Sullivan v. Department of Navy, No. 83-748

• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
• Writing for the Court: Before FRIEDMAN, Circuit Judge, SKELTON, Senior Circuit Judge, and NIES; SKELTON; NIES
• Citation: 720 F.2d 1266
• Parties: Harold J. SULLIVAN, Petitioner, v. DEPARTMENT OF the NAVY, Respondent. Appeal
• Docket Number: No. 83-748
• Decision Date: 08 November 1983

Page 1266

720 F.2d 1266 Harold J. SULLIVAN, Petitioner,
v.
DEPARTMENT OF the NAVY, Respondent. Appeal No. 83-748. United States Court of Appeals,
Federal Circuit. Nov. 8, 1983.

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Harold J. Sullivan, pro se.

Marsha D. Peterson, Washington, D.C., argued for respondent. With her on the brief were J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director and Sandra P. Spooner, Washington, D.C.

Susan D. Warshaw, Dept. of the Navy, Washington, D.C., of counsel.

Before FRIEDMAN, Circuit Judge, SKELTON, Senior Circuit Judge, and NIES, Circuit Judge.

SKELTON, Senior Circuit Judge.

This is an appeal by Harold J. Sullivan (petitioner) from a decision of the Merit Systems Protection Board (MSPB or the Board), dated October 4, 1982, which affirmed a decision of the Board's Atlanta Regional Office approving a decision of the Naval Training Equipment Center (NTEC or the Agency) that removed the petitioner from the position of Education Specialist at the Agency on charges that he had submitted false claims against the government by claiming credit and being paid for time not actually worked at the times specified

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on his time sheets on six specified dates. MSPB Docket No. AT07528010144. We reverse the decision of the Board and remand the case with instructions.

The Facts

The petitioner is a veteran's preference eligible, having served as an officer on the United States Naval Sixth Fleet and later as a civilian employee, Grade 13, at the Agency. When terminated on July 5, 1980, he had 30 years of unblemished service in and for the Navy. He is an attorney and has five university degrees (B.S.E.E., B.A., B.S.M.E., M.S.Ed., and J.D.). He is licensed to practice law in state and federal courts, and has taught law courses in Florida at the college/university level. He argued his case before us pro se.

While working at the Agency, the petitioner filed a grievance on December 1, 1979, against Captain Donald H. Westbrock (Westbrock), the commanding officer of the Agency, in which he accused Westbrock of violating provisions of the Civil Service Reform Act of 1978 and other civil service rules and regulations. Following the filing of this grievance complaint, Westbrock, along with his naval subordinates, began a covert surveillance on petitioner. They monitored his attendance at the office, searched his desk and the incoming and outgoing trays thereon, checked his work, examined the discarded paper, etc., in his wastebasket and otherwise kept a watchful eye on his activities.

The record shows that on December 19, 1979, which was 18 days after the petitioner had filed the grievance against Westbrock, a neighbor of petitioner, Charles McClain, with whom petitioner had previously had some civil litigation, phoned an officer of the Naval Investigative Service (NIS) and informed him that petitioner was spending an inordinate amount of time at home for a government employee. This information was relayed to Westbrock, who stated that employees at the Agency were on flexitime, which allowed them considerable freedom as to working hours, and that he needed more detailed information. McClain promised to get it and did so. Having this additional information, Westbrock asked the NIS to take over the surveillance. At first the NIS refused, saying the information furnished to it was insufficient. In the meantime, Westbrock continued his personal surveillance of petitioner. He also tried to get the FBI to help in the surveillance, but the FBI declined to do so. Finally, Westbrock persuaded NIS to come into the case. The NIS assigned two men to work on the surveillance of petitioner. They worked for 21 days, which included six days on week-ends. Their surveillance consisted mainly of watching the parking lot where petitioner worked to see if his car (a green Volkswagen) was parked there, observing his home to see if and when his car was at home, watching two of the entrances to the building, and observing people who entered and left the building. They never at any time went to his office or phoned him there to see if he was working. They reasoned that if his green Volkswagen, which he frequently used, was not in the parking lot, or on the other hand was at his home, he was not in his office working. The facts showed that petitioner had five cars and four bicycles, and that he used all of them from time to time in going to and from the office.

Finally, when the agents of NIS had finished their surveillance, they obtained copies of the time sheets that petitioner had submitted and on which he had been paid and compared them with their surveillance logs. Discrepancies were found which were set forth in a NIS report furnished to Westbrock and which indicated that petitioner had not worked some of the times he had reported on his filed time sheets. On receiving the report, along with the NIS logs, Westbrock called a meeting of his department heads. During this meeting, Westbrock was heard to say "let's hang him" in referring to the petitioner. Whereupon, it was decided to bring charges against petitioner for filing false claims and defrauding the government. One Gary W. Morton, Director of the Engineering Department of the Agency, was present at the meeting and was selected by Westbrock to prepare the

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charges against the petitioner, since Westbrock had recused himself from preparing the charges because of petitioner's grievance complaint against him. In acting on the charges and deciding the case, the deciding official had a number of options open to him, including complete exoneration and dismissal of the charges, reprimand, suspension, demotion in grade and reduction of salary, and removal from office. However, Morton prepared the charges so as to propose only one decision, which was the extreme penalty of removal from office. Thus it is clear that outright removal from office was the purpose and object of the charges and the only decision that would be satisfactory to management, and, of course, as commanding officer, management was Westbrock.

The charges were set forth in a document entitled, "Notice of Proposed Removal," which was served on petitioner on April 30, 1980. The notice stated, "It is proposed to remove you from employment at the Naval Training Equipment Center for submission of false claims against the Federal Government and wrongfully obtaining funds from the Federal Government by submission of false claims." Then followed a detailed list of the charges involving 21 days of surveillance by the NIS.

Notwithstanding the fact that Westbrock had recused himself from preparing and serving the charges, he was still actively participating in the case up to and including the day of the hearing on petitioner's oral and written response to the charges on May 27, 1980. This is shown by a written order signed by Westbrock on May 9, 1980, granting petitioner an extension of time to answer the charges, and by another written order signed by him on May 27, 1980, the day of the hearing, denying various motions presented by the petitioner.

Commander Joe R. Beene was appointed as the hearing officer to hear petitioner's response to the charges. The hearing was conducted on May 27, 1980, and petitioner appeared and presented his oral and written reply to the charges. The hearing was not adversary in nature and no evidence was submitted by the Agency, although Beene did ask petitioner various questions. The hearing was held solely to hear petitioner's reply to the charges. Several days later, Westbrock phoned Beene to urge him to hurry up with his report. During this conversation he said to Beene:

Hurry up, goddamn it, hurry up.

On June 5, 1980, Beene sent a four-page letter to Westbrock in which he discussed the evidence of both parties, and in which he recommended that the petitioner be removed from employment at the Agency. A copy of this letter was not sent to the petitioner, and he had no knowledge that it had been written until after he had been removed from his job by Admiral Shugart, the deciding official, as shown below.

When Westbrock received Beene's letter of recommendation, he sent the file in the case to Admiral Kenneth Shugart, who had been designated as the deciding official. Shugart had several aides on his staff, one of whom was Eben Hall. Shortly after the file had been sent to Shugart's office, Westbrock talked to Hall one or more times on the phone and urged him to see that Shugart's decision would be issued without delay. Also, Westbrock told Hall that in his opinion Beene's recommendation was correct and that the petitioner should be removed from office. Admiral Shugart testified that after he received the file and before he issued his decision, Westbrock sent him a recommendation that the petitioner be removed. On June 18, 1980, Hall and a Captain Salomon, aides to Shugart, sent Shugart a memo in which they recommended petitioner's removal. In the same memo, they stated that there was a strong possibility that Westbrock's motives in starting the investigation were somewhat less than pure and that he had ulterior motives. A Mr. McKenzie, another aide of Shugart, sent a memo to Shugart on June 20, 1980, in which he suggested various alternatives, including the removal of the petitioner on the basis of the NIS report of surveillance on six particular days instead of the entire 21 days. Shugart adopted this suggestion after spending less than one

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hour on the case, and signed an order on June 24, 1980, removing the petitioner from employment at the Agency, effective July 5, 1980, based on the NIS evidence of surveillance on six designated days set forth in the order.

The petitioner appealed from Shugart's decision to the Board's Atlanta Field Office in Atlanta, Ga., where a trial was held on January 21, 1981. The presiding official of that office affirmed Shugart's decision removing petitioner from employment at the Agency. Thereafter, petitioner filed a petition for...