Petition for Writ of Certiorari — Smith v. Department of Justice

-—~ Supreme Coun, U.S

01145 2 mar -4 2002

No. so

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

RICHARD E. SMITH — Petitioner

Vv.

DEPARTMENT OF JUSTICE — Respondent

On Petition For Writ Of Certiorari

To The United States Court Of Appeals For The

Federal Circuit

PETITION FOR WRIT OF CERTIORARI

RICHARD E. SMITH

PRO SE

25859 SOUTHWOOD DIVE

SOUTHFIELD, MICHIGAN 48075

248-559-0976

QUESTIONS PRESENTED FOR REVIEW

1. Did the decision to not restore the employment

rights under determination of res judicata deny

Richard Smith United States Constitutional due

process to statutory protections provided under

Title V?

2. Must a federal employer found to have

wrongfully terminated a tenured employee

because of racial animosity restore that employee

to a status he held prior to that termination?

3. Is a statement by the court, not explicitly

expressed as a rule or a determination, a finding

of fact?

4. Can a federal agency legally refuse to follow

statutes and rules regulating employment?

5. Can a federal agency terminate a tenured

employee without notice of the specific charge,

opportunity of administrative redress, and

consideration of mitigating circumstances?

6. Should non compliance with personnel

regulations and statutes allow a federal agency to

profit from its unlawful termination of an

employee?

LIST OF PARTIES

The Caption of the case includes the names of all

parties.

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

PETITION

CONCLUSION

il

ill

19

25

TABLE OF AUTHORITIES CITED

CASES

Albemarle Paper Co. ET AL. v. Moody et al., 422

U.S. 405

American Mfg. Co. of Tex., 167 NLRB 920, 522

(1967).

Dian L. Castle v. Robert E. Rubin, United States

Court of Appeals for the District of Columbia, 95-

5087

Douglas v. Veterans Admin., 5 MSPB 313 (1981)

Henry Segar v. Edwin Meese, United States

District Court for the District of Columbia, 77-

008 1

Kenneth D. Martin v. Department of the Air

Force, United States Court of Appeals for the

Federal Circuit, 93-3401

McKennon v. Nashville Banner Publishing Co.,

913 U.S. 352 (1995).

Mt. Healthy City Board of ED. v. Doyle, 429 U.S.

274 (1977)

Pollard v. E:I. DuPont DeNemours & Co., 00-763,

932 U.S. (200 1)

Richard E. Smith v. Department of Justice, Initial

Decision, United States Merit Systems Protection

Board, Central Regional Office, CH-0752-00-

0803-I-1 (November 30, 2000)

ill

Richard E. Smith v. Department of Justice, Final

Order, United States of America Merit Systems

Protection Board, CH-0752-00-0803-I-1 (July 19,

200 1)

Richard Smith v. The Drug Enforcement

Administration, United States District Court

Eastern District of Michigan, Southern Division,

82-4737 (May 3, 1988)

Richard E. Smith v. Department-of Justice,

United States Court of Appeals for the Federal

Circuit, 01-3327 (December 10, 2001)

Richard Smith v. Drug Enforcement

Administration, United States District Court

Eastern District of Michigan, Southern Division,

82-4737 (April 5, 1990)

STATUTES

5 U.S.C. § 2302

5 U.S.C. § 7511

$ U.S.C. § 73512

5 U.S.C. § 7513

S U.S.C. § 7701

28 U.S.C. §1254(1)

iV

Paes PRR Meth fh pm

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Richard Smith respectfully prays that a writ of

certiorari issue to review the judgment of the

Merit System Protection Board (MSPB) and the

United States Court of Appeals.

OPINIONS BELOW

On December 10, 2001 the Court of Appeals for

the Federal Circuit affirmed the MSPB decision

to deny Smith’s request for his return to_duty.

That decision is noted. The MSPB administrative

Initial Decision is noted. The MSPB Final Order

is noted. The United States District Court for the

Eastern District of Michigan decisions are noted.

JURISDICTION

On December 10, 2001, the Court of Appeals

denied Smith’s timely petition for return to duty.

The MSPB Final Order reviewed by the court of

appeals was entered on July 19, 2001. This

court has jurisdiction pursuant to 28 U.S.C.

Section 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

A. Constitutional Provisions:

The Fifth Amendment to the United States

Constitution provides, in relevant part:

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. ;

The Fourteenth Amendment to the United States

Constitution provides, in relevant part:

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.

B. Statutory Provisions:

5 U.S.C. § 2302

5 U.S.C. § 7511

5 U.S.C. § 7512

5 U.S.C. § 7513

5 U.S.C. § 7701

STATEMENT OF THE CASE

This action challengés the refusal of the Drug

Enforcement Administration (DEA) to restore

Richard Smith to employee status after a U.S.

District Court in 1988 ruled that he had been

racially and wrongfully discharged by DEA. The

court further ruled that DEA terminated Richard

Smith on racially fabricated charges as a reprisal

for filing a racial discrimination cemplaint. The

court ruled that this discharge was in violation of

the protections of Title VII and noted that at the

time of Smith’s discharge, he was a member of a

protected class where another court had found

that DEA had discriminated against its black

agents in promotions, disciplinary actions, and

other areas; Civil Case No. 77-0081,U.S. District

Court for the District of Columbia. This 1982

decision ordered DEA to stop its discriminatory

practices against black Special Agents in denying

them promotions and applying disparate

disciplinary actions. Smith was fired and denied

a promotion because he engaged in a protected

act.

As a remedy, Title VII, and this court, requires

that an employer make a wrongfully discharged

employee administratively whole. This Court has

established that restoration requires the

employer to return the employee to a condition

and status they enjoyed prior to the wrongful

act. Smith should have been returned to duty

and promoted to the grade denied him by the

illegal termination. The DEA, still under a court

order to discontinue its practice of racial

discrimination against black Special Agents, did

not return Smith to service, change his

personnel records to reflect the court’s finding of

wrongful discharge or change its ordered

promotion of Smith to the pay and service grade

of GS 13. The DEA’s refusal to return Smith to

service abused applicable propositions of

constitutional law and violates a standing court

order issued to protect constitutional rights of

black DEA Special Agents.

Factual Background

Smith served for approximately ten years as a

Special Agent with the Drug Enforcement

Administration. In 1980, he filed a complaint of

racial discrimination based on disparaging

treatment and retaliation. In 1983, Smith

applied for a promotion under an agreement

initiated by a federal court order in Segar v.

Meese. Several months later, DEA terminated

Smith’s employment. Subsequent to Smith’s

termination, an FBI agent who worked with him

on his last active investigation, arranged a

meeting with a reporter. The FBI agent

approached Smith and advised Smith to meet

with a Detrc't Free Press reporter and discuss

the case. The agent assured Smith that the

meeting and discussion was permissible because

a federal Grand Jury had issued indictments.

Smith was not involved with the case

investigation at that time. Nor was he in contact

with the United States Attorney’s office with

whom he worked prior to his dismissal. His only

contact with officials came through FBI Special

Agent Alfred Finch.

Pe sail

In response to Agent Finch’s urging and

_ persistence, Smith met with the reporter and

discussed the case. Smith provided the reporter

with information he gathered over years of

investigation of the case. Subsequently, the

newspaper published an article on the case. In

response, the FBI conducted an investigation of

Smith for disclosure of information, information

Smith gathered outside the Grand Jury but

subsequently presented to them. In 1985, a jury

convicted Smith of violation of Rule 6e and a

district court judge sentenced him to four

months at a federal prison. Special Agent Finch

was not investigated nor prosecuted for soliciting

and/or aiding in a violation of Rule 6e. Smith

served his misdemeanor sentence in 1987.

In 988, a federal district court heard Smith’s

wrongful discharge case. The court ruled that

DEA had illegally and wrongfully terminated

Smith’s employment in 1983 and denied him a

promotion to GS 13 because he pursued a

protected action. DEA claimed that Smith’s

1985 criminal record, a misdemeanor conviction,

acquired two years after his 1983 termination,

barred him from employment with the agency.

In 1988 the court noted that DEA employed

Special Agents, and supervisory administrative

personnel, who plead guilty to misdemeanor

charges included in felony indictments to avoid

the more serious conviction record. Some, who

defrauded the agency of money, suffered only a

reduction in grade.

The district judge commented his belief that DEA

had grounds to terminate Smith for his violation

of Rule 6e and used the date of conviction to

limit compensatory damages. However, he did

not bar Smith’s return to service. The judge

ordered DEA to pay Smith compensatory

damages comparable to wages he would have

earned from 1983 to his conviction in 1985. The

jadge specifically stated that the money paid to

Smith was not backpay but money damages due

without interest.

In 1988, subsequent to the trial, Smith filed a

workers’ compensation claim through the Detroit

DEA office for a Post Traumatic Stress Disorder

injury. A medical doctor, selected by the agency,

identified Smith’s injuries as resulting from

racial attacks he suffered by DEA supervisors

prior to his 1983 termination. Smith listed the

pay rate assessed by the court, GS 13, on the

required government forms. The claim went

through several years of contesting before it was

approved in 1990 with a pay grade of GS 12-7.

Smith spent several more years attempting to

correct the error in his pay grade with the Office

of Workers’ Compensation Plans (OWCP).

In 1999, Smith discovered that DEA had not

changed his personnel records to reflect the

1988 promotion ordered by the district judge. In

addition, the OWCP asserted that DEA legally

fired Smith in 1983 and also for the 1985 Rule

6e violation conviction.

te

In response to receipt of the information from the

OWCP, Smith contacted DEA and requested his

file to be corrected. Smith also requested that

DEA issue him retirement credentials as it did

other agents with workers’ compensation

disabilities.

DEA informed Smith that he was not an

employee and not retired. The agency claimed

that it terminated Smith in 1985 for violation of

Rule 6e. Smith advised DEA that it had not fired

him for the Rule 6e violation, and that his only

termination notice came in 1983 and it was

deemed illegal by a federal district court judge.

Smith advised the agency that it did not provide

film with the requisite written notice of a

proposed termination for specific charges nor the

opportunity to respond to those charges. Smith

also informed the agency that its summary

personnel action denied him of consideration of

mitigating circumstances identified as “Douglas

Factors.”

Smith informed DEA of its obligation to notify

him of his return to duty status after he

prevailed in his wrongful discharge case in 1988.

Smith submitted information and evidence that

DEA sent notices to other agents wrongfully

discharged without their requesting

reinstatement or a court ordering it done.

After initiating a request for a correction of his

records, Smith discovered that DEA continued to

ignore the 1982 court mandate to cease and

desist its discriminatory employment practices.

Smith contacted the federal court-ordered

monitoring committee and notified them of DEA’s

misconduct in his personnel matter.

In 1982, a federal district court found that DEA

systematically discriminated against black

Special Agents in regards to hiring practices,

their career promotions, and disciplinary actions

taken against them. The judge ordered the

agency to implement corrective actions and

distribute backpay to the affected class

members. Initially, DEA contested the court

order and refused to accept the court’s decision.

Subsequent to hearings, DEA acquiesced to the

ordered administrative changes and agreed to

eliminate disparaging hiring, promotion, and

disciplinary practices. Following a brief period of

compliance, DEA re-instituted its discriminatory

practices and caused the Segar, et al class action

case to remain open and under supervision of

the federal court.

Subsequent to establishing its resistance to the

court’s decrees, DEA advised Smith that DEA

maintained a position that the agency fired him

for his 1985 act and that his pay grade remained

GS 12 step 7. Smith filed a complaint with the

Merit Systems Protection Board (MSPB) stating

that DEA failed to follow statutes in Title V that

required the agency to correct errant personnel

records and to give tenured employees a written

notice of a proposed adverse action. Sucha

proposal required DEA to issue specified charges

for termination and include any consideration of

mitigating circumstances known as the “Douglas

Factors.”

oe seceded

DEA responded that the 1988 wrongful

discharge decision resolved the issues of Smith’s

employment. The agency claimed that the judge

awarded Smith damages and barred his return

to duty. DEA also proclaimed that time limits

barred Smith from consideration for return to

duty. As noted above with the Segar case, DEA

has demonstrated a tactic to resist compliance

with statutes and court orders as a method to

delay and deny justice to its black Special

Agents. Time limits that bar Smith’s return are

not relevant to this issue. The burden of

implementing a return to work rested with the

agency. However, DEA failed to comply with its

employment standards and practice of notifying

employees to return to duty after a finding of

wrongful discharge along with notice of changes

to their personnel records.

In Smith’s case, the agency arbitrarily selected

self-serving elements in the district court’s

decision to deny Smith’s employment rights. The

agency claimed that the judge’s expressions of

DEA having grounds to propose Smith’s

termination constituted an implied court order,

and the finding that DEA wrongfully terminated

Smith did not require them to correct his

personnel records. DEA actions also expressed a

belief that the district court order did not require

them to promote Smith as of 1983. This Court

has declared that correction of discriminatory

employment policies should compensate the

injured worker and “deter employers from

engaging in such discrimination.”!

‘McKennon v. Nashville Banner Publishing Co., 513

U.S. 352 (1995).

9

Smith argued that the 1988 case established

that DEA wrongfully and illegally terminated

Smith’s employment. He noted that the judge

did not bar Smith’s return to duty, rather he

stated that he felt that the agency had reason to

fire Smith for the 1985 disclosure. That

statement left the decision to terminate Smith, as

stipulated by statute, with the agency and

governed by applicable procedures.

In its argument of res judicata, DEA claimed,

counter to the rulings of this court and without

reliance on Smith’s personnel records, the

compensatory damage award alone made Smith

whole. The United States Supreme Court has

ruled that enforcement of Title VII cases must be

vigorous and that wrongfully discharged persons

must be made whole. Such relief would

constitute denied promotions, payment of lost

taxable salary income, and access to employee

benefits. DEA did not change Smith’s pay grade

from GS 12 to GS 13 as ordered in 1988, nor

compensate Smith, a Segar class member, for a

U.S. District Court ordered back pay to

compensate for service from 1983 to 1985.

Those years of non payment of back pay came as

a result of the illegal 1983 termination. DEA

failed to report Smith as returned to service and

due compensation for the ordered backpay in

Segar v. Meese to the court monitoring the Segar

case.

DEA claimed that other than a transcript from

the 1988 trial, it lost Smith’s personnel records.

However, without access to Smith’s employment

10

records, DEA presented conclusions of his

employment without documentation to establish

a factual basis for the agency position. The loss

of Smith’s personnel file aids DEA’s concealment

of evidence that it never corrected Smith’s

employment record regarding the 1983 wrongful

discharge, refused to promote him to a GS 13

pay grade, or proposed a termination for a 1985

charge.

Significantly, a new charge for an adverse action

would require a notice that the agency

considered mitigating circumstances, Douglas

Factors, in meting out punishment to Smith. A

termination of Smith’s employment for a

violation of Rule 6e extended beyond a remote

possibility. DEA’s legitimacy to fire Smith

dissipated with two major considerations: the

agency expunging the fabricated charges for his

1983 discharge from his record, and recognition

of facts of much less severe punishment given to

the Administrator for his Rule 6e violation.

Acting without examination of personnel records,

DEA released information to other agencies,

OWCP and MSPB, that it terminated Smith for

acts alleged in the 1983 termination as well as

the 1985 violation of Rule 6e. Through its

refusal to reconstruct Smith to as near a pristine

administrative condition as he held prior to the

1983 wrongful discharge, DEA has profited from

its illegality and continues to unjustly punish

Smith.

DEA did not present charges to terminate Smith

for the 1985 violation of Rule 6e. The agency

sought prosecution and incarceration of Smith

when a similar act, committed by the DEA

ll

Administrator during the relatively same time

period and reported in the New York Times, went

excused and unpunished. The decision to treat

the Administrator’s Rule 6e violation without

termination of employment established a pattern

of discipline denied Smith. Under the provisions

of Title V statutes and application of the Douglas

Factors, Smith’s prior excellent work record

would have been included in a decision along

with the agency’s recognition and acceptance of

its leader’s similar act. With the inclusion of

those factors, DEA lacked sufficient grounds to

terminate Smith’s employment.

In 2001, a Merit Systems Protection Board

administrative judge issued an initial decision

that stated that the trial judge in 1988 found

racial discrimination but that DEA properly

terminated Smith for the charges issued in 1983.

He also opined that the 1988 decision barred

Smith from employment with DEA. The _

administrative judge ruled that the district court

awarded Smith damages for discrimination

suffered, not wrongful discharge. Smith

petitioned the MSPB for reconsideration of the

administrative judge’s decision. The Board

upheld the administrative judge’s decision in its

final order.

Smith appealed the Board’s final order to the

United States Court of Appeals for the Federal

Circuit. On December 11, 2001, the Court of

Appeals affirmed that res judicata barred Smith’s

claim. The court corrected the administrative

judge in part. It stated that DEA did wrongfully

discharge Smith in 1983. However, the court

affirmed the administrative judge’s ruling that

12

eT, WEE 2. Ql Gt) nk ie Cai te, a

the trial judge did specifically bar Smith’s return

to duty.

In these circumstances, the United States

Supreme Court established that an order barring

a return-to-work must be based on proof that a

prohibited act must obviously demonstrate that

the employer would have grounds to terminate

the employee and make the return to duty a

waste of time and effort.2_ The proof required by

this court is not evident in this case. It is not

specifically stated in the decisions of the MSPB

or the Court of Appeals. With regards to Smith,

neither body considered the proof demanded by

this court to bar his return to duty. The

misconduct of the DEA Administrator, for the

same violation of law, did not result in his

dismissal or receipt of a lesser punitive action.

The agency clearly did not consider the

Administrator’s release of Grand Jury material

prior to indictments an offense warranting a

termination

The appeals court erred in its reading of the

district court judge’s order. The district judge

only stated that he found DEA had grounds to

terminate Smith but he specifically did not bar

his return to service. Under the guidelines of the

after-acquired evidence doctrine established by

the Supreme Court in Mt. Healthy City Board of

ED. v. Doyle, 429 U.S. 274 (1977) and later

incorporated in McKennon v. Nashville Banner

Publishing Co., 513 U.S. 352 (1995), which

included consideration of the mitigating effects of

* McKennon v. Nashville Banner Publishing Co., 513

U.S. 352 (1995)

13

the “Douglas Factors,” the district judge

obviously recognized his limitations on the

matter of reinstatement. DEA’s prior decision

regarding the Administrator’s punishment for

violation of Rule 6e prevented the judge from

issuing an order to bar Smith’s return to duty.

He acted to protect Smith’s federal employment

in view of legal test established by this court.

In the district court’s decision, the implication

regarding an adverse personnel action

encompassed the effects of the Douglas Factors

which act as a protection within federal

employment. “A district court may not deny

reinstatement based on after-acquired evidence

of misconduct if the employer could not have

lawfully fired the employee for that conduct.”3

The fact that the DEA Administrator violated the

same Rule 6e without having his employment

terminated established a standard for mitigating

punishment for violation of Rule 6e. In Smith v.

Department of Justice, the district court judge

heard testimony of the Administrator’s 6e

violation. That testimony demonstrated that

DEA lacked requisite factors of compelling

evidence to establish grounds for a discharge

based on after-acquired evidence of misconduct.*

3 United States Court of Appeals For The Distnct of

Columbia Circuit, March 15, 1996, No. 95-5087, Dian L.

Castle v. Robert E. Rubin, Secretary, Department of the

Treasury, Appeal from the United States District Court for

the District of Columbia, (93cv2643)

+ McKennon v Nashville Banner Publishing Co., 115

S. Ct. 879 (1995). The Court held that reinstatement is

inequitable and pointless when after-acquired evidence of

misconduct demonstrated a severity that the employer

would have terminated the employee for those charges. The

severity of the violation is implied to be such that

subjectivity of the severity is minimal. The charge used to

14

ey oN ee ee ee

DEA never appealed the district court’s 1988 ~-

decision. It accepted the court’s decision that

the agency, motivated by a racial animosity,

wrongfully terminated Smith and denied him a

promotion to Grade 13 in 1983. Unlike Nashville

Banner Publishing Co., DEA did not initiate a

new adverse personnel action against Smith.

The agency did not send him a written notice of

corrections to his personnel record to reflect the

court's findings on the 1983 termination, nor did

it submit a wmitten notice of a personnel action

regarding the 1985 act.

DEA has acted without remorse or redemption

for Smith’s illegal termination. Its refusal to

follow administrative procedures has denied

Smith administrative reconstruction and

rendering him whole. Nor has court rulings

acted as a deterrent to DEA’s illegal acts of

employment discrimination perpetrated through

its misuse of personnel actions. This

unaccountabiulity has allowed DEA to punish

individuals unjustly to further the designs,

personal or racial, of managers and

administrators.

Clarity of the district judge’s 1988 decision came

in 1990 when he emphatically stated that the

money awarded Smith was not relief in the form

of backpay. The court identified the

compensation, with extreme efforts, as money

awarded as compensatory damages, not

backpay. In addition, DEA acknowledged the

base the termination should not promote selective

prosecution of personnel action to establish severity.

Mitigation as established in Douglas v. Veterans

Administration must be applied in governing the

punishment.

1S

type of award in its disbursement. Unlike in the

Segar award of backpay, DEA did not deduct

taxes nor issue a form W2 to Smith to identify

the award as taxable income. Again, without

defining the award as wages and taxable, the

district court identified its award of damages as

compensatory and not a replacement for a

reinstatement remedy, front pay or backpay.5

In Pollard v. DuPont DeNemours, the U.S.

Supreme Court distinguished front pay as a

remedy for reinstatement and separate in nature

from compensatory damages. The Court also

noted in Pollard that compensatory damages will

not “include backpay, or any other type of relief

authorized under section 706(g) of the Civil

Rights Act of 1964.” The Court related front pay

to “a type of relief authorized under § 706(g)” and

excluded it from the definition of compensatory

damages. This court clearly noted that front pay

constituted an award in lieu of reinstatement. In

Smith’s case, the court awarded only

compensatory damages; backpay and front pay

were not introduced into its ruling that DEA

wrongfully terminated Smith’s employment. As

such, the monetary award did not make Smith

whole. The order and award gave DEA notice

that it wrongfully terminated Smith and had an

obligation to return him to service, correct his

personnel record to remove the 1983

termination, and promote him to the GS13 grade

the agency wrongfully denied him in 1983.

Subsequent to the finding of wrongful discharge,

DEA received notice that Smith was undergoing

5 Pollard v. E.l. DuPont DeNemours & Co., No. 00-

763.

16

treatment for a Post Traumatic Stress Disorder

(PTSD) injury caused by racial harassment at its

Detroit office. In response, the agency slithered

away to avoid its responsibilities and to again

wrongfully deny Smith employment. DEA acted

to retaliate for its 1988 loss in the district court.

Much like in the Segar case, DEA refused to

accept a legal decision it disagreed with and

sought to punish employees who seek justice.

In addition, DEA’s 1983 wrongful discharge

placed Smith in a situation or hazard to him

living in an environment that directly contributed

to his 1985 disclosure. Had Smith remained in

his position with DEA, he would not have been in

a position to be manipulated by FBI Special

Agent Finch. Prior to the wrongful discharge,

Smith worked closely with the United States

Attorney’s office and received advice on grand

jury legal questions. With continued access to

an AUSA, he would not have faced or have been

challenged by the problems initiated by Agent

Finch.

In Kenneth D. Martin v. Department of the Air

Force, United States Court of Appeals for the

Federal Circuit, 98-3401, the court noted that a

disability that arises from the unlawful discharge

and is not a usual incident of the hazards of

living generally, the period of disability will not

be excluded from backpay.® As such, Smith

suffering from PTSD inflicted by DEA, suffered

additional injury by the illegal acts of Special

Agent Finch. The illegal solicitation by Special

® American Mfg. Co. of Tex., 167 NLRB 520, 522

(1967).

17

Agent Finch for disclosure of material, of which

the FBI agent knew to be related to the Grand

Jury, was not punished with termination of his

employment. In fact, Finch continued his career

and received several promotions.

As noted above, the punishment sought of Smith

for the 1985 disclosure exceeds the personnel

actions taken by the United States Justice

Department and DEA against the DEA

Administrator and FBI Special Agent Finch for

violation of Rule 6e. In addition, the intense

prohibited discrimination that culminated in an

illegal adverse action in 1983 placed Smith in a

situation that rendered him fragile and directly

contributed to the disclosure.

Error in the rulings of the MSPB administrative

judge and affirmed by the federal appeals court

denied Smith the protections granted under the

Constitution and Title V as a tenured employee.

As such, Smith was illegally deprived of his

property and protection of the laws.

18

REASONS FOR GRANTING THE PETITION

The Court of Appeals for the Federal Circuit

relied on an argument that departs from a

course of judicial direction established by the

Supreme Court of the United States regarding its

after-acquired evidence doctrine.

The December 10, 2001 decision by the court of

appeals relied on an argument not expressed by

the District Court for the Eastern District of

Michigan, Southern Division and counter to the

rulings of this court. As such, the court of

appeals affirmed a decision by an administrative

judge and the MSPB that seized Smith’s

employment property without due process.

Title V of the United States Code establishes

tenured federal employees with statutory

property rights to their employment. The

decisions of the MSPB and the court of appeals

failed to recognize Smith’s legal attachment to

his property. The MSPB’s and the court of

appeals’ decisions did not consider the statutory

protections of Smith’s employment nghts to

written charges of misconduct. The appeals

court’s finding to affirm the MSPB decision

denied Smith his protection established in

Douglas v. The Veterans’ Administration with

regards to mitigation of punishment for employee

misconduct. In deciding the effects of the

“Douglas Factors,” the Supreme Court sought to

establish a level playing field and prevent

disparate disciplinary actions among employees

with equal punishment for similar offenses.

In addition, DEA did not rely on the district

court’s comments to punish officials who were

identified as creators of false documents and

untrue accusatory statements used to terminate

Smith’s employment in 1983. DEA did not seek

felony prosecution of those officials for filing false

reports or discipline them for Smith’s racially

motivated illegal discharge. Because the judge’s

expressions of DEA misconduct adversely

affected supervisors who pursued an

administrative objective, Smith’s discharge, the

agency did not consider them a ruling of fact.

DEA sought to minimize its illegal acts through

self-serving recognition of the court’s

admonishments as an administrative option

available for the agency’s pursuit of felony

and/or administrative charges against officials

who acted illegally.

Within those perceived options, DEA elected not

to punish officials who orchestrated illegal acts

against Smith. Because the court did not

explicitly demand that the agency charge them,

DEA considered the court’s words as non-

binding.

In its affirmation, the court of appeals considered

as a judgment a non explicit comment by a

district court judge. This application of an

implied decree allowed the DEA, MSPB, and the

court of appeals to tailor their decision not to

return Smith to his employment beyond the

parameters established by the Supreme Court.

20

Clearly, the district court recognized an

opportunity to address DEA’s ability to discipline

Smith for violation of Rule 6e. However, the

district judge clearly did not express a decision

to bar Smith’s return. Absent an order to deny

Smith’s return, DEA faced a legal obligation to

return him to duty and administratively make

him as whole an employee as he was prior to his

illegal termination in 1983. If the agency felt

that charges regarding the 1985 act would result

in a termination of employment it was not barred

from giving Smith a written proposal for a new

adverse act. However, the administrative

decision not to punish the Administrator would

have eliminated the possibility of Smith’s

separation from service for that charge.

Allowing the decision to affirm the prevention of

Smith’s return to work negates the statutory

requirements of Title V that protects tenured

federal employees from illegal and arbitrary

employment practices. Without these

protections, employees wrongfully terminated

and exonerated of charges of misconduct must

petition the offending agency for reinstatement to

their position and beg that agency to correct

itself and make them whole. This process flows

against the design and intent of laws established

to end discrimination and rewards the illegal act

with a de facto endorsement of the initial

wrongful discharge. As a result, an employee

would remain separated from service and

dependent on the generosity of those who acted

illegally to dispense follow-up justice.

21

In addition, DEA failed to complete its obligation

to make Smith whole with only an award of

compensatory damages. This court noted in

Albemarle Paper Co. et al. v. Moody et al., 422

U.S. 405:

Backpay has an obvious connection

with this purpose. If employers

faced only the prospect of an

injunctive order, they would have

little incentive to shun practices of

dubious legality. It is the

reasonably certain prospect of a

backpay award that "provide[s]} the

spur or catalyst [422 U.S. 405, 418]

which causes employers and

unions to self-examuine and to self-

evaluate their employment

practices and to endeavor to

eliminate, so far as possible, the

last vestiges of an unfortunate and

ignominious page in this country’s

history.” United States v. N. L.

Industries, Inc., ¢79 F.2d 354, 379

(CA8 1973).

It is also the purpose of Title VII to

make persons whole for injunes

suffered on account of unlawful

employment discrimination. This is

shown by the very fact that

Congress took care to arm the

courts with full equitable powers.

For it is the historic purpose of

equity to “secur[e] complete

tu

to

justice,” Brown v. Swann, 10 Pet.

497, 503 (1836); see also Porter v.

Warner Holding Co., 328 U.S. 395,

397 -398 (1946). "[W]here federally

protected nights have been invaded,

it has been the rule from the

beginning that courts will be alert

to adjust their remedies so as to

grant the necessary relief.” Bell v.

Hood, 327 U.S. 678, 684 (1946).

Title VII deals with legal injuries of

an economic character occasioned

by racial or other antuminority

discrimination. The terms

“complete justice” and "necessary

relief’ have acquired a clear

meaning in such circumstances.

Where racial discrimination is

concerned, "the [district] court has

not merely the power but the duty

to render a decree which will so far

as possible eliminate the

discriminatory effects of the past as

well as bar like discrimination in

the future." Louisiana v. United

States, 380 U.S. 145, 154 (1965).

And where a legal injury is of an

economic character.

"(t]he general rule is, that when a

wrong has been done, and the law rs

gives a remedy, the compensation

shall be equal to the injury. The

latter is the standard by which the

former is to be measured. The

injured party is to be placed, as

near as may be, in [422 U.S. 405,

419] the situation he would have

occupied if the wrong had not been

committed.” Wicker v. Hop; ock, 6

Wall. 94, 99 (1867).

Smith was not placed near to his condition prior

to his illegal termination, and that failure rests

solely mth DEA. The agency deliberately refused

to correct Smith’s personnel record regarding the

1983 termination and it refused to correct

Smith's employment grade of service as ordered

by the court. As a result, Smith suffered

financial losses with his Segar settlement, two .

years of a backpay award, and his Workers’

Compensation entitlement at a rate less than the

ordered promotion.

DEA’s refusal to return Smith to service violated

its own administrative processes and established

legal doctrine provided in Title V. The agency

denied Smith his entitled access to statutory and

constitutional protections. As such, Smith was

not made whole and was further injured by the

agency’s continued wrongful employment acts.

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CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

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