is agency removal of Federal Civil Service employees
subject to meaningful judicial review?
2. Whether constitutional, statutory and procedural
rights provided by applicable law and government regula-
tions were provided to Petitioners.
8. Did material issues of fact prevent Summary Judg-
ment against Petitioners?
(a) Tooni contends that purported removal for inten-
tional false statements and omission of an arrest contained
genuine issues of material facts.
(b) Edwards contends he was rated efficient in May
1961, but was later alleged to be inefficient in watching
‘Bob Hope movies, creating genuine issues of material facts.
4. Was the Veterans Preference law violated?
CONSTITUTIONAL PROVISIONS, STATUTES AND
REGULATIONS INVOLVED
_ The Fifth Amendment of Constitution of United States _
(emphasis supplied) : |
No person shall beheld 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 casesto 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.
- 8
Veterans Preference Act of 1944, as amended, § 863,
now 5 U. S. Code § 7512: “sie
“Sec. 863. DISCHARGE, SUSPENSION, ETC.,
ONLY FOR CAUSE: REASON IN WRITING » AD- a
VANCE NOTICE: PERSONAL APPEARANCE: °
FINDINGS AND RECOMMENDATIONS
No permanent or indefinite preference eligible, who
has completed a probationary or trial period employed
in the civil service, or in any establishment, agency,
bureau, administration, project, or department, here-
tofore referred to shall be discharged, suspended for
more than thirty days, furloughed without pay, re-
duced in rank or compensation, or debarred for future
appointments except for such cause as will promote
the efficiency of the service and for reasons given in
writing, and the person whose discharge, suspension
for more than thirty days, furlough without pay, or
reduction in rank or compensation is sought shall have
at least thirty days’ advance written notice (except.
where there is reasonable cause to believe the em-
ployee to be guilty of a crime for which a sentence of
imprisonment can be imposed), stating any and all
reasons specifically and in detail, for any such pro-
posed action; such preference eligible shall be allowed
a reasonable time for answering the same personally
and in writing, and for furnishing affidavits in sup-
port of such answer, and shall have the right to appeal
_ to the Civil Service Commission from an adverse deci-
sion of the administrative officer so acting, such appeal
to be made in writing within:a reasonable length of
time after the date of receipt of notice of such adverse
decision: PROVIDED, That such preference eligible
shall have the right to make. a personal appearance, E
or an appearance through a designated representative, §
in accordance with such reasonable rules and regula- ’
tions as may be issued by the Civil Service Commis-
sion; after investigation and consideration of the evi-
dence submitted, the Civil Service Commission shall : 4
submit its findings and recommendations to the proper :
administrative officer and shall send copies of the same
Sf PERNT rey
pe
SRE aE eta entr papers tH? RNR Nn mare tee xs yt
SLE FLORETS AGS 9
4
to the appellant or to his designated representative,
and it shall: be mandatory for such administrative
officer to take such corrective action as the Commis-
sion finalky recommends: PROVIDED FURTHER,
That the Civil Service Commission may declare any
such preference eligible who may have been dismissed
or furloughed without pay to be eligible for’ the provi-
sions of section .864 of this title.”
REGULATIONS: The pertinent text of the following
regulations are set forth in the Appendix:
Air Force Manual 40-1 (AF A-1, Sec. 5) dated 31
December 1961
Air Force Manual 40-1 (AF A-12.5) dated 31 Decem-
ber 1961 . .. -
Air Material Command Manual 40-2
(AMCM 40-2) dated 29 July 1959 --—~=si««w
DAAFDM 40-1 Dated 1 September 1961
STATEMENT OF THE CASES
These cases invoive identical or closely related questions.
In each case the District Court had jurisdiction under Title
28, United States Code § 1361, giving the district courts
jurisdiction over any action in the nature of mandamus to
‘compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the Petitioners.
The facts underlying each employee’s removal are neces-
sarily different, however, and accordingly the basic facts of
the two cases are set out separately.
JOSEPH N. TOONI CASE
The Petitioner, Joseph N. Tooni, was born in Irag. He
is a naturalized citizen of the United States.
He entered the Federal Service on July 16, 1947; he was
a Captain in the United States Army Quartermaster Corps,
as a Petroleum Engineer, in charge of oil distribution in
Okinawa, during Korea, 1951-1954 (subsequently honor-
a a ONE NNNES O
5.
ably discharged as a Major) ; he was a Development En-
gineer for Aero-Jet General Corporation, Sacramento, Cal-
ifornia, from March, 1956 to September, 1957; Chemical
Engineer for American Independent: Oil Company from
1957 to 1958; Ordinance Engineer, GS-9 from March, 1958
to September, 1958, at the U. S. Naval Propellant Plant,
Indian Head, Maryland, and finally a GS-11, Chemical
Engineer, at the same location, from September, 1958 to
January, 1960.
The items complained of on his Form 57 relate as far
back as 1934 when Mr. Tooni was at Hope College. Mr.
Tooni’s Affidavit in regard to each item of alleged mis-
representation is attached. (App. la)
_ Mr. Tooni was originally employed by the Government
in July, 1947, as a GS-5 Chemist for the Navy Department,
receiving additional promotions and transfers to GS-7 for
the Army Materiel Inspector; to GS-9, Reserve Chemist—
Army Ordnance; then after, experience as a civHian with
Aero-Jet General, to Chemical Engineer for Améfican Oil
Co., then GS-9, Ordnance Engineer (same grade as on .
previous separation) ; then: GS-11, Chemical Engineer,
Navy. After a year of satisfactory service, the Navy auto-
matically rated him a GS-12. He was rated a GS-12 by the
Navy BEFORE he came to Dayton for interview; subse-
quently he was employed by the Air Force Department
- based upon the Civil Service and Navy rating of GS-12, .
which rating was based upon satisfactory service as a
GS-11, from September, 1958 to January, 1960.
After an additional 214 years he was re-classified by the
Air Force Depot as a Mechanical Engineer because of .
experience on the job; that subsequently a mass transfer
placed him with AFL€ (Air Force Logistics Command),
Wright-Patterson Air’Force Base, at the same grade level
and job title, GS-12, Mechanical Engineer, that no promo-
tion of any nature occurred; on. February 7, 1964, he
Iho D8 eae ey
6
‘ received the Notice of Proposed Removal effective April 3,
1964, for various previous alleged falsifications on his
employment applications dating back to 1958, and for one
previous offense.
Another item is necessary for 3 dilate and thorough
appraisal of this case.. This whole case started when Mr.
Tocni was implicated in a separaté matter and an investi-
gation was requested about February 15, 1962, while he
was employed at the Gentiie Depot at Dayton, Ohio. [See
Para. 7 Notice of Proposed Removal Letter. App. 9a].
Mr. Tooni was cleared of having anything to do with that |
matter under investigation, but in the course of the investi-
gation it was learned that Mr. Tooni had not gttended
California State College, as stated on his Form ‘57.
Upon investigation it was determined, however, that he
did attend the University. of California Extension School, -
in Sacramento, California, in which the facilities cf Sacra-
mento State College were utilized.. . ae
Further investigation revealed that certain courses were
non-credit courses, but Tooni never claimed them to be
‘credit courses in the first place.
From this inadvertent investigation, we now find a
long time Federal employee being removed for fraudulent
Forms 57 of 1958, 1959, 1960, and 1961. We have this -
situation, despite the fact that Mr. Tooni had been with
the Air Force as a GS-12 since January, 1960, over two
years prior to this investigation on a separate matter. |
This background puts this entire case jnto perspective,
and helps to explain why Petitioner contends that the
Chicago Region was correct in finding that there was no
intentional mis-stating of material information.
Mr. Tooni appealed his removal to the Civil Service Com-
mission in Chicago, stating that the removal action does
not meet the criteria of the regulations for removal from
the Federal Service nor to promote the efficiency of the
T
service and the United States Civil Service Commission,
Chicago Regional Director, so found on June 2, 1964,
reversing the agency action of removal.
On further appeal by the Agency, the Board of Appeals
and Review, United States Civil Service Commission, on
August 28, 1964, reversed the Chicago Regional! Director.
_ Petitioner contends that said Board of Appeals and
Review acted in an arbitrary and capricious manner and
abused its discretion for the reason that the representations
on Petitioner’s Form 57 were old and not materia! to Peti-
tioner’s employment by the Air Force. Further, said Board
-.of Appeals and Review failed to determine any materiality
to the adverse action in question. Petitioner contends that
his then current position with the Air Force was obtained
solely on the basis of his past experience, and accordingly —
any representation as to educational accomplishments were
not relevant to any promotion or even his- retention in his
then current assignment. |
The United States Civil Service Comanianion, on October
30, 1964, refused to reopen the Appeal, and accordingly
Petitioner’s administrative rights have been exhausted.
_ Petitioner filed his complaint in the United States Dis-
trict Court at Dayton, Ohio, and after the case was at.issue,
Cross-Motions for Summary. Judgment were filed.
‘Subsequently, the District Court decided on July 3; 1967
that this case was controlled by the Sixth Circuit decision
in Fass v. Ruegg, 379 F. 2d 216 and sustained the Gov-
ernment’s motion. The Sixth Circuit affirmed on October
- 16, 1968. . ‘
OL ER OLE
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9
DANIEL L. EDWARDS CASE
The Petitioner Daniel L. Edwards, Jr., entered the fed-
eral service 14 July 1942, as a Civil Service employee, —
served in the military service from March 1943 to March
1946, and had over 19 years total federal service at the
time of the remioval hereinafter referred to.
Mr. Edwards was a Missile Inspection Specialist, GS-12,
top-step. During the spring and summer of 1961 he became
concerned with the lack of assignment of work for him to
perform. He grew tired of watching movies for lack of
work assigned, and in June 1961, he requested a Job Audit. —
On or about 18 September 1961, the Chief Classification
and Wage Administrative Branch reviewed Petitioner’s
job description and informed Mr. Edwards officially by
memo that his job would be re-audited in November 1961.
Subsequently, Petitioner was given interim duty tasks,
many menial ‘in nature, little information and generally
‘was given insufficient facts and reports, denied access to
readily available military and technical information neces-
sary to perform the interim tasks assigned pending the
forthcoming November 1961, re-audit; and generally Pe-
tioner was hindered and obstructed in his efforts to per-
form the tasks assigned. Bo es
On. 17 October 1961, a meeting was held: which began
an avalanche of requests by Petitioner for protection of
his job rights, all of which were repeatedly ignored by
the Air Force. A few days after the October meeting, Mr.
"Edwards was asked to initial a purported summary of the
17 October meeting. Mr. Edwards did not agree with the
summary and advised Management accordingly. Mr.
‘Edwards initialed the summary to show that he had seen
it and promptly requested an investigation by the Depart-
ment of Inspector General. The Inspector General’s office
stated by letter dated 14 November 1961 that Petitioner’s —
request should be handled as a request for a grievance hear-
MINS ARNO A LMI | Raps ‘
ee ee
ayy
ing. In the meantime, Mr. Edwards had already wee
for a grievance hearing on 18 October 1961 and on 2
November i961.
As stated, these requests for a hearing were icuered and
finally Mr. Edwards suffered a heart attack and was placed 4
on sick leave. ,
While at home recuperating from his illness, the Peti-
tioner received a “Notice of Proposed Removal” dated 15
- February 1962. In the. meantime, Petitioner had again
requested a grievance hearing by letter to the Commander
of the 2907th Air Base Group dated 25 January 1962. It is
uncontroverted that the “Notice of Proposed Removal”
contained erroneous advice to the employee in regard to
which civil service regulations would govern the action for
removal.
Petitioner did not return to work until 2 April i962, at
which time t° again requested a hearing and also the
opportunity to answer orally under the Veterans | refer-
ence Law. He was told to answer in writing and was denied
- an oral hearing. Subsequently, only a few days before the.
effective date of removal he was then asked if he wanted an .
oral hearing, but was still not given the correct advice as to
applicable Civil Service Regulations until he was handed
a “corrected Notice of Proposed Removal” on the very day
’ of the effective date of the Proposed Removal. This “Cor-
rected Notice” extended the effective date of: separation to
23 April 1962.
Petitioner again requested a grievance hearing on 17
April 1962 and was finally given a hearing on 16 May 1962.
Petitioner complains that the Chairman-of the Hearing
Committee was selected from a wrong Civilian Personnel
Office, the Chairman of the Hearing Committee conducted
pre-hearing interviews contrary to Air Force Regulations, /'
that the Committee Chairman failed to follow regulations
in regard to notifying witnesses and having them available,
stl
and that the decision of the Grievance Committee and notifi-
cation to the employee were not in accordance with Air
Force Regulations.
Petitioner continued to seek administrative review until
‘4 May 1964 when fhe Department of the Air Force refused
additional review.
Petitioner filed his Complaint in the United States Dis-
trict Court on 11 June 1964, claiming irregularities in the
removal procedure which resulted in his separation from’
the federal service on 23 April 1962..
Subsequently, the District.Court decided on 3 July 1967
that this case was controlled by the Sixth Circuit decision
in Fass v. Ruegg, 379 F. 2d 216 and sustained the Gov-
ernment’s motion. The Sixth Circuit affirmed on October
16, 1968.
bial he A aia PA ao
bat ta
12 Y) a.
REASONS FOR GRAN" TING THE WRIT
QUESTION 1.
IS AGENCY REMOVAL OF FEDERAL CIVIL SERVICE
EMPLOYEES SUBJECT TO MEANINGFUL JUDI-
CIAL-REVIEW?
Each Petitioner has his specific reasons for bringing his
case to this Court. Common ta both Petitioners, however,
is the fact that neither has had a review of his case that
has meant any relief to Petitioners. Petitioners do not just
shout “sour grapes”, but are concerned that they have not
been given their day in Court; that if the present decisions
stand that all federal employees» similarly situated will
likewise fall flat on their faces when seeking judicial
review.
Why do these Petitioners feel so strong that they are
right and the Respondent wrong? Simply because the facts
and law COMPEL A REVERSAL OF THE COURTS
BELOW.
What has happened so far in Petitioners’ fight for what
is right, fair, just; and legal is that the District Judge
felt he did not- have the authority to review and grant
relief. District Judge Weinman indicated at the close
of oral arguments that he believed the employees deserved
consideration—“I’ll have to see if I can do anything.”
The. District J udge ‘felt compelled, however, to follow Fass
v. Ruegg, 379 F.2d 216 (CCA, 6th-1968). In short, Peti-
tioners were denied a fair judicial review based upon an
apparent growing trend in the federal law that the deci-
sions of administrative bodies (Civil Service Commission,
Secretary of ‘the Air Force) are not subject to judicial
review except for arbitrary and capricious action.
Actually, the rule began with the theory that a reviewing
Court. should not have to substitute its opinion for the
wisdom or good judgment of the agency in exercising dis-
gr
13
cretion. Bawm v. Zuckert, 342 F.2d 145, (CCA, 6th 1965)
- and citations therein.
The problem is: When do the Courts review and substi-
: tute the Court’s judgment for that of the administrative
body? Effective review and ‘reversal of error by adminis-
trative bodies has been done, and recently. Louks v. United
States, 395 F.2d 993 (Ct. Claims 1968).; Scott v. Macy,
349 F.2d 182 (CCA, D.C. 1965).
Petitioners contend strenuously that their cases aré
stronger than either Louks or Scott, and bear little resem-
blance to Bawm or Fass. °
Are Petitioners to be penalized beeuuas they brought their
“eases in the Sixth- Circuit rather than the’ District of
Columbia? .
Further, both Petitioners are Veterans. The Viewens
Preference Act prohibits discharge of Petitioners except
' “for such cause aswill promote the efficiency ofthe service.”
How can one reconcile the review afforded in the Scott .
- ease which involved an application for employment as op-—
posed to long time federal career employment by - Peti-
tioners? In Scott, a person alleged to be a homosexual was
granted judicial rewiew reversing the administrative body. ©
Was this not the Court of Appeals for the District of
Columbia substituting its judgment for that of the Civil
Service Commission?
Petitioners do not find-fault with Scott; but: find it diffi-
cult: to swallow when Petitioners have ye@ns of satisfactory
service, both military and civilian; and now they cannot
obtain justice in their cases. e
A person’s business, occupation, or calling is ‘sisi
within the meaning of the constitutional provisions as to
due process of law, and is included in the right to liberty
and the pursuit of happiness, 11 Amer. Jur. 1148.
There is no question but what the Bill of Rights of the
Constitutions of Ohio and of the United States protects an
,
Tern
PNET YF
ileal ,) 7
14
individual's right to work and to follow a chosen trade or
occupation.
In the case of Seligman v. The Toledo Motion Pictures,
88 Ohio App. 187 (1947), the Court stated in the fourth
syllabus:
“The right to labor, to follow a chosen trade or occu-
pation, and to earn a livelihood for oneself and those
dependent on him, is a property right’ within the
benign protection of the bill of rights of the Ohio
Constitution,. and of, the Constitution of the United
States, and the pag of that right is a legal wrong
for which the law provides a remedy.
“In the instant case, the action taken by the local —
union, depriving plaintiff of his right to work and
have employment i in the field: where he is trained and
learned through years of labor, is arbitrary, unreason-
able, violative of plaintiff's constitutional rights and
contrary to public policy.”.
At this point, Petitioners will state. separately their
reasons why each believes his case should and must be
reversed.
JOSEPH N. TOONI (SEPARATE ARGUMENT)
. . QUESTION 2
WHETHER CONSTITUTIONAL, STATUTORY AND
~ PROCEDURAL RIGHTS PROVIDED BY APPLI-
CABLE’ LAW AND GOVERNMENT REGULA-
-TIONS WERE PROVIDED TO PETITIONER:
Petitioner Tooni’s removal is based on, alleged false mis-
representations on his ‘Application for Employment, Form
_ 57. As the Chicago Region of the Civil Service Commission’
found; never, even in the Letter of Proposed Removal, was
_. Petitioner -Tooni accused of intentional false statements.
~. The Chicago Region decision stated:
15
“The Agency has made no allegation or showing that
the falsifications with respect to Appellant’s educa-
tional- background in any way affected his qualifica-
tions, competency, or ability to perform his job, or
that they were otherwise material.” |
“Upon consideration of the entire record it is found
that the removal action does not meet the criterion
of the regulations that the action be taken in order
to promote efficiency of the Service.”
One must remember that Petitioner Tooni is a native
of Irag. When he said he attended a course at the Sacra-
mento State College and it turned out to be the University
of California at Sacramento, does ‘this even sound like
fraud? | on
Procedural error exists in that Petitfoner’s so called
‘ additions to his Form 57 were never screened and accepted
in any formal manner by the government, as required
_by regulation. The various supplemental sheets were never
offered by Petitioner as anything other than general in-
formation. Actual educational credits are screened and
accepted by an interviewing officer of the government. This
was never done in this-case.
In any event, the Form 57 attachments which have been
attacked in this case were made out in 1958, two years
prior to the application for transfer to the Air Force.
This does not make a case of intentional falsification.
Mr. Tooni is a naturalized citizen who has served his
new country in both military and civilian capacities. He
even had had an admonishment growing out of an argu-
ment arising out of a supervisor who questioned his loyalty.
Now this admonishment is being used as one of the basis
for his removal. : . ‘
It is inconceivable that a veteran of World War II and
Korea and over fifteen years federal service can be removed
from his job and income for alleged falsifications having
absolutely no showing of intent and materiality.
Doe PRT
| iiaaaeamniiiaa APES ROE PLO TE EE LOE NEON
16
The letter of Proposed Removal contains no allegation
of intention nor deliberate falsification, nor does it contain
any motivation. The importance of this was mentioned in
the decision of the Chicago Region, and the Agency never
has established materiality nor intent. The Air Force did
attempt to remedy this procedural error after the decision
of the Chicago Regional Office, in a letter dated June 10,
1964, Air Force Logistics Command, to the Board of Ap-
peals and Review. In this letter the Air Force, for the
first time, attempted to justify materiality and ‘intent,
even though the items were not a part of the Notice of ~
Proposed Removal. And even to this date, the Air Force
has not produced evidence of intent and/or materiality.
In any event, the Notice of Proposed Removal failed to
set forth the required allegations of the regulations, and
therefore Mr. Tooni’s removal is illegal and contrary to
law and the rules and regulations of the Civil Service Com- .
mission and the United States Air Force.
Removals which assume facts which do not exist, or are
not adequately supported by evidence, do not = the
efficiency of the service... ;
In addition to. the alleged falee vintemnenti, Tooni was:
cited for failure to list an arrest on his Form 57. This is
a real question of fact and is on all fours with Weinberg
v. Macy, 360 F.2d 816 (CA, D.C. 1965), wherein the em-
ployee did not; realize he was actually arrested. The arrest
that the agency claims was omitted by Mr. Tooni involved
his looking for the Racquet. Club which was located ir
suburban Kettering South of Dayton. One evening, while
Petitioner was on South Ludlow Street in downtown Day-
ton, Mr. Tooni asked a policeman for directions. to the
Racquet Club, but with his accent, Racquet sounded liked
“Roc-ket.” The policeman was busy rounding up some
drunks from the Rocket Bar on South Ludlow Street and
said to Petitioner, “You are already there.”
17
Petitioner Tooni, not realizing he was in front of the
Rocket Bar, inquired again, where is the Racquet (Roc-
Ket) Club. The Dayton policeman, rather perturbed by
now, said “You are at the Rocket Bar now, and you had
just better get into this wagon with the rest of these
fellows.”
Before he knew it, Tooni was s driven to the Police Sta-
tion, and booked for drunk. At that time Petitioner was
able to convince the Desk Sergeant that he was not drunk,
that the whole thing was a mistake, and that he was just
~ trying to get tothe Racquet Club. -
The Desk Sergeant informed Tooni that he was sup-
posed to hold “drunks” for six hours or sa, but that, if he
wanted to give him ten dollars, he could leave, which
Tooni did. .
This is the arrest which Tooni is charged with omitting
from his Form 57! There is a serious question of fact as
to whether Mr. Tooni even knew or realized he was actually
“arrested.”
_ Petitioner Tooni stated in an Affidavit given in rebuttal
to the Letter of Proposed Removal:
“Affiant states that with reference to the charge of
falsifying. item number 33 through the omission of
required information relating to arrests, he was driv-
ing and he stopped to ask a police officer for directions
to the Racquet Club and this was in front of the
Rocket Bar to which he had already been ‘directed;
that the officer assumed he was drunk because he was
otherwise occupied and affiant had to ask the officer the
same question 2 or 8 times; that the officer may: have
felt affiant did not know affiant was already where it
seemed he wanted to be. (Officer misunderstood ‘“Rac-
quet” for “Rocket’”’). The officer was putting young-
sters who were in the Rocket Club into the police
“wagon, and was probably irritated and the officer
told affiant to get in the wagon also; that at the police
station, affiant was told to pay Ten Dollars ($10.00)
SALARY DIT PS ETRE PLY EL
la
a
18
- and told it would be forgotten about; affiant under-
stood there would be no record made of the incident;
affiant then went back to his car and drove to the
Racquet Club. Affiant was not drunk; that the entire
incident took less than two.(2) hours including a
fifteen (15) minute walk back to his car. Affiant did
mention his arrest in Upper:-Marlboro, Maryland, and _ .
he would have mentioned the Dayton, Ohio incident if |
he had felt it was really recorded as an arrest.”
Petitioner Tooni’s Affidavits given to the Civil Service
Commission and in support of his Motion for Summary
Judgment (reserving his right to a trial of material facts)
clearly placed the burden of proving all aspects of the
Government’s case on 'the agency. See the _ two syllabi
of the Weinberg cas:
a genuine issue of material fact existed as to
whether civil service employee, discharged on ground
he made an intentional false statement in application
for federal employment, knew or should have known \ .
that state court proceedings in which he was involved,
inaccurately described by government .as bastardy
proceedings, involved an arrest,-charge or holding for
violation of the law, precluding summary judgment
in declaratory action relating to discharge.
2. From beginning burden was on government, in
discharge proceedings based upon intentional false
statements in application for federal employment, to
establish intentional falsification.” :
The conclusion is clear. No intent. No materiality. No
fraud. Intent is a. question of fact, and the government has
not shown this fact, especially by summary judgment.
Justice demands that Petitioner be restored to his govern-
— job. 7
nha hn H sii
19 P
_ DANIEL L. EDWARDS, JR.,
_. (SEPARATE ARGUMENT)
Petitioner Edwards’ removal.is based upon alleged in-
efficiency after 19 years of satisfactory service with the
_ Federal government. The period of alleged inefficiency
was from 17 October 1961 to 15 February 1962.
In May 1961; Petitioner Edwards received a satisfactory
efficiency rating. Subsequently, as referred to in the State-
‘ment of Facts in the Daniel L. Edwards case, Petitioner
became involved in a series of happenings that started with
the Petitioner not having work to do, and ended with the
Petitioner being removed from the Federal service, despite
numerous procedural violations by the Air Force. There
is no question but that Petitioner was subjected to harass-
ment during the crucial period from October to February.
Petitioner was denied his pay, given an illegal one (1)
day suspension, which was corrected only by the Petitioner
appealing to the Inspector General and to the Comptroller |
General of the United States. (See letter AFLC, W-P
AFB, Ohio dated 13 Dec. 1962.) (App. 35a).
Management claimed Petitioner was not performing
satisfactorily and illegally AWOL. Petitioner was entitled
to time away from his work duties to carry on his official
complaints regarding the improper charge of AWOL and
suspension: of pay. Management, displeased with Peti-
tioner’s success, denied information and data to Petitioner
to deter his accomplishment of the work tasks assigned
to him, and carried on their vendetta against Petitioner
by giving him the Notice of Proposed Removal while Peti-
tioner was home recuperating with a heart attack. A ven-
detta that began when the Petitioner refused to give to the
Colonel’s church and Petitioner’s request for a. job. audit :
which brought unwanted attention upon Petitioner's
superiors.
SE IEE ee ede ry Ne
WEB KGrtienmeeni. Sb sae AAA Ait i OR eet alc ote ce a RT
‘ , te ira poten» Veer
LEWES GEA LEUED a EAA TELA ICO
°
20
In other words, in the short period of time from 17
October, until Petitioner went ori sick leave, February 12,
1962, and while Petitioner spent many hours disproving
unfounded charges of AWOL, and was frustrated by lack
“of material and information with which to work, (not to
mention the holidays .involved—Veterans Day, Thanks-
giving, Christmas and New Year), Petitioner was supposed
to have become inefficient.
As evidence of Petitioner’s continuing ..his successful
fight at the time, s see letter dated 23 January 1962, (App.
37a). %
During. this same ‘period of time, Management and
Personnel were violating their own regulations right and
left, by refusing a Grievance Hearing to Petitioner in
accordance with regulations.
oi}
~ QUESTION 2.
WHETHER CONSTITUTIONAL, STATUTORY AND
PROCEDURAL RIGHTS PROVIDED BY APPLI-
CABLE LAW AND GOVERNMENT REGULA-
TIONS WERE PROVIDED TO PETITIONER.
Did the refusal to give employee a timely Grievance
Hearing and timely opportunity to answer orally
violate Air Force Regulations and the Veterans
Preference Law?
It is clear that a Veterans Preference Eligible is en-
titled to answer charges against him personally and in.
writing. Veterans Preference Act § 14, 5 U.S.C.A. § 7512.
The case of Paterson v. U. S., 319 F. 2d 882 (Ct. Cl., 1963),
wherein the Court stated the reasoning behind the right of
ew ee:
“In employment ‘relations particularly, mitigating
- circumstances, often of a highly personal nature,
may save a job for a person who, but for these cir-
cumstances, would and should be discharged. Whether,
21
if the plaintiff had been permitted to make this kind |
of a personal appeal to his superior, it-would have
- gaved his job, we do not know. But when Congress
gave to the veteran the right to appear personally, it
‘must have intended to give him the chance of succeed-
ing in such an appeal. The naked facts, without the
-personal appeal, could be just as well stated in writ-
ing. And Congress knew, as we all know, that bureau-
cratic superiors, like other human beings, are suscep-
tible to the effect of personal appeals.”
In addition to the Veterans Preférence Act, applicable
regulations designed to provide grievance hearings were
violated from October 1961 to April 1962. The applicable
DESC regulations include th@ following: ,
“If the grievance cannot be resolved informally, the
supervisor to whom the grievance is presented in
writing, will initiate action \within 10 working days
to obtain pertinent facts; afford opportunity to per-
sons complained against to make a written reply;
renger a devision, and notify the employee in writing
of his decisions and reasons. Jf the decision is not
acceptable to the employee, he awill beinformed that he
may present his grievance in writing, through the
remaining supervisory levels, to the Commander.
If the employee requests a hearing, the statement of
grievance will be sent to the Civilian Personnel Officer
who will insure that an impartial grievance committee
is convened within 10 working,days of the date of
receipt of the request to hear the grievance. If the
statement does not contain a specific request for a
grievance hearing the employee will be contacted
orally to determine whether he“desires a hearing. This
information will be recorded with the: statement of-
grievance and forwarded to the Installation Com-
mander.” °
\
eee ‘ :
Since DESC was organized in July 1962, superceding
«Dayton Air Force Depot, the DAFD regulations would
Tee Pea ERAT
LOE OME AO Rt SE AOS IND NEN te We aD RARE I am °
‘ a QAR RL PIT SOTO
22
be applicable to the petitioner’s discharge. Again, patent |
non-compliance is evident because petitioner’s requests for
a grievance hearing began at least as eafly as 18 October
1961 (to Inspector General) , 2 November 1961 a
Request to Commander, Dayton Air Force Depot),
April 1962 (Grievance Request to Civilian Personnel s.-
cer, Heath (with copy to Dayton Air Force Depot.) No
grievance hearing was convened until 16 May 1962: No
reasons for delay were communicated to the employee. This
violation (repeated violations) are inexcusable and con- —
trary to the above quoted regulations. And regulations
are an important interpretation and become part of the ©
statutory law. See AFM 4Q-], A-12.5 dated 31 December
1961, Page 23, which provides as follows: :
. In view of decisions of the United States Su-
pretie Court which have emphasized the importance
of adherence to procedura! requirements when taking
agiverse personnel actions, the Commander will assure,
when making his decision, that there has been com-.
pliance with applicable procedures whether externally
imposed or established by the Air Force at any level.
If unusual circumstances cause a delay, the employee
will be notified of the reasons in writing.”
To compound this departure from required procedure,
the-employee was notified about September 12, 1962, of
the decision of the Grievance Committee instead of within
ten (10) -working days as required by regulations. Neither
the Committee nor the Commander complied with-the time
stipulations required by regulation DAAFDM 40- 1, par. 7,
which provides as follows:
“Within 10 working days after completion of the
hearing, the Committee or the CPO, if no hearing was
held (paragraph 6f)- will prepare a complete record
of the grievance to the Commander. The Commander
.
_
23 ,
will consider the findings and recommendations of
the Committee-or CPO; make a decision, and give
® written notice of the decision to the employee within
10 working days of the date on which the recommenda-
tions were received.”
’ Recapping, these dates appear as follows:
( Pe ‘DATE OF ACTUAL
. REQUIRED ACTION ACTION
18 Oct. 1961 tst Grievance Request 1 Nov. 1961 None
.2 Nov. 1961 «2nd Grievance Request 16 Nov 1961 None
25 Jan. 1962 ‘3rd Grievance Request 8 Feb. 1962 None
17 Apr. 1962 4th Grievance Request 1 May 1962 16 May 1962
Decision of Grievance Committee 3 June 1962 12 g. 1962
_ . Notification to Employee. 13 June 1962 12 . 1962
Petitioner contends strongly that his statutory right to
answer personally must be made available to him timely
and when it is meaningful; that his numerous requests for
a grievance hearing were, in effect, requests to answer
personally, and thathad he been given the right to confront
his superiors personally as contended by the statute and as
provided for in the applicable regulations, that he would
have been able to defend himself against the trumped up
charges of inefficiency. : |
Of course, the denial of request for grievance hearings,
in and of itself, violates the procedural requirements set
forth by Air Force Regulations, just as in the case of
Camero v. U. S., 375 F. 2d 777% (Ct. Cl. 1967). .
Incidentally, there ‘s no question but that the meeting
of 17 October 1961, is interrelated to the removal action.
This is substantiated by the letter of proposed removal
dated 15 February 1962 wherein the 17 October 1961
meeting was mentioned at least seven (7) times, and, the
tasks which are used as the basis for the removal are the
same tasks assigned as “interim” tasks in the 17 October
‘meeting. ike | :
Whether or not Petitioner was ever given .g ‘proper 30.
day notice, is another question, which will now be discussed,
%
MET ere
x
.
a PUT ONE BI GIT NLD EN NT EE
° a
ay
24
“Wa the required Notice of Proposed Removal procedur-
ally correct when it was received by employee while
on sick leave and when the Notice contained incorrect
‘advice to the employee?
: DENIAL OF 30-DAY NOTICE OF PROPOSED
REMOVAL
Appellant contests that the receipt of the letter “of pro-
posed removal by him at home while on sick leave and his
return to duty on or about ? April 1962 does not constitute
the 30-day notice required/by law and regulation prior to
his separation on‘23 Apfil 1942. This allegation is neces-
sarily . related to the following denial of statutory right
regarding. a retroactive amendment’ to the notice of -pro-
_ posed removal. Taken a one might question the
denial of a statutory right when an employee receives a
notice while at’ home on sick leave, but considered in con-
junction with the fact that he did not return to work until
a time less than 30 days of the actual time of his termina--
tion of employment, we find that we have a different set of
circumstances. The sick leave alone, is-one thing, and
coupled with’ the lack of 30 working days back to work,
‘adds to the denial of this statutory right. It is not con-
tended that Petitioner was off work for any reason adverse
to the government, and therefore it is normally contem-
plated that the employee remains on the job during the 30-
day period. This inherently provides the employee with
access to applicable regulations generally available at the
place of employment. See Air Material Command Super-
visor’s Manual, AMCM, 40-2, Page 14, dated 29 July 1959,
which Provides in part as follows:,
“17, STATUS OF EMPLOYEE sdacascacites NOTICE
-PERIOD:
a. Normally, the employee will be retained in 1 his posi-
_tion in a work status during the notice period of
a pending suspension, removal, or separation action.
\
5 -
25
b. The immediate supervisor, - througig the appropriate
operating official, may request that the employee
be withdrawn from his position and/or the work
area for the period if there is valid reason to believe
his presence:
May result in damage to Government pooperty.
May be detrimental to the interests of the
Government. May be injurious to the employee, ~
his fellow workers, or the general public.
'¢. When it is necessary to place the employee in an-
_ other position during the notice period, an appro-
priate written request, stating the reason why the
action is necessary, will be forwarded to the Civil-
ian Personnel Office for consideration. On the basis
of reasons given and applicable procedural require-
ments, a determination will be made as to the exact
status of the employee during the notice period.”
If the notice of proposed removal in the instant case was:
in all respects accurate, the Court would have before it the
sole question of whether or not an employee on sick leave
must have at least 30 days of work after returning from
sick leave, before the effective date of the separation. How-
ever, in the instant case, we have these facts combined with
an erroneous notice, which will now be discussed.
NOTICE OF PROPOSED REMOVAL QUOTED
- ERRONEOUS REGULATIONS |
- It is admitted that the last sentence of the letter of
proposed removal dated 15 February 1962 is erroneous in
that Section 102 (a) (1) of Section 9 of the Civil Service
Regulations would govern the action. This was admittedly
incorrect, yet this employee at home ‘until 2 April 1962,
was given a corrected Notice of Proposed Removal on the
very day of the effective date: 20 April 1962. See the
retroactive decision to Remove, letter of Col. Lawton dated
20 April 1962. (App. 25a.) Taken alone, this would appear
ss
to be a patent violation of the Veterans Preference Law.
The Veterans Preference Law contemplates a correct
Notice of Proposed Removal being in the veteran’s hands at
least 30 days prior to the effective date of the removal.
This was obviously not complied with in this case. In fact,
on the very day of proposed effective termination, the origi-
nal 15 February letter was changed in a material respect,
thus denying this veteran the statutory rights afforded him
by the Veterans Preference Law.
This Section 14 of the Veterans a Law is”
mandatory as set forth in Stringer v. United States, 117.
Ct. Cl. 30. See page 50 of this decision wherein:the Court .
. discussed a 29 day notice as being insufficient to comply
_with a 30 day requirement. Among other things the Court
stated:
“Although it informed plaintiff that he might ie
under existing War Department regulations, it did |
not-inform him of his right, under Section 14, to —
answer personally and in pone and to furnish affi-
davits in support of his answer.’
“ ... There is no indication that ¢ any fresh considers
tion was given to the matter of plaintiff’s demotion
following his protests.”
It would be hard to imagine a case more parallel and on
all four as the Stringer case is to this case. Just as‘in the
Stringer case, Petitioner’s repeated requests for a griev-
ance hearing or in some other manner to answer personally
“were always denied or ignored by the Air Force. The
Stringer case emphasized that the employee's s rights cannot
be so ignored. .
Was a non-voting Chairman selected from the proper
Civilian Personnel Office, as required by Air Force
Manual 40-1,.Chapter AF, A-1, Sec. 5?
Air Force Regulations provide that a non-voting Chair-
man should be selected from the Civilian Personnel Office.
27
iii :
. a non-voting chairman generally wili be selected
pe among the best qualified members of the servicing
civilian personnel office. In the event a key member
of the civilian personnel office is directly involved in
the grievance, ‘e.g., he is the person against whom the
complaint was lodged, or will appear as a witness, the
chairman may be selected from outside of the installa-
tion civilian personnel office.”
Mr. Bradshaw, the appointed chairman was working for
Col. Lawton, the supervising management. There is no
question but that the branch in which Petitioner was em-
ployed was being serviced by DESC (Defense Electronic
Supply Center.) See SF 50 (Standard Form 50), Notifi-
cation of Personnel Action, signed by Brad Robbins,
DESC. (App. 30a) Note Item No. 32 entitled “Office
Maintaining Personnel Folder”: DESC, but see the Order
(Special Order M-104) dated 14 May 1962, appointing the
- grievance committee, including Mr. Bradshaw, with his
Office designation: MAHRA. (App. 32a) Note that this
office symbol is identical to that of the complaining manage-
ment, Col. Lawton. See letter of Col. Lawton dated 20
April 1962 with his office symbol being MAHQI. (App.
33a) These symbols mean Middletown Air Materiel, Heath
Annex. Col. Lawton was the “Director of Heath Opera-
tions” as shown by his signature block beneath. his name.
The symbol shown on the Order appointing the members
of the Committee above referred to, show that Mr. Brad-
shaw was a member of the same Heath Branch, under the
direct supervision of Col. Lawton. As stated above, the
regulations which implement the statutes regarding Civil
Service employees require the Chairman to be from the
servicing Civilian Personnel Office. In the instant case,
that office was DESC, under the — of Brad
Robbins (not Col. Lawton).
See AFM 40-1, Chapter AF, A-1, Sec. 5, which provides in ©
2 Sr AR In reg t
- 28
It is clear, therefore, that the District Court erred in
failing to answer this i issue, which constitutes another pro-
cedural violation.
Did the Chairman of the Hearing Committee conduct
pre-hearing interviews contrary to AFM 40-1, and
AFA 12. 5?
Mr. Bradshaw conducted pre-hearing meetings specific-
ally contrary to Regulation 40-1 and AFA 12.5. There
seems to be no contention but that Mr. Bradshaw did con-
“duct pre-hearing meetings. In the face of sub-section 5.3
..F', quoted below, this would appear to be a patent violation
of statutory rights:
“f, The civilian personnel officer will furnish advisory
service to all persons concerned in preparing for a
hearing. He will designate the member(s) of his staff,
other than the chairman of the committee, to conduct
pre-hearing interviews with the aggrieved employee
or his representative and the operating official or his
representative.” (Emphasis supplied)
~The Committee chairman runs the hearings. He passes
upon evidence and other matters of procedure and generally
is a strong force in the evidence adduced at the hearing.
It is absolutely essential that the chairman be unbiased and
not a member of the management team which has brought
the charges in the first instance.
Did the Committee Chairman follow regulations in regard
to notifying witnesses to be available for cross-
examination? °
There is no question but that the right to have witnesses
notified in advance and Have them available for cross-
’ examination is a valuable right of which this Petitioner was
deprived. See Williams v. Zuckert, 372 U.S. 765.
v
| 29
As evidence that this Was not complied with is the state-
ment on Page 19 of the Transcript, wherein the Chairman
admits that he did not inform the witnesses i in writing:
. The point is that before I could officially deliver
my letters to the witnesses and to their supervisors, I
had to ascertain that their testimony was relevant to
the case.”
Air im Manual 40-1, Page 20, Par. 3b provides as
follows:
_- “When the committee chairman requests and Air
Force employee to appear as a witness at the hearing,
the request will be in writing and sent direct to the
~ employee with a copy to the employee’s supervisor. The
emplo vil be advised that it is his duty to testify,
that the testimony of witnesses given freely and hon-
estly is basic to a fair and equitable decision and that
his appearance as a witness will be free from any form
of interference, criticism, or rans on the = of the
we % 7
Petitioner eniitends that any one of the procedural viola-
tions mentioned provide sufficient grounds for reversal of
the lower Court. Certainly, taken together, there can be
‘no question but that Petitioner’s constitutional, statutory
and procedural rights were violated.
In the case of Vitorelli v. Seaton, 359 U.S. 535, the Court
ordered reinstatement for procedural violations when the
‘employee was a temporary non-veteran employee. Of spe-
cial note is the fact that a revised “Notification of Personal
Action” was ‘hela not to remedy a prior erroneous notifica-
tion. Certainly, this applies to the purported revision of
Petitioner’s ‘Notice of Proposed Removal” on the effective
date of removal. And; if this is not enough to deny Peti-
tioner his statutory and procedural rights, again, certainly °
the combination of procedural violations require Petitioner
30
to be reinstated. For example, can a revised “Notice of
Proposed Removal,” changing the applicable regulations
under which the employee was being removed, afford the
mandatory 30-day. notice to a Veteran Preference Eligible
who was removed on 23 April 1962 after ene the
Revised Notice on 20 April 1962?
As stated in Camero v. U.S., 375 F 2d 777 (Ct. Cl. 1967):
“Failure by the Agency to observe these procedures
or the standards of fairness, implicit therein makes the
attempted unfavorable resolution of an employee’s
grievance abortive and of no effect.”
QUESTION 3.
DID MATERIAL ISSUES OF FACT PREVENT SUM-
MARY JUDGMENT AGAINST PETITIONERS?
It is apparent from the foregoing discussion of the Tooni
and Edwards cases that there 4¥e many gentiine issues of ©
material fact in each case.
Tooni contends that purported removal for intentional
false statements and omission of an arrest contained
genuine issues of material faets.
In the Tooni case, the questions of fraudulent intent,
the many factual issues regarding whether or not the em-
ployee intended to list ‘credit courses”, or just hours at-
tended, whether the college courses listings were material,
whether or not the alleged misrepresentations were cured
- by an Amendment of January 1962, whether the omission
of thé arrest in Dayton, Ohio, was an arrest that the
employee knew or should have known to be an arrest, that
had to be listed on his Form-57—all of these factual issues
preclude a Summary Judgment in favor of the Government.
Weinberg v. Macy, supra.
oy
o
Edwards contends he was rated efficient in May 1961, but
was later alleged to be inefficient in watching Bob
Hope movies, creating genuine issues of material
facts.
In the Edwards case, there are factual questions. such as
whether or not the Petitioner was the object of a personal
vendetta by Management to oust a 19 year employee for
religious or other personal reasons, whether or not the
empleyee was prevented from being efficient by manage-
_ ment harassment and ‘time consuming defense of erroneous
charges during a brief period shortened further by sick —
‘leave and holidays, whether or not the Grievance Com-
mittee Chairman was or should have been disqualified,
whether or not the Petitioner was denied rights of facing
his accuser, whether or not the Chairman conducted pre-
hearing interviews contrary to regulations. All of these
factual issues preclude a Summary Judgment in favor of
the Government.
See Weinberg v. Macy, supra.
: QUESTION A
WAS THE VETERANS PREFERENCE LAW
VIOLATED?
The Veterans Preference Act precludes discharge of
Petitioners “except for such cause as will promote the effi- -
ciency of the service and for reasons given in writing .
AND PROVIDED, that such preference eligible shall hee’
the right to make a personal appearance, or an appearance
through a designated representative. .. .” .
Does “promote the efficiency of the service” mean that
experienced and valued employees should be discharged
from their right to earn a living—denied their property
rights guaranteed under the Fifth Armmendment—without
review of the administrative body?
4
RS Ae POEs nS
‘
32°
In both the Tooni and Edwards cases, there has not been |
proper opportunity for these veterans to answer the
charges lodged against them.
In Tooni’s case, the employee was never permitted to.
answer personally the charges made by Management after ©
the initial decision by the Chicago Regional Office of the
_ Civil Service Commission. It was only after the Chicago
Region decision that Management’ made any allegations of
fraudulent intent—and this was after the case was in
Washington at the Board of Appeals and Review—where
the Air Force had a liaison representative but the em-
_ ployee had no liaison representative in Washington, nor any
opportunity to answer personally at that level. This would
not be so important were it not for the fact that it was only
at this level that allegations of fraud and materiality were
first made. .
Such a discharge does not constitute compliance with
either the spirit of the law or the Veterans Preference Act.
In the case of Petitioner Edwards, the right to answer
personally was frustrated from October through April of
the following year despite repeated requests by the em-
ployee;'and when an opportunity to answer personally was
belatedly afforded Edwards a few days before the decision
on his proposed removal, the damage was already done,
his job was out the window and the Veterans Preference
Act had been shoved aside all during the time when it could
have meant everything to the employee in mustering his
defenses. Compliance with the Veterans Preference Act
must not be a perfunctory compliance but a meaningful
one—the employee must be given the opportunity to answer
when it is not too late.
In view of all of the procedural errors by Mansetiient
and denial of rights of Petitioners, can it be said that these
discharges promote the efficiency of the service?
Justice demands that Petitioners be restored to their
Government jobs.
33
CONCLUSION
‘For the foregoing reasons, this Petition for a Writ of
Certiorari should be granted. |
| Respectfully submitted,
° WILLIAM R. COEN, |
CoEN & Way,
1117 Talbott Tower,
Dayton, Ohio 45402,
Counsel for Petitioners.
_May 8, 1969 -
“= S
PPL IY WOES PII OI
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.