Petition for Writ of Certiorari — Ward v. Office of Personnel Management

92-1 160@

perie oF THe GET

In The a

Supreme Court of the nited States

>

October Term, 1992

PAUL B. WARD,

Petitioner,

VS.

OFFICE OF PERSONNEL MANAGEMENT, et al.,

Respondents.

Petition for Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

PAUL B. WARD

Petitioner, Pro Se

873 Thirlwall Court

Westerville, Ohio 43081

(614) 895-7579

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

BS orvices, inc.

QUESTIONS PRESENTED FOR REVIEW

1. Did the appeals court err in sanctioning two district court

decisions that petitioner had “failed to demonstrate that there was a

genuine issue of material fact pertaining to this request for

documents or due process claims”?

2. Did the district court err in 1987, in the 1984 case, by

concealing the fact that respondents had filed a Response to

petitioner’s Memo Contra which included petitioner’s 7-page

Exhibit “A”, a fact which petitioner did not discover until he was

furnished a copy of the 1984 Docket Sheet in May 1992?

ii

LIST OP PARTIES

PAULB. WARD

873 Thirlwall Court

Westerville, OH 43081

Plaintiff

v.

OFFICE OF PERSONNEL MANAGEMENT

1900 E Street, N. W.

Washington, DC 20415

and

NATIONAL PERSONNEL RECORDS CENTER

111 Winnebago Street

St. Louis, MO 63113

and

DEPARTMENT OF THEARMY

The Pentagon

Washington, DC 20530

and

MERIT SYSTEMS PROTECTION BOARD

Washington, DC 20419

and

UNITED STATES OF AMERICA

Defendants

il

TABLE OF CONTENTS

Page

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Constitutional Provisions, Statutes and Regulations

EE ee eee re eee ee Tee ee ee 2

EIT TE TET EET ES EEL Tee 3

Basis for Federal Jurisdiction ..................00058- 6

Reasons for Grantingthe Writ ...................05. 6

OPT ee eee CTE ee Tee EET TTT 18

TABLE OF AUTHORITIES

[Petitioner is not capable of citing any authorities. ]

APPENDIX

Appendix A — Order Filed October 7, 1992, Appeals Case

ES ee eG SRSAKS Kanes ease eececes la

iv

Contents

Page

Appendix B — Opinion and Order Filed April 8, 1992,

te PET eee TTT TTT ere eee 4a

Appendix C — Memorandum and Order Filed April 29,

1987, Case No. C2-84-0340 ..................... 12a

l

No.

In The

Supreme Court of the United States

+

October Term, 1992

PAULB. WARD,

Petitioner,

VS.

OFFICE OF PERSONNEL MANAGEMENT, et al.,

Respondents.

Petition for Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

1. Memorandum and Order dated April 29, 1987, Case No.

C2-84-0340 (App. C at 12a).

2. Opinion and Order dated April 8, 1992, Case No. C2-91-

0669 (App. B at 4a).

3. Order dated October 7, 1992, Appeals Case No. 92-3395

(App. Aat la).

2

STATEMENT OF JURISDICTION

Date of Appeals Court Order: October 10, 1992

Petitioner is not capable of citing any statutory provisions.

Instead, petitioner refers to Court Rule 17.1(a):

When a federal court of appeals has rendered a

decision in conflict with the decision of

another federal court of appeals on the same

matter; or has decided a federal question in a

way in conflict with a state court of last resort;

or has so far departed from the accepted and

usual course of judicial proceedings, or so far

sanctioned such a departure by a lower court,

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

of supervision.

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

Fifth Amendment to the Constitution:

No person shall be held 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 offense to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law;

nor shall private property be taken for public

use, without just compensation.

The Privacy Act of 1974:

Subsection (d)

(1) upon request of any individual to gain

access to his record or to any information

pertaining to him which is contained in the

system, permit him. . . to review the record and

have a copy made of all or any portion thereof

ina form comprehensible tohim,....

(2) permit the individual to request

amendment of arecord pertainingtohim....

Regulations (See Petitioner’s Exhibit 15, 12 pages).

STATEMENT OF THE CASE

On August 16, 1963, with refusal of due process, petitioner

Ward was removed from federal employment at Army Map

Service, Washington, D.C. At that time it was common knowledge,

through newspaper columnists, that the Civil Service Commission

(CSC) was unfair to appellant discharged employees, by refusing

access to information which had been used against them.

Therefore, petitioner, after defending against stated charges, two

times requested to be informed about any other unstated charges.

Both requests were refused at agency and two appellate levels, and

in 1965 CSC refused petitioner a right of further appeal. In 1964

petitioner discovered official recognition of wholesale refusal of

due process. Also in 1964 peiitioner discovered that the grievance

examiner’s Report of Inquiry included a new charge, supported by

citation of eighteen inches of undisclosed documents of derogatory

information, which was claimed to be petitioner’s Official

Personnel Folder (OPF).

4

Based on documents which petitioner had, he prepared a 337-

page Appeal Statement, completed in 1979. He asked an attorney

to get that Appeal Statement entered into the record somewhere.

The Civil Service Reform Act of 1978 (CSRA) previously had

transformed CSC into the Office of Personnel Management (OPM)

and established a new appellate authority, the Merit Systems

Protection Board (MSPB). Petitioner’s attorney, under provisions

of the Privacy Act of 1974, requested OPM to furnish petitioner’s

OPF. OPM, with form-letter dated September 17, 1979, furnished a

fraudulent OPF, a half inch of “exact copies of all records

permanently retained in the OPF of Mr. Ward, as prescribed by

Office of Personnel Management (OPM) instructions” plus a half-

inch of “several documents that are inappropriate for permanent

retention therein.” The other seventeen inches of documents were

missing. Petitioner asked his attorney to sue for the missing

documents, and he refused because of the claim of “all records

permanently retained.” ~ »:viously, Department of the Army (DA)

regulations had desy ved the documents of derogatory

information as “pari o the official personnel folder file” and as

“permanent recc: ds.”

Petitioner’s first lawsuit, Civil Action No. C2-84-0340, Ward

v. Wilkinson, et al., filed February 17, 1984, in the United States

District Court for the Sourthern District of Ohio, Eastern Division,

in Columbus, was for damages, injunctive and declaratory relief,

including requests for documents and for addition to the OPF;

resulting in Judge Graham’s decision dated April 29, 1987, stating,

“The plaintiff . . . has failed to demonstrate that there is a genuine

issue of material fact pertaining to his request for documents or due

_ process claims” (22a).

Petitioner’s pro se second lawsuit, Civil Action No. C2-91-

0669, Ward v. Office of Personnel Management, et al., filed August

16, 1991, in the same district court, was a class-action Complaint

for Enforcement of the Privacy Act and for Due Process; resulting

5

in Judge Smith’s decision dated April 8, 1992, repeating the same

conclusion.

Petitioner’s pro se appeal to the United States Court of

~ Appeals for the Sixth Circuit, Case No. 92-3395, docketed April

28, 1992, stated, “Court Decision dated April 8, 1992, disregarded

plaintiff’s comments regarding wrong statements in the Court

Decision dated Apri! 29, 1987, and repeated the same wrong

statements” and “both Court Decisions failed to recognize a

violation of the Privacy Act of 1974 and also refusal of due process

as provided for in the Fifth Amendment. Also, both Court

Decisions failed to recognize applicability of mandamus.”

Petitioner was disputing the statement of facts in both district court

decisions, as explained in petitioner’s Exhibits 15 and 18.

Appeals Court Order, adverse decision dated October 7, 1992,

did not acknowledge that petitioner had any genuine issues of

material fact, but, instead, implied otherwise, by stating,

“Summary Judgment is proper if there is no genuine issue of

material fact. . . (2a).

Petitioner’s issues with all of these court decisions is whether

or not petitioner has presented genuine issues of material fact in

regard to petitioner’s claims under the Privacy Act and under the

due process provision of the Fifth Amendment, both claims being

class-action claims.

Petitioner believes he has presented an abundance of evidence

that he has four genuine issues of material fact. Also, petitioner has

reason to believe that the documents of derogatory information are

still in the possession of the Department of the Army, by reason of

the fact that DA did not return those documents to OPM. Further,

petitioner expects that the court should give consideration to

documentary evidence adverse to respondents which respondents

have provided to petitioner in the fraudulent 1979 OPF, which is

ne

6

included in petitioner’s Volume No. 5. Petitioner seeks to have

Case No. C2-91-0669 returned to the District Court for trial, with a

stipulation that petitioner has demonstrated that there are four

genuine issues of material fact pertaining to his request for

documents and for due process claims.

Petitioner does not understand what happened in the

processing of the 1984 case in 1987, Docket Sheet record entry

numbers 19, 20, 21.

BASIS FOR FEDERAL JURISDICTION

1991 Complaint:

2. This Court has jurisdiction over this

action pursuant to 5 U.S.C. Section 552a

(Privacy Act) and Fifth Amendment (due

process).

REASONS FOR GRANTING THE WRIT

Petitioner's citations of evidence he has presented, in the two

district court cases and the appeals court case, concern four issues,

as follows: (A) Was there refusal of due process in each of four

disciplinary actions against this petitioner employee in the 1960s?

(B) Does that refusaLof due process warrant class-action status?

(C) Was there violation of the provisions of the Privacy Act by the

Office of Personnel Management and by the Department of the

Army in 1979? (D) Does that violation warrant class-action satus?

Argument consists of citations of explanatory statements and some

documents, most included in the processing of petitioner's

previous court actions, as follows:

(A) With respect to refusal of due process in each of four

disciplinary actions:

a

enn

7

1. Petitioner’s first citation of requested documents, in this

case, was his letter of July 31, 1984, to defense attorney,

requesting, by way of discovery, certain documents which were

listed as 22 Items or groups of Items which petitioner knew were

supposed to be included in his Official Personnel Folder (OPF).

(That letter was not included in the processing of the case,

therefore it does not have a Docket Sheet record entry number.)

2. That listing of 22 Items or groups of Items was later

included in petitioner’s letter of May 1, 1989, to Office of

Personnel Management (OPM). See Respondents’ Exhibit A, letter

dated May 1, 1989, pages 10-12 (A46-48). (Those Items are some

of the documents which petitioner asked for, two times, during the

processing of the removal disciplinary action in 1963. Refusal of

those documents amounted to refusal of due process.)

3. On January 30, 1987, in the 1984 case, petitioner’s

attcrney filed petitioner’s memorandum contra to respondents’

Motion to Dismiss or for Summary Judgment, together with

Exhibit “A”, titled Detailed Explanation of Four Disciplinary

Actions. See petitioner’s Memorandum Contra (A 291). (This

Exhibit “A” identified the refusal of due process in each of the four

disciplinary actions. See Exhibit “A” (A 295-301).)

4. In 1963 a grievance examiner introduced a new charge

concerning “Mr. Ward’s officially reported behavior pattern at his

work site over the past several years” against defendant employee,

this petitioner. The new charge was unknown to defendant

employee, thus refusal of due process. See petitioner’s Exhibit 6,

paragraph 37 (A 131).

5. The grievance examiner cited numerous undisclosed

documents of derogatory information, thus more refusal of due

process. See petitioner’s Exhibit 7 (A 138).

6. The 1979 OPF contained two documents relating to

8

petitioner’s first disciplinary action: Item No. 482 and Item No.

483, thus more refusal of due process. See Item No. 482 (A 322).

See Item No. 483 (A 323). (The documents referred to in Item No.

483 are the same documents which later were cited as derogatory

information in petitioner’s third disciplinary action.)

7. The 1979 OPF contained another two documents relating

to petitioner’s second disciplinary action: Item No. 502 and Item

No. 504, thus more refusal of due process. See Item No. 502 (A

324-333).

8. The 1979 OPF contained some other correspondence

relating to petitioner’s fourth disciplinary action: Item No. 509.

That Item included two letters from the Secretary of the Army,

which, when considered together, verify the refusal of due process.

See Item No. 509 (A335, 337). See Pro Se Appellant’s Reply Brief,

Comments and Explanations, paragraph 4, page 2(A411).

9. Two times during the processing of the fourth disciplinary

action against petitioner, petitioner had asked for an opportunity to

defend against any undisclosed information, thus seeking due

process. Both requests were refused. See petitioner’s Exhibit 18,

paragraphs 3, 4(A 207).

10. Petitioner has cited at least twenty provisions of

applicable Regulations which were violated during the processing

of his Appeal in the fourth disciplinary action, which constitutes

refusal of due process. See petitioner’s Exhibit 18, paragraph 2

(A204-207). (Those violations are fully explained in petitioner’s

Exhibit 15, paragraphs 61-80 (A 183-189), omitted here, and are

evident by referring to: -{a) the grievance examiner’s Report of

Inquiry, petitioner’s Exhibit 6; (b) the 134-page Stenographic

Transcript of the grievance examiner’s Hearing, which is in

petitioner’s Volume No. 3; (c) 20 pages of explanation of

Misconceptions Concerning the Hearing, paragraphs 641-707, and

18 pages of explanation of Misconceptions Concerning the Report

9

of Inquiry, paragraphs 708-742, in petitioner's Appeal to the

Secretary of the Army, which is petitioner’s Volume No. 4.

Volumes No. 3 and No. 4 are two of the five volumes which

petitioner wants to be included in his Official Personnel Folder, by

reason of the fact that the undisclosed documents of derogatory

information were included there.)

11. Without rebuttal of petitioner’s defenses to the charges

against him, and without acceding to petitioner’s request for

information about the undisclosed accusations, the Army Map

Service agency then submitted all that information to the grievance

examiner, which constitutues refusal of due process. See

petitioner’s Exhibit 18, paragraphs 3, 4 (A 207).

12. The grievance examiner violated twenty provisions of

applicable Regulations, thus refusing due process. See petitioner's

Exhibit 18, paragraphs 5, 6, 11 (A208, 209).

13. The grievance examiner introduced a new charge against

petitioner, which was unknown to petitioner, thus refusing due

process. See petitioner’s Exhibit 18, paragraph 6 (A 208). See

respondents’ Exhibit A, letter dated May 1, 1989, fifth instance,

page 5(A41). |

14. The Chief of Engineers introduced a new charge against

petitioner, which was unknown to petitioner, thus refusing due

process. See petitioner’s Exhibit 18, paragraph 7 (A 208). See

respondents’ Exhibit A, letter dated May 1, 1989, fifth instance,

page 5(A41).

15. The Secretary of the Army’s adverse decision was based

on consideration of eighteen inches of undisclosed documents, and

without petitioner’s Appeal Statement, thus refusing due process.

See petitioner’s Exhibit 18, paragraph 8 (A208).

10

16. The grievance examiner cited personnel records which

were refused disclosure to petitioner, in violation of due process.

See petitioner’s Exhibit 18, paragraph 10 (A 209).

17. Both Army Map Service and the Chief of Engineers

refused petitioner’s requests to be informed about any other

information which was used against him, which was not included

in the charges against him in the letter of advance notice, and which

were cited by the grievance examiner as eighteen inches of

documents in his OPF, thus refusal of due process. See Petitioner’s

Exhibit 18, paragraph 19(A 212).

18. The Chief of Engineers and the Secretary of the Army

overlooked, ignored, or disregarded violation of approximately

twenty provisions of applicable Regulations, which constitutes

refusal of due process. See petitioner’s Exhibit 18, paragraph 29

(A215, 216).

19. Petitioner’s Exhibit “A” explains the refusal of due

process in each of four disciplinary actions. See petitioner’s

Exhibit 18, paragraph 34 (A 217).

20. The Civil Service Commission refused petitioner a right

to appeal, which prevented petitioner from complaining about the

refusal of due process. See petitioner’s Exhibit 18, paragraph 38 (A

218).

: 21. The undisclosed documents of derogatory information

included the supervisor’s replies to petitioner’s complaints about

the fraudulent operation of the personnel system, and also the

reports of investigations concerning those complaints, thus refusal

of due process. See petitioner’s Exhibit 18, paragraph 40 (A219).

22. Court decision in the 1984 case includes three serious

errors: (a) substituting “performance appraisals” for eighteen

inches of Official Personnel Folder; (b) introducing a wrong

11

statute of limitations; (c) disregarding mandamus with respect to

the violation of twenty provisions of applicable Regulations. See

Petitioner’s Exhibit 18, paragraph 42 (A 219). See respondents’

Exhibit A, letter dated May 1, 1989, sixth instance and seventh

instance, pages 5,6(A41, 42).

23. Both district court decisions failed to recognize refusal of

due process and applicability of mandamus. See Pro Se Appellant’s

Brief, paragraph 3, page 2 (A 381).

24. Petitioner cited two questions which the appeals court

had previously failed to consider, in 1987. See Pro Se Appellant’s

Brief, paragraph 5, page 2 (A 381) and the attached two questions

in Proposed to be Raised on Appeal, dated July 10, 1987 (A387).

25. Petitioner has about fifty percent of the undisclosed

documents of derogatory information which were concealed in his

OPF, and which the grievance examiner used to introduce a new

charge against petitioner, which constitutes refusal of due process.

See Pro Se Appellant’s Brief, Explanation Concerning Wrong

Statements, paragraph 5, page 2 (A 383). (The fifty percent of the

undisclosed documents, which petitioner has, are included in

petitioner’s Volumes No. 1, No. 2, No. 3.)

26. Petitioner’s Official Personnel Folder consisted of two

files. The second file, unknown to petitioner, contained the

undisclosed documents of derogatory information, thus refusal of

due process. See Pro Se Appellant’s Reply Brief, Comments and

Explanations, paragraph 1, page 1 (A 410).

27. Three Items in petitioner’s 1979 OPF indicate the

existence of the undisclosed documents. See Pro Se Appellant’s

Reply Brief, Comments and Explanations, paragraph 4, page 2(A

411).

12

28. Army Map Service correspondence with the Civil Service

Commission included some of the undisclosed documents of

derogatory information. See Item No. 482 (A 322) and Item No.

483 (A323). ,

29. Army Map Service internal correspondence listed 63

Items of undisclosed documents of derogatory information. See

Item No. 502 (A 324-333).

30. Department of the Army correspondence acknowledged

consideration of the file of documents of derogatory information.

See Item No. 509 (A 335, 337).

(B) With respect to class-action status of the refusal of due

process:

31. According to newspaper reports, the district court in

Washington barred lawsuit for certain documents of an Official

Personnel Folder. In the case of disciplinary actions against federal

employees, this bar to disclosure amounted to refusal of due

process. Petitioner cannot identify that court action. See 1991

Complaint, paragraph 12 (A 6). See Pro Se Appellant’s Reply

Brief, Comments and Explanations, paragraph 2, pages 1, 2 (A

410, 411).

32. A newspaper columnist reported that a former

government official had acknowledged that in discharge cases the

procedures have not been fair. “In many instances the officials

hearing these cases are allowed access to irrelevant and

unsupported charges that never are divulged to the accused, he

said.” See petitioner’s Exhibit 5 (A 121). (This supports

petitioner’s claim regarding the unidentified court action. It is

wholesale refusal of due process).

33. Two certain Department of the Army (DA) Regulations,

13

when considered together, guarantee refusal of due process.

Paragraph 19 of Army Regulations 345-262, dated 1958, provided

for inclusion of a special file of documents of derogatory

information in an employee’s Official Personnel Folder, restricted

from disclosure to the employee and considered to be permanent

records. See Plaintiff’s Exhibit 15, paragraph 53 (A180). Civilian

Personnel Regulations E2.5-4b, dated 1962, provided that the

employee’s OPF would be considered by appellate officials, even

though the proper OPF documents do not include any documents

relating to an appeal, thus consideration of the undisclosed

documents of derogatory information. See petitioner’s Exhibit 15,

paragraph 50 (A 179). Also, see petitioner’s Motion to Amend

Petitioner’s Motion for Determination as Class Action, paragraph

6 (A 228,229). Also, see respondent’s Exhibit A, letter dated May

1, 1989, fifth instance, page 5 (A41). (Paragraph 19 of AR 345-262

is qualified by CPR R1.3-2c(1). See Petitioner’s Exhibit 15,

paragraph 54 (A 180). CPR R1.3-2c(1) is qualified by CPR R2.2-5.

See petitioner’s Exhibit 15, paragraph 55 (A 181). This explains

how an employee can be charged with some offense which he does

not know about and cannot defend against.)

34. It was the policy of the federal government to refuse

disclosure of documents of derogatory information, thus refusing

due process. See Petitioner’s Exhibit 18, paragraph 9 (A 208, 209).

See Pro Se Appellant’s Brief, Explanation Concerning Wrong

Statements, paragraph 9, page 2 (A 383). See Pro Se Appellant’s

Reply Brief, Comments and Explanations, paragraph 3, page 2(A

411).

35. The refusal of due process in 1963 is a circumstance

which is applicable to all other federal employees who are subject

to disciplinary actions. See petitioner’s Motion to Amend

Petitioner’s Motion for Determination as Class Action, paragraph

4(A 227).

14

36. Newspaper reports cited the Civil Service Commission’s

unfair treatment of charged employees, due to the district court’s

bar against lawsuit for certain documents of derogatory

information. See Pro Se Appellant’s Reply Brief, Comments and

Explanations, paragraph 2, pages 1,2 (A410, 411).

(C) With respect to violation of the provisions of the Privacy

Act:

37. Petitioner’s first request, in 1979, under provisions of the

Privacy Act, for documents of his Official Personnel Folder

resulted in furnishing him a fraudulent OPF. Petitioner’s first

lawsuit for the missing documents, in 1984, induced his letter of

July 31, 1984, to defense attorney, requesting, by way of discovery,

a list of 22 Items or groups of Items of documents which petitioner

knew were included in his OPF. None of those documents were

furnished to petitioner. Instead, Office of Personnel Management

furnished an affidavit stating that petitioner’s OPF had been lost in

1983. Petitioner has documentary evidence which indicates that

that statement is false. The withholding of those documents is a

violation of the provisions of the Privacy Act. See respondents’

Exhibit A, letter dated May 1, 1989, fourth instance, pages, 4, 5

(A 40, 41). (The fraudulent 1979 OPF is included in petitioner’s

Volume No. 5.)

38. Petitioner did not have a right to file suit in 1963 for the

undisclosed documents of derogatory information which had been

used as evidence against him. See petitioner’s Exhibit 18,

paragraph 9 (A 208, 209). Petitioner’s 1984 lawsuit for documents

was filed within six years of OPM’s 1979 refusal to furnish the

documents. Respondents have cited a 2-year statute of limitations

under the Privacy Act. See respondents’ Motion to Dismiss or in

the Alternative for Summary Judgment, Memorandum, page 2 (A

31). Petitioner previously had cited refusal of his attorney to file

suit in 1980. See petitioner’s Exhibit 2, paragraph 6 (A 108). See

15

Pro Se Appellant’s Reply Brief, Comments and Explanations,

paragraph 7, page 3 (A 412). (Also, petitioner points out that the 2-

year statute of limitations can apply to only temporary documents;

it cannot apply to permanent documents, as was the case here. See

petitioner’s Exhibit 15, paragraph 53 (A 180).)

39. The court found “that the record reveals no material issue

of fact in regard to plaintiff’s claim under the Freedom of

Information Act.” But petitioner has pointed out that the eighteen

inches of undisclosed documents of derogatory information were

refused by all officials who processed the disciplinary action in

1963-65 and by all officials who processed petitioner’s request

under the Privacy Act in 1979-84, even though petitioner two times

had asked for that information in 1963. See petitioner’s Exhibit 18,

paragraph 13 (A210).

40. This lawsuit is not for the documents which were

withheld in 1963; it is for the documents which were withheld in

1979, under provisions of the Privacy Act. See petitioner’s Exhibit

18, paragraph 41 (A 219).

41. Petitioner has listed 22 Items or groups of Items of

documents of derogatory information which he knows were

originally, in 1963, included in his OPF. See respondents’ Exhibit

A, letter dated May 1, 1989, pages 10-12 (A 46-48).

42. OPM’s claim that petitioner’s OPF was lost in 1983 is a

cover-up of the fact that Department of the Army, in 1979, removed

the documents of derogatory information from petitioner’s OPF, in

accordance with established instructions from OPM in 1979. See

Pro Se Appellant’s Brief, Explanation Concerning Wrong

Statements, paragraph 4, page 1 (A 382).

(D) With respect to class-action status of violation of the

Privacy Act:

16

43. The Privacy Act of 1974 provides limitation on the kind

of documents which the government is permitted to withhold.

Petitioner’s interpretation of the provisions of the Privacy Act is

different from the interpretation by the Office of Personnel

Management. See petitioner’s Motion for Summary Judgment,

Memorandum, paragraph 4 (A 99, 100).

44. OPM’s form-letter, dated September 17, 1979, stated that

the documents of petitioner’s OPF were furnished to him “as

prescribed by Office of Personnel Management (OPM)

instructions.” See form-letter (A 321). (Those instructions have

not been disclosed to petitioner. It is very likely that they were the

same as the instructions of the preceding Civil Service

Commission, which were based on the district court’s bar against

lawsuit for certain documents of an OPF. Those instructions may

be a direct violation of the law. See petitioner’s Exhibit 18,

paragraphs 14, 20 (A210, 212). See respondents’ Exhibit A, letter

dated May 1, 1989, third and fourth paragraphs on pages 1 and 2

and second instance on page 3 (A 37-39), and ninth instance, page

7 (A 43). See Pro Se Appellant’s Reply Brief, Comments and

Explanations, paragraph 6 (A 412).

45. Every federal employee who is in a situation such as

petitioner was in 1963, being refused due process by concealing

the documents of derogatory information, is subject to the same

criminal offense as happened to petitioner in 1979, having removal

of the documents of derogatory information before releasing the

OPF to the employee. See petitioner’s Motion to Amend

petitioner’s Motion for Determination as Class Action, paragraphs

4,7(A 227,229).

(E) With respect to the OPF being lost:

46. After respondents furnished petitioner a fraudulent OPF

in 1979 and petitioner requested the missing documents, OPM

17

refused, claiming that the OPF had been lost in 1983. See 1991

Complaint, paragraph 18(A7).

47. OPM’s affidavit that the OPF was lost in 1983 is an

attempt to cover up the fact that the documents of derogatory

information had been removed before sending the fraudulent OPF

to petitioner. See petitioner’s Exhibit 18, paragraphs 16, 24, 25(A

211-213).

48. OPM’s claim that petitioner’s OPF was lost in 1983 is a

cover up of the fact that Department of the Army, in 1979, removed

the documents of derogatory information from petitioner’s OPF, in

accordance with established instructions from OPM in 1979. See

Pro Se Appellant’s Brief, Explanation Concerning Wrong

Statements, paragraph 4, page | (A 382).

49. The documents which OPM sent to National Personnel

Records Center (NPRC) on October 12, 1979, which were labeled

as petitioner’s OPF, were not documents of the OPF, but were

miscellaneous papers which were associated with the OPF and

were the same as the 35 papers which previously had been

furnished to petitioner in 1985 as an appendix to an OPM affidavit.

The real OPF never was returned by Department of the Army to

OPM. The real OPF, or at least the documents of derogatory

information which were required by paragraph 19 of AR 345-262

to be included therein, is still in the possession of Department of

the Army. See Pro Se Appellant’s Reply Brief, Comments and

Explanations, paragraph 5, pages 2,3 (A411, 412). See OPM’s list

of OPF’s returned to NPRC on October 12, 1979 (A 232). See

OPM’s affidavit dated May 9, 1984 (A 338-341). See OPM’s

affidavit dated December 11, 1984 (A 342, 343). See petitioner’s

Motion to Supplement the Joint Appendix, Memorandum in

Support, paragraph 3 (A 418). See respondents’ Exhibit A, letter

dated May 1, 1989, fourth instance, pages 4, 5 (A 40, 41). See 35

miscellaneous papers which were associated with the OPF (A 344-

18

378), which are in the court record, but are not reproduced here —

part of 1984 Docket Sheet record entry number 7, dated January

16, 1985.

(F) With respect to the 1987 processing of the 1984 case:

50. Five years after the 1987 court decision of the 1984 case

petitioner discovered that there was some unknown processing of

the case in 1987. See Pro Se Appellant’s Reply Brief, Comments

and Explanations, paragraph 8, page 3 (A 412). Petitioner is

wondering if this is another instance in which he has been accused

of something and has been refused an opportunity to defend.

CONCLUSION

For the foregoing reasons the petition for a writ of certiorari

should be granted.

Respectfully submitted,

PAULB. WARD

Petitioner, Pro Se

la

APPENDIX A — ORDER FILED OCTOBER 7, 1992,

APPEALS CASE NO. 92-3395

No. 92-3395

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAULB. WARD,

Plaintiff-Appellant,

V.

OFFICE OF PERSONNEL MANAGEMENT, et al.,

Defendants-Appellees.

BEFORE: KEITH, JONES and BOGGS, Circuit Judges.

Paul B. Ward, a pro se Ohio resident, appeals a district court

order dismissing his civil action filed under 5 U.S.C. § 552a(g)(1).

This case has been referred to a panel of the court pursuant to Rule

9(a), Rules of the Sixth Circuit. Upon examination, this panel

unanimously agrees that oral argument is not needed. Fed. R. App.

P. 34(a).

In 1984, Ward sued several government officials and the

United States of America alleging that he was: improperly denied

access to his personnel records and that his removal from the Army

Map Service in 1964 violated his due process rights. The district

court dismissed the complaint.

ei

2a

Appendix A

In 1991, Ward sued several government agencies and the

United States of America alleging violations of the Freedom of

Information Act and the Due Process Clause of the Fifth

Amendment. Although naming different defendants, Ward's

claims were admittedly identical to those contained in his first suit.

Ward requested that the applicable statute of limitations be waived,

that his second suit be construed as a motion to reconsider his

original action, and that the government be ordered to produce all

documents in his personne] file as of 1983. Ward also sought class

certification. The parties made cross motions for summary

judgment. The district court denied class certification and granted

summary judgment for the defendants finding that Ward’s suit was

barred by the applicable statute of limitations and by the doctrines

of res judicata and collateral estoppel.

In his timely appeal, Ward argues that the district court erred

by not granting class certification, by not waiving the statute of

limitations, and by not reconsidering his first cause of action.

Defendants moved to dismiss the complaint or, in the

alternative, for summary judgment. Because evidence outside the

pleadings was not excluded from the district court’s consideration,

the motion must be treated as a motion for summary judgment. See

Fed. R. Civ. P. 12(b); Monk v. Marlinga, 923 F.2d 423, 425 (6th Cir.

1991) (percuriam).

This court’s review of a grant of summary judgment is de

novo. See EEOC v. University of Detroit, 904 F.2d 331, 334 (6th

Cir. 1990). Summary judgment is proper if there is no genuine

issue of material fact and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986).

VW

3a

Appendix A

Upon de novo review, we conclude that the defendants were

entitled to summary judgment as a matter of law. See Celotex

Corp., 477 U.S. at 323. Accordingly, we affirm the district court’s

judgment for the reasons stated in its opinion filed on April 8, 1992.

Rule 9(b)(3), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT

Leonard Green

Clerk

tu

APPENDIX B — OPINION AND ORDER _ FILED

APRIL8, 1992, CASE NO. C2-91-0669

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Case No. C-2-91-669

Paul B. Ward,

Plaintiff,

ae

Office of Personnel Managementetal.,

Defendant.

OPINION AND ORDER

I.

Plaintiff, Paul B. Ward, a resident of Franklin County, Ohio,

filed this action in the United States District Court for the Southern

District of Ohio, Eastern Division, on August 16, 1991. Suit was

brought against Defendants, “Office of Personnel Management,

National Personnel Records Center, Department of the Army,

Merit Systems Protection Board, and the United States of

America.” The Plaintiff, a former federal employee, alleges that

under the Freedom of Information Act, 5 U.S.C. § 552(a)(3), he

has a right of access to records contained in his Official Personnel

Folder to which he has been denied, violating his due process

rights under the Sth Amendment of the United States Constitution.

Defendants move to dismiss with prejudice the claims against

them pursuant to Rules 12(b)(6) and 56 of the Federal Rules of

Civil Procedure on grounds that any claim for relief properly

stated therein is barred by the applicable statute of limitations and/

or by res judicata and collateral estoppel arising from the

Sa

Appendix B

judgment rendered by the Honorable James L. Graham of this

District in the case of Ward v. Wilkerson, et al., Case No. C2-84-

340, filed April 23, 1987.

For the following reasons, the Court will grant the motion to

dismiss.

Il.

A motion to dismiss attacks the sufficiency of the complaint.

In ruling upon such motion, the Court must accept as true all well-

pleaded allegations of the complaint, and may dismiss the action

only if it appears beyond doubt that the Plaintiff can prove no set of

facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41

(1957). Only the allegations in the complaint itself may be

considered and the issue presented is not whether plaintiff

ultimately will prevail on the merits, but whether he is entitled to

offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S.

232, 236 (1974); Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); 5

C. Wright & A. Miller, Federal Practice and Procedure § 1357, at

594 (1969). The essence of a court’s inquiry is to determine

whether the allegations contained in the complaint satisfy the

mandate of the Federal Rules that the Complaint contain “a short

and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a). Itis with these standards in mind that

the motion to dismiss must be decided.

III.

The facts in this case are as follows. Plaintiff, Paul B. Ward,

was employed as a photo composition machine operator for the

department of the Army from 1946 until August 16, 1963. Plaintiff

was removed by the Commander of the mapping section for

6a

Appendix B

deliberate and willful idleness and loafing on May 27, 1963. Prior

to plaintiff's removal, he was afforded numerous review

procedures as required by Federal Personnel Regulations. A letter

dated August 14, 1963, to plaintiff, from the Corps of Engineers,

U.S. Army stated that the charges sufficiently supported his

removal from Federal service and informed plaintiff of his right to

appeal through various avenues.

Plaintiff Ward appealed his termination through the

Department of the Army channels. An examiner reviewed

regulatory and procedural aspects, received sworn statements of

witnesses and examined the facts and issues. The Chief of

Engineers reviewed the record to assure that there had been basic

compliance with the laws and regulations concerning plaintiff’s

dismissal. The Chief of Engineers denied plaintiff’s appeal,

finding that plaintiff “continued to defy appropriate authority by

substituting [his] judgment for that of management despite

previous disciplinary actions.”

Plaintiff appealed to the Secretary of the Army, and that appeal

was denied on August 7, 1964. Plaintiff then filed a complaint in

the Federal District Court for the Southern District of Ohio,

Eastern Division, on February 17, 1984, some nineteen years after

the date on which the Secretary of the Army denied plaintiff’s

appeal. He alleged that he had been denied access to his personnel

records and that his removal from the Army Map service was

effected without due process of law.

Plaintiff alleged in that 1984 case that under the Freedom of

Information Act, 5 U.S.C. § 552(a)(3), he had a right of access to

records contained in his Official Personnel Folder. On May 4,

1979, the plaintiff had requested his records. The National

Personnel Records Center furnished certain records to Mr. Ward

Ta

Appendix B

pursuant to this request on September 17, 1979. However, Plaintiff

Ward stated then, and continues to state, that he was given a stack

of documents one inch high, which was considerably less than the

eighteen inches of documents in his case folder in 1964. The

records provided in 1979 did not include any performance

appraisals. Plaintiff instituted the 1984 Federal action against the

various named agency heads, alleging that one of them must have

removed those pesformance documents from his file. In granting

the defendants’ motion for summary judgment in Ward vy.

Wilkerson et al., Judge James L. Graham of this Court found “that

the record reveals no material issue of fact in regard to Plaintiff’s

claim under the Freedom of Information Act” Civil No. C2-84-340

(1987) at 4. Judge Graham went on to state that the defendants in

1979 sent to plaintiff Ward’s attorney all the records contained in

the plaintiff’s official personnel folder. According to Judge

Graham’s findings, Plaintiff Ward’s personnel file after being

copied in 1979, for Mr. Ward, was sent back to the National

Personnel Records Center (NPRC) but has been lost since that

time. Judge Graham in granting the defendant’s Motion for

Summary Judgment concluded there had been “no withholding of

his [Ward] records”. /d. at 8. Judge Graham’s opinion explained

that the missing performance documents would have been

destroyed three years after plaintiff left federal employment.

Plaintiff Ward’s second cause of action before Judge Graham

was an alleged violation of his constitutional “due process” rights

as a result of his removal from federal service. Plaintiff’s 1964

complaint advanced both equitable “reinstatement” and legal

“back pay and damage” claims. Judge Graham in his carefully

reasoned opinion held that concurrency of law and equity in the

federal courts dictate that where “remediation does not lie

exclusively within the main of equity, the availability of legal relief

to enforce the underlying right summons the statute of limitations

into play as to the whole.” Jd. at 12-13. Judge Graham ruled that

———

8a

Appendix B

Plaintiff exhausted his administrative remedies on January 27,

1965, when the Civil Service Commission denied his appeal and

that the statute of limitations began to run on that date.

In Ward v. Wilkerson, Plaintiff Ward argued that the statute of

limitations should be tolled because of two sets of circumstances

which were beyond his control. The first was the defendant’s

alleged refusal to disclose the documentary evidence which was

used against him in his four disciplinary actions. The second

consideration was plaintiff’s inability to find professional legal

assistance to file claim for the documentary evidence. Both of

these considerations were carefully addressed by Judge Graham

and summarily dismissed. /d. at 12-13.

Plaintiff Ward filed the instant action on August 16, 1991,

alleging violation of the Privacy Act of 1974 and a lack of

enforcement of the “due process clause” in discharge cases.

Plaintiff alleges that the Federal Government used: (1)

“undisclosed documents of derogatory information or undisclosed

criticisms” which “have been cited as additional evidence against

an employee, after he has defended against stated charges, and (2)

those undisclosed documents have been refused disclosure when

an employee has requested disclosure (sic).” Plaintiff appears to

acknowledge that the present action is a continuation of the 1984

action concerning his dismissal in 1963 and subsequent efforts to

obtain his personnel file. Comp. 7{ 14-16. Plaintiff acknowledges

that following Judge Graham’s opinion in Ward v. Wilkerson, he

agreed to a Voluntary Dismissal of the Appeal to the United States

Court of Appeals for the Sixth Circuit. Comp. JJ 21-23.

Plaintiff here claims that his attorney in Ward v. Wilkerson did

not provide effective assistance of counsel. This claim is based

upon the attorney allegedly: (1) refusing to file a Motion for

Reconsideration and to file Plaintiff’s “Comments on Court

9a

Appendix B

Decision Dated April 29, 1987”, (2) suggesting that the Plaintiff

file an appeal and then suggesting dismissing the Appeal, and (3)

the attorney’s refusal to take any additional action on the matter

despite Plaintiff's pleas to do so. Comp. {7 21-23. Plaintiff's

second cause of action in this case is based upon the

“Inapplicability of Court Decision” in Ward v. Wilkerson.

Plaintiff ’s requests for relief include, among others: (1) a waiver of

the statute of limitations back to April 29, 1987 to allow plaintiff to

resume that court action, (2) allow this law suit to serve as a Motion

for Reconsideration, and (3) to require the Federal Government

Produce his Personal File and all documents in it as of 1963.

IV.

In his Complaint, Plaintiff asserts jurisdiction pursuant to 5

U.S.C. § 552a (Privacy Act) and the “due process clause” of the

Fifth Amendment to the U.S. Constitution. Comp. { 2. The period

of limitations for court proceedings based on alleged violations of

the Privacy Act is two years. 5 U.S.C. § 552a(g)(5). Further, under

Ohio Law, which would be applicable in this case, the period of

limitations for claims based on alleged violation of civil rights

guaranteed by the Constitution is also two years. See Browning v.

Pendleton, 869 F.2d 989 (6th Cir. 1989).

A.

Plaintiff’s complaint also alleges various actions or inactions

by federal officers or agencies relating back as far as 1963. Comp.

q 24(1), 30. The latest alleged act by any party to this law suit

appears to have occurred on May 16, 1989. Comp. { 24(5).

Inasmuch as those circumstances clearly occurred more than two

years before the filing of this Complaint herein on August 16,

1991, this action is barred on its face by both applicable statutes of

limitations and therefore is hereby DISMISSED.

10a

Appendix B

B.

Plaintiff’s Complaint here also makes reference to a prior

proceeding in the United States District Court for the Southern

District of Ohio, Eastern Division, based on substantially the same

allegations of fact (with the exception of those involving events

since April 1987). Comp. { 14. That prior proceeding was Ward v.

Wilkerson. et al., Civil No. C2-84-340, filed February 17, 1984. As

in Ward v. Wilkerson, the instant matter lists the United States of

America as one of the defendants. In Ward, Judge Graham granted

defendants’ motion for summary judgment, upon finding that

Plaintiff had “failed to demonstrate that there [was] a genuine issue

of material fact pertaining to this request for documents or due

process claims.” Memo and Order, filed April 23, 1987 at 13. That

judgment became final when Plaintiff subsequently dismissed his

appeal to the Sixth Circuit on September 8, 1987. Comp. { 22.

The doctrines of res judicata and collateral estoppel bar claims

where the same parties were present in a prior litigation and a court

of competent jurisdiction rendered a valid final judgment on the

merits and the two actions concern the same subject matter or cause

of action. Anchor Motor Freight. Inc. v. International Brotherhood

of Teamsters Etc., 700 F.2d 1067 (6th Cir. 1983); see, Shipman v.

Frank, 625 F.2d 80 (6th Cir. 1980); State Mutual Life Assur. Co. v.

Deer Creek Park, 612 F.2d 259 (6th Cir. 1979); United States v.

LaFatch, 565 F.2d 81 (6th Cir. 1977), cert denied 435 U.S. 971. Itis

clear, therefore, that all present claims brought by Plaintiff were

previously litigated before Judge Graham.

lla

Appendix B

CONCLUSION

Accordingly, Defendant’s Motion to Dismiss is well taken and

is hereby GRANTED. Plaintiff’s claims are DISMISSED WITH

PREJUDICE.

IT IS SOORDERED.

s/ George C. Smith

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

12a

APPENDIX C — MEMORANDUM AND ORDER FILED

APRIL 29, 1987, CASE NO. C2-84-0340

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Case No. C-2-84-0340

JUDGE GRAHAM

Paul B. Ward,

Plaintiff,

vs.

Rear Admiral E. A. Wilkinson, Jr., et al.,

Defendant,

MEMORANDUM AND ORDER

This action is before this court on defendants’ motion to

dismiss or for summary judgment. Fed. R. Civ. P. 56(c), which

governs the procedure for summary judgment, provides in part as

follows:

The judgment sought shall be rendered

forthwith if the pleadings, depositions,

answers to interrogatories and admissions on

file, together with the affidavits, if any, show

that there is no genuine issue as to any material

fact and that the moving party is entitled to

judgment as a matter of law.

13a

Appendix C

The evidence must be viewed in a light favorable to the party

opposing the summary judgment motion. Adickes v. S. H. Kress &

Co., 398 U.S. 144 (1970).

If the moving party meets its burden and adequate time for

discovery has been provided, summary judgment is appropriate if

the opposing party fails to make a showing sufficient to establish

the existence of an element essential to that party’s case and on

which that party will bear the burden of proof at trial. Celotex

Corp. v. Catrett, 54 U.S.L.W. 4775, 4777 (June 25, 1986).

Plaintiff, Paul B. Ward, was employed as a photo composition

machine operator for the department af the Army from 1946 until

August 16, 1963. Plaintiff was removed by the Commander of the

mapping section for “deliberate and willful idleness and loafing on

May 27, 1963”. Prior to plaintiff’s removal, he was afforded

numerous review procedures as required by Federal Personnel

Regulations. A letter dated August 14, 1963, to plaintiff, from the

Corps of Engineers, U.S. Army stated that the charges sufficiently

supported his removal from Federal service, and informed plaintiff

of his right to appeal through various avenues. (Defendants’

Motion For Summary Judgment, Exhibit 1).

The plaintiff appealed his termination through the Department

of the Army channels. An examiner reviewed regulatory and

procedural aspects, received sworn statements of witnesses and

examined the facts and issues. The Chief of Engineers reviewed

the record to assure that there had been basic compliance with the

laws and regulations concerning plaintiff’s dismissal. The Chief of

Engineers denied plaintiff's appeal finding that plaintiff

“continued to defy appropriate authority by substituting [his]

judgment for that of management despite previous disciplinary

actions.” (Defendants’ Motion For Summary Judgment, Exhibit

3).

14a

Appendix C

Plaintiff appealed to the Secretary of the Army, and that appeal

was denied on August 7, 1964. (Defendants’ Motion for Summary

Judgment, Exhibit 5).

This complaint was filed on February 17, 1984, over nineteen

years from the date on which the Secretary of the Army denied

plaintiff’s appeal. Plaintiff alleges that he has been denied access

to his personnel records and that his removal from the Army map

service was effected without due process of law.

This court’s jurisdiction for the plaintiff's first cause of action

rests upon 5 U.S.C. § 552(a)(4)(B) which provides in pertinent

part:

On complaint, the district court of the United

States in the district in which the complainant

resides ... has jurisdiction to enjoin the agency

from withholding agency records and to order

the production of any agency records

improperly withheld from the complainant.

Plaintiff alleges that under the Freedom of Information Act, 5

U.S.C. § 552(a)(3), he has a right of access to records contained in

his Official Personnel Folder. On May 4, 1979, the plaintiff,

through Attorney Swick, requested his records. The National

Personnel Records Center furnished certain records to Mr. Ward

pursuant to this request on September 17, 1979. However, plaintiff

states in his affidavit that he was given a stack of documents one

inch high, which was considerably less than the eighteen inches of

documents in his case folder in 1964. The records provided in 1979

did not include any performance appraisals. Plaintiff has instituted

this action against the named agency heads, alleging that one of

them must have removed those performance documents from his

file.

15a

Appendix C

At the outset, this court concludes that the agencies

themselves, not individual agency officials, are the proper parties

in this action. See Gary Energy Corporation v. U. S. Department of

Energy, 89 F.R.D. 675 (D. Colo. 1981); Providence Journal Co. v.

Federal Bureau of Investigation, 460 F. Supp. 778 (D.R.I. 1978),

rev’don other grounds, 602 F.2d 1010, cert. denied, 444 U.S. 1071

(1978); Weberman v. National Sec. Agency, 490 F. Supp. 9

(S.D.N.Y. 1980). Summary judgment is appropriate as to the

individuals named in the complaint, Rear Admiral E. A. Wilkinson,

Jr., Lt. General J. K. Bratton and John O. Marsh. The court further

finds that the record reveals no material issue of fact in regard to

plaintiff’s claim under the Freedom of Information Act, and that

the defendant agencies are entitled to summary judgment

The defendants state that in 1979, all the records contained in

the plaintiff’s official personnel folder were sent to plaintiff's

attorney as requested. Defendants argue that plaintiff's second

request for “all the sought-after undisclosed documents” allegedly

not sent to him in 1979, is superfluous.

Defendants have submited the affidavit of Timothy R. Crotty.

Mr. Crotty is the Chief of the Work Force Records Management

Division, Office of Personnel Management, which processes

requests from former Federal employees seeking access to their

official personnel folders. His testimony indicates that in 1979, Mr.

Swick, an attorney representing the plaintiff was sent copies of all

records contained in plaintiff’s personnel file.

Mr. Crotty stated that his office, after sending plaintiff the

copies, would normally send his file back to the National Personnel

Records Center (NPRC). According to Mr. Crotty’s records,

plaintiff’s file was returned to NPRC on October 12, 1979 with

about 100 other files.

16a

Appendix C

Ma. Croiey vested that his office received another lever on

December 15, 1983, requesting a copy of plaintiff’s “personne!

folder”. This request was accompanied with a form letter from

NPRC indicating that plaintiff's file should he in the possession of

Mr. Crotty’s department. A thorough search was conducted, but

plaintiff's file could not be located. Mr. Crotty sent a list of the

other files returned to them on that date, but NPRC was unable to

find any of the files sent to them in that batch on October 12, 1979.

It was determined that plaintiff's file was lost.

Plaintiff alleges that there are still 17 inches of documents

somewhere in the government’s possession and submitted a

Motion to Compel Discovery. Attached to defendant's

Memorandum Contra Plaintiff's Motion to Compel Discovery,

was the affidavit of Major William S. Trivette, the litigation

attorney with the office of the Judge Advocate General,

Department of the Army, Washington, D.C.. Major Trivette states

that he has personally searched the Pentagon Library for certain

documents requested by plaintiff in his Motion to Compel

Discovery. Major Trivette has identified the status and

whereabouts of a number of these alleged missing documents.

Items numbers 23 through 30 have either been forwarded to

plaintiff or were determined never to have existed. The remaining

documents numbered | through 22 related to correspondence and

records pertaining to each of the four disciplinary actions

involving plaintiff.

Under 5 U.S.C. § 552(F), each agency must promulgate rules

to establish procedures to enable an individual to receive records

pertaining to him. The Office of Personnel Management has

promulgated rules pertaining to the information contained within a

person’s Official Personnel Folder.

The retention of plaintiff's records would be governed by 5

17a

Appendix C

CFR § 293.404. This section states that performance appraisals or

documents supporting them are generally not permanent records

and are retained as prescribed below:

(i) performance rating of record, including the

performance plans on which they are based,

shall be retained for 3 years;

(ii) supporting documents shall be retained for

as long as the agency deems appropriate (up to

3 years).

In 1979, plaintiff received copies of all the permanently

retained records in his file, plus some additional records that would

normally have been destroyed. The missing 17 inches of

“performance documents” would have been destroyed according

to the regulations promulgated by the Office of Personnel

Management.

Plaintiff has provided no evidence to refute the conclusion

that his files have been lost, and there is little doubt that this is the

case. Normally, when the government makes the personnel records

in its possession available to a former federal employee ithas done

all that is required under this section. Production of missing

records is not required. Nolen v. Rumsfeld, 535 F.2d 890 (Sth Cir.

1976).

Plaintiff requested and received the records the agency was

required to permanently maintain. Once those “records are

produced and the substance of the controversy disappears it

becomes moot since the disclosure which this suit seeks has

already been made.” Crooker v. U.S. State Department, 628 F.2d 9,

10, (D.C. Cir. 1980).

18a

Appendix C

In ruling on defendant’s Motion for Summary Judgment, the

evidence has been viewed in a light most favorable to plaintiff.

Upon review of the regulations concerning the maintenance of

plalntiff’s official personnel folder, this court has determined that

there was no withholding of his records. The missing performance

documents would have been destroyed three years after plaintiff

left federal employment. Therefore, there is no genuine issue as to

any material fact concerning plaintiff's claim to these documents.

The plaintiff’s second claim alleges a violation of his

constitutional due process rights in his removal from federal

service. Plaintiff concedes that this court does not have jurisdiction

under 28 U.S.C. § 1331 and § 1346.

Plaintiff claims this court has jurisdiction in mandamus under

28 U.S.C. § 1361, “action to compel an officer of the United States

to perform his duty”. Both parties have submitted a number of

cases on the issue of the “nature of the duty” owed to the plaintiff

which is the necessary predicate of a mandamus action. The Court

of Appeals in Richardson v. United States, 465 F.2d 844, 849 (3rd

Cir. 1972), rev’d on other grounds, 418 U.S. 166 (1974)

determined that in order for mandamus to issue, a plaintiff must

allege that an officer of the Government owes him a legal duty

which is a specific, plain ministerial act “devoid of the exercise of

judgment or discretion.” An act is ministerial only when its

performance is positively commanded and so plainly prescribed as

to be free from doubt. United States v. Walker, 409 F.2d 477 (9th

Cir. 1969); Richardson v. United States, supra at 849. If the

alleged duty is discretionary, not mandatory, ministerial or

directory, the duty is not owed. Short v. Murphy, 512 F.2d 374, 377

(6th Cir. 1975), James v. Ambrose, 367 F. Supp. 1321 (D.V.1. 1973).

On completion of the mandatory or ministerial duty owed to

plaintiff, as set out in the Civilian Personnel Regulatons, and in the

19a

Appendix C

absence of any violation by the defendants of those regulations,

mandamus would not be proper. The act of discharging the plaintiff

after conforming to the mandatory requirements was discretionary.

James, supra at 1325, See also: Wilbur v. United States, 281 U.S.

206 (1930); Prairie Band of Pottawatomie Tribe of Indians v.

Udall, 355 F.2d 364 (10th Cir. 1966) cert. den., 385 U.S. 381

(1966); Bowen v. Culotta, 294 F. Supp. 183 (E.D. Va. 1968).

Other cases confirm that a decision of the Secretary of the

Army which is not “positively commanded and so plainly

prescribed as to be free from doubt” is discretionary and

jurisdiction will not be granted under 28 U.S.C. § 1361. United

States v. Walker, supra at 481; Keeny v. Secretary of the Army, 437

F.2d 1151 (8th Cir. 1971); Ramirez Alvarado v. Saxby, 337 F. Supp.

1324 (D.P.R. 1972).

Plaintiff has failed to demonstrate that the duty owed was a

mandatory one or that the required procedures were not followed.

Plaintiff also had an adequate remedy at law. Therefore, this court

does not have jurisdiction under 28 U.S.C. § 1361.

Additionally, plaintiff argues that he has grounds for

jurisdiction under 28 U.S.C. § 2201 and § 2202. However, these

statutes do not themselves confer subject matter jurisdiction; these

statutes are procedural and only provide for remedies which this

court may give in actions otherwise within its jurisdiction. James,

supra at 1324; Jarrett v. Resor, 426 F.2d 213, 216 (9th Cir. 1970);

Ragoni v. United States, 424 F.2d 261, 264 (3rd Cir. 1970).

Therefore, under Fed. R. Civ. P. 12(h)(3), this court lacks

jurisdiction over plaintiff's second claim. However, even if this

court had jurisdiction it is clear that plaintiff’s claim would be time

barred.

20a

Appendix C

The limitation imposed generally by 28 U.S.C. § 240i(a) on

litigation brought against the United States bars civil actions

unless the complaint is filed within six years after the right of

action first accrues. Plaintiff’s complaint advances both equitable

“reinstatement” and legal “back pay and damages” claims and

requires this court to review the effect of 2401 (a) on either or both

of appellant’s prayers for relief.

The court in Saffron v. Department of the Navy, 561 F.2d 938

(D.C. Cir. 1977), cert. den., 434 U.S. 1033 (1978) faced the

question of whether the improper dismissal claim of a civilian

Navy employee was within the scope of § 2401(a) bar. The former

employee sought equitable relief and legal relief. The Saffron court

held that plaintiff’s equitable claims for reinstatement as well as

his legal monetary damages, were barred by the statute. The court

went on to note that the concurrency of law and equity in the

federal courts dictate that where “remediation does not lie

exclusively within the main of equity, the availability of legal relief

to enforce the underlying right summons the statute of limitations

into play as to the whole.” /d at 946. Accord: Stevens v. Tennessee

Valley Authority, 712 F.2d 1047 (6th Cir. 1983); Walters v.

Secretary of Defense, 725 F.2d 107, 112 (D.C. Cir. 1983);

Oppenheim v. Campbell, 571 F.2d 660 (D.C. Cir. 1978); Gull

Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 844 and

n.6 (D.C. Cir. 1982); White v. U. S. Civil Service Commission, 589

F.2d 713, 715 (D.C. Cir. 1978) cert. den. subnom. White v. Office

of Personnel Management, 444 U.S. 830 (1979). _

By the terms of the statute the six year limitation began to run

from the time the right of action first accrued. Saffron, supra at

942. Plaintiff exhausted his administrative remedies on January

27, 1965, when the Civil Service Commission denied his appeal.

The statute of limitations began to run on that date.

2la

Appendix C

Plaintiff claims that the statute of limitations should be tolled,

because in this case there have been two sets of circumstances

which were beyond his control. The first factor was defendant’s

alleged refusal to disclose the documentary evidence which was

used against him in each of four disciplinary actions. The second

consideration was plaintiff’s inability to find professional legal

assistance to file claim for the documentary evidence.

Plaintiff through his own evidence negates these allegations.

In his affidavit, submitted to this court on January 30, 1987, with

Plaintiff’s Brief Contra, at paragraph 23, plaintiff states that in

preparing his appeal to the Secretary of the Army in 1964, he

included “citations of instances of fradulent personnel system, a

fradulent grievance system, reprisal actions, false and misleading

information which constitutes a cover-up or wrongdoing, and

evidence of undisclosed documents which were used as evidence

against me.”

Plaintiff in his affidavit submitted to this court on November

6, 1986, admits that he had knowledge of the alleged wrongful

withholding of evidence and states in Exhibit A, paragraph 1, “On

9 June, 1964, I met Mr. Reback [an attorney] with a request to see if

he could obtain a delay in the decision by the Secretary of the Army

until I could prepare an appeal statement, in the absence of

documents which had been cited as evidence against me”.

In paragraph 2, plaintiff states “On 11 February, 1965, I wrote

to Mr. Gasch, [an attorney], seeking to set aside the secretary’s

decision until I could prepare an appeal statement explaining the

false and misleading information on which it was based”.

In paragraph 3, plaintiff states he contacted a third attorney,

Mr. Scott seeking assistance in setting aside the Secretary's

22a

Appendix C

decision, because it contained false and misleading information.

Plaintiff claims that it was impossible to prepare a statement in so

short a time, as the grievance examiner had cited eighteen inches of

documents and “all the important ones had been refused disclosure

tome...”.

Thus, plaintiff’s own affidavits indicate that in 1964 and 1965,

he was well aware of the claims he now raises and had access to

legal advice at that time. Plaintiff’s excuses for not timely pursuing

the matter do not toll the running of the statute of limitations in this

case.

The plaintiff, having been given the benefit of all reasonable

inferences, has failed to demonstrate that there is a genuine issue of

material fact pertaining to his request for documents or due process

claims. The defendants Rear Admiral E. A. Wilkinson, Jr., Lt. Gen.

J. K. Bratton, John Marsch and the United States are entitled to

judgment as a matter of law. The defendants’ motion for summary

judgment is hereby GRANTED.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge