Petition for Writ of Certiorari — Easter v. Gates (No. 560)

+)

INDEX TO PETITION

| Pace

fT 1

SURISDICTION 2...e...ccccccsssseeeeees Lae ane nee 2

QUESTIONS PRESENTED |..00.---n-sssssssssssssseeseesoee 2

GICNERAL STATEMENT. ..0.0.....000....scccccsccsccccssssssssssseeeee 2

STATEMENT OF FACTS... 7

REASONS FOR GRANTING THE WRIT 11

I, Material Issues of Fact Presented By the -Peti-

tioner Were Not Considered ~........................0.-0-----

A. The court should not direct a verdict unless

the evidence upon any issue is all on one

side or so overwhelmingly ow one side as to

leave no room for doubt as to what the evi-

I ccacttsenseincsinsspcitecsiaeestibeenenecelitieantautahinpiaieiiivalaes 11

Il.| A Statutory Right of the Petitioner Was Denied

| In Separating Him From His Position With

ee are 17

A. The Court erred in granting the respondent’s

Motion for Summary Judgment in granting

it on the grounds that the petitioner had not

been denied any statutory right, the, peti-

tioner having been denied a statutory right

in that the removal was arbitrary ................ 17

III. The Petitioner’s Claim Was Not Barred By

NS sechersstlettinii ti hencinthicessssdenieaianiiiiaiReinicabtaabianintines 23

A. The sotitionns was not guilty of any delay

or action that could be deemed to be laches

I a 28

INDEX TO APPENDICES

Petitioner’s Schedule of Performances and Index of

ae Cone a 1A

Petitioner’s Schedule of Performances and Index of

INTE UE lischeisetie csicesonsececneninslicnnensanntivnnsiteniitacains 1B

TABLE OF CASES

i, Pace

ATLANTIC CARRIERS vs. U.S. 41 U.S.C.A. § 321,

131 Fr. Supp. 1 -n.nn..----n---nseceecoeessessneseaseensentennnsensennsenatens 6

BLACKMAR vs. UNITED STATES 128 ¢. Cis. 693,

190 F. Supp. 408 .......... a! ae

BORAK vs. BIDDLE 78 US app. D. C. 374, 141

BR Dd BB nnnvencnnnceonono-n-nenvnoevensnenececnrnoneeh 19

DEAKE vs. Pace 88 U. S. App. D.C. 50, 185 F. 2d

IT oan cnncneneceneceescnssoresnencssroscorensncnneensescoonoscnsnenfoonee 19

EASTER vs. KIMBALL United States District Court

for the District of Columbia, C. A. 1307-52 ........ 2, 7-9,

17-25, 27

GARDNER vs. PANAMA RAILROAD CO. 341 U.S.

A anne ccncnnennecenneonenscareensnecvsnsnenesescwsneeseocsnenseneraseceooes 26

MULLIGAN vs. ANDREWS 93 U. S. App. D. ©.

375, 211 F. 2d es Sener 19

NATIONAL FIRE INSURANCE COMPANY vs.

THOMPSON 281 U.S. 331. .....-.-----------1----0--eeeeerte 25

PELTIER vs. SEATON U.S. App. D.C. “No. 13370

decided May 23, 1957 .......-..------------ss-csssereeersestte 26

POWELL’vs. BRANNAN 91 US. App. D.C. 16, 196

P. 0 Git ....... lt lacnatipianeethincennentenetecmnmsatan 18

ROTH vs. SWANSON 145 F. 2d 262 .-.....-...--.------------- 11

SNYDER vs. BUCK, 340 US. 15 -.....-.---------------seeeee 26

STRINGER vs. U.S. 90 F. Supp. 375 117 CL. C. 130 19

TELLEZ vs. CANTON RAILROAD, Md. Daily Rec-

ord May 20, 1957 .......----------s-sssccesessseetessoneeneneetestesens 11

STATUTES

“ADMINISTRATIVE PROCEDURE ACT” Public

Law 404 79th Congress Chapter 324—2d Session

S.7-AN ACT to improve the administration of

Page

justice by prescribing fair administrative pro-

ACER ONE Site aren Seo NS RRR 7

Pg. 8—(e) Scopgz or Review.—So far as aeces-

sary to decision and where presented the re-

viewing court shall decide all relevant

questions of law, interpret constitutional and

statutory provisions, and determine the mean-

ing or applicability of the terms of any agency

action. It shall (A) compel agency action un-

lawfully withheld or unreasonably delayed; and

(B) hold unlawful and set aside agency action,

findings, and conclusions found to be (1) arbi-

trary, capricious, an abuse of discretion, or

otherwise not in accordance with law; (2) con-.

trary to constitutional right, power, privilege,

or immunity; (3) in excess of statutory juris-

diction, authority, or limitations, or short of

statutory right; (4) without observance of pro-

cedure required by law; (5) unsupported by

substantial evidence in any case subject to the

requirements of sections 7 and 8 or otherwise

reviewed on the record of an agency hearing

provided by statute; or (6) unwarranted by

the facts to the extent *that the facts are sub-

ject to trial de novo by the reviewing court.

In making the foregoing determinations the

court shall review the whole record or such

portions thereof as may be cited by any party,

and due account shall be taken of the rule of

prejudicial error.

“La Follette-Lloyd Act” of Augtst 24, 1912”,

Amended by Public Law 623 80th Congress Chap-

ter 447, 2d Session S. 1486 an act to provide

for payment of salaries covering periods of sepa-

ration from the Government service in the case

of persons improperly removed from such serv-

ener ipiinninsssaan kininase hice lela aoapsaneaiotaabeakeinscic 7,18

%

Iv

Page

OTHER SOURCES

OB U.S.C. § 1254 (1) enviziecnesloceccereeneenenneenernetnernemnennea 2

Rule 12 (a) FRCP. .....-.-----o---sce-sccreerrrte 7

Rule 25 (d) F.R.C.P.........---------s--sscesreseesnesset 8, 25

Navy Civilian Personnel Instructions, NCP 1 5-1,

The Warning ....-.--.-------0------c-cee-sensscnssenssennssessconennstens 6

In Tos

Supreme Court of the United States

October Term, 1957

No.

Awnprew J. Easter, Petitioner,

| v.

Tomas S. Gates, Jz., Secretary of the Navy,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

_UNITED STATES COURT OF APPEALS FOR

THE DISTRICT 3F COLUMBIA CIRCUIT

Petitioner prays that a Writ of Certiorari issue to re-

view the judgment of the United States Court of Appeals

for the District of Columbia Circuit entered in the above

case on January 20, 1957, and the order of said Court

entered on July 24, 1957, denying a petition for rehearing.

OPINIONS BELOW

The order of the United States District Court for the

District of Columbia denying respondent’s motion for

summary judgment and granting petitioner leave to file

an amended complaint was filed on October 28, 1952, C. A.

No. 1307-52 * (Pet. App. 4A) the suit was abated by con-

sent and dismissed March 9, 1954 (Pet. pet. p. 8). The

reinstituting of this case, C.A. No. 1174-54, with the con-

* Judge Youngdahl: “J think under a e circumstances in a

case of this nature the Court should grant summary judgment,

but should let it go to trial.” (Pet‘ . pg. 22)

2

- gent of counsel, was on March 19, 1954.¢ (Pet. brief app.

2A). The order of Court was filed on June 26, 1956, grant-

ing respondent’s motion for summary judgment (Pet. App.

6A). The motion to set aside the order and reinstate cause

was denied October 1, 1956 (Pet. App. 7A). The Court -

of Appeals for the District of Columbia Circuit affirmed

the District Court on June 20, 1957, (Pet. App. 9A) and

the petition for rehearing was denied July 24, 1957 (Pet.

App. 10A).

° JURISDICTION

The judgment of the Court of Appeals for the Dis-

trict of Columbia Circuit was made on June 20, 1957,

a copy thereof is appended to this petition in the ap-

pendix at page 9A. An order denying, the petition for

rehearing appears in the appendix at page 104A. The

jurisdiction of this Court is envoked under 28 U.S.C.

§ 1254 (1).

QUESTIONS PRESENTED

I. Was the evidence so one-sided as to justify sum-

mary judgment for the respondent, or did there exist

any substantial issue of material fact?

II. Was petitioner’s removal legal and valid?

Ill. Did the Court below err in granting the respond-

ent’s motion for summary judgment on the respondent’s

claim that the action was barred by laches?

GENERAL STATEMENT ~

1. Petitioner has diligently sought redress in this case.

* Twice within this period, on March 25, 1952, C.A. No.

1307-52 was filed and dismissed by consent of counsel on

March 9, 1954, and a new action was filed within ten days

on March 19, 1954, C.A. No. 1174-54, also by consent of

respondent’s counsel.

t Brief (No. 13,631) for Appellant and Joint Appendix in the

United States Court of Appeals filed herewith.

*4 different Secretaries of the Navy, served during these pro-

ceedings, which made it necessary for the petitioner to file 2

actions and 2 separate motions to ‘substitute party defendant.

pee

‘ Metis” He

eS rs

3

The petitioner has been an employee of the Depart-

ment of Navy for about fifteen years’in addition to other

experience in private ship yards including his services in ©

World War I. On December 9/1920, the petitioner was

employed at the Philadelphia Navy Yard as a Grade A

draftaman, developing the 4rrangement plans for a 250

ton craneship and the conversion of a battle cruiser to an

aircraft carrier, and resigned on November 11, 1921, due

to disarmament. On January 9, 1928, he was appointed

as a Design Draftsman, duties of a checker, y the Office

of the Superintendent Constructor, Navy ‘Department,

Philadelphia, Pennsylvania, where he was transferred on

September 11, 1928, to the Norfolk Navy Yard due to lack

of work. There he made arrangement.plans for the mod-

_ ernization of a battleship and upon completion, resigned

April 12, 1929. January 16,1939, the petitioner was em-

ployed by the Bureau of Construction and Repair of the

Navy Department, War Plans Section 456, Washington, D.C.

as a Chief Engineering Draftsman SP-8, to prepare con-

fidential contract plans for the conversion of merchant

vessels to naval auxiliaries, etc. During his employment

he made advancement and rendered outstanding services

by reason of his efficiency ratings and particularly his

record in the design and production of plans (Pet. Brief

bottom of p. 15) where uncontested records show he de-

vised, planned and drew the first or Basic plans of most of

the naval auriliaries, und at least 73% of the design work

and 50% of the actual production as key engineer in a

section of eight men assigned to the same work, and who

originally worked overtime, evenings, Saturdays and Sun-

days without compensatory pay, and more particularly his

beneficial suggestion of a “Merchant Naval Vessel” (Pet.

brief p. 14- 2d para.) which was submitted about June 20,

1940, to the Navy Department and was used as the basic

principal for the design and conversion of a tanker to an

All emphasis supplied unless otherwise indicated.

4

auxiliary aircraft carrier, later known as the Baby Flat

Top which is still in operation in the United States Navy,

and the adoption of the idea by the British Admiralty for

the design and construction of their Merchant Aircraft

Carriers used in World War II (see Petitioner’s brief

page 40A para: 13 and Pet. app. p. 10B, 14B-15B, 17B.

On Jiré 25, 1941, petitioner submitted to the Navy

Department for consideration an All Purpose Ship via

, beneficial suggestion (Pet. app. 17B) and at this time

the agency was designated as the Bureau of Ships, Con-

version Section 459 and petitioner was promoted to an

Associate. Engineer (N.A.) P-3, and continued to design

and prepared contract plans for naval use until Septem-

ber 24, 1942, when he was promoted to an Engineer

(N.A.) P-4, during this period the petitioner was given

a good plus or a-very good efficiency rating. On May

4, 1945, the petitioner was given a decision by the Ef-

ficiency Rating Board of Review, Navy Department as

a result of an appeal of a Very Good efficiency rating

for 1944, adding element (10) (Presentation of ideas and

facts) (Pet. app. 4B).

Robert W. Bruce, the petitioners immediate supervisor

had resented the above appeal, thereafter on<April 18,

1945, the petitioner’s efficiency rating was rediiced to an

Unsatisfactory, on June 15, 1945, Admiral Cochran, the

Chief of the Bureau, held up the unsatisfactory rating,

and made it possible to appeal such efficiency marks to

prevent discharge ete. Breinert B. Matsén,.a co-worker,

eventually substituted in Bruce’s absence, continued the

same practice until the office was abolished on March 29,

1946, due to lack of work status. Madsen and the chief

and assistant chief were the only foreign born employees

in the section. All employees of this section were trans-

ferred to other offices throughout the bureau with the

same grade and pay except the petitioner, whose time was

devoted day and night in devising schemes for plans for

mene ee ante meme ag mame

CARE ETE I mw

H)

the welfare of the Navy (see petitioner’s Schedule of Per-

formances—“Combined Merchant Naval Vessel” and Com-

ments from various agencies (Pet. app. 8B-17B).

The petitioner was reduced in saiary and grade, P-3,

in spite of his being qualified as a P-5 by the Civil

Service Commission (Pet. brief app. 45A) and was trans-

ferred, carrying a FAIR efficiency mark from the pre-

vious office on April 29, 1946, to the Damage’ Stability

Section 447-M Scientific, where he acquainted himself

with the procedures required of the section. While there

he discovered that it required the services of two

men, Pokodner and Britt, who devoted two months of

their time to correct a model plan, due to indecisions,

which plan was drawn up before petitioner was assigned

to this section. “He has been chosen for doing all- the

later models.” (Pet. p. 16, p. 124) and presented a pro-

cedure whereby all persons who had a special interest

in the model plan could work cooperatively by marking

up a preliminary print until they all agreed, thereby elim-

inating confusion.

. On July 26, 1946, petitioner received a GOOD ——

rating with 4 plus marks, one for element (4) (6) (16)

(17), on April 3, 1947, he received a VERY GOOD ef-

ficiency rating with 5 plus marks, item (12) being added.

March 5, 1948, petitioner was assigned to Code 444A

of the same section and thereafter the efficiency rating

was GOOD for 1948, due. to absence caused by wife’s

death, and VERY GOOD for 1949-50 (Pet. app. 3B) See

brief appendix 16A.-67 to 18A for production and varia-

tion of about ten different types of work whereas the four

checkers he worked with specialized in only a few types

each, also see Christenson’s letter of November 20, 1953

(Pet. app. 2B). “Jn my opinion he is-an excellent and

productive worker.”

On December 7, 1950, the petitioner attended a Forum

Meeting 440, together with the Admirals of the Navy

Department where he asked questions during question

6

period, in reference to his combined, interchangeable,

multipurpose, Merchant Naval Vessel (Pet. brief bottom

of p. 18, and 20A, Line 17) which questions were in line

with the subject matter before the forum.

On December 27, 1950, and again January 11, 1951,

he was given a ° notice he would “receive a nerformance

rating of ‘Unsatisfactory’ unless your performance is suf-

ficiently improved’ (Pet. brief p. 19A, para 3). Thereafter

on ** March 26, 1951, petitioner was informed the Bureau

was considering termination of his employment for cause,

and listed practically every charge in the Navy Civilian

Personnel Instructions (Pet. app. 10A, Exhibit 2)

On April 2, 1951, petitioner attempted to answer the

various general charges (Pet. app. 12A and Pet. Brief app.

15A) and April 3, 1951, the petitioner received a letter

rejecting the answer and setting a date for hearing on

April 5, 1951. (Pet. app. 138A). A hearing was held on

April 5, 9, 10, 17 and 18, 1951, see transcript of hearing,

* Without a prior “warning” as required by the Navy Civilian

Personnel Instructions, NCPI:5-1 as follows:

NCPI:5-1. THE WARNING.—The performance rating of

1950 provides that no employee shall be rated unsatisfactory

without a ninety-day prior warning and a reasonable op-

portunity to demonstrate satisfactory performance. The regu-

lations of the Civil Service Commission prohibit the rating

of performance as ‘deficient with regard to any work re-

quirement that was not known by the employee or which the

employee had not been given a fair opportunity to meet.

Before giving a warning for unsatisfactory work perform-

ance, an examination should be made to determine the cause

of the unsatisfactory performance, and corrective action taken,

whenever possible. Should corrective action fail to improve

performance sufficiently or should the taking of corrective

action be impractical, the immediate or higher supervisor will

= the employee the warning, in writing. (Pet. brief App.

)

** “So grossly erroneous as ... to imoly bad faith, . . . not

supported by substantial evidence.” 41 1.S.C.A. §321 Atlantic

Carriers v. U.S., 131 F. Supp. 1.

Ce

+ rere me ngewe

7

exhibit 13 of the original record in these proceedings. A

letter dated~#fay 12, 1951 t app. 14A) he received

after the closé of work o: 14, 1951, the date of ter-

mination of the petitioner’ ment. On May 18, 1951

(Pet. app. 15A) he filed a 0 the Under-Secretary

of Navy which was deniex ember 28, 1951, (Pet.

app. p. 16A) which was the ‘ministrative action.

__. STATEMENT 0+ | ACTS

On March 25, 1952, the petitioner, Andrew J. Easter,

having exhausted his administrative remedies, (Pet.

app. 16A) filed a complaint in the United States

District Court for the District of Columbia asking that

the Navy Department’s action in separating him from

the service be held unlawful and that such action be

set aside. This action was entitled Andrew J. Easter

v. Dan A. Kimball, Secretary of the Navy, Civil Action

No. 1307-52. For many months there followed a con-

certed action on the part of the petitioner to compel

the respondent to answer the complaint, notwithstand-

ing the fact that the applicable statute allows the United

States Government only sixty days to respond to such

a pleading. This is fully explained in the affidavit of

petitioner’s counsel which was not controverted. (See

Pet. brief, App. p. 33A)

On July 7, 1952 Respondent filed a motion for Sum-

mary Judgment (almost identical to the one filed in Civil

Action No. 117454), in Civil Action No. 1307-52. The

motion was denied (Pet. app. 4A), but the petitioner was

granted leave to file an amended complaint seeking his

relief under and/or substitute statute, the “Administra-

tive Procedure Act”, June 11, 1946 and the “La Follette-

Lioyd Act” as amended on June 10, 1948. The amended

complaint was filed promptly in Civi)] Action No. 1307-52,

but notwithstanding this fact the Government still would

not file an answer to the complaint even after its motion

for Summary Judgment had been deried and after the

Jo

8

Court had indicated that the petitioner was in all likeli-

hood entitled to the relief he was seeking (See Pet. p. 21)

(partial transcript’ of Civil Action No; 1307-52), and not

until April 7, 1953, was an answer ever filed by the re-

spondent to the original complaint or amended complaint,

over a year after the original complaint was filed.

On January 19, 1953, three months before the Govern-

ment had ever filed an answer to the original complaint,

the respondent, Dan A. Kimball resigned as the Secre-

tary of the Navy, and on February 4, 1953, he was suc-

ceeded by Robert B. Anderson. During this period of

time the petitioner, in his attempt to secure the necessary

responsive pleading from the Government to his suit was

distracted from the requirement under the Federal Rules

of Civil Procedure to substitute a party defendant within

a six month period. (See Pet. brief, App. p. 34A)

Realizing that the Federal Rules of Civil Procedure re-

quire the abatement of an action on the failure to sub-

stitute within six months axvarty defendant, the peti-

tioner consulted the Government about a voluntary dis-

missal of Civil Action No. 1307-52 with the understanding

that a new action would be filed against the then Secre-

tary of Navy, Robert B. Anderson. This was agreed

upon, and the Government’s Motion to Dismiss, which

had been filed at the suggestion of the petitioner, was

consented to, the order of dismissal was signed on March

9, 1954 and the new suit, Civil Action No. 1174-54, was

filed on March 19, 1954, (Pet. brief. App. 2A, 344): fen

days after the origmal suit was dismissed, (See Pet.

Brief-App. p. 438A, 5-6 also see respondent’s brief in lower

court p. 10 line 10): “Plaintiff’s initial suit... as here,

was dismissed by consent”. The Government did not an-

swer this complaint until September 27, 1954. (Pet. brief,

App. p. 9A)

On May 2, 1954, the respondent, Robert B. Anderson,

left the office of Secretary of the Navy, and on May 3,

NORMALE LLL AL OOS GAL

ee ee

ae taal

9

1954, the former respondent, Charles S. Thomas, became

the Secretary of the Navy. A motion to substitute party

defendants was 4imely filed (See Pet. brief, App. p. 7A) ;

and the order substituting the party defendant was signed

July 8, 1954, said order being consented to by the Gov-

ernment (See Pet. App. 5A). There was no other

activity in the action until after the matter had been

pre-tried at which time the Government again filed a

Motion for Summary Judgment on the grounds previ-

ously submitted in Civil Action No. 1307-52 and on the

additional ground that the petitioner was guilty of laches.

(Pet. brief, App. p. 12A)

This matter came on to be argued on the respondent’s

Motion for Summary Judgment on June 26, 1956, to-

gether with the petitioner’s Opposition filed thereto as

well as the petitioner’s Cross-Motion for Summary Judg-

ment. In the first instance the respondent said that the

petitioner’s claim was barred by laches. In support of

this claim the government submitted that the first com-

plaint filed by the petitioner abated when he failed to

substitute the party defendant when the respondent, Dan

A. Kimball, was succeeded in the office of Secretary of

the Navy by Robert B. Anderson. The Government then

made the misleading statement that the previous action,

Civil Action No. 1307-52, had been dismissed by this

present action, when in fact it was the petitioner who

- had asked the respondent to take that action. (See sup-

plementai affidavit of plaintiff’s attorney, Pet. brief, App.

p. 34A)

The Court had before it on the hearing of this motion

in consideration of this contention the affidavit of the

petitioner (Pet. brief, App. p. 32A), the affidavit of the

petitioner’s attorney (Pet. brief, App. p. 33A) and the

supplemental affidavit of the petitioner’s attorney, (Pet.

brief, App. p. 34A).

10

The Government, on its second point that no statutory

right of the petitioner had been denied, relied on the affi-

davit of George A. Holderness which was Exhibit #1

of the respondent’s motion, (This affidavit submitted evi-

dence of certain procedures which had been used in ter-

minating the petitioner, including the letter of March 26,

1951, Exhibit #2 (Pet. app. 10A which set out an array

‘of charges against. the petitioner) the answer of the peti-

tioner by letter of April 2, 1951 (Pet. app. 12A) to these

charges which was Exhibit #3 & #4 (Pet. brief app. 15A)

the notice setting a date for a hearing by letter of April 3,

1951, (Pet. app. 138A) Exhibit #5, the notice of action

after the hearing by letter of May 12, 19951, (Pet. app.

14A) which was Exhibit #6, a letter replying to the peti-

tioner’s appeal, Exhibit #7 (Pet. app. 15A) a letter dated

November 28, 1951 (Pet. app. 16A) Exhibit #9, and a set

of the Navy Civilian Personnel Instructions, all being a

part. of the respondent’s Motion for Summary Judgment.

In opposition to this contention the petitioner showed

that there had been a statutory denial in a letter mailed

to him by the Navy Department dated May 12, 1951, Ex-

hibit #6 (Pet. app, 14A),-in that. this communication

— stated that after consideration of his answer and

ter the hearing the Chief of the Bureau of Ships, N. H.

Wallin, had “considered all of the facts presented in

your case and hereby notify you that you will be removed

for cause effective close business 14 May, 1951.” Peti-

tioner contended that this notice denied him every right

to present an appeal that could be fairly objective and

effective for the reason that the notice had failed to say

what charges had been sustained as it was definitely

known that only an insignificant charge of tardmess was

sustained and no evidence was offered on some charges,

but to the contrary the testimony of the Navy Depart-

ment’s own witnesses definitely contradicted any grounds

to support the charges. This made all the difference

because most of the charges would not permit a dismissal

under the Navy Department Regulations.

ee

J

eS

il

REASONS FOR GRANTING THE WRIT

Material Issues of Fact Presented By the Petitioner

Were Not Considered

A. The court should not direct a verdict unless the

evidence upon any issue is all on one side, or so over-

whelmingly on one side as to leave no room for doubt

about what the fact is. (See Roth v. Swanson, 145

F. 2d 262). TELLEZ v. CANTON RAILROAD, Md.

Daily Record, May 20, 1957

“The function of the summary judgment procedure is

not to try the case or to decide issues of fact. It is merely

to determime whether there is an issue of fact to be tried

and if there is none, to canse judgment to be rendered ac-

cordingly eee en

“If there is any issue of fact un-disposed of and remain-

ing to be determined by the trier of the facts upon the

weight of the evidence, summary judqment cannot be

granted.”

1. One issue is whether, in view of all the evidence,

the action of the hearing officer was not a legally arhi-

trary or capricious one and that the action taken was

on trivia at best. It is respectfully submitted that this

action is to be so characterized and for the following

reasons:

a. First attention is directed with emphasis to the

petitioner’s Report of Efficiency Rating as of March 31,

1950 (Pet. App. 3B) this report is well supported by the

evidence in the record filed in the case below and notice

of decision of the Efficienay Rating Board (Pet. app. 4B

& 14B) and the following partial questions to and answers

from supervisors and employees, taken from the transcript

of the Removal Hearing, identified in the original record

as exhibit #13 together with the necessary copies of brief

No. 13,631 being filed herewith.

12

B. It is respectfully submitted that no evidence is pre-

sented in the record to either dispute or refute the above

referred to evidence of the petitioner’s fellow workmen

who were the agencies own witnesses, most of whom were

his immediate co-workers, and the chief of the section,

Mr. Moore and Mr. Lively, the project engineer. Charles

L. Wright, assistant to Mr. Moore, testified that he was

responsible for the * charges being preferred against the

petitioner. The following is part of Wright’s testimony

on April 9, 1951, in reference to unsatisfactory perform-

ance:

p. 19—we are having difficulty in filling our vacancies.

p. 25—I don’t know for a fact. They could have taken

‘+ as long as three months?—I don’t know for a fact. (cf.

Pokodner and Britt, who devoted two months of their

time to correct a model pian, which was made by someone

_ other than petition (Pet. p. 5). |

p. 29—As I have no standards to judge against, | would

have to give an opinion.

p. 31—Some of them are higher grades than he is,

p. 34-35—Dga you have any of his work that shows those

errors? I don’t go over his work until it is correct. (See

exhibit 13 for petitioner’s work in rear of Transcript of

Testimony marked 7).

p. 38—The people who worked with him have told me

they kept him continually informed that he wasn't capable

of doing the work. cf. demorelizing office: See (Pet. App. ©

14-17B) Schedule of performances and index of cases,

(Pwq. brief, App. 17A) also Easter’s testimony, 18 April

1951, p. 1-131 of the original record on file in this pro-

ceeding.

p. 42—We can’t get people.

* Captain Took, the officer in charge of the entire design sec-

tion, and Wright’s superior, said to petitioner “It was a personal

matter and not to worry about it ... ” Petitioner Note

Dec/27/50—Diary.

me me Meme

oe en ne emo

13

p. 43—I beg your pardon * ° * he worked through the

whole job to the checking point. (cf. had to have someone

to help him).

See (Pet. brief p. 15, Line 14) Petitioner’s supervisor,

Charles L. Wright stated “Andy you are an asset to this

institution, I and the section will assist you in what you

are doing.”

Reference Insubordination:

p. 59—Words that they have used here as supervisors

I had used as relating to the checkers who had worked

with the man.

p. 69—Do you know of your own knowledge? No.

p. 70—for these opinions.

p. 71—I had considered his work was satisfactory up

until September (cf. ref. June) I didn’t get back ° ° ° of

the matter until * December. ef. from photostadt of Diary

of Petitioner for 1950, next to last page of exhibit no. 13.

Reference Wright’s testimony as to time element of three

months whereas only two months were required, not in-

cluding annual leave on July 14, and August 1 and sick

leave on August 23-25. Following from Diary 6/14-8/30:

June 14 DD927 Model Plan (ink) model 1/24 size of

ship 3/16”-1” of model drawing 3/16 size of model

3/32”=1' of ship. June 29-30, CV9 model test #0, 1 draft

corrected for damage to main dk (from sheet 30 A)

checked curves of stability and corrected drafts for test

2c, 3c, 4c,

July 11 continued DD927 model

August 23 finished DD927 model 024906, checked and

approved 9/29

* Petitioner overheard Comdr. Ramsey tell Wright about De-

cember 10, 1950, that “if you don’t have anything on him (Easter)

frame him.” Petitioner note DC/17/50—Diary.

» 14

August 30. corrected to suit Sam , a 5

p. 79—No, I don’t think he did refuse to correct them.

(cf. see petitioner’s diary next last page of exhibit 13

(“Aug. 30, corrected to suit Sam”).

p. 118—In five years, he hasn’t had a promotion?

That’s- right.

p. 119—Do efficiency ratings reflect the caliber of work

of an employee? Yes. (cf. petitioner’s mark was VERY

GOOD). (Pet. app. 3B) «

10 April 1951

Questions to Mr. Moore and Answers, Wright’s superior.

_p. 44has Easter ever been disrespectful to you? No,

he hasn’t.

p. 51—did anyone ever come to you and tell you

that he was annoying them? I don’t recall that anybody

ever did.

p. 60—You have a man in your section named Christen-

____ son? That’s right. What type of worker is he? Well,

/« he’s a conscientious sort of fellow.

Kee SP. 61—You have a good opinion of him as a man{f Oh,

yes. 7

See Christenson’s letter of November 20, 1953, (Pet.

App. 2B):

“T haye worked together with Andrew J. Easter for

several years, from about 1945 to his dismissal from the

Bureau of Ships. In my opinion he is an excellent and

productive worker.

Mr. Easter has strong individual views with respect

to truth and justice as he sees it.”

15

17 April 1951

Questions to Mr. Lively, the project engineer, and an-

swers. Moore and Wright’ S superior.

p. 36—Do you have a surplus of engineer employees?

There is a scarcity. Very scarce? Yes.

17 April 1951

Questions to Mr. Shapiro & answers,

pg. 38—I have never noticed that he was disrespectful.

p. 43—were these changes made willingly? Oh, yes. p.

47—was particularly argumentative or troublesome — ?

No, sir. p. 55—ever made a nuisance of himself to you?

No, sir. p. 57—any of these discussions as insubordinate

on his part? No, sir.

Questions to Mr. Christensen and answers,

p. 80—Easter do things—as a nuisance—-? No.

p. 82—affected your morale? No, sir.

p. 83—affected morale of others—? No, sir.

——found an abnormal number of errors? No, sir.

p. 84—overall appraisal of—work—? He has done a

number of jobs with not much assistance.

—caliber of work—? I would say, good.

p. 92—does that appear like a good job (DD 927) to

yout Yes, sir. It looks like a very nice job. p. 95 Is

that good work (CVA-58)? p. 96—that was perfect.

p. 97—Is that a good piece of drafting work, (Mono-

graph)? This looks fine to me. p. 101 impress you as being

a good piece of work (CVE-105-127)? Yes, That is emi-

nently a good piece of work. p. 103—ever refused to

make any corrections —? No, sir. p. 104. types of work.

p. 106 Is he capable of making these calculations? has

16

done all of those that I said. p. 108 LEaster’s work is

very, very good——. p. 109 When we come to the cal-

culations, — he nevertheless has done it, again and again.

— said to his praise, ——-, has applied himself and now

makes calculations? Oh, yes. p.:110. He had done all

these calculations. p. 113 Have had arguments with

him? Never. p. 116—did . . some . . elaborate calcula-

tions —? That is right. p. 118 Yes, sir, I can say it

is good. I will not therefore say that he canont make a

mistake. p. 121 In general, he does ali types of work.

p. 122—can do this job better than any of us ——.

p. 124 He has been chosen for doing all the later

models. p. 131 At times very interested, very inter-

ested. p. 137 has gotten along very well with all of us

up there.

18 April 1951

Easter p. 1-131—did all types of work—integrations--

classified work and purpose—gave up vacation—known

as pump handle—work horse—DD 927—exceptional work

—no assistance—Le Roy lettered—drawn to exact scale—

directive directing 3/40 inch=1 ft.—which had to be con-

verted on a calculating machine to a workable scale in

every incident. — did all the different types of work— (for Beitr,

app. p. 17A) including calculations—and drafting for 4

different checkers—who specialized—and handed work to

me—piecemeal and at various stages.

°

The Chief of the Bureau of Ships, the supervisors and

others were being promoted, some with commendations,

on the ingenious efforts (the Baby Flat Top of the Navy)

and production of the Petitioner, who was at the same

time being intrigued against and beaten down, and is

still being discredited throughout these proceedings. (Pet.

Brief p. 18 para. 4), (Pet. app. 15B, 17B)

WW

It is alleged that the arbitrary firing of Petitioner was

prompted by his asking Questions at 440 forum Dee. 7,

1950 reference his combined, interchangeable, multipurpose

Merchant Naval vessel (Pet. brief p. 18, para. 5, & 20A

Line 17) and his diligence for submitting same for adop-

tion. (Pet. Schedule of Performance and Index of Cases

p. 17B)

IF

A Statutory Right of the Petitioner Was Denied

In Separating Him From His Position With

The Navy Department

1. Whether Petitioner's Removal Was Legal and

Valid

A. The Court erred in granting the respondent’s Mo-

tion for Summary Judgment in granting it on the grounds

that the petitioner had not been denied any statutory

right, the petitioner having heen denied a statutory right

in that the removal was arbitrary.

The petitioner was denied a statutory right for the

reason that after being presented with a long array of

charges which under its ewn Navy Civilian Personnel

Instructions were in almost every instance only grounds

for some minor sanction on the first alleged violation (as

was the case here), the petitioner was then inerely noti-

fied with a blanket statement that the charges had been

sustained and he was being renwved. On many of these

points no evidence whatsoever had been presented, so

it must necessarily be concluded that only certain minor

charges could have been sustained, and without knowing

which charges these might be it was absolutely impossible

for the petitioner to present an effective appeal. /

The Government’s position that no such right was ever

denied was passed upon by the United States District

.

<“

18

Court for the District of Columbia m this very matter

through Judge Luther Youngdahl. This took place when

the Government argued a previous motion almost iden-

tical to the one which was granted in this cause in the

first action filed by the petitioner, Civil Action No, 1307-

52, see transcript of proceedings of October 15, 1952.

When that motion for Summary Judgment was argued

Judge Youngdahl ruled:

« © © © it seems to me a fundamental requisite in the

due process of law and fair hearing that an individual

is entitled to be informed as to what specific charges

he is being removed under because it might make

some difference if he wants to take the case up on

review as to what charges the Government sus-

eC.

It is vital to note that not only has the Government

once submitted the same question to the Court on Peti-

tioner’s discharge, but their previous motion was sup-

ported with substantially the same exhibits, affidavits and

authorities and despite the fact the Court emphatically

denied the motion, it was submitted again.

The Government’s position on the jurisdictional ques-

tion as stated in the Motion to Dismiss admitted that the

Court does have jurisdiction in cases where the Federal

employee was dismissed contrary to the statutory require-

ments of Title 5, Section 652, LLOYD-LaFOLLETT Act.

As was stated in the case of Powell v. Brannan, 91 U.S.

App.DC. 16, judicial relief is available when those statu.

tory procedures have been departed from,

“When there has been a substantial departure from

applicable procedures, a misconstruction of govern.

ment legislation, or like error going to the heart of

the administrative determination, a measure of ju-

dicial relief may on occasion be obtainable.”

The same principal is announced in BLACKMAR vs.

UNITED STATES, 128 C. Cis. 693, 120) F Supp. 408

19

“Plaintiff's discharge was based, in part, on charges

which were not set out ‘specifically and in detail’ (which

made it impossible for plaintiff to conduwt his defense)”

See Stringer vs. U.S., 90 F. supp. 375, 117 Ct. C.l, 30;

Witlner vs. U.S., Supra.

DEAK vs. PACE, 88

“What might consti full information in re case

might be irrevelant to circkmstances to other cases.”

MULLIGAN vs. ANDREW§ 93 U.S. App. D. C. 375, 211

F.2d 28 -

.S. App. D. C: 50, 185 F.2d 997.

“Must state the ‘reasons’ for removal.—-onlu findings

upon such charges specifically identified, can constitute the

‘reasons’ required”

The respondent’s theory in this matter can be clear-

ly understood by a reading of page 4 of the Govern-

ment’s motion beginning with paragraph #6 and continu-

ing through that page. There, the Government poses the

question, “What are the procedures required by the act?”

Then the question is answered by saying a notice in writ-

ing is required, a copy of the charges, and a reasonable

time to file a written answer. (Actually, there is more in

the actual wording of the statute than these requirements,

but for the point being made, these set forth are suf-

ficient.) Then, the Government says that the exhibits

show that these things were done. To state it another

way, the Government is saying that if the particular

agency goes through this form, the discharged employee

cannot, under any circumstance have recourse to the

Court, or that the statute is one of form, and not of sub-

stance, because under this theory the particular officers

concerned could trump up any false charges to discharge

an employee, for purely personal reasons, and then follow

the form, and say the discharged employee was without

judicial relief. BORAK vs. BIDDLE 78 U.S. App. D. C.

374, 141 F.2d 278 =

20

“Intent of Congress to assure permancy of tenure—

would come to nothing, or else depend upon the whim of

the officer in charge”

Although such a contention reduces the statutes to a

nulitity it is the position the Government has taken in

this matter from the very beginning, even in the

first action before it was abated, the one that Judge

Youngdahl stated was not correct in the discharge of this

employee or any employee who comes within the pro-

vision of the statute.

The most important point in this matter is one which

the repondent claimed in the Court below was being

raised for the first time, but which the transcript of the

hearing before Judge Youngdahl conclusively shows was

the very contention upon which a previous motion for

Summary Judgment in the first action was denied, namely

the fact that the agency in discharging the petitioner mere-

ly informed him that he was being removed without tell-

ing him which of the many charges against him been

sustained. The letter from the Navy Department dated

March 26, 1951 (Petitioner's app. 10A) shows the

many charges which were hurled against the petitione

The Navy Civilian Personnel Instructions pages 29-3

show the range of the penalties for the charges. Penalties

vary according to the graveness of the charge and the

number of times the offense has béen committed. There-

fore, it would be impossible to prepare an appeal; but the

discharged employee here was forced to file what pur-

ported to be an appeal but which for the fact he did not

know which charges had been actually sustained against

him really could amount only to a general prayer for

relief to the Secretary of the Navy. In paragraph 9 of

the respondent’s answer filed April 7, 1953 and the

answer to the complaint in this suit, filed September 27,

1954, (Pet. brief app. p. 10A, para. 9) respondent admits,

and in fact stated, “that petitioner was not furnished with

21

findings of fact.” This is the reason Judge Youngdahil

asked the government counsel the following question when

this motion was being argued in Civil Action No. 1307-52:

(See official transcript of proceedings dated October 15,

1952)

«© © © THE COURT: Don’t you think, as long as

the Government provided specific charges, and that

after that you indicated to him what charges—

MR. STRICKLER: I think it might be advisable,

Your Honor, but not required under the statute. I

say that by referring to the code itself.

THE COURT: Just on th« vasis of the code?

MR. STRICKLER: I say it would be advisable.

THE COURT: How does he expect to come into

Court and raise a defense on a general statement?

He doesn’t know what it is. A charge of insubordi-

nation requires an entirely. different charge than

these other charges. It seems to me that as a basis

for an adequate hearing the Government should indi-

cate on what basis he is being discharged.

MR. STRICKLER: As I say, if I were giving ad-

vice to the agency on which charge, I would say yes,

but counsel has stated to the Court that there was a

frame-up, and they had merged all charges to get rid

of him. If that is true, Your Honor, this Court has

no power, no jurisdiction or authority to inquire into

his guilt or innocence.

THE COURT: Unless that should fit into the pat-

tern of arbitrary action, and it should appear in

addition that the action was not in accord with the

rule, that would be corroborating testimony.”

Furthermore, i? is clear that Judge Youngdahl under-

stoud that this was not adequate notice within the con-

iemplation of the statute when he said, on page three of

the partial transcript:

« @ © © there would be a serious question in my mind

whether this is adequate notice, even in the state-

ment, that might not indicate arbitrary action op the

part of the Government ® ° °” .

22

Finally, the petitioner submits, for point of emphasis,

what Judge Youngdahl said in ruling upon the motion

on October 15, 1952:

“THE COURT: Will you read that letter for me

counsel? What is the nature of that?

MR. STRICKLER: It reads:

‘By reference (a) you were notified of the pro-

posed action to terminate your employment for

cause. By reference (b) you replied to the

— — in reference 2 eee eam

a hearing. rey | was gran a was

scgeaiak te bor te old the hearing and make

recommendations to me and hearings were held

on 5, 9, 10, 17 and 18 April, 1951. I have con-

sidered all the facts presented in your case and

hereby notify you that you will be removed for

cause effective close of business 14 May 1951.’ |

THE COURT: That is what I had in mind. It

seems to me a fundamental requisite in the due

process of law and fair hearing that an individual is

entitled to be informed as to what specific charges

’ he is being removed under because it might make

some difference if he wants to take the case up on

review as to what cha the Government sustained.

I think under all the circumstances m a case of this

nature the Covrt should not grant summary judq-

ment, but should let it go to tria’.

You may draw an Order.”

The petitioner respectfully submits that the Govern-

ment’s motion was properly denied when it was first

argued before Judge Youngdahl and that at that time

the Court pointed out where the Government had failed

in properly discharging the petitioner according to law.

For the same reason the petitioner now urges this Court

that the respondent’s motion for Summary Judgment in

this case should have been denied.

23

The Petitioner’s Claim Was Not Barred By Laches

The petitioner was not guilty of any delay or action

that could be deemed to be laches. The lapse of time

from the date of the exhaustion of his administrative

remedies until the time that the present suit was filed was

consumed almost entirely by the respondent’s failure to

file the responsive pleadings as required by law. That

the failure to substitute parties was merely cause for

abatement and did ‘not bar the present action, and the

statute so states. That the failure to substitute party

defendants was caused by the respondent’s own negli-

gence in not filing the required responsive pleadings and

thereby distracting the petitioner’s attention from the

necessity of substituting the party defendant.

The Court erred in granting the respondent’s Motion

for Summary Judgment in granting it on the Govern-

ment’s claim that the action was barred by laches, the

petitioner not having been guilty of delay in the entire

proceedings either administratively or judicial, and all

delay having been the result of the Government’s negli-

gence or willful refusal to lawfully respond to the plead-

—tngs filed by the Petitioner, which delay was the con-

tributing factor in that the second Secretary of the Navy

wag not substituted for the original party-defendant.

Although petitioner’s counsel diligently attempted to

secure an answer or other appropriate responsive plead-

ings to the complaint filed in this cause on March 25,

1952, Civil Action No. 1307-52, for unexplained reasons

the government did not file such a pleading until July 7,

1952, when a motion almost identical to the instant case

was filed. That the motion was ruled on by th@ Court

on October 15, 1952. See Transcript Easter v. Kimball

1307-52. While the respondent’s Motion for Summary

Judgment, which the District Court granted dismissing

24

this action, would lead one to believe that the wal and

substance of the action taken by the Court on the original

Motion to Dismiss the first action filed, was to require the

petitioner to file an amended complaint, this was mere-

ly incidental to the Court’s ruling which was to deny

the respondent’s motion in most emphatic terms. ‘See Or-

der of Court, Pet. app. 4A and Official Transeript of

Proceedings in Civil Action No. 1307-52, Pet. pet.

p. 18). More important still is the fact that the an-

swer to the petitioner’s complaint was not filed until

April 7, 1953, although the complaint was filed March 29,

1952; more than one year had elapsed between the filing

of the complaint in the first suit and the answer thereto.

Thus it clearly shows that the great portion of time be-

tween the time of the exhaustion of the petitioner’s ad-

ministrative remedies on the illegal discharge and the

time of the filing of the present complaint was due en-

tirely to the inactivity of the respondent. As was stated

in the petitioner’s opposition to the respondent’s motion

for Summary Judgment: (See Pet. brief, app. p. 25A-

26A).

“Another misleading statement appearing in respond-

ent’s motion is found on page 2 and reads:

‘It was the Government’s motion that the dis-

missal on the grounds of abatement was

granted.’ ”

The affidavit of petitioner’s counsel (Pet. brief, app. p.

33A) clearly shows that the Government filed the motion

to dismiss at the suggestion of said counsel when he dis-

covered the failure to substitute the party defendant, and

he told counsel for the Government he would file no ob-

-jections so the complaizt could be declared abated and

the present action filed. With the petitioner’s consent

to the dismissal of the first action, Civil Action 1307-52,

the same was dismissed on March 9, 1954 and on March

19, 1954, ten days later, the present complaint was filed;

_ 25

however, the answer thereto was not filed until Septem-

ber 27, 1954. (Pet. Brief App. p. 2A, 9A) |

So, while the respondent claimed in their motion on

which the Court dismissed this action that the petitioner

took no action from the time that the first complaint was.

filed until the filing of the complaint in this action which is

now on appeal, see transcript Easter v. Thomas, 1174-54

(Pet. brief, app. p. 43A, 5-6); in truth it was the Gov-

ernment which took no action until the petitioner’s counsel

requested that Civil Action No. 1307-52 be dismissed in

order that the complaint in this case could be filed.

Because of the facts set forth above, and because the

doctrine of laches is an equitable doctrine, the respondent’s

points and authorities on the question of laches become

totally inoperative. Never was there a more classical case

where the maxim,

“He who seeks equity must do equity” and “He who

comes into equity must come with clean hands”

demands application. For it is elementary that these

doctrines signify that a litigant will not be heard to claim

equity where his own conduct has been inequitable.

National Fire Insurance Company v. Thompson 281 U.S.

331.

The court below in granting the respondent’s motion was

declaring the petitioner guilty of laches for failure to sub-

stitute a party defendant, when for the greater period

of that time the Government had not even filed an answer

to the complaint. It should be noted that the very word:

ing of Rule 25d Federal Rules of Civil Procedure in stat-

ing that the action abated on failure to substitute within

six months makes it extremely clear that had Congress

intended this failure to be the end of the cause of action

then it would have provided in this rule that the failure

to substitute would be a bar to the action and not to an

abatement. (Rule 25d, Federal Rules of Civil Pro-

26

cedure) Moreover, the case of Snyder v. Buck, 340 US.

15, specifically grants the party whose suit has abated

the right to start over when there has been failure to

substitute. The question of whether laches ts present

after a person has started over would im all cases de-

pend on the circumstances and facts surrownding each

case. Had the Supreme Court felt that failure to sub-

‘stitute within a six month period was in and of itself

a bar to another action, it certainly would have so stated

instead of saying exactly to the contrary that a new action

could be brought. “Petitioner loses her judgment and

must start over,” lapse of time was not shown to have

harmed the Government or proven by the respondent.

cf. Engmeers very scarce (Pet. PIS p.>@.

GARDNER vs. PANAMA RAILROAD CO. 341 U. S.

934, 185 F.2d 730

(a) “It should not be determined merely by a reference

to and a mechanical application of the statute of limita-

tion, the equities of the parties must also be considered,

p. 30-31.

(b) Where there has been no inexcusable delay in seek-

ing a remedy and where no prejudice to the defendant has

ensued from mere passage of time, relief should not be

denied on the ground of laches. p. 31.

“There is no showing that respondent’s position has

suffered.”

PELTIER vs. SEATON U. S. Court of App. D. C. No.

13370-57 |

“On the ground cf laches, the District Court rendered

summary judgment for the defendants. In all the circum-

stances we are unable to agree that the appellant was

guilty of laches. We think the amended complaint and

the answer, and the conflicting affidavits raise tssues

which should be resolved.

.

\

27

Also see respondent’s brief in court below, bottom of

page 10, “on the other hand, if the plaintiff had substi-

tuted party defendant within the time allowed—, he would

not have been met with the plea of laches despite any

Government delay.”

Nor, could the respondent claim that failure to substitute

. had been detrimental to the Government because the affi-

davit of the petitioner’s counsel (Pet. brief, app. p. 35A)

clearly shows that for the greater part of the period in

question the petitioner was employed at a salary greater

then that he had received as a government employee, and

that time was not detrimental to the government except

for the loss by the government of the services of the peti--

tioner who was rated a P-5 in 1946 (Pet. brief, app. 45A)

yet was doing meritorious services beyond his rank and

duties for a P-3 (Trans. p. 122), Transcript of Removal

Hearing 17 April 1951]

“Easter can do this job better than any of us, be-

cause he knows ships. He knows drafting. This

ts rare, in my opinion, in the stability

section.”

See (Pet. pet. p. 12) p. 19 “We are having difficulty

filling our vacancies”, p. 42—“We can’t get people” (Pet.

pet. p. lo, p. 36) Do vou have a surplus of engineer

employees? There is a scarcity. Very scarce? Yes.

(A) Procedure is better presented by the Schedule of

Performances and Index of Cases (Pet. app. 1A)

(B) It is definitely clear that the course (Schedule of

Performances and Index of Cases) will emphasize the mis-

take Judge Letts made when he granted summary judg-

ment to the respondent as to laches, as to the time ele-

ment, the time lapsing between the dismissal of the one

suit C.A. No. 1307-52 and the filing of the instant suit

C.A. No. 1174-54, it was a matter of only ten days and

both with the consent and cooperation of respondent’s

28

counsel. See Petitioner’s brief 43A, 5-6. The Court: “She

is talking about the time that has elapsed after the dis-

missal of this case and the bringing of a new one.” Also

see Transcript of Proceedings dated June 25, 1956.

(C) The consent of respondent’s counsel was further

substantiated when the third Secretary was made Party

Defendant July 8, 1954, (Pet. app. 5A) and again on

April 26, 1957, the fourth Secretary was substituted by

consent (Pet. app. 8A) by declaring that there was a

substantial need for continuing and maintaimeng this

action, Altho the Government is actually the client of the

Solicitor Gencral . . . When the personnel actions of

Breinert B. Madsen and Charles L. Wright against the

petitioner are weighted against Wright’s and the other's

testimony it is obvious that, all was of a personal matter

(Pet. pet., bottom of pg. 12) devised to further their

advancement or was by direction, (Pet. pet., bottom pg.

13) as-they now hold high positions in the Navy Depart-

ment. yet neither has the integrity, ba¢kground (s#e Pet.

app. 1UB, 15B, 17B-19B, initiative, foresight or experience

of the petitioner.

The present administrative and Judicial procedures

and/or appeals are not corrective or effective, that is

why this case is here now.

CONCLUSION

For the foregoing easons this petition for a writ of

certiorari should be granted.

Respectfully submitted,

(rko. WASHINGTON WILLIAMS,

attorney for Petitioner

3431 St. Paul Place,

altimore 2, Marviaad.

Anprew J. Faster,

In Proper Person

2801 Adams Mili Road, N. W.,

Washington 9, D. C., Apt. 10s,

On the Petitioner, Petitioner.

: 1A

PETITIONER’S SCHEDULE OF PERFORMANCES AND

INDEX OF CASES TO APPENDIX A

JUDICIAL PROCEDURE:

United States District Court for the District of Colum-

bia, Andrew J. Easter vs. Dan A. Kimbel, Secretary of

Navy, C.A. No. 1307-52

+ March 25, 1952, Petitioner's Complaint

July 7, 1952, Respondent's Motion to Dismiss

July 7, 1952, Respondent's Points and Authorities and

Exhibit 1-13 ’

August 5, 1952, Stipulation of Andrew J. Easter

August 18, 1952, Petitioner's Objections to Respond-

ent’s Motion, with Points and Authorities

+ October 15, 1952, Hearing before Judge Youngdahl

(See Official Transcript. of Proceedings)

+ October 28, 1952, Order: Respondent's Motion Denied,

Leave for Petitioner to File an Amended Com-

November 12, 1952, Amended Complaint filed

January 19, 1953, Dan A. Kimbel, Secretary of Navy

Resigned

February 4, 1953, Robert B. Anderson cppointed Sec-

retary of Navy

+ April 7, 1953, Fespondent's Answer to Petitioner's

Complaint which was filed March 25, 1952

February 19, 1954, Motion to Dismiss: by Consent

+ March 9, 1954, Order; by Consent

United States District Court for the District of Colum-

bia, Andrew J. Easter vs. Robert B. Anderson, Secre-

, of Navy, C.A: 1174-54

+ March 19, 1954, Petitioner's Complaint filed: by consent

Mas 2, 1954, Robert B. Anderson, Secretary of Navy,

resigned

+ Pertinent incidents.

+ Decisive incident.

Page

4A

Refer to the original records filed in this proceeding for all

other’ actions and/or Petitioner's brief filed herewith.

>

2A

May 3, 1954, Charles S. Thomas, appointed Secretary

of Navy

July 8, 1954, Petitioner’s Motion to substitute party

defendant filed

July 8, 1954, *Order substituting party defendant:

ND I oss ceeesisancsina ssc cctngeninsecpenmnenndonenssvqenintientenmnannenss ;

September 27, 1954, Respondent’s answer to sania

January 13, 1956, Pre-trial proceedings

February 8, 1956, Respondent's Motion for Summary

Judgment, with Points & Authorities and Exhibits

1-13

April 18, 1956, Petitioncr’s Objections to Respondent's

Motion, with Points and Authorities

+ April 18, 1956, Affiday’ of Petitioner

+ April 18, 1956, Affidavit of Petitioner’s Counsel

+ April 27, 1956, | Supplemental Affidavit of Petitioner's

Counsel

+ June 25, 1956, Transcript of proceeding on motion for

summary judgment

June 26, 1956, Order granting sien saa Motion for

Summary Judgment

July 5, 1956, Petitioner's Motion to Set Aside Order

and Reinstate Case

October 1, 1956, Order Denying Motion

October 29, 1956, Notice of Appeal

United States Court of Appeals for the District of Co-

lumbia Circuit, October Term 1956. Andrew J. Easter

vs. Charles S. Thomas, Secretary of Navy, No. 13,631

April 1, 1957, Charles S. Thomas, Secretary of Navy,

resigned

April 1, 1957, Thomas S. Gates, Jr., appointed Secre-

tary of Navy

April 4, 1947, Petitioner's Motion to ilahteute party

defendant

April 11, 1957, Order denying above motion without

prejudice, with leave to renew for “reasons”

*3rd Secretary of Navy, Ist Motion to substitute

party defendant

Page

5A

6A

7A

3A

Page

April 25, 1957, Petitioner’s Motion to substitute party

defendant: by consent

April 26, 1957, * Order substituting party defendant:

i os ccettinmivenaboedadsbasseenensedtinn BA

Andrew J. Easter vs. Thomas S. Gates, Jr., Secre-

tary of the Navy, No. 13,631

June 20, 1957, poeerene Goer Greer .....<.:.....0................. 9A

July 3, 1957, Petition for rehearing en banc

July 24, 1957, Petition for rehearing denied, per

ee a - eeuaauccub nace Siebisaiae 10 A

October, 1957, Naa petition

ADMINISTRATIVE PROCEDURE:

Bureau of Ships, Navy Department, Washington, D. C.

+ March 26, 1951, Subject: Removal, Exhibit 2... 1OA

April 2, 1951, _— Petitioner’s Answer, Exhibit 3.......... 12A

April 2, 1951, Petitioner's Answer, Exhibit 4 (Pet.

Brief app. P. 15A)

Ap. il 3, 1951, Answer rejected, Notice of Hearing,

a Tae ga Ds aac na nshess ida nhassinonsnevnh 13A

April 5, 9, 10, i7, 18, 1951, Hearing, Exhibit 13:

Transcript in the Original Record

+ May 12, 1951, Subject: Removal, Exhibit 6... ........... tA

May 18, 1951, Petitioner’s Appeal to Under coun

of Navy, Exhibit 7 . rae fclihaasiocs: eae

+ November 28, 1951, Appeal Denied, Exbibit Ra . 16A

*4th Secretary of Navy, 2nd Motion to substitute

party defendant

4A

APPENDIX A

Filed October 28, 1952, Harry M. Hull, Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA |

Civil Action No. 1307-52

ANDREW J. EASTER

2801 Adams Mill Road, N.W.

Washiggton, D. C., PLAINTIFF,

Vs.

DAN A. KIMBALL

Secretary of the Navy

Room 42710 Pentagon

Washington, D. C., DEFENDANT.

ORDER

Tus cause having come on to be heard on the de-

fendant’s motion for summary and argument having been

had by counsel for the respective parties, it is this 28th

day of October, 1952,

Orpverep that the defendant’s motion for summary

judgment be and the same hereby is denied, and the

plaintiff is granted leave to file an amended complaint.

/s/ LvutTHer YouNnGpAHL

JUDGE.

Seen:

/s/ Frank H. StrRicKLer

Attorney for Defendant

oA

35 Filed JUL 8 1954 Harry M. Hull, Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 1174-54

ANDREW J. EASTER

Plaintiff

v.

ROBERT B. ANDERSON

Secretary of Navy

Defendant

ORDER SUBSTITUTING PARTY DEFENDANT

The motion of the plaintiff to substitute party defendant

having come on for determination at this term of Court,

and it appearing to the Court that Robert B. Anderson,

the defendant in this cause, is no longer serving as Sec-

retary of Navy, and he ceased to hold that office within

the past six months, and his successor is Charles S.

Thomas, it is by the Court, this 8th day of July, 1954,

ORDERED, that the plaintiff's motion to substitute

Charles S. Thomas as defendant for Robert B. Anderson

in the above entitled cause be and the same is hereby

granted.

js/ Alexander Holtzoff

JUDGE

Consent:

Frank H. Strickler

Asst. U. S. Attorney

6A

143 Filed June 26, 1956

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No, 1174-54

ANDREW. J. EASTER, piaintirr

v.

rd

CHARLES 8S. THOMAS, ”

Secretary of the Navy, DEFENDANT

ORDER ~

Upon consideration of the , pleadings, affidavits and rec-

ord of this Court in Civil Action No. 1307-52, filed herein,

defendant’s motion for summary judgment to which ex-

hibits 1, 2, 3. 4, 5, 6, 7, 8, 9, 10, 11 and 13 have been

attached hereto and made a part thereof, and plaintiff's

cross-motion for summary judgment, it appearing to the

Court that there exists no genuine issue of material fact,

that plaintiff’s removal was legal and valid, and that

| plaintiff’s claim is barred by laches, and that the defend-

ant is entitled to judgment as a matter of law, it is this

| 26th day of June, 1956,

ORDERED that defendant’s motion for summary judg-

ment be and the same is hereby granted, and it is ——

FURTHER ORDERED that plaintiff’s.cross-motion for

summary judgment be and the same is hereby denied.

/s/_ F. Dickenson Letts

Judge

TA

Certificate of Service

I hereby certify that service of the foregoing Order was

made upon plaintiff by mailing a copy thereof to his

attorney, Paul L. O’Brien, 729 15th Street, Washington 5,

D. C. this 25 day of June, 1956.

/s/ Krrry Buam Faarx

Krrry Buam Faarx

Assistant United States

Attorney, Attorney for

Defendant

. ee ee e

151 Filed Oct. 1, 1956

ORDER

Upon consideration of plaintiff's motion to set aside

order and reinstate cause, it is this 1st day of October,

1956,

ORDERED that the said. motion be and the same is

hereby denied.

ys F. Dickenson Letts

Judge

Certificate of Service

I hereby certify that service of the foregoing Order was

made upon Andrew J. Easter, P.P., 2801 Adams Mill Rd.,

N.W., Washington, D.C. and upon Paul L. O’Brien, 79

15th Street, Washingtss, D.C. this 27 day of September,

1956, by mailing copies thereof to them at those ad-

dresses.

/s/ Krrry Bram Frayk

Krrry Biarm Frank

Assistant United States

Attorney

8A

UNITED STATES COURT OF APPEALS

For the District of Columbia Circuit

April 26, Term, 1957

No. 13,631

ANDREW J. EASTER, appe.iant,

v.

CHARLES S. THOMAS,

Secretary of the Navy, APPELLEE.

Before: Edgerton, Chief Judge, in Chambers.

y |

ORDER

Upon consideration of appellant’s motion to substitute

Thomas S. Gates, Jr., as party appellee on the ground

that on April 1, 1957, Thomas S. Gates, Jr., succeeded

Charles S. Thomas as Secretary of the Navy, and it har-

ing been alleged that there is a substantial need for con-

tinuing and maintaining this action, and it appearing that

appellee has consented to said motion, it is

OrperED that Thomas S. Gates, Jr., be, and he is hereby,

substituted as appellee herein in the place and stead of

Charles S. Thomas.

Dated: April 26, 1957.

9A

UNITED STATES COURT OF APPEALS

For the District of Columbia Circuit

No. 13631

Anprew J. EasTER, APPELLANT

v.

Tuomas S. Gates, Jr., Secretary of the Navy,

APPELLEE

Appeal from the United States District Court

for the District of Columbia >

Decided June 20, 1957

Mr. George Washington Williams, of the bar of the

Court of Appeals of Maryland, pro hac vice, by special

leave of Court, for appellant. Andrew J. Raster, ap-

pellant, filed a brief pro se.

Mr. Hershel Shanks, Attorney, Department of Justice,

with whom Assistant Attorney General Doub, and Messrs.

Oliver Gasch, United States Attorney, and Paul A.

Sweeney, Attorney, Department of Justice, were on the

brief, for appellee.

Before Epcerton, Chief Judge, and Wirsur K. Mitter

and DanaHeER, Circuit Judges.

Per Cunt: The plaintiff, a former employee of the

Navy Department, appeals from a summary judgment

for the Secretary of the Navy in a suit to set aside the

plaintiff's discharge from his employment. We find no

error.

Affirmed.

¢

10 A

Filed July 24, 1957 Joseph W. Stewart, Clerk

ORDER

Upon consideration of appellant's petition for a re-

hearing in bane, it is

OrpveRED by the Court that the petition be, and it is

hereby, denied.

Per Curiam.

Dated: July 24, 1957.

EXHIBIT 2

LL/EASTER/A.J.

26 March 1951

To: Andrew J. Easter, Code 444

Subj: Removal

1. The Bureau is at present considering + cious of

your employment for cause.

2. The specific charges against you are: (1) Unsatis-

factory performance (2) Insubordination (3) Disrespect-

ful attitude toward supervision (4) Unreliable attendance

and (5) your lack of interest in your work and the overall

affect of your expressions upon the morale of other em-

ployees.

3. Upon your assignment to the Stability Section in 1946,

you were informed by memorandum that certain know-

ledge was necessary to perform your assigned duties and

you were further advised how that knowledge might be

obtained. However, to the present date you have acquired

so little of the knowledge specified, that you must be as-

signed routine tasks and cannot be relied upon to satis-

factorily complete a task within a reasonable time com-

mensurate with your grade and salary.

OG AO BP CO ke ot ate

1LA

4. Your insubordinate and disrespectful attitude toward

your supervision has apparently continued for some time.

Corrections of errors in your work have resulted in

lengthy, heated, time consuming arguments with your su-

pervisors, during which you have frequently, openly and

loudly accused them of incapability. On other occasions

you have refused to put forth a special effort to meet work

deadlines on the claim that your special efforts in the past

went unrewarded. You have refused to make modifica-

tions on assigned work on the claim that the work should

have been assigned correctly in the first place even though

it was explained to you that later developments required

that modifications be made. Discussions with your super-

visors regarding your attitude have resulted on many oc-

casions in threats made by you of law suits, appeals and

physical violence.

5. You are frequently absent from vour desk without

permission for long periods of time. From information

received through various sources, it appears much of this

time is spent merely visiting other sections of the Bureau

to talk to other employees of your grievances against the

Bureau and its personnel and to air your personal troubles.

You have left business discussions in yor.r own section to

pursue this activity of yours. You have frequently spent

periods of time away from the building without permission.

You apparently consider that your own personal matters

take priority over your work assignments. It is con-

sidered that vour lack of interest in your work and your

penchant to speak adversely of the Bureau and its super-

visors have a detrimental effect on other employees par-

ticularly those unacquainted with the full situation.

6. In January 1951, upon being informed by your super-

visor that you would be given an “U Msatisfactory” Per-

formance Rating unless improvement was shown, you de-

fiantly informed him that you were not making any effort

to perform satisfactorily, had no intention of improving

lA

and that you hoped that the “Unsatisfactory” rating would

bring to a “head” a matter with which you were concerned.

Such attitude onthe part of any employee cannot be con-

doned. nag

4. You have the privilege of replying in writing within

five (5) days of the date of these charges to show cause

as to why your services should not be terminated and to

request a hearing if you so desire.. If you desire a hear-

ing, you may be represented by any person of your choice

and you may bring witnesses who have a direct kuowledge

of the circumstances resulting in the preferral of those

charges. |

8. Your reply must be in writing and must be received in

Code 263 on or before‘close of business 2 April 1951. Fail-

ure to reply or an unsatisfactory reply will result in your

termination for cause, effective close of business 10 April

1951.

H. N. Watlin

Chief of Bureau

“XHIBIT 3

6240 Belair Road

Baltimore 6, Maryland

April 2, 1951

Rear Admiral H. N. Wallin \

Chief of’ Bureau

Bureau of Ships

Department of the Navy

Washington 25, D.C.

Dear Sir: *

Enclosed you will find my formai answer to your re-

moval notice transmitted to me in Ivtter dated March 24,

1951.

coo~

13 A

It is respectfully submitted to you for your careful

and favorable consideration.

Very truly yours,

/s/ Awnprew J. Easter

Andrew J. Easter

AJE:1l

EXHIBIT 5

Filed February 8, 1956

Code 263

3 Apr 1951

MEMORANDUM

TO: Mr. Andrew J. Easter, Code 444

Subj: Removal

Ref: (a) BuShips Itr of charges addressed to Andrew

J. Easter dated 26 March 1951

Encl: Letter of appointmeut of hearing board

1. Inasmuch as your reply to Reference (a) is not con-

sidered satisfactory, the hearing which you requested is

5 April 1951

C. J. CATER

Captain, USN

Assistant Chief of Bureau

for Administration

14A

73 EXHIBIT 6

LL/Easter, A.J.

12 May 1951

From: Chief, Bureau of Ships

To: Mr. Andrew J. Easter

Subj: Removal

Ref: (a) BuShips ltr of 26 Mar 1951 to A. J. Hester

(b) A. J. Easter ltr of 2 Apr 1951 to Chief, Ba-

Ships | \

1. By reference (a) you were notified of the proposed

action to terminate your employment for cause. By refer-

ence (b) you replied to the charges contained in reference

(a) and requested a hearing. A hearing was granted, a

board was appointed by me to hold the hearing and make

recommendations to me and hearings were held on 5, 9,

10, 17 and 18 April 1951. I have considered all of the

facts presented in your case and hereby notify you that

you will be removed for cause effective close of business

14 May 1951.

2. You may continue in an active duty status until that

time provided your conduct and performance permit.

3. You have the right to appeal this action to the Under

Secretary of the Navy via the Chief, Bureau of Ships with-

in ten (10) days from this date.

H. N. Wallin

Chief of Dureau

15 A

‘EXHIBIT 7

Washington, D.C.

May 18, 191

From: Mr. Andrew J. Easter

To: Chief, Bureau of Ships

Subj: Removal

Ref: (a) BuShips Itr of 26 Mar 1951 to A. J. Easter

(b) A. J. Easter Itr of 2 Apr 1951 to Chief, BuShips

(c) BuShips letter 12 May 1951

1. By reference (c) the Busships notified the undersigned

that he was removed for cause effective 14 May 1991.

°, Paragraph 3, reference (c) advises that the under-

signed has the right to appeal this action to the Under

Secretary of the Nevy, via the: Chief, Bureau of Ships,

within ten (10) days from this date.

3. Reference (c) was personally delivered to the under-

signed at 1500 hours 14 May 1991.

4. Subsequent to the delivery of reference (c) the under-

signed requested a copy of Record of Hearing and copies

of all exhibits submitted at said. Hearing, cited in Par. 1,

ref. (c). The copy of Record was delivered but copies

of exhibits were not. ‘Nhe exhibits are necessary in order

to properly prepare my dppeal to higher eschelons.

5. The undersigned by this letter exercises his right and

notifies the Chief, Bureau of, Ships, that said appeal is

taken. He requests that all records 5 prepared and for-

warded in compliance with the provisions of NCPI-80,

Grievances and Comphaints. |

.-/s/ Anprew J. Easter

Andrew J. Easter

t Appellant

UC: Under Secretary, Navy

OIR Code 220

Pentagon ,

» Washingten 25, D.C.

a

16A

76 EXHIBIT 9

: , 28 Nov 1951

My Dear Mr. Easter:

This is in reply to your appeal from removal action

taken by the Bureau of Ships and is the final action in

connection with your appeal. The entire record in con-

_ nection with your case has been carefully reviewed and

considered. Each of the charges is supported by compe-

tent evidence, both documentary and oral, and it is clearly

established that the penalty of removal is appropriate.

Your appeal, therefore, is denied.

Very truly yours,

Francis P. Whitehair

Under Secretary of the Navy

|

|

|

o>

& x

setae teltle.

1B

PETITIONER’S SCHEDULE OF PERFORMANCES

AND INDEX TO APPENDIX B

_ Knud H. Christensen’s letter-................-----------------1-1 ere

Report of Efficiency Rating..............------------------ rr

Notice of Decision, Efficiency Rating Board of Review..........

Admiral W. F. Halsey’s Letter..............---------------------r

Sherman Adams, Assistant to General Eisenhower, letter...

Department of Defense Appropriations Hearing: Petition-

er’s Statement Re - “Baby Flat Top”, “Merchant Naval

Vessel Plan” Military Security Without Cost.:...............---

Efficiency Rating Board of Review “So-Called All-Purpose

BI oonscnenneenennsinsniseennnivtncanennancveveeesnentonssnsnnmenegicaennsinersenteieinns

Comments from Various Military Agencies ref. “Combined

Merchant Naval Vessel” .............--------------eerere

Petitioner’s Schedule of Performance and “Combined Mer-

chant Naval Vessel” ............-.------:-:--:-c-ceeseeceseest ceeeeenenetetee

cReOU .. nana nn .n-nnc nn enecnnnenessnnnneneevensennsesteonensemenntecnepnacnesosens

Page

2B

APPENDIX B

1927 - 38th Street, N. W.

Washington 7, D.C.

November 20th, 1953

To whom it may concern,

I have worked together with Andrew J. Easter for

several years, from about 1945 to his dismissal from

the Bureau of Ships. In my opinion he is an excellent

and productive worker.

Mr. Easter has strong mdividual views with respect to

truth and justice as he sees it, and I feel that his long

drawn-out discussion with the management on such points

of principle, in which he had become involved, was the

underlying reason for his eventual dismissal from the

Federal Service.

The above remarks on Mr. Easter’s controversy with

the Bureau >f Ships are entirely those of a spectator.

/s/ Knud H. Christensen

Naval Architect

+

apne

7 3B Fe Seen. co-neres.

©. 8 CIVIL GERVIOB COMmcnasIes ei

EPORT ADMIT ATTV-ONONTECT AS

-R OF | mecuLaR (X ) ePeciaL ¢< >

EFFICIENCY RATING PROBATIONAL ¢ >)

be of 979 1-50 .. based om performance daring period trom M149 9g 231-0

E,STER, andrew J. Eng. Nav. arch. GS-3

| aes i (Tithe of position, servies, and grade)

__ SHIPS CODE bits

(Organisation-—Indioate buresn, division. section, unit, fiakd station”

OM LINES BELOW a eee Se Rang Cis Salt, G. &. C. Ferm CHECK OMB:

;: ee Administrative,

dies Se itaate ta Eadie cnaeet Der enategese bn chute supervisory, oF

~ te me i sagen 1 ence

+ i outstanding * elements in italics. . All others...

| __. (1) Maintenance of equipment, tools, instruments.

_. (2) Mechanical skill.

-.. (8) Skill in the application of techniques and pro-

| of work

~—%.. (4) Presentability of . (app —

—_%. (5) Attention to broad phases of assignments.

ot (6) Attention to pertinent detail.

——— (7) Accuracy of operations.

ZZ .(8) Accuracy of final results,

-aZ. (9) Accuracy of judgments or decisions.

_x.(10) Effectiveness in presenting ideas or facts.

(11) Industry. - :

~*.G2), Bate. of progress on or completion of assign-

— 00 ARSE ekeain Tents Ome

—-(14) Ability to organise his work,

1.(15) Effectiveness in meeting and dealing with

‘ | ,t-(18) Cooperativencss. —

(17) Initiative.

~..(18) Resourcefulness.

of ar

(20) Physica] fitness for the work.

STANDARD

Devietto ne mast be explained on reverse vide of this forre

op. ere! eo cee «

& —— (1) Maintenance of equipment, tools, instruments.

~~ — (2) Mechanical skill. —

. ff aX (8) Skill in the application of techniques and pro-

—. (4) Presen of .

(4) mye Ra ome ll

—. (5) Attention to broad phases of assignments. .

~t... (6) Attention to pertinent detail.

—— (7) Accuracy of operations,

ZZ (8) Accuracy of final results,

aL. (9) Accuracy of judgments or decisions.

-7.(10) Effectiveness in presenting ideas or facts.

(11) Industry.

—t..(12) Rate of progress on or completion of

(18) Amount

Oy “Teeed en puodecion see ne nt

—-(14) Ability to organise hiswork, 9 “"*™

.(15) Effectiveness in meeting and dealing with

(18) Cooperativeness.

(17) Initiative,

~..(18) Resourcefulness,

- .

~Z.(19) Dependability. ( O2amdamen mat 2omnndondy —®

——(20) Physical fitness for the work.

o STANDARD

Deviations must be explained os, reverve sidc of this forra

-i2.(19) Dependability. ( OXterJaner mek conmdeud) —

mem (85) MGectivencee to

—— (81) Effectiveness in planning broad programs.

— mo yh ts 5h ata

~-. (28) Effectiveness in devising procedures.

—— (24) Effectiveness in laying out work and establish-

tng standards of performance for subordé-

ww. (85) Effectiveness in , reviewing, aud check-

the work of

aaa X cee

on neers © sete, me

—— (87) ee ee

~~ (88

(88) aa et

— adher-

cn) peat, sag so ietine

- ememee (80) Ability to make decisions.

~~ (81) EF

a ooo

STATE ANY OTHER ELEMENTS CONSIDERED

ve -4/ = . warvine,

——- ($1) Seed ate én glanning brend gregeane.

—

(28) footivensss in adapting the work pregram te

——- (28) Effectiveness in devising procedures.

—— (24) Effectiveness in laying out work end establich-

ng standards

of performance for suboerdé-

ig reef eerdactne e

—— (86) Effectiveness in >

txstructing, training, and

| ig subordinates in the work.

—— (37) Effectiveness in promoting high working morals.

———- (88) Effectiveness in

- ha determining. space, personnel,

——- (89) Effectiveness in setting obtaining adher-

, anes to time limite ont dentine

i ogg gag oa ;

aun ectivencss in delegating clearly

Va

—. (A) dl

Plus , on all underlined

marks elements, and check marks or better on all

rated

Rating

Excellent

Check marks

half of the underlined

better on all elements and plus ee ae)

rated, an plus marks on at least —}

‘=

Check marks or better on a majority of underlined elements, and all weak

performance overcompensated by outstanding performance.

ery Cong

Check marks or better on a majority of underlined elements, and all weak

not overcompensated by outstanding performance.

Minus marks on at least half of the underlined elements.

she

4B

OFFICE OF THE CHAIRMAN eres

EFFICIENCY RATING /

BOARD OF REVIEW *

NAVY DEPARTMENT

Washington 25, D.C.

Docket No.: D-3520-44

NOTICE OF DECISION

Appellant: Mr. Andrew J. Easter

Classification Grade: P-4

Organization Unit: Bureau of Ships~

Efficiency rating

as of: March 31, 1944

_ appealed: Very Good

determined: Very Good

Date of Decision: May 4, 1945

Oral Hearing:

April 27, 1945 and

May 4, 1945

Mr. Warren McLaine

Board of Review Members: _ Mr. Anthony J. Oliver

Mr. George W. Metzger

Kmployee Representative: Mr. David R. Glass

Department Representative :

Special Department Representative:

Mr. Donald M. Brown

Lt. L. D. McCord

Witnesses:

Mr. Robert W. Bruce

Mr. S. B. Crosby

Capt. A. Sledge

SUMMARY OF FACTS

After thorough consideration of all the information

presented in this case, the Board of Review finds as

follows:

5B

1. The appealed rating covers appellant’s perform-

ance as Engineer (Naval Architect), grade P-4, for the

period from April 1, 1943 to March 31, 1944.

2. The following duties and responsibilities are set

forth in appellant’s official job description :

“Under general supervision with responsibility for

developing designs and general arrangements required

for the conversion of merchant vessels to naval aux-

iliaries :

After conducting extensive engineering investiga-

tions and utilizing the original plans of the par-

ticular vessel as constructed, develops complete

designs of hull arrangements required in order to

convert merchant and other vessels to troop trans-

ports, repair ships, hospital ships, landing boat

carrying vessels, mine layers, gun boats, ete.

These designs are prepared with special attention

to incorporation of various features required in

order to comply with safety and performance

standards established by the Navy but at the same

time to permit the conversion to be completed with

a minimum of expense and delay. Makes the more

difficult calculations and utilizes extensive knowl-

edge of Naval architecture in preparing complete

layouts and details of the arrangements for gun

replacements, ammunition storage facilities, officer

and crew quarters, deck fixtures, sounding rooms,

navigational facilities, ete; supervises lower grade

engineers and draftsmen as required in completing

various phases of the work; assumes responsibility

for hull designs of entire ships assigned to this

incumbent for conversion.

Examines plans received from Maritime Commis-

sion and shipyards making recommendations con-

cerning various huli design features required in

order to place a vessel in service to perform a

particular function as a naval auxiliary.”

6B

3. No change is made in the following element pattern

which was used by the department in evaluating appel-

lant’s performance (with the department’s evaluations

indicated): Elements No. 3, Skill in the application of

techniques and procedures (\/); 4, Presentability of work

(V); 6, Attention to pertinent detail (Vv); 8, Accuracy

of final results (V); 9, Accuracy of judgments or deci-

sions (Vv); 10, Effectiveness in presenting ideas or facts

(Vv); 11, Industry (+); 12, Rate of progress on or com-

pletion of assignments (+); 16, Cooperativeness (+); 18,

Resourcefulness (+); and 19, Dependability (Vv).

4. Appellant was usually thorough in his designs and

drafting work. In the conversion of merchant vessels to

Navy auxiliaries it was necessary to see that all the re-

quirements of the Navy Department were met. These

requirements were established and varied according to

the type of vessel desired and the complement of men

assigned to such vessel. Appellant took these factors

into consideration and his finished work product was

usually accurate.

Appellant’s contention that he was the lead man on all

the new designs was not supported by the information

presented. Appellant was given the responsibility of

drawing up preliminary plans for certain new conver-

sions and he usually performed such assignments in a

satisfactory manner. However, other naval architects

in his section were also assigned to this work.

0. Appellant’s contention that he had to be outstand-

ing on Element No; 6 to perform the preliminary design

work is without merit since any fully qualified naval

architect familiar with Navy procedure on conversion of

merchant vessels was able to, and did, perform such de-

sign work.

6. Appellant was a dtuigent worker and had the abil-

ity to perform his work m a rapid manner, The pro-

duction records introduced by the department cannot be

“ee

7B

accepted as conclusive evidence of appellant’s produc-

tivity since these records do not reflect all of the work

performed by appellant. In addition, the work of the

section was not sufficiently heavy to provide appellant

with a steady flow of work at all times. Appellant never

missed a deadline on any work assigned to him. When

it was necessary for him to work overtime to complete

a specific assignment he was willing to work overtime

to complete it. This necessity did not occur frequently.

7. Appellant was always willing to carry out instruc-

tions and assist in the completion of the work of his

section. He could be relied upon to perform his work

in a creditable manner. His attendance record was not

good. Since appellant did not live in the city, it was not

always convenient for him to, nor did he always, secure

prior approval of leave. However, these absences were

not shown to have too seriously affected his work.

8. Appeliant was most effective in suggesting possible

series of arrangements in the layout of plans where the

established methods could not be followed precisely in

particular cases. He was also adept in suggesting ways

and means of converting vessels with the minimum amount

of alterations to ®xisting vessels, thus contributing to the

reduction of costs involved in the conversion.

9. No change is made in the evaluation of any of the

pertinent or especially important elements.

DECISION

On the basis of the above findings, the Board of Review

renders the following decision:

The efficiency rating of “Very Good” is affirmed.

By direction of the Board of Review:

/s/ Gerorce W. METZGER

George W. Metzger,

Chairman

8B

D9 March i945.

Mr. Andrew J. Easter

6420 Belair Road, |

Baltimore, Maryland. .

My dear Mr. Easter:

I take pleasure in acknowledging the receipt of your

most interesting plan for a special combat carrier, and

even more, I feel that your interest and effort are most

commendable American gestures.

I have turned your plan over to the General Board

of the Navy as the proper agency to study the aetails

of your proposed ship in the light of global strategy

and the future trend of the war. At the same time I

am requesting the Board to advise you as may be ap-

propriate concerning the findings and opinions.

Very sincerely,

- 1/3/ W. F. Halsey

OFFICE OF DWIGHT D. EISENHOWER

“\

Commodore Hotel

New York 17, New York

December 31,1952

Dear Mr. Easter:

General Eisenhower has asked me to acknowledge vour -

letter of December 29th. He deeply appreciates vour

interest in improving our ship designs.

Inasmuch as this is General Eisenhower’s personal head-

quarters, and has only a small staff, we do not have

the necessary facilities for giving your proposal the

proper technical analysis at this time. I suggest you

submit this matter to the Navy Department after the

new Administration takes office. At that time it will

be possible to give it the thorough study which it appears

to deserve.

SCM AM, ata daphne, Ax

\| . | 9B

The continued success of our efforts will depend on the

interest and participation of every thinking citizen. We

are happy to know we can count on you.

Sincerely yours,

/s/ SHERMAN ADAMS

Sherman Adams

Assistant to

General Eisenhower

Mr. Andrew J. Easter

6420 Belair Road

Baltimore 6, Maryland

<d

eo

10B

DEPARTMENT OF DEFENSE APPROPRIATIONS

FOR 1958 :

) HEARIN GS

Before The

SUBCOMMITTEE OF THE

: COMMITTEE ON APPROPRIATIONS

| UNITED STATES SENATE

EIGHTY-FIFTH CONGRESS

First Session

on

H. R. 7665

MAKING APPROPRIATIONS FOR THE DEPARTMENT OF

DEFENSE FOR THE FISCAL YEAR ENDING

June 30, 1958, and for other purposes

Printed for the use of the Committee on Appropriations

Testimony and Statement of

ANDREW J. EASTER

Re “BABY FLATTOP” and “MERCHANT-NAVAL

VESSEL PLAN”

Wednesday, June 19, 1957—Outside Witnesses,

page 1525 to 1526

“MILITARY SECURITY WITHOUT COST.”

1525

DEPARTMENT OF DEFENSE APPROPRIATIONS, ,

1958

STATEMENT OF ANDREW J. EASTER

BABY FLATTOP SUGGESTED

Mr. Easter. I will be very brief. I am a former Gov-

ernment employee of the Navy Department, converting

ships to naval auxiliaries.

}

(

UB

I realize the confusion and lack of experience of people

in time of war. I had gotten out an idea that was a bene-

ficial suggestion to help in the problem of transporting

military cargo and so forth and the Navy eventually used

the baby flattop which you all heard of. I got fired for

pressing for the adoption of it.

IT am not here speaking for my personal welfare. This

happens to be a brief No. 13,631 in the United States

Court of Appeals, District of Columbia which brings out

very strongly, and has in here, if you read it, comments

on this idea by General Eisenhower or President-elect

_ Eisenhower before his first term.

It was. sent to the Navy Department with comments

front Admiral Halsey.

In any ¢ase, the original idea is in the naval service, as

the baby flattop.

MERCHANT-NAVAL VESSEL PLAN

I further recommend this merchant naval vessel for use

by the United Nations. I am just an individual American.

I saw how the United Nations members from the small

countries worked for the purpose of peace and also to try

to help prevent the big boys from getting together.

This ship idea is a merchant-naval vessel. It is the

same principle as the baby flattop, but more interchange-

able. The baby flattop is a merchant vessel originally

converted for aircraft carriers.

At that time, they spent about $5 million to convert the

first. I found from the shipyards that they could build

“my ship at that time for $6 million. This ship is honey-

combed; you can hardly sink it.

It won’t heel on account of cross flooding and no unsym-

metrical sections. My belief is that a ship of this type

can carry cargo in peacetime. We are all talking about

12B

defense. Life is more important than money. Yet we

have an idea that the Navy and the Government is well

aware of, General Eisenhower, Admiral Halsey, and ad-

mirals of the Navy Department, and the military forces.

If they really want defense at low cost, they would give

consideration to this idea. This ship will eliminate two

other vessels which they call single-purpose vessels. This

ship is large enough to do a. 100-percent job. Military

cargo requires a lot of floorspace. The ship is designed

whereby you could open up the hatches or the decks and

carry bulk cargo for merchant and military use.

In peacetime the ship could continue around the world

with a tendency to prevent war and pay its own way.

Therefore, we could have military security without cost.

I had been advised through different people in the Navy

Department, pretty near the top, to get this into the

Patent Office as a matter of record. The serial number

is 788151. It was filed November 26, 1947. In the United

1526 DEPARTMENT OF DEFENSE APPROPRIATIONS

State Patent Office it is called combined merchant and

military vessel. !

Senator Cuavez. What happened after you filed it in

19471 Was the patent issued?

Mr. Easter. No, sir. We filed an amendment. Of

course, I say it is just another one of those things.

FILE IN PATENT OFFICE

Senator Cuavez. You might file that with the com-

mittee if you want to and we will have the staff to

analyze it. |

Mr. Easter. I could ‘not afford to give you 24 sets of

these. You could refer to it in the Patent Office and you

could have access to it. a

Senator Cuavez. We want to read it and consider it.

That is why I wanted you to send it to us. - ~.

Ni

/

ee net He

eae ee eee

13B

Mr. Easter. Representative Cole came out against $30

million to spend for an atomic vessel. Here is a man

against the building of any vessel for exhibition purposes.

I got in touch with him, showing him the idea. He said

can you get me a letter from someone who is experienced

in military forces.

So I inquired of Captain Karig. He said absolutely and

definitely we will send that letter. I have inquired of

naval architects who helped me to develop this in the —

Navy Department.

taney said “Easter, you know what has happened to

you.”

I said regardless of that, this is for the interest of .

the country. .

Captain Karig eventually called me up and said his wife

refused to let him submit the letter. ‘Of course, he is now

deceased.

Senator Cuavez. You send whatever information you

have. We will be very glad to consider it.

Mr. Easter. I will mark up some briefs, too. It will

be good to read this.

Senator CHavez. If you will give us a chance, we will.

¢

COMPETENCE QUESTIONED os.

Mr. Easter. I will call your attention to the things:

The incompetence of personnel management in the Navy

Department and the other departments, too. I was there

with them. At first they tried to prevent me from work-

ing with them and charged me with * diabetes. Up to the

present time, I don’t have diabetes. But that is what

costs money, incompetence.

Also, you see the efficiency mark on here and also the

civil service ratings as early as 1946, the P-5, which is a

high engineer rating. F

* Johns Hopkins Hospital, Baltimore,’ Maryland, reversed the

Government and the Civil Service Commission concurred.

as

14B

__ Maybe eventually we will come to the end that we can

practically eliminate the reasons for war.

Senator Cuavez. I hope you are giving us some good

ideas.

Mr. Easter: Yes, sir. I am ready at any time.

Senator Cuavez. Thank you.

Mr. Easter. Thank you very much.

EFFICIENCY RATING

BOARD OF REVIEW

NAVY DEPARTMENT

BOARD 1

Washington 25, D. C.

PC-ERA:WCS :fim

Docket No. :D-8324-46

NOTICE OF DECISION

Appellant: Mr. Andrew J. Easter

Classification Grade: P4

Title of Position: Engineer,

(Naval Architect)

Efficiency rating

as of: March 31, 1946 |

Date of Decision: Jan. 17, 1947

Date of Hearing: January 16, 1947

PART OF SUMMARY OF FACTS

Pg. 3, para. 14.

“Resourcefulness” was an asset of the appellant.

He seldon failed to solve problems that confronted him.

Imagination and ingenuity were demonstrated by him

in meeting situations as they arose. Fertility of ideas

led to proposals for a so-called all-purpose ship, the

plans for which were presented for consideration to the

15B

Burean of Ships, and later to Admiral Halsey and to

General Eisenhower.

nels was ignored in the submission of this proposal to the

aforementioned officers. The rejection of his proposal

does not detract from the fact that the appellant’s thought

was to originate a useful adjunct. Cf. see 7B, to 18B.

Presentation through official chan-

W. C. SorreE.s

Chairman

COMMENTS FROM VARIOUS MILITARY AGENCIES

REFERENCE

“Combined Merchant Naval Vessel”

January 24, 1941,

January 27, 1942,

March 9, 1943,

August 11, 1943,

September 16 & 23, 1943,

September 23, 1954,

December 6, 1944,

“

Petition’s superior, Mr. Crosby, Chief of

War Plans Section, said “ship will work”

Captain Swasey said “best scheme he ever

saw for P T Tender”

Mr. George Seiker said “Type of ship was

O.K. all can be used for all or any single |

purpose” ;

Memo, Colonel Hicks “Features are pro- |

vided would have considerable im their

favor for use in am area where enemy

naval forces would oppose combat load-

Md 3?

mg

Lt. Pope, T P Boat, Maintenance, Ist

Endorsement

From Buships “your interest in naval de-

sign matters is commendable”

—

Captain’ Solberg, Chairman Beneficial

Suggestion Committee BUSHIPS, said:

entitled to something”

January 25, 1945,

_ February 5, 1945,

February 6, 1945

August 15, 1946,

August 21, 1946,

February 6, 1948,

July 6, 1950,

July 25 & 27, 1950,

September 7, 1950

September 21, 1950,

October 21, 1950,

November 2, 1950,

16B

Chairman Beneficial Suggestion Commit-

tee stated “Ship was sound and practi-

cal...”

Captain Solberg said “ship idea isn’t dead

by any means”

Enclosure A & B “Design Exhibits” to

Navy Department Board of Awards

Mr. John C: Niedermair, Chief, Prelimin-

ary Design, Bureau of Ships, said “mer-

chant aircraft carrier by Burntisland,

British Ship Yard, was an imfringement

on petitioner’s idea”

At conference with Commander Palmer

et al., Wright protested commanders

statement about weight estimate and in-

sisted petitioner’s estimate was correct.

Mr. Charles C. Gager of Preliminary De-

sign, Buships, said “they are using your

idea piece by piece”

Captain Karig “very interesting”

Captain Karig “Wanted Admiral Sher-

man to see ship”

Bureau of Aeronautics stated “ships were

built to accommodate planes, said unsuit-

able vessels were forced on them, this is

what we need”

Captain Morgan said “shipping interest

should nop object, we are paying for

everything anyway”

The Washington Star stated Admiral

Cochran said “20 knot ships were useful

tm peace and tmvaluable in war”

Captain Took stated Captain Morgan said

“it was interesting but they would have

to change the ‘aw and to get the shipping

people interested”

Ya

“

RR re ye ee te ehieeeaite |

17B

PETITIONER’S SCHEDULE OF PERFORMANCE AND

“COMBINED MERCHANT NAVAL VESSEL”

United Stgtes Patent Office, Washington, D. C.

November 26, 1947, Serial No. 788151,

Navy Department, Bureau of. Ships, War Plans Section Code 459

Via Beneficiat Suggestion: Committee on Awards to

Civilian Employees, and Official Channels

January 16, 1989,

January 20, 1940,

August 29, 1940,

June 25, 1941,

August 10, 1942,

August 17, 1942,

December 3¢!, 1943,

Tune 13, 1963,

April 3, 1943,

April 8, 1943,

July 6, 1943,

March 1, 1944,

May 6, 1944,

May 27, 1944,

May 30, 1944,

July 21, 1944,

December 6, 1944

Appointed Chief Engineering Draftsman SP8

Letter to Chief of Naval Operations, Admiral H. R.

Stark

Letter from Chief of Bureau of Ships in reference to

letter to Admiral H. R. Stark, United States Navy

Submitted sketch to Commander Philips of Bureau of

Inventions, Bureau of Ships

Letter via official channels, Subject: Beneficial Sugges-

tion “Merchant Ship Design”

Commander Philips, office. Research and Patents, Bu-

reau of Ships

Submission “Combined Merchant and Naval Vessel”

Form 94 (Rev.) to Bureau of Ships Beneficial Sugges-

tions Committee

Letter from Technical Director of U. S. Maritime Com-

mission

Mr. Thurston, Assistant to Chief Design Section said

“to submit plan”

Submitted memo “Design of Combat Carrier, Combina-

tion Troop, Torpedo Boat and Aircraft Carrier, for

Triphibian Operations”

Captain Martin forwarded plan to War Department,

Army Services Office.

To National Inventors Council

Recommendation by Commander Martin to Commander

Mumma of the Secretaries Office, to Admiral King, for

investigation.

To Bureau of Aeronautics, Ship Installations

Captain Metzel, requested prints for personnel study

Captain Metzel “wants prints for personnel makeup”

Captain Solberg, Chairman of Navy Department’s Board

of Awards Committee said “he would support resub-

mission of ship plans to Navy Department Board of

Awards Committee”

- ene eat

18B

December 15, 1944 Lt. Richard, Navy Department, Board of Awards, re-

| quested a to “prepare material for submission

to

January 10, 1945. Captain Solberg, “to have model made”

January 19, 20, 1945, Design Display, submitted

February 21, 1945, . Plans to Admiral Halsey

March 5, 1945, _ Letter from Admiral Halsey

April 12, 1945, Navy Department “will arrange a formal hearing to

present ship to General Board”

September 26, 1945, Congressman Vinson, Chairman of Naval Affairs Com-

mittee

November 13, 1945 Secretary of State Byrnes, Marshall, Chief of Staff of

New Development Weapons, Joint Chief of Staff,

Bethlehem Ship

April 29, 1946, Office abolished, assigned to Damage Stability Section

Code 456, Section 447-M, Scientific

October 22, 1946, Sam, Wright. =»d Heiser congratulated petitioner on

his work, Fluedable Length and Damage Stability of

LSD, signed by Captain Palmer, Honsigner and Wat-

yoy , son “(Presentability, neatness and clearness)”

eet ae eg

: 9 Jamyry 16, 1947, Efficiency Rating Hearing, Comdr. Sledge said: “this

Mh, “Wee A man is ingenious and saves the Navy and the govern-

a he s \ ment money.”

oe 26, 1947 Filed letters of Patent, Serial 788151 in U. S. Patent

afi Office, Washington, D. C. “Qombined Merchant and

a! we

\ Naval Vessel”

November 26, 1947 Notice from U.S.C.S.C. filed: Engineer (N.A.) P.5

July 6, 1950, Captain Karig (Navy historical writer )

September 8, 1950, Louis Johnson, Secretary of Defense

November 17, 1950, Letter to Trigve Lie, Secretary General of the United

Nations

* December 7, 1960, Admiral Cockran, at Forum 440, “Ship Design of

Future”

* December 27, 1950, Notice of Unsatisfactory Performance. Petitioner

showed it to Capt. Took, he said “it was a personal

matter and not to worry about it.”

March 17, 1951, Letter Patent Amended .

*March 26, 1951, Letter from Admiral Wallin. Subject: Removal

* May 14, 19651, Notification of Personnel Action: Removal, 146 hours

accrued annual leave and 320 hours accrued sick leave

as of 5-15-51

December 29, 1951,

December 31, 1952,

August 3, 1953,

January 22, 19654,

June 1, 1954,

September 24, 1954,

September 28, 1954,

June 19, 1957,

Background:

19 b

Letters of Patent to President Elect Eisenhower

Letter from Sherman Adams, assistant to President

Eisenhower

To Sherman Adams, Assistant to President Eisenhower

Charlies E. Wilson, Secretary of Defense

From National Security Council “does not come with-

in our purview”

To Joint Chiefs of Staff

Chief Operation Fleet Service & Maritime

Statement before the Subcommittee of the Committee

on Appropriations, United States Senate, H.R. 7666,

Re “Baby Flat Top” U.S. Navy, and the “Merchant

Naval Vessel” for the United Nations for military

security without cost.

Trained to observe—18 years of study and teaching,

with honor, of the Fine and Applied Arts, which made

it possible to design & develop ships, and other struc-

tures, and the preparation of this petition. The origi-

nal of this reproduction is one wf petitioner’s best

works.

Sincerely,

A> Yen

Petitioner note Jan. 16/39-57—Diary and various other legislative

committees on atomic, military and/or naval affairs, all of which

was instituted on the petitioner’s own time and expense.