DEPARTMENT OF HEALTH AND HUMAN SERVICES
Departmental Appeals Board
Civil Remedies Division
In the Case of:
The Department of Health and Human Services,
Complainant,
- v. -
Irving L. Becker,
Respondent.
DATE: August 18, 1989
Docket No. C-76
DECISION OF ADMINISTRATIVE LAW JUDGE
Complainant charged Respondent with engaging in unlawful representation activities
subsequent to his
retirement from federal employment. Respondent denied the charge and requested
a hearing. I conducted
a hearing on the charge. Based on the evidence introduced at the hearing, and
on applicable law and
regulations, I conclude that Complainant failed to establish its charge against
Respondent. I therefore enter
a decision in Respondent's favor.
BACKGROUND
Complainant served a notice to show cause and administrative complaint on Respondent
on November 23,
1988, charging that Respondent had engaged in conduct which violated the provisions
of 18 U.S.C. 207(a).
This section provides that:
Whoever, having been an officer or employee of the executive branch of the
United States
Government . . . after his employment has ceased, knowingly acts as agent or
attorney for, or otherwise
represents anyother person (except the United States), in anyformal or informal
appearance before, or, with
theintent to influence, makes any oral or writtencommunication on behalf of
any other person (except the
United States) to --
(1) any department, agency, court, court-martial, or any civil, military,
or naval
commission of theUnited States or the District of Columbia, or anyofficer or
employee thereof, and
(2) in connection with any judicial or other proceeding, application, request
for a ruling
or other determination, contract, claim, controversy, investigation, charge,
accusation, arrest, or
otherparticular matter involving a specific party orparties in which the United
States or the Districtof
Columbia is a party or has a direct andsubstantial interest, and
(3) in which he participated personally and substantially as an officer or
employee
through decision, approval, disapproval, recommendation,the rendering of advice,
investigation or
otherwise,while so employed . . .shall be fined not more than $10,000 or imprisonedfor
not more than two
years or both.
A separate section of the law, 18 U.S.C. 207(j), provides that if the head
of the department or agency finds,
after notice and opportunity for a hearing, that a former employee violated
section 207(a), then the
department or agency head may prohibit the former employee from making any appearance
before the
department or agency for a period not to exceed five years.
The complaint specifically alleged that while employed by the Social Security
Administration (SSA), an
administrative component of Complainant, Respondent made favorable recommendations
to his superiors
concerning a candidate for an employment position announced pursuant to a competitive
selection process.
The complaint further alleged that, as a direct result of Respondent's recommendation,
the candidate
recommended by Respondent was selected to fill the position.
The complaint alleged further that subsequent to retiring from federal service,
Respondent acted as an
attorney for an individual on a discrimination complaint. The complaint asserted
that the individual
represented by Respondent had been a candidate for a position filled under the
vacancy announcement with
respect to which Respondent allegedly made recommendations. The complaint against
Respondent further
alleged that the individual represented by Respondent claimed in his discrimination
complaint that his
nonselection for that position was as a result of discrimination.
Therefore, according to Complainant, Respondent had engaged in unlawful representation
activities
subsequent to his retirement, because he represented a party to a particular
matter in which Complainant
had an interest, and in which Respondent had personally and substantially participated
while an SSA
employee. Complainant proposed as a remedy that Respondent be barred from representation
activities
before any component of Complainant for a period not to exceed three years.
Respondent timely answered the complaint. Respondent admitted that he had been
employed by SSA and
that he had retired on the date asserted in the complaint. He admitted that
a vacancy announcement had
been posted. He admitted representing in a discrimination complaint an unsuccessful
candidate for a
position filled pursuant to that announcement. However, Respondent denied having
made
recommendations concerning filling positions pursuant to the vacancy announcement.
He requested a
hearing before an administrative law judge.
The case was assigned to me for a hearing and decision. I conducted a hearing
in Washington, D.C. on
April 26, 1989, at which I admitted exhibits into evidence and heard the testimony
of the parties' witnesses.
I ordered the parties to file posthearing briefs, including proposed findings
of fact and conclusions of law.
The parties complied with these directions.
ISSUE
The issue in this case is whether Respondent engaged in unlawful representation
activities in violation of
18 U.S.C. 207(a). This issue subsumes the questions of whether Respondent:
1. is a former employee of the executive branch of the federal government;
2. after ceasing his employment, knowingly represented aperson other than
the United
States in a formal or informalappearance before an agency, officer or employee
of thefederal government;
3. engaged in representation in connection with a particular matter involving
a
specific party or parties in which the United States was a party or had a direct
andsubstantial interest; and
4. participated personally and substantially as an employee in that matter.
APPLICABLE LAW AND REGULATIONS
A. Statutes.
1. 18 U.S.C. 207(a).
B. Regulations.
1. 5 C.F.R. Ch.1, Part 737--Regulations Concerning Post Employment Conflict of Interest.
2. 45 C.F.R. Part 73b--Debarment or Suspension of Former Employees.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Respondent was employed by SSA from July 15, 1957 until he retired on January
3, 1987. Tr.
at 151.
2. From 1980 until January 3, 1987, Respondent held the position of Chief,
Representation Staff,
in SSA's Division of Labor and Employee Relations. Tr. at 151-53.
3. Prior to August 4, 1985, Lionel J. Clary was employed as a Labor Relations
Specialist GS-12
on the Representation Staff. Tr. at 109, 118-119; C. Ex. 6.
4. Beginning August 4, 1985 and until January, 1986, Mr. Clary was employed
as a Labor
Relations Specialist GS-13 on the Representation Staff. Tr. at 118-119; C. Ex.
6.
5. Respondent served as Mr. Clary's first-line supervisor during the period
when Mr. Clary was
employed on the Representation Staff. Tr. at 109.
6. On May 27, 1985, an announcement was made that three vacancies in the position
of Labor
Relations Specialist, GS-13, would be filled in the Division of Labor Relations.
Tr. at 21-22, 58; C. Ex. 1,
5.
7. One of these positions was on the Representation Staff; another was on
the Division of Labor
Relations Headquarters Operations Branch; and the third was on the Division
of Labor Relations Field
Operations Branch. C. Ex. 1.
8. The vacancy announcement (VA) which announced these positions was titled
VA A-62. C.
Ex. 1, 5.
9. The applicants for the positions announced by VA A-62 included Mr. Clary
and Beale E.
Cooper. C. Ex. 2, 3.
10. Both Mr. Clary and Mr. Cooper met the qualification standards for the
positions announced
by VA A-62 and their names were included in the best qualified list of applicants
eligible for selection to
the positions. C. Ex. 5.
11. At the time the selections were made for the positions announced by VA
A-62, Peter Spencer
was the Director of the Division of Labor and Employee Relations. Tr. at 23,
55, 58.
12. At the time the selections were made for the positions announced by VA
A-62, Respondent
was Mr. Spencer's subordinate. Tr. at 61-62.
13. The selecting official for the positions announced by VA A-62 was Larry
Massanari, Director
of SSA's Office of Human Resources. Tr. at 21-22, 59.
14. At the time the selections were made for the positions announced by VA
A-62, Mr. Spencer
was Mr. Massanari's subordinate. Tr. at 23.
15. Prior to the date of the announcement of the vacancy on the Representation
Staff advertised
by VA A-62, Respondent told Mr. Spencer and Mr. Massanari that he believed that
Mr. Clary was
performing at the GS-13 level, and he recommended that Mr. Clary be promoted
to that level. Tr. at 25,
28-29, 50, 63-66,79-80, 112-113.
16. Prior to the date of the announcement of the vacancy on the Representation
Staff advertised
by VA A-62, Respondent prepared a supervisory appraisal of Mr. Clary's performance
in which he rated
Mr. Clary's performance as "excellent." Tr. at 35, 49-50, 70, 109-110;
C. Ex. 3.
17. Prior to the date of the announcement of the vacancy on the Representation
Staff advertised
by VA A-62, Respondent recommended to Mr. Spencer and Mr. Massanari that Mr.
Clary be given an
award for sustained superior performance. Tr. at 35, 50, 70-71; C. Ex. 3.
18. Prior to the date of the announcement of the vacancy on the Representation
Staff advertised
by VA A-62, Respondent surveyed officials in offices whom Mr. Clary served,
and asked these officials
how they would rate Mr. Clary's performance and effectiveness. Tr. at 50, 65-66.
19. Respondent reported to Mr. Spencer that the officials surveyed concerning
Mr. Clary's
performance had rated it as excellent. Tr. at 50, 65-66.
20. Prior to making his decision on whom to select for the position on the
Representation Staff
which was advertised in VA A-62, Mr. Massanari consulted with Mr. Spencer. Tr.
at 23.
21. Mr. Spencer recommended to Mr. Massanari that Mr. Clary be selected to
fill the position on
the Representation Staff which was advertised in VA A-62. Tr. at 23.
22. Mr. Spencer's recommendation to Mr. Massanari was in part based on the
information and
advice concerning Mr. Clary that Mr. Spencer received from Respondent prior
to the date of the
advertisement for positions in VA A-62. Tr. at 64.
23. Mr. Massanari selected Mr. Clary to fill the position on the Representation
Staff which was
advertised in VA A-62. Tr. at 25-26.
24. Respondent's views as to Mr. Clary's qualifications expressed prior to
the date of the
advertisement for positions in VA A-62 were among the factors which influenced
Mr. Massanari to select
Mr. Clary to fill the position on the Representation Staff which was advertised
in VA A-62. Tr. at 26.
25. Mr. Massanari did not have any discussions with Respondent after the date
of announcement
of positions in VA A-62, concerning the qualifications of applicants for those
positions. Tr. at 25, 40.
26. Respondent did not recommend to Mr. Massanari that Mr. Clary be selected
to fill the
position on the Representation Staff which was advertised in VA A-62. Tr. at
25, 40.
27. Mr. Spencer did not have any discussions with Respondent after the date
of announcement of
positions in VA A-62, concerning the qualifications of applicants for those
positions. Tr. at 66, 78-81.
28. Respondent did not recommend to Mr. Spencer that Mr. Clary be selected
to fill the position
on the Representation Staff which was advertised in VA A-62. Tr. at 25, 40.
29. Mr. Cooper was not selected for any of the three positions advertised in
VA A-62. See C. Ex.
8.
30. On September 18, 1985, Mr. Cooper filed a formal administrative complaint
against
Complainant in which he alleged that he had been discriminated against on the
basis of his race, sex, and
age when he was not selected for any of the three positions advertised in VA
A-62. Tr. at 73; C. Ex. 8.
31. On September 10, 1987, SSA issued a proposed disposition of Mr. Cooper's
complaint,
finding no basis for his allegations of discrimination. C. Ex. 12.
32. On October 26, 1987, Mr. Cooper requested a hearing on his complaint of
discrimination. C.
Ex. 13.
33. Respondent represented Mr. Cooper in Mr. Cooper's hearing request on his
discrimination
complaint. C. Ex. 13.
34. At the time Respondent agreed to represent Mr. Cooper, Respondent reviewed
Mr. Cooper's
complaint file in order to determine whether Respondent's representation would
violate the provisions of
18 U.S.C. 207. Tr. at 174-175.
35. On December 3, 1987, Respondent wrote to Complainant, confirming that
he represented Mr.
Cooper with respect to his discrimination complaint. C. Ex. 14.
36. Respondent continued to represent Mr. Cooper until January 5, 1989. R. Ex. 10, 14.
37. In order to establish a violation of 18 U.S.C. 207(a), Complainant must prove that:
(a) Respondent is a former employee of the executive branch of the United
States Government;
and that
(b) after Respondent ceased his employment, he knowingly represented a person
other than the United States in a formal or informal appearance before an agency,
officer or employee of
the United States Government; and that
(c) Respondent's appearance was in connection with a particular matter involving
a specific party
or parties in which the United States was a party or had a direct and substantial
interest; and that
(d) Respondent participated personally and substantially in the matter.
18 U.S.C. 207(a).
38. Complainant has the burden of proving, by a preponderance of the evidence,
that Respondent
violated 18 U.S.C. 207(a). Tr. at 9-10; see 5 C.F.R. 737.27(a)(7); 45 C.F.R.
73b.4(f).
39. Respondent has not established that Complainant failed to comply with
the requirements of
45 C.F.R. 73b.3. C. Ex. 18.
40. Respondent is a former employee of the executive branch of the United
States Government.
Finding 1.
41. Respondent represented Mr. Cooper after Respondent ceased his employment
with the
Executive Branch of the United States Government. Findings 32-35.
42. Respondent represented Mr. Cooper in a formal or informal appearance before
an agency,
officer or employee of the United States Government. Findings 32-35.
43. Respondent's representation of Mr. Cooper was in connection with the selections
which were
made to fill positions advertised in VA A-62. Findings 29-36.
44. The process by which selections were made for the positions advertised
by VA A-62 is a
"particular matter" within the meaning of 18 U.S.C. 207(a).
45. Mr. Cooper was a specific party to the selection process made pursuant
to VA A-62.
Findings 9-10, 29.
46. Mr. Cooper was a specific party to the discrimination complaint and hearing
request which he
filed. Findings 30-32.
47. The selection process pursuant to VA A-62 and Mr. Cooper's discrimination
complaint
involve the same basic facts. C. Ex. 1-3, 6, 7-9.
48. Respondent's representation of Mr. Cooper involved the same particular
matter as the process
by which selections were made for the positions advertised by VA A-62. Findings
41-42.
49. Respondent's representation of Mr. Cooper was in connection with a particular
matter
involving a specific party or parties in which the United States was a party
or had a direct and substantial
interest. Findings 41-42.
50. Respondent did not participate personally and substantially in the particular
matter of the
process by which selections were made to fill positions advertised in VA A-62,
while employed as a
federal officer and employee, through decision, approval, disapproval, recommendation,
the rendering of
advice, investigation, or otherwise. Findings 15-28.
51. Respondent's representation of Mr. Cooper subsequent to the cessation
of Respondent's
federal employment did not violate 18 U.S.C. 207(a).
ANALYSIS
Many of the relevant facts in this case are not disputed. The parties agree
that, until January 3, 1987,
Respondent was a federal employee. Finding 1. They agree that he served as supervisor
of Mr. Clary, one
of the employees who qualified for selection for one of the three positions
advertised in VA A-62. Finding
5. They agree that Mr. Clary was selected for one of the positions advertised
in VA A-62. Finding 23.
The parties agree that the selection occurred on a date prior to Respondent's
ceasing his federal
employment. Id. The parties also agree that, after Respondent ceased federal
employment, Respondent
represented another individual in a discrimination complaint arising from this
individual's failure to be
selected for one of the positions advertised in VA A-62. Findings 29-36.
There is disagreement as to other relevant facts. Complainant contends that,
prior to publication of VA A-
62, Respondent touted Mr. Clary's virtues to his supervisors and urged that
this employee be promoted to a
higher graded position. Respondent contends that he never recommended that this
employee or any other
employee be promoted. Tr. at 211. I conclude that, contrary to Respondent's
assertions, he actively
supported Mr. Clary's promotion prior to the publication of VA A-62 and the
selection process pursuant to
that announcement. Finding 15. Respondent's denials are belied by the testimony
of the other witnesses in
this case, including Mr. Clary.
The evidence establishes that Respondent's supervisors, Mr. Spencer and Mr.
Massanari, relied in some
respects on Respondent's views as to Mr. Clary's qualifications, expressed prior
to the date of publication
of VA A-62, in selecting Mr. Clary to fill the position on the Representation
Staff. Findings 22, 24.
However, the evidence does not support Complainant's contention that Respondent
actively recommended
Mr. Clary for selection for a position advertised in VA A-62.
I conclude that the record does not establish communications between Respondent
and either Mr. Spencer
or Mr. Massanari concerning Mr. Clary's candidacy for a position advertised
in VA A-62. Findings 25-28.
There is no evidence that Respondent's views as to Mr. Clary's selection, or
the selection or nonselection of
other candidates for positions advertised under that announcement, were solicited
by Respondent's
supervisors. Id. Nor is there credible evidence to establish that Respondent
volunteered his opinion as to
who should be selected to fill any of the advertised positions. Id. Thus, while
the record establishes
Respondent to have been an interested bystander to the selection process, it
does not establish that he
directly participated in that process.
Given these fact findings, the question becomes whether Respondent's representation
in a discrimination
complaint against Complainant of an unsuccessful applicant for a position advertised
in VA A-62, after
Respondent ceased government employment, violated 18 U.S.C. 207(a). I conclude
that Respondent's
representation activity did not violate the law, because Respondent did not
participate "personally and
substantially" in the selection process used to fill positions under VA
A-62.
There are four criteria which must be met in order to establish that an individual
violated 18 U.S.C. 207(a).
First, the person accused of violating the law must be a former federal employee.
In this case, there is no
dispute that Respondent is a former federal employee.
Second, the former employee must, after ceasing his employment, knowingly represent
a person other than
the United States in a formal or informal appearance before an agency, officer,
or employee of the United
States Government. Respondent's representation of Mr. Cooper in a discrimination
complaint against
Complainant satisfies this statutory requirement.
Third, there must be an identity between the subject matter of the post-employment
representation and the
particular matter with which that former employee was associated while serving
as a federal employee.
Complainant asserts that this criterion is satisfied in this case. Complainant
argues that the "particular
matter" at issue is the process by which persons were selected to fill
positions advertised in VA A-62.
Complainant's Brief at 14. Complainant argues that Mr. Cooper's complaint of
discrimination is the same
"particular matter" as the selection process for VA A-62. According
to Complainant, the discrimination
complaint involves the same basic facts as the selection process, and it involves
the continuing existence of
a federal interest--the government's desire to insure that its employment selection
process is free from
discrimination. Complainant's Brief at 15-16.
Respondent disputes this analysis. According to Respondent, Mr. Cooper's discrimination
complaint is not
the same particular matter as the selection process pursuant to VA A-62. Respondent
asserts that the
criteria for selection and the possible bases for a charge of employment discrimination
are distinguishable.
Respondent's Reply Brief at 2. Furthermore, according to Respondent, the mere
fact that some of the
factual elements in the selection process and in Mr. Cooper's discrimination
complaint may be the same
does not mean that the selection process and the discrimination complaint are
the same "particular matter."
Id. at 2-3.
I conclude that the selection process for VA A-62 and Mr. Cooper's subsequent
discrimination complaint
constitute the same "particular matter" within the meaning of 18 U.S.C.
207(a). I base my conclusion on
the substantial identity of facts and issues in the selection process and Mr.
Cooper's subsequent
discrimination complaint.
Regulatory criteria have been established to determine whether two matters
are the same "particular
matter" within the meaning of 18 U.S.C. 207(a). In determining whether
two particular matters arethe
same, the agency should consider the extent towhich the matters involve the
same basic facts,related issues,
the same or related parties, time elapsed, the same confidential information,
and the continuing existence of
an important federal interest. 5 C.F.R. 737.5(c)(4).
The selection process pursuant to VA A-62 and Mr. Cooper's discrimination complaint
plainly involve the
same basic facts. Indeed, Mr. Cooper would have had no basis to allege discrimination,
but for the
selection process. It is also apparent that the selection process and Mr. Cooper's
complaint involve related
issues--the criteria by which selections were made. The two matters involve
the same or related parties,
including the selecting officials, and the persons who made the best qualified
list and who were either
selected or not selected to fill the advertised positions. The selection process
and Mr. Cooper's complaint
also involve an important federal interest, consisting of the need to assure
that selections of individuals to
fill vacancies for federal employment are free from unlawful discrimination.
The final criterion which must be met in order to establish a violation of
18 U.S.C. 207(a) by a former
federal employee is that the particular matter at issue is a matter in which
the former employee participated,
personally and substantially:
as an officer or employee through decision, approval, disapproval, recommendation,
therendering
of advice, investigation orotherwise . . . .
18 U.S.C. 207(a)(3).
The record in this case does not establish that Respondent actively participated
in the selection process to
fill positions advertised in VA A-62. The critical question, therefore, is whether
Respondent's
recommendations and expressions of interest made prior to the posting of VA
A-62 suffice to satisfy the
statutory requirement that he participate personally and substantially in the
particular matter of the
selection process. I conclude that Respondent's actions do not conform to the
criteria stated in the law.
While Respondent may have expressed his opinions before the inception of the
selection process, the
record does not establish that he was involved in the actual process of selecting
persons to fill the positions
advertised by VA A-62. He made no decision or recommendation, and rendered no
advice, in the selection
process.
The evidence establishes that Respondent made recommendations and offered advice
concerning Mr Clary.
He also took actions as a supervisor which affected Mr. Clary's standing as
an applicant for positions
advertised pursuant to VA A-62. However, this involvement by Respondent occurred
prior to the posting
of VA-A 62. Moreover, the recommendations and advice offered by Respondent concerning
Mr. Clary did
not directly pertain to decisions made with respect to filling advertised positions.
Rather, it pertained only
to Mr. Clary's job performance, and the merits of promoting this individual.
These distinctions may appear at first glance to be narrow, but they are neither
meaningless nor artificial.
As noted above, the law requires a specific degree of involvement by an individual
in a particular matter, in
order to render unlawful post-employment representation activities. Conduct
does not fall within the
statutory prohibition unless it meets the narrow and precise statutory criteria.
In this case, the most that can
be said about Respondent's involvement in the selection process is that his
views about Mr. Clary may have
affected Respondent's supervisors' judgment when they made selections to fill
the advertised positions.
However, Respondent's expressions of opinion, made prior to the commencement
of the selection process,
do not amount to substantial participation in the selection process.
Complainant argues that even if Respondent did not actually participate in
the selection process under VA
A-62, his opinions to his supervisors concerning Mr. Clary significantly influenced
their decision to select
Mr. Clary for the position on the Representation Staff. Complainant asserts
that this level of involvement
by Respondent is sufficient to meet the "participate personally and substantially"
test of 18 U.S.C. 207(a).
Complainant grounds this argument on language in 5 C.F.R. 737.5(d), which provides
in relevant part:
To participate "personally" means directly, and includes the participation
of a subordinate
whenactually directed by the former Governmentemployee in the matter. "Substantially,"
meansthat the
employee's involvement must be ofsignificance to the matter, or form a basisfor
a reasonable appearance of
suchsignificance . . . .
(Emphasis added). According to Complainant, Respondent's advice to his superiors
concerning Mr. Clary
formed a basis for a "reasonable appearance" of significant involvement
in the selection process, and
therefore met the "participate personally and substantially test"
of 18 U.S.C. 207(a). C.'s Reply Brief at 1-
3.
I disagree with this analysis and Complainant's conclusion. Both the statute
and the regulation require the
employee to directly participate in a particular matter in order to bring that
employee's post-employment
representation activities within the law's prohibitions. Although the record
establishes that Respondent's
opinions as to Mr. Clary's qualifications influenced his superiors' selection
of Mr. Clary, there is no
evidence that Respondent participated in the selection process. Respondent was
simply not involved,
either as a recommending or selecting official. Moreover, the possibility that
his superiors may have felt
no need to consult with Respondent, because his views were well known, does
not serve to make
Respondent a de facto participant in the selection process.
In reaching this conclusion, I have considered relevant examples of prohibited
conduct contained in 5
C.F.R. 737.5. They are distinguishable from the facts established by the evidence
in this case.
The regulations make clear that the principal intent of the law in the area
of representation is to make
unlawful post-employment conduct which amounts to switching of sides by a former
employee. Example
1, set forth in 5 C.F.R. 737.5(b)(1), addresses the case of the government attorney
who changes sides in an
antitrust case after leaving federal employment. This example is distinguishable
from the present case,
because, in the example, the attorney was directly involved in an ongoing litigation
as a decision-maker,
both before and after leaving federal employment. In this case, Respondent was
not directly involved in
the process of making selections pursuant to VA A-62, prior to leaving federal
employment.
The regulation cites examples to explain what is meant by personal and substantial
participation in a
particular matter. 5 C.F.R. 737.5(d)(1). Example 2 under this subsection describes
the situation where a
government lawyer is not in charge of a particular litigation, but is frequently
consulted as to filings,
discovery, and strategy. According to this example, the lawyer has personally
and substantially
participated in the litigation, and would be barred from representing the other
side after leaving federal
employment. Again, this example is distinguishable from the present case by
virtue of the fact that the
employee in the example was directly involved in the actual decision-making
process of the particular
matter at issue.
Respondent raised other issues which I either decided prior to the hearing
or which I find unnecessary to
decide. Respondent asserted that Complainant had not complied with procedures
prescribed by regulation
in investigating the case and filing its complaint. See 45 C.F.R. 73b.3. According
to Respondent, such
prescribed procedures are a jurisdictional prerequisite to filing the complaint,
and even if they are not a
prerequisite, Respondent would be prejudiced by Complainant's failure to follow
prescribed procedures. I
ruled that, even assuming Respondent's allegations were true, the regulatory
pre-complaint procedures
were not jurisdictional in character, and Respondent would not be prejudiced
by Complainant's failure to
follow these procedures. Tr. at 8-9. The parties have submitted additional argument
as to these issues; I
have considered their arguments and find no basis to change my ruling.
However, I also conclude that there does not exist credible evidence of record
in this case to substantiate
Respondent's claim that Complainant did not follow prescribed regulatory procedures
prior to issuing its
complaint. Finding 39.
Respondent also asserted that Complainant's allegations against him were generated
as an act of retaliation
for Respondent's representation activities. I find little or no evidence in
the record of this case which
supports this allegation. However, there is no need for me to rule on it, because
I conclude that
Complainant did not establish its allegation that Respondent engaged in activities
which violated 18 U.S.C.
207(a).
CONCLUSION
Based on the evidence in this case and the law, I conclude that Complainant
has not established that
Respondent's post-employment representation of Mr. Cooper on a discrimination
complaint violated 18
U.S.C. 207(a). Therefore, I enter a decision in favor of Respondent.
__________________________________
Steven T. Kessel
Administrative Law Judge