*1 1266 mаtter, firm, a we reiterate: As final “Such person, other aver “no
applicant
association,
a
cannot be used as
rights
or
best
common-law
corporation,
use
belief,
right
regis-
has the
to
nationwide
knowledge and
for the denial
a
basis
commerce, either in the identi-
by way
such mark in
of a
except
to appellant
tration
or
resem-
cal form thereof
in such near
American
proceeding.”
concurrent use
Se-
likely,
applied
as to
blance thereto
be
Security and Trust
Bank v. American
curity
cause
goods
person,
of such other
USPQ 65,
67
Co., 571 F.2d
197
mistake,
de-
confusion,
or to
or to cause
Hollowform,
v.
Inc.
Delma
(CCPA 1978);
ceive,”
1051(a)(1) (1976); 37
15
§
U.S.C.
1174, 1176,
AEH,
USPQ
185
515 F.2d
not,
statute does
2.33(b) (1982).
CFR
1975). The
shows that
(CCPA
791
record
reg-
however,
seeking
“one
federal
obligate
senior to
first use in commerce
Giant’s
investigate
a mark to
istration of
use, although
first
RM’s first use is
RM’s
users of an identical
possible
all other
port
filing
application
to Giant’s
date.
prior
Money
mark.” The
confusingly
or
similar
here,
Thus, as
and as
by
noted
board
Finance, Inc.,
Harriscorp.
v.
689
Store
opinions,
several CCPA
Giant’s
presaged
Cir.1982).
USPQ 11,
(7th
15
restricted,
all, only
if at
registration may be
v.
Similarly,
N.A.
Citibank
Citibanc
way
a decision in a concurrent use
Inc.,
USPQ 884,
(N.
Group,
1052(d). E.g.,
15 U.S.C.
proceeding under
D.Ala.1982)
the court held
“the failure
Petroleum, Inc.,
Selfway,
v.
Inc.
Travelers
junior
reveal
users is not fraudulent.”
USPQ
(CCPA 1978);
a
agree
ordinarily
We
senior user
Food,
Inc.,
Hyde,
Inc. v. Malone &
Giant
junior
need not
identify
the oath.
users
USPQ
(CCPA 1975).
ful. fails where he making a false oath
would be rights jun conflicting acknowledge established, for clearly
ior user which decree, the terms a court
example, by registra agreement,
a settlement However, junior of a user the rights
tion. and must be clearly be
must established to be so similar as an identical mark one SULLIVAN, Petitioner, Harold J. confusion. clearly likely cause NAVY, DEPARTMENT OF the in this there settle While is a Respondent. agreement, agreement ment is not one use parties acknowledged in which the Appeal No. 83-748. respective likely would marks Appeals, United Court States cause to a parties agreed confusion. The Federal Circuit. territory regardless division of trade of con Indeed, opposi fusion. RM defended the Nov. ground tions on the of no likelihood sought
confusion and itself unrestricted
registrations. Since the issue of likelihood one, and simple confusion was a clear decision, we not resolved until this
cannot say on this record that the oath
knowingly false. We hold there
no fraud in Giant’s on which application
subject registration issued. *2 Sullivan, J. pro
Harold se. Peterson, D. Washington, D.C., Marsha argued respondent. With her on the McGrath, brief J. Paul Atty. Asst. Gen., Cohen, David M. Director and Sandra P. Spooner, Washington, D.C. Warshaw, D. Dept. Susan of the Navy, D.C., Washington, of counsel. FRIEDMAN, Before Judge, Circuit SKELTON, Judge, Senior Circuit NIES, Judge. Circuit SKELTON, Judge. Senior Circuit an appeal This is Harold J. Sullivan (petitioner) from a decision the Merit Systems (MSPB Protection Board or the Board), dated October which af- firmed a of the Board’s Atlanta Regional Office decision of the approving a Training Equipment (NTEC Naval Center Agency) or the the petitioner removed position Specialist of Education Agency charges that had sub- government mitted false claims against the claiming paid credit and being time actually specified times wоrked Having so. get did dates. ised specified on six his time sheets information, asked Westbrock additional We re- No. AT07528010144. Docket MSPB At to take over the surveillance. the NIS remand Board and verse the decision refused, informa- saying first the NIS with instructions. to it was insufficient. furnished tion Facts meantime, person- Westbrock continued *3 tried petitioner. He also al surveillance preference is a veteran’s The petitioner surveillance, FBI to help the get an officer on the having served as eligible, Finally, to do so. the FBI declined but later Fleet and Naval Sixth United States to come into the persuaded NIS Westbrock 13, at employee, Grade as a civilian men to work assigned two case. NIS 1980, July When terminated Agency. petitioner. They on the surveillance service in he of unblemished years had days which included six days, worked for attorney He is an and Navy. and for the consisted on week-ends. Their surveillance B.A., (B.S.E.E., university degrees has five where lot watching parking mainly B.S.M.E., M.S.Ed., J.D.). He is licensed and (a green worked to see if his car petitioner courts, in state and federal practice law there, observing parked was Volkswagen! in Florida at the and has law courses taught at when his car was his home to see if and argued level. He college/university home, the entrances to watching two of pro before us se. who entered observing people and building, peti- working Agency, While They never at building. left the and a on December grievance tioner filed there phoned to his office or him went time H. Westbrock Captain Donald against reasoned working. They if he was to see commanding officer (Westbrock), the Volkswagen, which green if his he accused Westbrock Agency, in which used, lot, parking was not in the frequently Re- of the Civil Service violating provisions home, he was at his the other hand or on civil service form Act of 1978 and other facts working. in his office was not Following filing regulations. rules and had five cars and petitioner showed that Westbrock, grievance complaint, of this all of them and that used bicycles, four subordinates, a along began with his naval from the going time to time in to and They covert surveillance on mo- petitioner. office. office, nitored his attendance agents when the of NIS had fin- Finally, incoming searched his desk and the surveillance, cop- they obtained ished their work, thereon, checked his outgoing trays had petitioner time sheets that ies of the etc., in his paper, examined the discarded paid and on which he had been submitted kept and otherwise a watchful wastebasket them with their surveillance compared on his activities. eye which were Discrepancies were found logs. December The record shows that on to West- furnished report set forth in NIS petitioner after the days which was petitioner which indicated that brock and Westbrock, against grievance had filed the times he had worked some of the had not McClain, neighbor petitioner, Charles time sheets. On reported on his filed had previously with petitioner whom logs, with the ceiving report, along NIS an officer of litigation, phoned some civil depart- of his meeting called a Westbrock Investigative (NIS) and meeting, the Naval Service West- During ment heads. spending was petitioner hang
informed him that “let’s him” in say was heard to brock at home Whereupon, an inordinate amount of time referring petitioner.
government employee. charges against peti- This information bring was decided to Westbrock, defrauding who stated that relayed filing was false claims tioner Morton, flexitime, Di- Gary were on W. employees Agency at the One government. Department Engineering freedom
which allowed them considerable rector of meeting at the present he needed hours, Agency, as to and that working prepare Westbrock to prom- selected more detailed information. McClain submitted petitioner, Agency, although since West- Beene charges himself from did ask preparing questions. brock had recused various petitioner’s griev- held charges solely because to hear complaint acting reply charges. later, him. days ance Several case, the charges phoned urge de- Westbrock Beene to him options open number of ciding hurry up report. During had a this con- him, complete exoneration and said including versation he to Beene: charges, suspen- reprimand, dismissal goddamn it, Hurry up, hurry up. sion, grade demotion in and reduction of four-page On June Beene sent a However, and removal from office. salary, letter to Westbrock in which he discussed as to prepared charges pro- Morton so parties, both and in which decision, pose only one which was the ex- he recommended be re- that the penalty treme of removal from office. employment moved from at the A Agency. *4 outright clear that from Thus removal it.is copy of this letter was not sent object purpose office was the and of the petitioner, and he had that it knowledge no and the decision would chаrges be had been until after he written had been and, satisfactory management, course, to job Shugart, removed from his Admiral by officer, commanding management as was official, the deciding as shown below. Westbrock. When Westbrock received Beene’s letter charges set forth in a document recommendation, he the in sent file the entitled, Removal,” “Notice Proposed Shugart, to Admiral Kenneth who had 30, was petitioner April which served on on been designated as the official. stated, The notice “It proposed to staff, Shugart on had several aides his one you the employment remove from Naval of whom was Eben Shortly Hall. after the Training Equipment Center for submission Shugart’s office, file had been sent to West- of false claims the Govern- Federal brock to talked Hall one more times on wrongfully obtaining ment and funds from the and to phone urged him see that Shu- the Federal by Government submission of gart’s decision would issued de- without false claims.” Then a detailed followed list Also, in lay. Westbrоck told Hall that charges involving of the days surveil- recommendation opinion Beene’s cor- by the lance NIS. rect and that the re- petitioner should be the fact Notwithstanding that Westbrock Shugart moved from office. Admiral testi- had recused from preparing himself and fied that and after received file serving charges, he was still actively decision, before he issued his Westbrock up in the case participating including and peti- sent him a recommendation that day of the hearing on petitioner’s oral 1980, 18, tioner be removed. On June Hall charges and response May written on Salomon, Shugart, and a aides to Captain 27, 1980. This is by shown a written order sent memo in which recom- Shugart signed by 9,1980, on May grant- Westbrock mended removal. In the same petitioner’s an extension to an- petitioner of time memo, they strong stated that there was a the charges, swer another written motives possibility Westbrock’s signed 27, 1980, May order him on starting investigation were somewhat day hearing, denying various motions less than and thаt he had ulterior pure presented by petitioner. McKenzie, Mr. motives. A another aide appointed Shugart, Shugart Commander Joe R. Beene was sent a memo June hearing suggested as the officer to hear various response charges. hearing alternatives, removal of the including the 27, 1980, petitioner petitioner conducted on on the basis May report NIS appeared presented days written surveillance on six instead particular oral and days. Shugart of the reply charges. adopted was not entire after less than one adversary suggestion spending nature and no evidence was 24, 1980, June Westbrock sent decision on signed an order hour on the where it Shugart’s file to office from entire 24,1980, removing petitioner June July by Shugart’s examined Agency, effective received and employment Thereafter, of sur- phoned Westbrock based on NIS aide Hall. set forth in days Hall designated urging veillance on six one occasion Hall on more than the order. decisiоn. Westbrock Shugart’s hurry up building where map also drew Shugart’s from appealed The petitioner worked, where showing thereon petitioner Atlanta Field Office decision to the Board’s during their agents were stationed NIS Atlanta, Ga., was held on where a trial it to Hall. Fi- work and sent surveillance official of presiding 1981. The January the phone told Hall on nally, Westbrock Shugart’s that office affirmed removed. This should be petitioner at the employment moving petitioner deposi- Westbrock in his was admitted Thereafter, peti- filed a Agency. tion as follows: the Board Wash- tion for review with petition denied the ington. The Board “Q. discussions you Did dated Octo- opinion in an and order review matters after Eb Hall on substantive appealed has ber 1982. The and before 1980 oral May After decision to this court. from that 24th from Admiral letter came down June pleadings, briefs considering carefully Shugart? petitioner, acting pro arguments Hall, talked to Eb A. I indicated when I counsel, se, and the of respondent’s *5 and rеcall with Eb Hall is only thing I can pro- we pages, voluminous record of 1089 on my feelings me that I believe he asked appeal raised on as ceed to decide the issues had, him that we and I indicated to the case follows. I indicated that we correctly, if I recall the civil service great researched to a deal Ex Parte Communications Mr. by that the decision regulations and that the entire petitioner contends findings by and the Commander Morton and rendered void proceedings were tainted were consistent my opinion Beene in by made adver- by ex communications honest, honest, justified, proper. not but deciding to the of- sary Captain Westbrock words, the removal of Q. In other Sulli- ficial, Shugart’s Shugart, Admiral van? aide, Hall, the time of Eben between Yeah, problem I had no basically A. on oral and written re- hearing petitioner’s with, particular with that problem I had no hearing before officer sponse charges action. and the date of May Beene on 24, 1980, of Junе remov- Shugart’s decision he removed? Q. That be These ex ing petitioner from office. Westbrock he be removed." A. That gen- have been referred to communications Supplied) (Emphasis at 80 deposition of facts. erally foregoing in statement Westbrock Also, during period, this time However, we being repetitive, at the risk of phoned that he deposition in his admitted and set greater describe them in detail hurry up him to urged twice and Shugart the cir- fully, along them more with forth Shugart said that Finally, his decision. made, as they cumstances in which were that sent him a recommendation Westbrock follows. in removed. This is shown be hearing After the on Shugart as follows: deposition after charges May tell And did he “Q. Okay. [Westbrock] his letter officer Beene had written this, thought that he feelings about his you recommend- to Westbrock of June removed or— ought to be the guy [Sullivan] removal, copy a of which ing petitioner’s about his say anything He didn’t and before Shu- A. petitioner, was not sent to that time. officer, that at feelings had issuеd his about gart, in participation decision, tell actual
Q.
you
When
he
what
Okay,
did
by
this,
amply supported
sir?
the evidence adduced
were about
feelings
recommendation over
stating his
moved.”
made
tioner
for all
tioner’s case.
moved,
Shugart’s representative
It
Westbrock
whose decisions
participating
government employee
titles the
gart
a memo to
mending
communications
another
days later
an in banc decision
States,
back
invalidates
A.
These ex
The Court
Agency before the Grievance Committee.
was invalidated
volved ex
ties on the
These
[P]laintiff
Shugart
should
issued
pay.
Well,
covertly
did
attorney who
practical purposes
mate decision to sustain to plaintiff is entitled recov- Accordingly, participation well as actual Kostos pay wrongful er back from of his date that decision. judgment, removal the date less to salary may during Kostos have received Plaintiff’s other assertion —that Judg- period, employment. in ex communications with from other engaged parte sus- is to effect. 375 F.2d in the decision to ment entered that participating those at 781 allegation tain his removal —unlike Shugart of removal from Westbrock. does show whether recommendation The record not thing referring can sent In either of, there is one we be sure was to file that Westbrock Shugart what is that meant he said him which contained Beene’s recommendation that removed, that Westbrock “sent a rec- he was testified whether that indicating here he be over removed.” that he received an additional ommendation
1272 Respondent
The of Claims had occasion to then argues they Court are not type again parte consider the effect of ex com- of the found unlawful in Camero but are Ryder, comparable on a a munications decision remove
government communications involved in Della Valle v. employee employment States, States, Ct.Cl. — (Order, 1982); United 231 Ryder United 585 case v. States, v. Grover United 200 337 Peach, Ct.Cl. (1978). F.2d 482 In that case a Col. States, (1973); v. Salter Unitеd 412 F.2d government superi-
a was attorney, who (Ct.C1.1969); 874 Joyce v. United Ryder prime States, 2 (1983). do Cl.Ct. 226 We him, instigator of the charges wrote agree. carefully We have considered those official, a memo to the Gen. they cases and have concluded that Berry, Berry the decision recommending clearly distinguishable from Camero and should make. The memo was an ex parte Ryder and from instant In case. Della communication from Peach to Berry States, Valle United the plaintiff was without Ryder’s knowledge. made The position Navy removed from his with the court pointed Ryder out that had no oppor- work. unsatisfactory He had com tunity Berry’s to answer the memo. Gen. problems. plained medical A doctor removal decision was in with accordance report him to be fit and found filed a Peach’s recommendation. court invali- effect, given copy of was not dated the entire proceeding because plaintiff placed but was in his file. Peach’s ex communicatiоn to the de- officer who plaintiff’s received official, ciding citing quoting from oral reply recommended removal. This rec case leading Camero as on ex parte placed ommendation was also plaintiff’s communications by adversaries in person- file, a copy but of it was not given him. court, referring nel-removal cases. The held these imper court were not Camero, said, oth- among missible ex communications er things: type, Camero because were not com The court held that this taint of ex parte munications to the decision-maker from an communications from an adversary vitia- adversary, but merely internal docu ted the entire proceeding; removal of an advisory ments nature. That Camero was awarded back pay for clearly distinguishable from our case where wrongful removal.8 motives, a true adversary 8 principle The Camero has continued to be sought pressure the deciding official into accepted by this cоurt. See Bethlehem Steel making decision to remove the petitioner Corp. States, 529, 534, v. United from his employment. Joyce v. United 122, 131, denied, Ct.Cl. cert. 423 U.S. States, plaintiff removed from his (1975); S.Ct. L.Ed.2d Jarett v. United States, 195 Ct.Cl. position as a VA Contact Representative. *7 (1971); States, J.L. Simmons v. United Co. complained He of the ex parte submission 1360, 1385, 1387-88, 1389, F.2d 188 Ct.Cl. of a memorandum the hearing by officer 727-28, 731-33, (1969); Moore-McCor Lines, States, VA another official. The Claims Court held mack Inc. v. United F.2d 568, 584-85, (1969). 188 Ct.Cl. 671-72 improper. However, this was not on at 486 appeal to the Civil Service Commission The respondent in instant case admits (now MSPB) (the Board), the Board relied in Respondent’s Memorandum In Response some the ex parte evidence Petitioner’s Letter July plaintiff memo without an giving op parte ex communications described portunity to introduce regarding above were made. This admission states: court, it. The on appeal, reversed and re not contend, We do and in fact have the case manded because this error. As contеnded, never parte ex com- seen, can be the ex parte communications in by petitioner munications referenced did Joyce our case and those in are differ quite Rather, occur. we have admitted ent. In our case a adver non-disinterested that they occurred. sought improperly influence the de- sary higher authority, implicates Joyce the writer ciding official. adversary an was not shown to be principle
memo Camero freedom from ex Furthermore, was the memo plaintiff. taints. parte hearing him to the offi- by furnished only case, instant we are not con-
cer. In the communications with parte authoritatively cerned with ex An official who could officer, but with those to failed finally restore the to do officer, Shugart. Admiral deciding, ultimate so the exertion of ex improper parte after influence. States, plaintiff v. United In Grover for, job
was removed from his with IRS that, at the next It makes no difference reasons, falsification of rec- among other FORSCOM, level the case reached parte of an ex state- complained ords. He to answer the Ryder opportunity had the reply by plain- officer given ment views which had stemmed from Col. get along tiff’s who did not well supervisor, (later Peach transformed into Gen. Ber- held The Court Claims plaintiff. By then it was too ry’s position). own was not supervisor present that since the late; irretrievably had lost his plaintiff it for the hearing, proper reply was opportunity, explicitly given valuable him officer to take his statement so that he by regulations, Berry to have Gen. recommendation. proper could make favor, finally decide in his untrammeled improper this is not the kind of ex Again, ex by improper parte approaches. we in our case. parte communications F.2d at 486-487 States, like The case of Salter United There can be no that Admiral question Grover, with evidence con- mainly deals Shugart could have decided the case in fa- by agency sidered in removаl petitioner, vor of the but did not do so. parte does not involve ex communications appeal removal decision on official as we with the final decision such Shugart. Shugart’s that of It was decision have in the instant case. presiding that was affirmed Thus, the cases cited and we see that Office, Atlanta Field and it Board’s respondent inapposite relied on decision that was affirmed Shugart’s instant case. petition when it by the Board denied respondent argues also that even if Therefore, controlling review. improp- the ex communications were Shugart. injury that of from the er, the fact that occurred was harmless already been ex communications had opportuni- because had the petitioner error appellate the case reached the done before the issue to the Board on ty present occurred without the knowl- stage, and this The Court of Claims answered this appeal. having edge and without identical argument Ryder to defend bеfore any opportunity pointing out that the error is committed him the removal decision was made statements are made to when the too late by Shugart. Obviously, it was the first official who could decide appeal pre- anything to do In this employee. the case in favor a decision he Shugart making vent regard the court said: already made. and final But did have full Berry Gen. *8 that West- contends Finally, respondent report authority accept the examiner’s ab- communications made parte brock’s ex Mr. he could on Ryder; and to find for in the case because solutely no difference the removal set his own ordered determina- the evidence and the ultimate reinstated —and the plaintiff aside and words, respon- have ended there In other proceeding by Navy. whole would tion any participation by without would have FORSCOM. that the argues dent event because any removed in to end the been power Berry It is this of Gen. ar- very him. this favor, against Again, without referral Ryder’s
case in 1274 unfair, but
gument by was answered the Court of also rights denied his in case. Ryder Claims under due process clause of the Consti- tution. We hold further that tainted case, In that the government argued that investigation, proceed- voided entire against the decision should Ryder despite ing, and rendered Shugart’s Admiral defect, procedural because he would moval a nullity. decision have been removed on the merits in the contrary Board is erroneous as the procedural absence of defect in his fir- matter of law.2 ing. rejected reasoning, say- The court this ing:
However, where procedural a serious cur- Prohibited Personnel Practice personnel tailment mars an adverse ac- alleges Petitioner that his removal tion which deprives employee pay, Agency personnel practice was a prohibited regularly the court has taken the position 2302(b)(4), and a violation of 5 U.S.C. § (or the defect divests the removal (b)(9), (b)(8)(A), (b)(10), provides demotion) of legality, leaving employ- in pertinеnt part as follows: ee the rolls of the employing agency (a)(1) “prohibited ... personnel practice” pay and entitled to proper proce- until means action described in subsection dural steps removing taken toward or (b) of this section. disciplining situation, In him. (2) purpose For the of this section— merits of the adverse are wholly action (A) “personnel action” means— disregarded, (citations omitted) (i) appointment; an The perfect illustration is Camero in
which the court first held squarely (ii) promotion; the same nevertheless recover back against the employee on the merits of his separation, (1965), and later type of procedural defect we see ruled that he could pay because 170 Ct.Cl. 490 title action; (iii) [*] an other disciplinary or corrective action [*] under $ chapter [*] S}5 75 of this [*] (b) Any has authority who present case. 375 F.2d take, take, recommend, direct others to (1967). Ct.Cl. 520 at F.2d 487-488 action, not, with respect to such authority— approve any personnel shall (Emphasis Supplied) * * * * * *
We hold that improp Westbrook’s
er ex communications were concurring opinion mistakenly
2. The
regard
writing
states
its
argument
the ex
communication
petition.
Sullivan’s
at
A.R.
Final
entirely
interjected
new issue
into the case
Opinion and
Order
the Board commented on
majority
which was not raised before
complaint regarding
Sullivan’s
the communica-
by it,
the Board nor decided
and that it cannot
tions between Westbrock and the
offi-
be raised nor
decided
the first
time on
cial and then decided the issue
him.
appeal.
contrary
The record is to the
A.R. at 1080. The record shows that the issue
shows the error of these statements.
For in-
every adversary stage
was raised
Sullivan at
stance,
presid-
the Board’s Atlanta Field Office
proceeding
Board decided it
official,
only adversary
who
held
hear-
against him.
ing in the
stated
Sulli-
decision that
any event,
process
the issue is one of due
complaining
van was
of Westbrock’s
(Sullivan’s
15-18)
that was
brief at
briefed
communications,
proceeded
and then
to discuss
orally argued by
parties
both
in the instant
Thereafter,
them in more or less detail.
proceeding.
properly
It is
before the court and
decided the issue
Sullivan.
See Part
prevent
injus-
we are authorized to decide it to
III, Pages 987-988 of the Official Administra-
tice that would otherwise result. Hormel v.
(A.R.
987-988)
tive Record
the MSPB
Helvering,
552, 556-557,
312 U.S.
61 S.Ct.
this case.
Wulff,
(1941); Singleton
grievance complaint, Westbrock resentative, the dis- heads, who reviewed hang him” when department “let’s [Hall] him in prepar- file and assisted ciplinary petitioner; appoint- that he referring Morton, summary of facts of present, Gary of those ed one possibility considered charges; reported initia-
prepare the that Westbrock *10 motivation, but suffi- and erroneous as a improper found matter law. The appel- cient independent of the decision of the Board is reversed and the lant’s to support misconduct the removal case is remanded to the Board with instruc- action. tions to order the petitioner reinstated to position Agency, his former with the Thus, presiding to as- seemed from pay wrongful sume back the date of improper that Westbrock acted with motives, judgment, removal to the date of but decided the case on other final less grounds. other earnings employment during from period, plus removal all benefits and entitle- in opinion denying
The Board stated its ments he would have received had the ad- petitioner’s petition review: verse action not been brought him.3 for this reprisal Board finds—that grievance substantially the be- motivated REVERSED AND REMANDED. ginning lengthy of the and detailed inves- tigation— NIES, Circuit Judge, concurring. We conclude from the facts view, In the decision of the my MSPB case, whole, as a considered plus set aside of an should be because error of
findings of officers who participated respect law with to its of the interpretation including Board, West that requirements of a of reprisal. defense brock’s throughout actions were Howеver, I join do not in reversal based on motivated and that reprisal he took contacts. I it necessary also find action reprisal as a present somewhat different view of the filing the grievance against We con him. facts. clude further that in view of Westbrock’s motivation his dominant role in the case throughout proceedings, repris I al resulted Agency, action of the The Merits and that was a genuine there nexus be
tween the petitioner’s retaliation and re required Sullivan to work the Na- moval, thus meeting requirements (3) facility val in order to be entitled to over- and (4) set forth above. time pay compensatory time. There is
We hold no in this question that case but that Sullivan removal Agency prohibited personnel was a action submitted inaccurate time sheets. He ad- that violated 5 2302(b)(8), U.S.C. and that § mits the specific reported times he the decision Board to contrary his time sheets for at the facility his work erroneous as matter of law. weekends not correct. His defense is that he worked the number of hours for
Conclusion which he received either pay compensato- We ry hold the decision of the time and was merely careless about the Board arbitrary, discretion, an abuse of specific put times he his reports. down on concurring opinion questions 1295(a)(9). 3. The place, our author- § the next we are not ity to issue proceeding instructions to the issue an issuing Board to under Act Tucker requiring payment instructions, order doing reinstatement such but are so under 5 pay benefits, says 7703(c). authority back and other U.S.C. We have same § regard the Claims can issue Court such instructions. in this Court Claims had opinion 7703(c). Cowen, proceed- Judge joined by also assumes that we are under Senior Act, Judges Kashiwa, under the Tucker 28 U.S.C. § Friedman and held in Brewer issuing opinion Service, instructions to the Board. The v. U.S. Postal 1098-9 points. place, (Ct.Cl.1981) is in error as both In the first the Court of Claims could on while 7703(c) the Claims Court can issue instruc- such under remand U.S.C. Civil § cases, types authority tions in other it has no Serviсe Reform Act of 1978 instruct Board appeal whatever in an payment to do so from a reinstatement order of back MSPB, pay discharged because the Im- Federal Courts and related benefits to em provement jurisdic- ployee. authority Act of vests We exclusive have the under same appeals tion of such 7703(c) 1295(a)(9). this court. 28 U.S.C. U.S.C. *11 opinion would indicate that his admissions that he majority knowingly made It
the surveillance was a farce. was not. entries on the time and attendance report time A review of Sullivan’s sheets sub- which falsely depicted him to be at work mitted before the surveillance when, Sullivan fact, there, he was not and that reported any showed he had never overtime he knew that inaccurately reporting the Therefore, prior to the surveillance 0800. times at work was in direct violation of began shortly before 0800. There was am- the agency’s regulation. I have also ob- pié parking space only next to the entrance served the manner аnd demeanor of the for open entry. weekend That area and agents during grueling NIS cross-exami- door, home, as well as his were monitored. nation. I find their testimony much agents The fact that the never checked his more than the credible defendant’s state- telephoned office or him in his office was ments and testimony.
for the reason that the surveillance was The Presiding Officer also found it incon- covert. ceivable that appellant’s “arrivals and de- found that Presiding Official Sulli- partures would so neatly coincide with the explanation van’s of his activities was in- agent’s absences from the surveillance site an example days credible. As of one of the go otherwise unnoticed.” Since these for which he claimed pay, Saturday, March findings aside, have not been set the remov- 15, 1980, represents his time sheet that he al action must be sustained Sullivan arrived at work at departed at 1245 unless he has an affirmative defense. departed
returned at 1415and at 1615. The surveillancе disclosed that he arrived at II 1008 and His departed explanation Reprisal Defense reported
is that he at 0700 de- bicycle, 0930, parted approximately returned at only for dismissal of basis Sullivan’s green car, 1010 in approximately departed affirmative defense of stated 1245, car, returned 1415 white and de- to be: parted 1615 for the For day. over seven The Board finds that though appel- work, hours of he he says charged grievance against lant had filed a six. Similarly, Sunday, March official who started the investigation into reported that he officially worked from worked, appellant’s claims of time 0810 to and 1330 to 1530. The surveil- that reprisal grievance for this substan- lance disclosed that he arrived at de- motivated the tially beginning of the parted 1220, and made no other entries into and detailed lengthy investigation, order- the building. explanation His is that he investigation taking such an is not reported by bicycle, departed at 0700 personnel 2302(a)(2). action. 5 U.S.C. § car, reported apprоximately green 0900 in Furthermore, this official did not take departed reported 1330 on a red mo- action, removal personnel against ap- torbike, and departed working thus pellant. Appellant proved no causal con- minutes, hours and 10 he charged which nection taking person- between 6 hours 30 minutes. Government nel action and the tainted motivation comings goings ways Similar in various precipitated investigation. Ap- characterize each days. of the six pellant prove failed to retaliation significant agency’s was a factor
The Presiding carefully Official con- decision to remove him. evidence, including sidered all of the
fact that at officers times the surveillance I what the is holding, As understand board home, checked his the fol- reached if the case reprisal cannot be established lowing conclusion: employee good is one and does person instigating proceedings
I have also removal carefully, weighed de- action him- аctually fendant’s manner while take the removal and demeanor testifying at the self. hearing and considered law, error,
I is as a find this matter III points. 7701(c)(2)(B) pro-
both 5 U.S.C. § Ex Communication may vides that an action not be adverse issue, respect With not join I do if the sustained shows majority. I greatly believe to be any prohibited per- decision was based on preferred rely solely on the I statute. 2302(b). practice sonnel described in find judge-made protection against an adverse action the affirma- * proceeding, prior hearing stage contacts tive *12 significant defense of is in reprisal type to be of which leads to the doctrine those cases which been determined to essentially deci confusion to ad hoc Thus, have merit. the merits cannot be the sions. determinative that no factor there was argument on Sullivan’s ex MSPB prisal. A meritorious adverse action must solely contacts was to viola- directed be set where is reprisal. aside there statutory regula- tion оf the provisions and require tions an must employee that factor, is, The second that that Westbrock given of notice the reasons and access to action, invalid, did not a personnel take is in materials which are relied on to support view, my 2302(b) under 5 as U.S.C. a § 752.404(b); action against him. 5 CFR § matter statutory of construction. The sec- 752.203(b); 7513(b) CFR and U.S.C. § § reads, tion in pertinent part: (e). argued he He did not receive (b) Any who authority has to all materials relied upon agency. He take, take, recommend, direct others to further ex argued that no communi- approve any action, not, personnel shall cations are allowable the decision-making in respect with to such authority-— process, after made oral since reply, action with (8) [*] take or fail 4s respect [*] to to take a any [*] employee .... personnel [*] information received ex NAVTRAEQUIPCEN employees was not given contacts with the FBI and all an opportunity to parte. He treated on refute a par. singled Contacts with Westbrock were not Westbrock is within the category per- out in with except connection the assertion 2302(b) sons defined in not only and he § reprisal. MSPB ruled: started investigation leading per- presiding In this official found against (which sonnel action Sullivan estab- agency appellant had furnished “recommended” “nexus”) lishes but also with support all material of its stated personnel action against Sullivan. No more charges and that he even been af- is necessary. I phrase read the “take or fail opportunity forded an additional to re- to (b)(8) take” in subparagraph encom- spond before the agency deciding pass authority specified Appellant’s issued the decision. bare as- words, lead-in paragraph. In other a rec- sertion error is trigger insufficient to ommendation to on par take action is review complete presiding of the official’s taking Moreover, with I agree action. findings. Lopez v. Veterans Administra- position Sullivan’s tion, No. MSPB Docket DA07528110066 continuous, WESTBROCK’s behind-the- (June 16, 1962); v. Department Weaver scenes, manipulations and orchestration Navy, (1980). Fur- MSPB of the removal decision established ther, discussion, foregoing based it agreed-upon meaning- recusal was a is presiding clear that the official did not less sham and Agency’s illustrative of the interpretation err in his of 5 C.F.R.
bad faith 752.404, action and motives in agency fully and that the satis- obligation this case. notify appellant fied its * majority “hearing” majority, “hearing” While the the term uses indicated identify agency, adversary oral made to “not in nature.” process” it is not used in a “due sense. As opportunity have been afforded an to re- opportunity him a reasonable provide view, upon, comment and counter such support review the material ex-parte communications. In Doe v. charges. notice of
advance
Court,
Hampton [566
265]
entirely
position
MSPB
Page 278 stated:
of this court
accord with the decision
We,
course,
do not intend to
....
States,
(Fed.
United
Depte v.
with the fear
hamper
Commission
Davis there-
Cir.1983).
by Judge
As stated
validity
that the
of its decisions will be
in:
bet-
jeopardized
attempts
whenever
course,
was not constitu
Of
process
ter to inform its deliberative
entitled,
agency stage,
tionally
When,
and to assure a correct result.
her,
the witnesses
but
confront
however,
reason,
for whatever
it seeks
mandated
merely
procedures
to those
to obtain further
Kenne
regulation.
Arnett v.
statute
adjudge
which to
validity
1633, 40 L.Ed.2d
dy,
to “render claim termine the amount of back re pay and States” and to United “issue lated benefits due and reinstate him.5 directing orders or po restoration to office question argument, to a at oral sition, placement in appropriate duty or respondent’s expressed counsel the view that status, retirement of applica correction agency court action decides that records, may ble be such orders issued unlawful, should set aside as it has the any appropriate United power to remand with instructions to award discharged employee pay back to rein- authority That States.” now resides in the position. state him his former Court, United States Claims not this court. (647 1099.) F.2d at Claims, Unlike United States Court of appellate controlling precedent both trial and No can arise from functions an powers, strictly appel question this court dictum on a not before the court. may late court. It no look to longer jurisdiction 28 Nor can the court be basis U.S.C. as a for its authority established, event, in any by the simply may not appeal treat MSPB answer of Government counsel. pay same as back which the United Court States of Claims was free to do. Cf.
Meyer Dept. of Health & Human Serv
ices, (Ct.Cl.1981), (“This pay
civilian case is before the court on appeal for review of order of Systems
the Merit Protection Board
(MSPB),” (emphasis added)).
majority
relies
Brewer v. United
CHENEY, Petitioner,
Leon A.
Service,
(Ct.Cl.
States Postal
the petitioner seeks relief which is not our power grant within under Act. Nov. pay, He sues back requests reinstate-
ment, and claims the right related
benefits. The standard of review set
forth in the isAct We are au- limited.
thorized to “hold unlawful and set an improper
aside” action. agency Therefore, 7703(c).
U.S.C. we are jurisdiction
without a money render
judgment remedy Tucker Act —a the court is empowered grant other
cases.
Apparently the court the same doubt as
I, respect to what action it could take