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April 3, 1974

Robert D. BARNES
George W. CHATTERTON et al.

Broderick, District Judge.

The opinion of the court was delivered by: BRODERICK

BRODERICK, District Judge.

The instant litigation arises from a complaint and amended complaint served on the named defendants: (1) seeking a preliminary injunction enjoining the defendant, George W. Chatterton, the Regional Appeals Examiner of the Civil Service Commission (CSC), from proceeding with the scheduled hearing of plaintiff's appeal before the CSC, pending final determination of this matter by this Court; (2) seeking a Court order that the Regional Appeals Examiner render a decision as to whether [sic] the documents sought by the plaintiff are relevant and material to the issues covered by the plaintiff's appeal before the CSC; and (3) seeking a Court order that the named defendants produce and make available to the plaintiff certain Navy Contract Adjustment Board Files (NCAB), Volumes II, III and IV of a certain report of the Navy Investigator General (NIG), together with the enclosures to Volume I and certain FBI Reports. The defendants have moved to dismiss the complaint and amended complaint.

 Plaintiff, a veteran-preference eligible, was employed as an attorney with the Office of Counsel, United States Naval Aviation Supply Office, Philadelphia, Pennsylvania. On July 12, 1971, the Department of the Navy gave to the plaintiff a Notice of Proposed Separation which informed him of various offenses allegedly committed by him. The legal basis for plaintiff's removal is contained in 5 U.S.C. § 7512. The facts alleged by the Navy as the basis for plaintiff's separation are contained in the aforementioned Notice of Proposed Separation.

 Briefly summarized, the action taken by the Navy in discharging the plaintiff was prompted by the plaintiff's alleged pattern of misconduct over at least a two-year period involving repeated instances of refusing to obey instructions relating to plaintiff's activities concerning Navy contracts with the Kurz & Root Company, Inc. and the Decitron Electronics Corporation. According to the Navy's allegations, the plaintiff spent a considerable amount of time on these contracts to the neglect of other assigned work and in contravention of the directions of his superiors. It is also alleged in the Notice of Proposed Separation that the plaintiff was openly critical of any agency or person who disagreed with his position with respect to the Kurz & Root and Decitron cases.

 During the period from August 23 to 27, 1971 the plaintiff delivered his oral reply to the General Counsel of the Navy as to the charges which were made against him by his immediate superior. On September 10, 1971 a final agency decision was rendered by the General Counsel of the Navy sustaining the Notice of Proposed Separation. By letter dated September 15, 1971, the plaintiff appealed his separation to the Regional Director of the Civil Service.

 It is the plaintiff's contention that he sought to establish and expose corruption, irregularities and wrong doing of certain government contractors and irregularities and improper conduct in the Office of the General Counsel of the Navy with reference to the following:

(1) A Navy Contract Adjustment Board decision of November 26, 1969, allegedly authorizing wrongfully, certain price increases aggregating $1.2 million without consideration, in favor of Decitron Electronics Corp., a government contractor;
(2) Fraudulent dealings with the government with respect to Kurz & Root Co., Inc., a government contractor; and
(3) Conduct of the General Counsel of the Navy Department and members of his staff consistent with a cover-up of highly irregular facts and circumstances involving fraud and corruption in connection with Decitron decision and Kurz & Root.

 The plaintiff contends that he was discharged because of his refusal to discontinue his efforts to expose the alleged corruption and alleged irregularities concerning the above-mentioned Navy dealings with Decitron and Kurz & Root.

 In the process of his appeal to the CSC, the plaintiff, by letter dated February 24, 1972, repeated an earlier request that the Navy Department make its NCAB File covering its Decitron decision available to the Regional Appeals Examiner and to the plaintiff, delineating in said letter the alleged relevancy and materiality of this file to the plaintiff's appeal. The Navy Department denied plaintiff's request. The Regional Appeals Examiner by letter to the plaintiff dated April 6, 1972, refused to direct or request the production of the NCAB File for use in the plaintiff's appeal.

 In a letter dated January 31, 1972, the plaintiff also requested the Director of the FBI to furnish the Regional Appeals Examiner a copy of each of the eight FBI reports pertaining to the Kurz & Root matter. By letter dated February 17, 1972, the FBI stated that no action would be taken on the plaintiff's request since the Regional Appeals Examiner had made no request for such reports. The plaintiff then requested the Regional Appeals Examiner to obtain the FBI reports. The Regional Appeals Examiner denied the plaintiff's request.

 Plaintiff's appeal hearing before the Regional Board of the CSC was originally scheduled for March 15, 1972 but was postponed till May 4, 1972. On April 24, 1972 plaintiff filed a complaint in this Court seeking the relief outlined above. The question of enjoining the defendant Regional Appeals Examiner from proceeding with the scheduled hearing of plaintiff's appeal before the CSC was mooted by the fact that the Regional Appeals Examiner agreed to continue plaintiff's appeal pending the outcome of the instant litigation. The plaintiff filed an amended complaint on July 20, 1972. The Court, on July 31, 1972, scheduled a hearing for September 11, 1972. In the interim, on August 30, 1972 the defendants filed a Motion to Dismiss alleging primarily that this Court was without jurisdiction since the plaintiff had failed to exhaust his administrative remedies. On September 11, 1972 oral argument was heard on the Motion to Dismiss. By order dated January 18, 1973 the Court denied the Motion to Dismiss. On January 31, 1973 the defendants filed a motion requesting this Court to certify for appeal the order of January 18, 1973 on the grounds that the order involved a controlling question of law and that an immediate appeal would materially advance the ultimate termination of the litigation. By order dated February 21, 1973 the Court, after a hearing, granted the motion of plaintiff's attorney to withdraw his appearance. By order dated March 13, 1973 the Court denied the defendants' motion for certification. On March 30, 1973 the defendants filed their Answer to the plaintiff's Amended Complaint, and a settlement conference was held on September 17, 1973. At this conference the defendants reiterated their position that this Court had no jurisdiction of this matter and that the documents requested by the plaintiff were both privileged and irrelevant to plaintiff's appeal before the CSC. In an effort to settle this matter, the Court suggested that the defendants submit the documents to the Court for an in camera inspection. By letter dated September 28, 1973 the defendants declined the Court's suggestion. The defendants renewed their motion that the ...

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