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Partner at Meagher & Geer, P.L.L.P.
Rob represents insurance companies on coverage matters. He works with claims representatives, supervisors, managers, and counsel through the interpretation and application of insurance contracts. He drafts coverage opinions and crafts coverage position letters to uphold the insurance contract. He spends the majority of his time litigating coverage actions, including declaratory judgment actions, equitable contribution actions, and defending against coverage and bad faith actions.
Rob’s coverage practice touches each of the Rocky Mountain States. Rob offers coverage advice, recommendations, and prosecutes coverage actions in states around the country. But he focuses his coverage litigation in Arizona, Utah, Colorado, New Mexico, and Nevada. Many of Rob’s coverage cases are forumed in Utah, where he holds an active Utah bar license. Arizona remains the home base and the hub of the coverage activity.
In any given case, the focus is on successfully representing the client. Yet it is equally important to Rob to forge a good working relationship with a foundation of rapport and trust. Good advice, counsel, and strategy coupled with collaboration is the goal. The time on the phone with the claims representative, supervisor, manager, or counsel is every bit as important to Rob as the time doing the work that wins the case.
If you have spoken with Rob, you know that outside the office he remains as busy as in the office. He is a proud parent of three children, and spends time with his wife, April, making memories with the children.
Representative Cases: City of Phoenix v. First State Insurance Company, et al ., --- Fed.Appx. ----, 2018 WL 1616011 (9th Cir. 2018) (insurance carrier owed no coverage for $1.9 million in defense expenses and indemnity payments on wrongful death suit because self-insured retention would not be construed as eroding by payment of defense expenses and indemnity payments did not exceed the SIR).; Geurden v. Quantum Transportation, et al ., --- F.Supp.3d ----, 2018 WL 1522481 (D.Ariz. 2018) (insurance carrier not bound by purported Damron Agreement for $25 million since the carrier did not actually breach the duty to defend and the anticipatory breach of policy obligations cannot be the predicate for a Damron Agreement).; Colony Insurance Company v. Estate of Lakeisha Anderson, 2016 WL 796983 (Ariz. App. 2016) (holding that $2.2 million judgment against insured group home for death of resident fell outside the coverage of claims-made-and-reported policy in effect at time of death because claim was not reported during the policy period, further, death fell outside the coverage of the second claims-made-and-reported policy given the retroactive date).; Nelson v. Navigator Insurance Company, 624 Fed.Appx. 599 (9th Cir. 2015) (holding that general liability insurer did not provide coverage for $4.2 million judgment on spoliation of evidence suit under CGL Policy and Excess Policy because spoliation of evidence is for economic loss, not bodily injury or property damage, and the Insured's subjective expectation of coverage for the suit did not rise to the level of objective reasonableness under the evidence presented).; Continental Casualty Company v. Evans, 2015 WL 11120680 (D.Ariz. 2015) (insurer not liable on jury verdict against the insured for over $500,000 because prior knowledge exclusion in claims made policy barred coverage).; Nat 'l Fire Ins. Co. of Hartford, et al. v. Lewis, M.D., et al ., 898 F. Supp . 2d 1132 (D.Ariz. 2012) (holding that general liability insurer did not have a duty to indemnify insured medical practice in eight underlying lawsuits for vicarious liability and negligent hiring, supervision and retention of cardiologist to the extent that the cardiologist groped and fondled the breasts of his female patients because such conduct, and all derivative theories of liability arising from such conduct, fell within the professional services exclusion).; American Casualty Co. of Reading, Pennsylvania v. United National Ins. Co ., 2012 WL 2415540 (Ariz. App . 2012) (holding that settlement by client-insurer could not be undone by proposed intervenor-insurer as proposed intervenor-insurer did not seek timely intervention and lacked sufficient interest to merit intervention as of right).; Nationwide Mutual Fire Ins. Co. v. Jones, 695 F. Supp . 2d 978 (D.Ariz. 2010) (motor vehicle exclusion precluded coverage for ATV accident on public street).; Monterey Homes Arizona, Inc. v. Federated Mutual Insurance Company, 212 P. 3d 43 (Ariz. App . 2009) (holding that insurer should have been allowed to intervene to assert subrogation claim for attorney and expert fees).; Tilley v. Delci, 220 Ariz. 233, 204 P. 3d 1082 ( App . 2009) (defendant motorist was entitled to summary judgment as plaintiff motorist failed to create genuine issue of material fact).; Webb v. Gittlen, 217 Ariz. 363, 174 P. 3d 275 (2008) (insurance agent not bound by Damron agreement).

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For police to surreptitiously track a motor vehicle using GPS technology requires a warrant; and a passenger traveling with the vehicle-owner has a reasonable expectation of privacy under the Fourth Amendment to the U.S. Constitution.
The defendant, Emilio Jean, was a passenger in the tractor-trailer stopped by police. Defendant was convicted of conspiracy, illegally conducting an enterprise, money laundering, and transportation of over two pounds of marijuana. He was sentenced to two concurrent prison terms of 10 years followed by two concurrent probation terms of five years. Jean appealed the trial court’s denial of his motion to suppress evidence, arguing that police failed to get a warrant as required by law. As defendant argued, evidence obtained in violation of the Fourth Amendment should have been suppressed under the exclusionary rule.
However, this defendant’s conviction stands because the “good-faith exception to the exclusionary rule applies” where police relied in good faith on binding appellate precedent – that is, binding case law – in the exercise of their official duties.
While the subject tractor-trailer was being driven in Phoenix, the Department of Public Safety (DPS) became suspicious and ran the license plate. The truck was registered to Velez-Colon as the owner of the “SWIFF” company; the trailer marked “SWIFT” had been reported stolen. Suspecting the tractor-trailer was being used to transport drugs, DPS installed a GPS tracking device on the truck without first obtaining a search warrant. Police did not know defendant was a passenger paid to share the driving with the truck-owner Velez-Colon.
Police monitored the tractor-trailer for 31 hours over a three day period: From Georgia to Tucson, Tucson to Phoenix, Phoenix to California, and then California to Arizona.
At 4:00 a.m., police stopped the tractor-trailer when it re-entered Arizona. Velez-Colon was driving as Jean slept in the bunk. Both men refused permission to a police search of the tractor-trailer. A drug detection dog alerted DPS to something in the trailer. Upon searching the trailer, officers found 2,140 pounds of marijuana.
At trial, defendant motioned to suppress drug evidence because the discovery of marijuana in the trailer was the result of an illegal search. Police failed to obtain a warrant when they placed the GPS tracking device on Velez-Colon’s truck. The defendant argued that GPS tracking violated both possessory and privacy rights under Fourth Amendment and 14th Amendment to the U.S. Constitution.
The trial judge denied defendant’s motion to suppress because Jean was a passenger and, as such, lacked standing to object to the government’s use of a GPS tracking device on someone else’s vehicle. Defendant was found guilty as charged and sentenced. The conviction was affirmed by the Arizona Court of Appeals.
The appeals court looked to State v. Jean, 239 Ariz. 495 (Ariz. Ct. App. 2016), holding defendant could not claim his Fourth amendment rights were violated based on a trespass theory because he was not a bailee and had no possessory interest in the vehicle. Therefore, defendant had no reasonable expectation of privacy as a passenger or driver of a vehicle because no person travelling on public road has a reasonable expectation of privacy in his or her movements from one place to another. Defendant sought review by the Arizona Supreme Court.
The issue before the Arizona Supreme Court was whether warrantless GPS tracking was a search that violated the defendant’s Fourth Amendment rights and, if so, should evidence gathered without a warrant have been excluded under the exclusionary rule? Regarding a passenger’s rights, what follows is a brief summary of the Arizona Supreme Court’s Fourth Amendment analysis.
The rule is that the government’s installation of a GPS tracking device on a target vehicle for the purpose of monitoring its movements constitutes a search if its use rises to the level of a common law trespass. Citing U.S. v. Jones, 565 U.S. 400 (2012).
Rejecting defendant’s vicarious trespass argument, the court stated that “Jean cannot challenge the GPS monitoring as a ‘search’ under the trespass theory unless the use of the device constituted a common law trespass as to him.” Which it did not.
In this instance, defendant neither owned nor possessed the surveilled truck. Under U.S. v. Jones, Jean could not challenge warrantless GPS tracking as a search on a trespass theory. Mr. Velez-Colon could as owner and possessor of the truck. Defendant could not complain about how the search violated Velez-Colon’s rights either. Jean lacked standing to vicariously assert a Fourth Amendment violation on a theory of trespass to Velez-Colon’s personal rights.
Under the last prong of the Jones trespass theory, Jean had no “indicia of ownership” over the tractor-trailer. Defendant had no authority or right to exclude another person’s access to Velez-Colon’s truck.
Fourth Amendment Reasonable Expectation of Privacy Test: Katz v. U.S.
Defendant argued police violated his reasonable expectation of privacy right under Fourth Amendment analysis. In this, he successfully claimed the warrantless GPS tracking of his movements by police over three days was a “search” under the Katz reasonable expectation of privacy test. Katz v. U.S., 389 U.S. 347 (1967).
Does a passenger in a vehicle travelling with the owner have a reasonable expectation that the vehicle’s movements will not be tracked through non-consensual, surreptitious, GPS monitoring by government? Yes. Did continual GPS monitoring of tractor-trailer’s movements invade defendant’s reasonable expectation of privacy? Yes.
This conclusion agrees with several jurisdictions, such as the Florida Supreme Court’s holding in Tracey v. State, 152 So.3d 504 (Fla. 2014). In some states, warrantless GPS tracking was held to violate an individual’s right to privacy based upon state constitution (Massachusetts and Delaware). Yet other jurisdictions impose civil and criminal penalties for using electronic tracking devices requiring evidence obtained in this manner without a warrant be excluded (Florida, Hawaii, Minnesota, Pennsylvania, South Carolina, and Utah).
Ultimately, the Arizona Supreme Court upheld the trial court’s denial of defendant’s motion to suppress marijuana drug evidence from the warrantless search. Why? Applying Davis v. U.S., 564 U.S. 229 (2011), “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” The state successfully argued that, because DPS acted in objectively reasonable reliance on binding appellate precedent, the exclusionary rule did not suppress the marijuana evidence from the warrantless search. The trial court’s denial of defendant’s motion to suppress, conviction, and sentencing were affirmed.
To learn more about criminal court proceedings and how drug evidence obtained in violation of the Fourth Amendment may be excluded at trial, read about drug crimes in Arizona law.
Posted March 16th, 2018 by Scott Stewart & filed under Criminal Defense.

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Scott v. Matlack, Inc., 39 P.3d 1160 (Colo. 2002).
E.R. Southtech, Ltd v. Arapahoe County Bd. Of Equalization, 972 P.2d 1057 (Colo. App. 1998).
National Cas. Co. v. Great Southwest Fire Ins Co., 833 P.2d 741 (Colo. 1992).
Aurora Plaza v. County Bd. Of Equalization., 770 P.2d 1204 (Colo. 1989).
Boyles Bros. Drilling Co. v. Orion Industries, Ltd., 761 P.2d 278 (Colo. App. 1988).
Colo. Accounting Machines v. Mergenthaler, 44, Colo. App. 155, 609 P.2d 1125 (1980).
Stoecker v. Brush Wellman, Inc., 194 Ariz. 448,984 P.2d 534 (Ariz. 1999).


As you know, the State Ethics Commission conducted a preliminary inquiry into whether you, as a Wayland Public Schools employee, violated §§ 17, 19 and 23(b)(3) of G.L. c. 268A, the conflict of interest law, by purchasing apparel and other goods from businesses owned by your father, and by acting as an agent for the businesses in transactions with Wayland High School.
On September 21, 2017, the Commission voted to find reasonable cause to believe you violated G.L. 268A. Rather than initiating adjudicatory proceedings against you, however, the Commission chose to resolve this matter through this Public Education Letter because: (1) Wayland High School investigated the matter and already imposed a financial penalty on you; and (2) you brought this matter to the Commission’s attention as a self-report and fully cooperated with the Commission’s investigation.
The Commission and you have agreed this matter will be resolved publicly with this educational letter and that there will be no formal proceedings against you. You have chosen not to exercise your right to a hearing before the Commission. The Commission expects that, by resolving this matter through this Public Education Letter, you, and other public employees in similar circumstances, will have a clearer understanding of the conflict of interest law and how to comply with it.
You have worked for Wayland Public Schools since 1996. Between 2004 and 2016, you served as the Assistant Principal of Wayland High School. You have also served as the Wayland High School head football coach for sixteen years.
At all relevant times, your father, Arnold Parseghian, sold embroidered and screen-printed clothing through businesses he solely owned. Over the years, your father did business as PSCMS, Inc., Hancock Printing and A&S Printing, and his customers included the Wayland Public Schools. Between 2001 and 2015, Wayland High School paid a total of approximately $150,000 to your father’s businesses.
From 2001 until 2015, you participated as a Wayland Public Schools employee in purchases of merchandise from your father’s businesses for the Wayland High School football team. You did so by, as football coach, deciding or helping to decide what merchandise to purchase and from whom to purchase it, by placing purchase orders with your father’s businesses, and/or by submitting to the Wayland High School or, in 2014 and 2015, to the Wayland Booster Club, requests for payment for the ordered merchandise (check requests). When the decision was to purchase merchandise from your father’s businesses, as it often was, you handled the orders. Invoices from your father’s businesses and check requests from this time period relating to forty-one purchases for the Wayland High School football team and other High School teams and clubs identify you as the purchaser and total roughly $60,000. Many of the invoices also identify you as your father’s businesses’ representative.
During this same time period, you also facilitated purchases of merchandise from your father’s businesses for other Wayland High School teams, clubs and departments. You did so by providing catalogs and keeping samples of your father’s businesses’ merchandise in your Wayland High School office, taking merchandise orders, and delivering the ordered merchandise. Other Wayland High School staff members, acting on behalf of school athletic teams, clubs, or departments, reviewed catalogs and merchandise samples in your office, placed orders through you with your father’s businesses, and/or received delivery of ordered merchandise through you. Invoices and check requests for forty-six purchases from your father’s businesses during this time period for these other Wayland High School teams, clubs and departments, identify you as the ‘rep’ or ‘delivery representative’ of your father’s businesses and total roughly $60,000.
In or about June 2015, when concerns about whether you had a conflict of interest with respect to the transactions between Wayland High School and your father’s businesses were brought to your attention, you ended your involvement in the transactions and self-reported your conduct to the Commission.
As an employee of the Wayland Public Schools, you are municipal employee of the Town of Wayland, as defined by c. 268A § 1(g), and subject to the conflict of interest law. The Commission voted to find reasonable cause that you violated §§ 17(c), 19, and 23(b)(3) of this law for the reasons set forth below.
Your facilitation of transactions between your father’s businesses and Wayland High School and its departments, teams and clubs raises concerns under § 17(c) of the conflict of interest law. Section 17 prohibits a municipal employee from acting as agent or attorney for anyone other than his municipal employer in connection with a particular matter in which the municipality is a party or has a direct and substantial interest, unless doing so is part of the employee’s official duties. The purpose of this prohibition is to prevent having a municipal employee’s loyalty divided between his public employer and another party.
A municipal employee ‘acts as an agent’ by communicating on behalf of a third party or acting as a liaison for a third party. See Advisory 88-01: Municipal Employees Acting as Agent for Another Party. In your case, you offered samples of your father’s businesses’ merchandise, took purchase orders, and delivered purchased goods. Although you were not compensated by your father’s business for these actions, they still constituted acting as agent for your father’s businesses in connection with the purchase of the businesses’ merchandise by Wayland High School, its departments, teams and clubs. These purchases of merchandise were “particular matters” in which your municipal employer, the Town of Wayland, had a direct and substantial interest because the purchases were either paid for by Wayland High School, or with monies raised by fundraisers authorized and approved by the High School. The Town has a direct and substantial interest in the expenditure of Wayland High School funds and of monies raised with the authorization of the High School for the benefit of the High School and its teams and clubs.
Your participation as a municipal employee in purchases of merchandise from your father’s businesses raises issues under § 19 of the conflict of interest law. Section 19 prohibits a municipal employee from participating in his official capacity in any particular matter in which, to his knowledge, he or his immediate family has a financial interest. The purpose of § 19 is to avoid self-dealing and nepotism by municipal employees in the performance of their official duties. As described above, you participated as a Wayland High School employee in multiple decisions to purchase merchandise from your father’s businesses, and submitted requests for payment for items purchased from your father’s businesses to the High School or the Booster Club. You were aware that a member of your immediate family, your father, had a financial interest in the purchases. Although you told us that you believed your appointing authority tacitly approved of the business relationship between your father’s businesses and the Wayland High School, neither your belief nor your appointing authority’s tacit approval, if true, would be have been sufficient to make your participation in the purchases lawful. In order for you to have been able to participate as a municipal employee in purchases from your father’s businesses without violating § 19, you would, prior to your participation, have had to have fully disclosed in writing to your appointing authority the facts of your participation and your father’s financial interest and received back from your appointing authority a written determination allowing your participation in the purchases. You did not do so.
Section 23(b)(3) of the conflict of interest law prohibits a public employee from, knowingly or with reason to know, acting in a matter which would cause a reasonable person, with knowledge of the relevant circumstances, to conclude that anyone can improperly influence or unduly enjoy that the public employee’s favor in the performance of his official duties, or that the public employee is likely to act or fail to act as a result of kinship, rank, position or undue influence of any party or person. Section 23(b)(3) addresses the appearance of undue influence or favoritism in the official actions of public employees. Given your participation as Wayland High School head football coach in purchases of merchandise from your father’s businesses, a reasonable person would conclude that you are likely to act as a result of kinship to your father, or that your father can unduly enjoy your favor in the performance of your official duties as an employee of the Wayland Public Schools.
A public employee may avoid violating § 23(b)(3) by making a full written disclosure to his appointing authority of the facts that would otherwise lead to an appearance of undue influence or favoritism. At no point did you make such a disclosure. Thus, even if you believed your appointing authority tacitly approved of your actions, you still violated §23(b)(3).
The Commission is authorized to resolve violations of G.L. c. 268A with civil penalties of up to $10,000 for each violation, except that a civil penalty of up to $25,000 may be imposed for G.L. c. 268A, § 2 violations (bribes). Based upon its review of this matter, however, the Commission has determined that the public interest would be best served by the issuance of this educational letter in lieu of adjudicatory proceedings, and that your receipt of this Public Education Letter should be sufficient to ensure your understanding of and future compliance with the conflict of interest law.


Rokki Knee CARR, Petitioner, v. SOCIAL SECURITY ADMINISTRATION,* Respondent.
Before PLAGER, SCHALL, and BRYSON, Circuit Judges. Robert D. Luskin,Comey, Boyd & Luskin, of Washington, DC, argued for the petitioner. Lee J. Freedman, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for the respondent. On the brief were David M. Cohen, Director, Kathryn A. Bleecker, Assistant Director, and Joel McElvain, Attorney.
Rokki Knee Carr petitions for review of the final decision of the Merit Systems Protection Board (“Board”) authorizing the Social Security Administration (“SSA” or “agency”) to remove her from her position as an administrative law judge (“ALJ”). Social Security Administration v. Carr, 78 M.S.P.R. 313 (1998). We affirm.
Ms. Carr began work as an ALJ in 1990 in the SSA's Albuquerque, New Mexico hearing office. In 1991, the agency transferred her to its hearing office in New Haven, Connecticut. Shortly after she began working in New Haven, Ms. Carr discovered conduct that she believed constituted gross mismanagement. She also discovered what she believed were violations of various statutes, rules, and regulations. She disclosed her discoveries to appropriate authorities within SSA. Her disclosures related in part to the staff at the New Haven office.
In the meantime, Ms. Carr was the subject of disciplinary action. On April 22, 1992, she received a letter of counseling for intimidation of, and insensitivity towards, subordinate staff members. Thereafter, on July 19, 1993, she was reprimanded for disruptive behavior and inappropriate conduct. Eventually, after a number of other incidents, SSA decided that Ms. Carr should be removed from her position. Since she was an ALJ, however, this action could not be taken until SSA obtained authorization from the Board. See 5 U.S.C. § 7521 (1994) (“An action may be taken against an administrative law judge ․ by the agency in which the administrative law judge is employed only for good cause established and determined by the [Board] on the record after opportunity for hearing before the Board.”). Accordingly, on June 20, 1994, SSA filed a complaint with the Board seeking authorization to remove Ms. Carr from her position as an ALJ, based on six charges supported by twenty-eight specifications.
In accordance with regulations then in effect and following a hearing, the presiding administrative law judge, who in this case was the Board's Chief Administrative Law Judge (“CALJ”), issued a recommended decision. See 5 C.F.R. § 1201.135(a) (1996) (“[A]n action by an employing agency against an administrative law judge will be heard by an administrative law judge, who will issue a recommended decision․”).1 The CALJ sustained four of the six charges and fifteen of the twenty-eight specifications (sustaining six of the specifications only in part). Based on his findings, he recommended that the Board authorize SSA to remove Ms. Carr from her position. See 5 C.F.R. § 1201.136 (1996) (requiring the Board to authorize disciplinary action and the penalty to be imposed after it has made a finding of good cause shown).
The Board adopted the CALJ's recommended decision and authorized SSA to remove Ms. Carr from her position as an ALJ. See Carr, 78 M.S.P.R. at 318. The four charges against Ms. Carr that were sustained by both the CALJ and the Board were (1) reckless disregard for personal safety (one specification sustained in part), (2) persistent use of vulgar and profane language (seven specifications), (3) demeaning comments, sexual harassment and ridicule (three specifications, one of which was in part sustained), and (4) interference with efficient and effective agency operations (one specification). See id. at 330.
This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994).
The scope of our review of a decision of the Board is limited. We must affirm the decision unless we find it to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence․” 5 U.S.C. § 7703(c) (1994); Gibson v. Department of Veterans Affairs, 160 F.3d 722, 725 (Fed.Cir.1998).
Before the Board, SSA had the burden of establishing the charges against Ms. Carr by a preponderance of the evidence. See 5 U.S.C. § 7701(c)(1)(B) (1994); Mattson v. Department of the Treasury, 86 F.3d 211, 214 (Fed.Cir.1996). On appeal, Ms. Carr does not challenge the findings of the Board that she persistently used vulgar and profane language, that she made demeaning comments and engaged in sexual harassment and ridicule, and that, by her conduct, she interfered with efficient and effective agency operations. Her sole challenge to the sufficiency of the evidence relates to the charge that she acted with reckless disregard for personal safety.
The Board sustained the charge of reckless disregard for personal safety because it found that Ms. Carr knew that Ms. Harris-Gonzales, a hearing office manager, was standing in Ms. Carr's office doorway when Ms. Carr closed the door with force, causing the door to hit and injure Ms. Harris-Gonzales. See Carr, 78 M.S.P.R. at 321-23. Ms. Carr contends, however, that the finding that she shut her office door knowing that Ms. Harris-Gonzales was standing in the doorway is insufficient, as a matter of law, to support a finding that she acted with reckless disregard for personal safety. The contention is without merit. We have no difficulty agreeing with the Board that when Ms. Carr shut her office door with sufficient force to cause injury, knowing that Ms. Harris-Gonzales was standing in the doorway, she acted with reckless disregard for personal safety. Recognizing that SSA proved by a preponderance of the evidence four of the charges against Ms. Carr, we turn to the remaining arguments that are raised on appeal.
Ms. Carr's main argument on appeal relates to an affirmative defense that she asserted before the Board. In response to the agency's petition to remove her, Ms. Carr raised the affirmative defense that the removal action was being taken against her in retaliation for her whistleblowing activities, in violation of the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (codified at various sections of 5 U.S.C.) (“WPA”). The WPA prohibits a personnel action 2 with respect to an employee because of “any disclosure of information by [such] employee ․ which the employee ․ reasonably believes evidences-(i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety․” 5 U.S.C. § 2302(b)(8) (1994). Under the statute, after an employee establishes by a preponderance of the evidence, Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1034 (Fed.Cir.1993), that she made a protected disclosure, that subsequent to the disclosure she was subject to disciplinary action, and that the disclosure was a contributing factor to the personnel action taken against her, the agency must prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure. See 5 U.S.C. § 1221(e) (1994); Kewley v. Department of Health and Human Services, 153 F.3d 1357,1364 (Fed.Cir.1998).
The Board found, and the parties do not dispute, that Ms. Carr made protected disclosures, that she was subject to discipline after making the disclosures, and that the disclosures were a contributing factor in the disciplinary action against her. Therefore, in relation to Ms. Carr's affirmative defense, the only issue that remained before the Board was whether SSA could establish by clear and convincing evidence that it would have sought authority to remove Ms. Carr in the absence of her protected disclosures.
Turning to the pertinent facts, the decision to petition the Board for authority to remove Ms. Carr was made by SSA Associate Commissioner Daniel Skoler. Associate Commissioner Skoler petitioned the Board on behalf of SSA after receiving recommendations to remove Ms. Carr from Judge David Allard, Regional Chief ALJ, and Judge Robert A. Pulcini, Hearing Office Chief ALJ for the New Haven office and Ms. Carr's supervisor. Judge Pulcini received complaints from employees of the New Haven office regarding Ms. Carr, and relayed those complaints to Judge Allard and Associate Commissioner Skoler.
Both Judge Pulcini and the employees of the New Haven Office had motives to retaliate against Ms. Carr. Judge Pulcini, as Hearing Office Chief ALJ, had responsibility for management of the New Haven office. Ms. Carr's protected disclosures related to the management of the office, and constituted criticisms of Judge Pulcini's performance. Indeed, Judge Pulcini eventually was removed from the position of Hearing Office Chief ALJ. Judge Pulcini plainly had a motive to retaliate against Ms. Carr. The employees of the New Haven office also were motivated to retaliate against Ms. Carr, as Ms. Carr's complaints in part related to their conduct.
While Judge Pulcini testified that he had recommended [removal] in August or September 1993, he indicated in doing so ․ that he had provided the same advice several months earlier obviously without success. Moreover, he testified without contradiction that, as [Hearing Office Chief ALJ], he “had no direct authority over” administrative law judges in his office, and that he could only report problems such as those he experienced with [Ms. Carr] to his superiors. In addition, when asked whether he was “given an answer as to what was going to be done” in response to his requests for action with respect to [Ms. Carr], he testified that he was not given this information, and he added, “That was part of my problem. I was not being informed.” Finally, [Judge Pulcini's removal as Hearing Office Chief ALJ] shortly after [Ms. Carr's] removal was proposed ․ suggests that the Associate Commissioner and others advising him may have viewed Judge Pulcini's complaints and requests with some skepticism, and that they may [have] concluded that they needed to base their decisions regarding [Ms. Carr] on more independent sources of information.
(citations to the record omitted).
The Board has held that, when determining whether an agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing, it will consider the following factors: the strength of the agency's evidence in support of its personnel action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated. See Geyer v. Department of Justice, 70 M.S.P.R. 682, 688 (1996), aff'd, 116 F.3d 1497 (Fed.Cir.1997) (Table). We believe that Geyer sets forth an appropriate test for determining whether, in a given case, an agency has carried its burden of establishing by clear and convincing evidence that it would have taken the personnel action at issue in the absence of the disciplined employee's protected disclosure(s).
The record evidence shows that ․ both [individuals] had a strong motive to retaliate. They were both subjects of the Appellant's protected disclosure, they were the subjects of an ․ investigation due to the Appellant's protected disclosure when they made their reports about the incidents that formed the basis of the charged misconduct.
Thus, Ms. Carr argues that the Board should have denied SSA's petition for authority to remove her because the indisputably improper conduct in which she engaged-and for which SSA sought her removal-would not have come to the attention of Associate Commissioner Skoler and Judge Allard but for her protected disclosures. In other words, Ms. Carr asserts that the staff of the New Haven office would not have complained about her behavior and SSA would not have sought to remove her if she had not disclosed the staff's misconduct. For the following reasons, we reject this argument.
Ms. Carr's reliance on Marano is misplaced. Marano was employed as a criminal investigator in the Albany, New York office of the Drug Enforcement Administration (“DEA”). See Marano v. Department of Justice, 2 F.3d 1137, 1138 (Fed.Cir.1993). Marano submitted a memorandum to the incoming manager of the DEA's New York Field Division alleging misconduct on the part of the Albany office's supervisory agents. See id. The memorandum, which was indisputably a protected disclosure, prompted an investigation which lead to a “major overhaul” of the Albany office. Id. at 1138-39. As part of the overhaul, Marano was transferred to DEA's New York City office. See id. Marano's transfer did not result from any wrongdoing on his part. Rather, the Acting Deputy Administrator of DEA determined that “correction of the situation in Albany would require reassigning Marano in order to affect a ‘clean sweep’ of office leadership and avoid any potential obstacles for the incoming supervisor.” Id. at 1139.
Marano contended that his reassignment amounted to a prohibited personnel action taken in retaliation for his protected disclosure. See id. He brought an individual right of action with the Board after the Office of Special Counsel denied his request for corrective action. See id. The Board denied the appeal. It held that Marano had failed to establish that his disclosure was a contributing factor to his subsequent personnel action because the transfer was due to the investigation that resulted from his whistleblowing disclosure, and not due to the fact that he made the disclosure. See id. at 1139. On appeal this court reversed, stating that Marano's disclosure was intertwined with the subsequent investigation and that therefore the content of the disclosure was a contributing factor to Marano's reassignment. See id. at 1143. We remanded the case to the Board to allow the agency to attempt to establish that the Albany to New York City transfer would have taken place in the absence of Marano's disclosure. See id.
Marano differs from the present case. The issue in Marano was whether Marano's protected disclosure was a contributing factor in his transfer, not whether the agency had met its burden of showing that the transfer would have taken place in the absence of the disclosure. See id. at 1141. Ms. Carr confuses the issue of whether her protected disclosures were a contributory factor in the action to remove her-a point that is undisputed-with the issue of whether SSA established by clear and convincing evidence that it would have sought to remove her in the absence of those disclosures.
[B]ut for the allegations made by the subjects of the protected disclosure, Regional Director Kane would not have been presented with the incidents in question. Thus, we find that the protected disclosure was a contributing factor in the personnel action. When such a showing is made, the Board will order corrective action unless the agency can demonstrate by clear and convincing evidence that it would have taken the same personnel action absent the protected disclosure.
Observing that the WPA shields an employee “only to the extent the record supports a finding that he would not have been disciplined except for his status as a whistleblower,” id. at 325, the Board turned to the Geyer factors to determine whether BOP had established by clear and convincing evidence that it would have demoted Russell in the absence of his protected disclosure. The Board found that when Wooten made his allegations to OIA, he had “strong evidence” of Russell's misconduct and that when Campbell reported Russell's misconduct to Regional Director Kane, he had “clear evidence” to support his accusation. Id. at 326. It also found, however, that both Wooten and Campbell had strong motives to retaliate against Russell. See id. Finally, the Board determined that BOP had failed to produce any evidence to establish that it took similar actions against similarly situated employees who were not whistleblowers. See id. Weighing the Geyer factors, the Board concluded that the evidence of Russell's misconduct was far outweighed by the presence of retaliatory motive and the absence of any evidence that BOP treated similarly situated employees the same way it treated Russell. See id. Accordingly, the Board ordered that corrective action be taken. See id.
In Geyer, the Board stated that it is “the existence of any motive to retaliate on the part of the agency officials who were involved in the decision [to take disciplinary action]” that is to be considered. Geyer, 70 M.S.P.R. at 687 (emphasis added). Wooten and Campbell were agency officials. The critical difference between this case and Russell is that the individuals who made up the support staff of the New Haven hearing office and who complained about Ms. Carr were not “agency officials” recommending discipline. They were line employees who witnessed, and were affected by, Ms. Carr's conduct.
“The purpose of the Whistleblower Protection Act is to encourage disclosure of wrongdoing to persons who may be in a position to act to remedy it․” Horton v. Department of the Navy, 66 F.3d 279, 282 (Fed.Cir.1995). Whistleblowers are encouraged to make such disclosures by providing protection against retaliation for making the disclosures. See Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 690 (Fed.Cir.1992). However, as the Board itself noted in Russell, the WPA is not meant to protect employees from their own misconduct. See Watson v. Department of Justice, 64 F.3d 1524, 1527 n. 3 (Fed.Cir.1995) (citing cases for the proposition that whistleblowing does not shield employees who engage in wrongful conduct because they have blown the whistle); Marano, 2 F.3d at 1142 n. 5 (citing to legislative history of the WPA for the proposition that the WPA is not intended to shield employees who engage in misconduct from discipline). For that reason, we decline to hold that, in considering the second Geyer factor, the Board erred in not taking into account the extent to which the “support staff” employees in New Haven about whom Ms. Carr made protected disclosures were motivated to retaliate against her and therefore influenced the actions of Associate Commissioner Skoler and Judge Allard. To so hold, would, in our view, improperly shield Ms. Carr from the consequences of her misconduct, simply because, although Messrs. Skoler and Allard were not motivated to retaliate, they acted on information that came to them from “support staff” employees who were. We decline to read the WPA as requiring such a result.
Turning to the third Geyer factor, Ms. Carr argues that the Board erred in its analysis because it failed to take into account the fact that SSA failed to take disciplinary action against similarly situated individuals who were not whistleblowers. Specifically, Ms. Carr contends that Judge Pulcini was abusive towards her and that other ALJs in the New Haven office used vulgar and offensive language, and that they were not disciplined. Ms. Carr also contends that there were employees in the New Haven office who were rude and disrespectful, and that they were not disciplined as well.
For an employee to be considered similarly situated to an individual who is disciplined, it must be shown that the conduct and the circumstances surrounding the conduct of the comparison employee are similar to those of the disciplined individual. See Thomas v. Department of Defense, 66 M.S.P.R. 546, 549-52 (1995), aff'd, 64 F.3d 677 (Fed.Cir.1995) (Table). The Board found that Judge Pulcini mistreated Ms. Carr by screaming at her and allowing other employees to use vulgar language, but that he did not abuse support personnel, individuals in other agency offices, and supervisory ALJs, as Ms. Carr did. See Carr, 78 M.S.P.R. at 337. The Board therefore held that Judge Pulcini was not similarly situated to Ms. Carr because he did not engage in the same kind of misconduct. See id. Substantial evidence supports this determination.
Substantial evidence also supports the Board's determination that the “support staff” employees of the New Haven hearing office were not similarly situated to Ms. Carr. Significantly, those employees and the ALJs were supervised under separate chains of command. See Carr, 78 M.S.P.R. at 337; Carroll v. Department of Health and Human Services, 703 F.2d 1388, 1391 (Fed.Cir.1983) (holding that the Board was not in error in finding that postal employees that worked in different modules under different supervisors were not similarly situated). More importantly, as an ALJ, Ms. Carr held a position of trust and responsibility that was entirely different from the positions of the employees who made complaints about her.
In sum, for the foregoing reasons, the Board did not err in holding that SSA established by clear and convincing evidence that it would have sought authority to remove Ms. Carr in the absence of her protected disclosures.
Finally, we turn to two additional arguments that Ms. Carr makes on appeal. First, she contends that her due process rights were violated because she was not made aware of the specifications supporting the charges against her until, in some cases, over three years after the incidents occurred. Essentially, this argument represents a rephrasing of a laches argument that was rejected by the Board. It fails here as well. A party claiming laches must establish both unreasonable delay in bringing a personnel action and resulting prejudice. See Hoover v. Department of the Navy, 957 F.2d 861, 863 (Fed.Cir.1992). We see no error in the Board's conclusion that Ms. Carr failed to prove either of these items. The delay was not unreasonable, as the termination was based on a pattern of behavior. See Carr, 78 M.S.P.R. at 331. The delay was not prejudicial, as Ms. Carr did not have difficulty remembering many of the incidents identified in the specifications and, indeed, admitted to many of them. See id. at 331-32.
Second, Ms. Carr argues that the Board erred in considering misconduct that she alleges was the subject of prior disciplinary action taken against her. Specifically, she claims that the incidents covered by the April 22, 1992 letter of counseling were incorporated by reference in the July 19, 1993 reprimand, and therefore could not form the basis of any new charges against her.
The Board did not err in considering misconduct by Ms. Carr that occurred prior to her July 1993 reprimand. The Board found that only some of the incidents prior to the reprimand were within the scope of the reprimand, and that those outside its scope could be considered in determining whether the charges against Ms. Carr were supported by the evidence. See id. at 332. We see no error in this conclusion. In any event, Ms. Carr plainly was subject to discipline for incidents of misconduct that occurred after the reprimand, and those incidents supported the charges of (1) reckless disregard for physical safety, (2) persistent use of vulgar and profane language, and (3) demeaning comments and sexual harassment and ridicule. See id. at 345-46 (concurring opinion).
1. Effective September 16, 1997, the Board amended its regulations so that, in cases involving proposed actions against administrative law judges, the presiding administrative law judge will issue an initial decision instead of a recommended decision. See 62 Fed.Reg. 48,455 (1997); 5 C.F.R. § 1201.140(a)(2) (1998). Thereafter, if either party is dissatisfied with the initial decision, it may petition the Board for review. See 5 C.F.R. §§ 1201.140(a)(2), 1201.114(a) (1999).
2. The term “personnel action” is defined in 5 U.S.C. § 2302(a)(2)(A)(iii) (1994) as including “an action under chapter 75 of [Title 5 (Adverse Actions) ].” Chapter 75 includes removal actions. 5 U.S.C. § 7512 (1994). The term “personnel action” thus encompasses the action to remove Ms. Carr.


Franklin C. Salisbury, Washington, D.C., Richard H. Thomas, Thomas, Alexander McLoughlin, Burlington, Vt., for plaintiffs.
James M. Jeffords, Atty. Gen. of Vt., Martin K. Miller, Asst. Atty. Gen., for defendants.
Lawrence A. Wright, Gravel Shea, Burlington, Vt., for intervenors.
Before WATERMAN and OAKES, Circuit Judges, and LEDDY, District Judge.
See text, infra at 548.
Prior to 1971 the Vermont Statutes provided that state aid to education could be provided only to "public schools." In April, 1971, the Vermont General Assembly enacted legislation which made it possible for non-public schools to share, in a limited manner, in the aid provided by the state. That Act, No. 114 of the Acts and Resolves of the 1971 General Assembly, the plaintiffs claim, is on its face, violative of the First and Fourteenth Amendments of the U.S. Constitution. The pertinent provisions of No. 114 are found in the Revised Statutes at 16 V.S.A. §§ 3441, 3445, 3471(3), 3471(4).
Public schools in Vermont are primarily funded by local school districts through the levy and collection of property taxes. Because some districts have greater wealth per school child than others, they can raise more school funds than other districts, while maintaining a tax rate at the same level as the other districts. These more wealthy districts can also, of course, enjoy a lower tax rate while collecting the same amount of taxes as a less wealthy school district. The State of Vermont, because it is interested in the education of all Vermont children, attempts to eliminate the disparity between the wealthy and poor districts by subsidizing the less wealthy districts a certain percentage of the district's current expenditures. This funding is accomplished by: (1) Dividing the State wealth per pupil [this is computed by determining the State Equalized Grand List (State EGL) which is 1% of the fair market value of all taxable properties in all school districts divided by the State Average Daily Membership (State ADM) which is the average for diem attendance at "approved" schools] into a school district's wealth per pupil [this is computed by determining the District's Equalized Grand List (District EGL) divided by the District's Average Daily Membership (District ADM)], the quotient of which is called the District Multiplier. 16 V.S.A., Sec. 3471 (1971 Supp.); and (2), multiplying the District Multiplier by 60 and subtracting the result of that multiplication from 100 to determine the percentage of a district's current expenditures that the State will reimburse. (Parenthetically, the 60 multiplier may go up or down depending upon the relationship of the amount of the legislative appropriation to the sum of all current school expenditures in the state. 16 V.S.A. § 3472 (1971 Supp.)).
Under the new legislation, state aid, paid directly to the public school district, may be used "only for legitimate items of current expense. . . ." 16 V.S.A. § 3445. The aid may be used by the school district "for aid to schools other than public schools as defined in section 3441(2) . . ." including schools which are operated by religious organizations. However, the aid which may be extended by local school districts to non-public schools is limited both as to purpose and amount. State aid can be used, 16 V.S.A. § 3445, only for legitimate items of current expense of the school district. However, by Act 114, § 5, the General Assembly in 1971 added the following language to the preexisting definition, 16 V.S.A. § 3441(6), of "current expenditure."
"Public school means any school which provides elementary or secondary school education as defined in this title, and which received its principal support from public funds; and shall also include a private school to which a Vermont school district pays tuition from public funds on behalf of a pupil."
Of course any elementary or secondary school which is operated by a religious organization is not comprehended within this statutory definition, for those schools do not receive their principal support from public funds and a public school district may not pay tuition to a church related school on behalf of a pupil. Swart v. South Burlington Town School District, 122 Vt. 177, 167 A.2d 514 (1961).
"For the purposes of chapter 123 of Title 16 the term current expenditures shall include in addition to any other definition all moneys expended by a district for providing teachers and educational materials for the teaching of physical sciences, modern languages, physical education and mathematics, or any combination thereof, in any nonpublic school approved by the state board of education, provided that all such teachers are qualified under sections 1691-1695 of this title and are under contract to the district and under the supervision of the superintendent thereof."
No state aid money flows directly from the State to the non-public schools. Rather, state aid is provided by the State to the school district which then may or may not furnish the permitted aid to non-public schools, and the Act contains a further limitation insofar as the maximum percentage of such aid extended by the school district may be reimbursed by the State.
(4) The amount of additional state aid paid to a school district resulting from an increase in average daily membership calculated on the basis of aid granted to schools other than public schools and from an increase in current expenditures used for schools other than public schools shall not exceed 50 percent of such increase in current expenditures notwithstanding other provisions of this section and of section 3441(1) of this title.
Act No. 114 became effective on August 15, 1971, and a few weeks thereafter the plaintiffs filed their complaint in the District Court.
The organizational plaintiff is an association of persons whose common objectives are the separation of church and state and the opposition to the use of public funds for the support in whole or in part of sectarian schools. Each individual plaintiff is a citizen and taxpayer of the United States and the State of Vermont.
Plaintiffs' complaint seeks injunctive and declaratory relief against the defendants, the Commissioner of Education and the State Treasurer of the State of Vermont. Plaintiffs allege that Act No. 114 is on its face a law respecting the establishment of religion in violation of the First Amendment to the United States Constitution as made applicable to the states by the Fourteenth Amendment, and they seek a declaratory judgment stating so. They sought a preliminary injunction pending trial and permanent injunctions against the defendant the Commissioner of Education, enjoining him from approving the payment of any funds under the Act or participating in any way in its administration, and against the defendant the State Treasurer, from paying out any funds pursuant to the Act.
Pending disposition of the prayers for a temporary injunction and for the convening of a three-judge district court, Chief Judge Leddy granted a motion to intervene as parties defendant of the five intervenors, Vermont citizens who were found by him to have a legitimate interest to protect in the proceeding.
A three-judge court was ordered convened, Circuit Judges Waterman and Oakes being designated to sit with Chief Judge Leddy. The hearing on the motion for a temporary injunction was consolidated with the motion for a permanent injunction and the entire case was presented to the three judges on December 28, 1971. Any claim that the organizational plaintiff lacked standing to proceed was withdrawn.
No witness testified and no evidence was introduced. With the exception of the factual allegations of paragraph 14 of the complaint, quoted and discussed infra, all the parties agreed that the allegations in the complaint, pertinent to the attack upon the statute, raised questions of law only. Pursuant to this understanding, the case, after oral argument, was submitted for decision. The issue before the court, therefore, became whether, under the most favorable interpretation that could be placed upon the language the General Assembly employed, the statute, on its face, can withstand constitutional attack upon it.
During the following week the judges distributed voting memoranda and unanimously agreed to grant plaintiffs' prayers in full, and then, unfortunately, on January 9, 1972, Chief Judge Leddy, who had handled all the details of the proceeding, died. As a result, Judges Oakes and Waterman file an opinion and order as surviving members of the court, and the writer of the opinion has attempted in it to preserve and express the thinking of Chief Judge Leddy as well as the thinking of the two of us who have survived.
The First Amendment to the U.S. Constitution prohibits the Congress from making any "law respecting an establishment of religion, or prohibiting the free exercise thereof." The Fourteenth Amendment applies these prohibitions to state action. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
No. 114 provides that if the town or city school district chooses to do so, and a parochial school located therein is approved by the state, the district may provide state-approved teachers who have teaching contracts with the school district, and may provide "current expenses" (defined in 16 V.S.A. § 3445), to the parochial school; provided, however, that the teachers teach no subjects other than the physical sciences, modern languages, physical education, and mathematics, and that the teachers remain under the supervision of the school district superintendent.
If this program is adopted in a school district the state will pay to the town-school district in connection with the allocation its due under the State Aid to Education statutory provisions (see footnote 1, supra) additional sums not to exceed 50% of any additional amount it cost the school district to assist in this limited way the parochial institution's financial burdens. (See footnote 3, supra.).
Subsequent to the passage of No. 114 and prior to the commencement of this action, the U.S. Supreme Court, on June 28, 1971, handed down far-reaching decisions invalidating certain Pennsylvania and Rhode Island laws relating to state aid to nonpublic schools. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (decided with Earley v. DiCenso and Robinson v. DiCenso). Regarding the Establishment Clause, the Court pointed out that there were three primary tests of constitutionality: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education [of Central School Dist. No. 1] v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968); finally, the statute must not foster `an excessive government entanglement with religion.' Walz, supra, [397 U.S.] at 674, 90 S.Ct. at 1414." Lemon, supra at 2111. This last test, involving government entanglement in religion has been developed by the Court relatively recently, Lemon, supra; Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). Its emergence as an independent test is significant in that its coequal combination with the "primary effect" test (see Allen, supra) creates a constitutional Scylla and Charybdis which causes any state program designed to aid its parochial schools to find hazardous sailing.
The theory behind the First Amendment's Establishment Clause proscription is simply stated. In order that any funds, goods, or services granted by the state do not have the impermissible effect of advancing religion, the state must see that the effects of any such grant will not permit of their being put to religious uses. Board of Education of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968); Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed. 2d 790 (1971); Lemon v. Kurtzman, supra; see "The Supreme Court, 1970 Term," 85 Harv.L.Rev. at 172 (1971). Moreover, depending upon the particular circumstances of any particular situation, the state, as in Walz, supra, may have a continuing duty to ascertain that the state aid, even if not apparently proscribed initially, is not subsequently put to religious uses. Lemon, supra, 91 S.Ct. at 2112. Proceeding on the assumption that the secular and religious functions of the parochial schools may be separated, id. at 2111, the Court intimated in Lemon, supra, but did not rule, that state aid granted under adequate precautions and restrictions to insure that the aid only benefitted the secular role of the parochial schools might not effect an impermissible advancement of religion. It can well be that in order to avoid the Scylla of the "primary effect" test by carefully setting up limitations and restrictions with reference to use of state aid funds the state may find that the supervision required to police the grant causes it to become so deeply "entangled" in religious matters as to find its plan shipwrecked on the Charybdis of overinvolvement in parochial matters.
But see in Lemon the concurring opinion of Justice Douglas, joined by Justice Black, 91 S.Ct. 2117, and the concurring opinion of Justice Brennan, 91 S.Ct. 2126. These Justices eloquently maintain that the Pennsylvania and Rhode Island statutes do provide for an impermissible advancement of religion and do violate the Establishment Clause. Moreover, they indicate that the Free Exercise Clause is also violated. (Justice Marshall, who did not participate in the Pennsylvania appeal, concurred in Justice Douglas's opinion insofar as it applied to the interpretation of the Rhode Island statute).
The Court thus creates an insoluble paradox for the State and the parochial schools. The State cannot finance secular instruction if it permits religion to be taught in the same classroom; but if it exacts a promise that religion not be so taught — a promise the school and its teachers are quite willing and on this record able to give — and enforces it, it is then entangled in the "no entanglement" aspect of the Court's Establishment Clause jurisprudence. 91 S.Ct. 2138.
It is by no means clear how much involvement constitutes too much, i.e., "excessive" involvement. Indeed, the Court stated in Tilton, supra, 91 S.Ct. at 2095: "Every analysis must begin with the candid acknowledgment that there is no single constitutional caliper which can be used to measure the precise degree to which [this factor is] present or absent." Moreover, it is clear that some state involvement with religious institutions is inevitable. Lemon, supra, 91 S.Ct. at 2112; Walz, supra; and see discussion in Zorach v. Clauson, 343 U.S. 306, 312, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952). To quote the Chief Justice, speaking for the Court in Lemon supra, 91 S.Ct. at 2112, "Judicial caveats against entanglement must recognize that the line of separation, far from being a `wall,' is a blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship."
Because the Court set up no firm guidelines as to what kind of involvement breaches that blurry barrier between church and state, the holdings in Lemon must, of course, be examined in the light of the particular fact-situations comprehended by the Rhode Island and Pennsylvania Statutes.
Rhode Island enacted its Salary Supplement Act in 1969. Pursuant to the Act, state officials were to supplement by 15% the salaries of teachers of secular subjects in nonpublic schools at which the average per pupil expenditure was below the average in public schools. Nonpublic schools eligible for the grants were required to submit financial data relevant to the schools' per pupil expenditures. If that expenditure was in excess of the statutory limitation, the records of the school were to be examined by the public authorities so as to determine how much was spent on religious education and how much was spent on secular. There were further restrictions in the Act to assure that the aid did not benefit religiously oriented courses. For example, in order to be eligible for the supplement, the teachers could teach only the subjects offered in the Rhode Island public schools and could use only the teaching materials used in the public schools. Moreover, the teacher had to sign a written agreement to the effect that he would not teach a course in religion while receiving a state supplement.
"By its terms the Pennsylvania Act [24 Pa.Stat.Ann. § 5604] allows the State to provide funds directly to private schools to purchase `secular educational services' such as teachers' salaries, textbooks, and educational materials." The statute was carefully limited so that: "Reimbursement is prohibited for any course containing subject matter `expressing religious teaching, or the morals or forms of worship of any sect.' 24 Pa.Stat.Ann. § 5603." Lemon, supra at 2117 (Douglas, J., concurring). Only expenses for courses in mathematics, modern foreign languages, physical science and physical education were reimbursable, and any textbooks or instructional materials used in these so-specified courses had to be approved by the State Superintendent of Public Education.
A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church. Lemon, supra at 2114.
The Court also demonstrated that these two state plans also failed to avoid constitutional impingement in that they entangled the church and state in yet other ways. For example, the financial arrangements made the state governments, in effect, auditors of the books of the church-related schools. As the Court stated, Lemon, supra at 2115, such a post-audit power "creates an intimate and continuing relationship between church and state." Finally, both of the plans would have brought religious controversy directly into the midstream of politics. Above all else, it seems quite clear that the founding fathers, knowledgeable in English and European history, feared political division along religious lines, and they sought to prevent this kind of evil through the adoption of the First Amendment.
Some of the church schools which will be aided under the Act by intent and result are Roman Catholic parochial schools which are a part of the religious mission of the Catholic Church. All the church schools are vehicles for transmitting the faith of the sponsoring church to the next generation.
Clearly, involvement with this vital and valuable religious activity results in an involvement with the religion itself. Any intrusion, however small, into these parochial schools by the state must be viewed in the light of the neutrality envisioned by the First Amendment. The Vermont Act will thrust the state not only directly into the physical plants of the schools but also into their operation and control. As such it surely involves excessive entanglement between government and religion.
It is contended that because all the hiring of instructors and all the buying of teaching materials for the statutorily specified secular subjects is arranged for by the local school districts, there will be but little entanglement between church and state. The actual mechanics of this intrusion by the employees of the school districts into the sectarian schools is not spelled out in the statute. Presumably, the implementation of the plan is left to the school districts themselves. The potential, however, for involvement of the state, through the school districts, in religious affairs is not dispelled by its lack of articulation.
On its face the statute will create within the established hierarchy of parochial school administration a unit of teachers whose loyalties do not run to the school's administration but rather to the superintendent of the school district. The Court pointed out in Lemon, supra, 91 S.Ct. at 2113, that, "Religious authority necessarily pervades the [parochial] school system[s]." Through the state control of teachers in the church schools, government control would become entangled with the existing religious control, and the day-to-day instructional administration would of necessity be the result of close cooperation between the school's administration and the public school district's administration.
More far reaching, however, is the involvement that will come about through the state's power over the purse strings. Under the statute, the school district may provide for use in the parochial schools as many (or as few) teachers as it wishes to allocate to instruct in the specified "secular" subjects. The power to make that determination gives the power to the secular authority to shape the policies of the sectarian schools. "The history of government grants of a continuing cash subsidy indicates that such programs have almost always been accompanied by varying measures of control and surveillance." Lemon, supra at 2115. This is, of course, true when, as here, the direct subsidy takes the form of the supplying of teachers and of teaching materials instead of the furnishing of cash. Thus, it becomes highly probable that parochial school policy would, under the Vermont enactment, become the product of an interaction between the religious and the sectarian authorities, an interaction which in this case obviously would result in an excessive entanglement of the state in religious matters.
We have, thus far, concentrated on the potential entanglement resulting from state-sponsored involvement in religious affairs. The statute also creates a similar potential for church involvement in the political process. It is inevitable that the opportunity for aid would lead to an involvement of the religious authorities in the determinations relative to teacher-choice and teacher-allocation to be made by the school district's school board and superintendent. Decisions as to the character and number of the teachers provided the parochial schools will require close cooperation between the sectarian school authorities and the public school district management. We would have to ignore reality to think that the responsible heads of the parochial schools would not try to influence the Board to make decisions in this area favoring that religion. Any such involvement carries with it the explosive potential for citizen friction and political subdivision along religious lines. School district budgets are determined annually and are the subject of extensive citizen debate. The Court has instructed us that, "It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith." Lemon, supra at 2116. The dangers of involving religious issues into the political process — especially those which are recurrent and emotionally charged — have been too often enumerated to require, restatement here. See Lemon, supra at 2116; Walz, supra, 90 S.Ct. at 1424 (Harlan, J., concurring); Board of Education v. Allen, supra. Suffice it to say that this entanglement was feared most by the framers of the First Amendment.
While our approach on the entanglement issues could dispose of this case, we also point out that in the operation of this statute a potential exists for the impermissible fostering of religion. We are not convinced that the statute as written guarantees that the parochial school utilization of school district teachers would not have the primary effect of the advancement of religion. As was noted in Lemon, the use of teachers — even for so-called secular subjects — on any program that utilizes sectarian facilities involves variables which are not, prior to program operation, readily ascertainable. The existence of those variables is not likely to be dispelled by the fact that the secular teachers are hired by, and are theoretically responsible to, the public school superintendent. We need not question the good faith of the school districts in hiring teachers on a religiously neutral basis. Once within the church school, however, the instruction would become subject to pressures which the Court has warned us would make religious neutrality extremely difficult. The sectarian mission of the church-based parochial school cannot be overemphasized. It is unlikely that such schools carried on under religious auspices would exist if it were not for that mission. Hence, the role of the dedicated teacher therein is paramount. Religious authorities and the parents of parochial school pupils have a vital and most worthwhile religiously-concerned interest in the message conveyed to the pupils by the teacher. Otherwise, the pupils would have been entered in public school. Even without overt attempts to influence the teaching program of the secular instructor, the teacher would still be subject to the subtle but effective pressure of parochial administrative and religiously-oriented parental approval. Moreover, the atmosphere of religion quite properly pervades the plant of a parochial school. Whether he be hired by the district or by the parochial school, no one can predict how any teacher will act or react when placed in that atmosphere.
It may well be that, as the Court indicates likely, Lemon, 91 S.Ct. at 2114, the state would need, in order to protect the public fisc, and the integrity of the statute, to set up a system of surveillance to see that the intent of the statute is carried out and to see that no public funds are used to further the religious mission of the parochial school. Such a surveillance would involve the state to an even greater degree in the affairs of the religious institution and "involve excessive and enduring entanglement between state and church." Lemon, supra at 2114.
It is always an unpleasant task, a task that, regrettably, cannot be conscientiously avoided, for a court to hold a legislative enactment violative of constitutional limitations upon parliamentary action; but, for the reasons above explicated, we grant the plaintiffs' prayer and decree that a permanent injunction issue.
I concur in the crystal clear opinion of my colleague, Judge Waterman. I do so because I feel compelled to by the reasoning of Lemon v. Kurzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), which as an inferior court we are required to follow. I do so with regret, however, for it concerns me lest the inevitable result of the prohibition against "excessive entanglement," now coupled with the test of "impermissible involvement," may signify the ultimate demise of the parochial school in America.
To me, this would be a most unfortunate result. Ours has been a pluralistic socity, fostering creativity out of multiple peoples, religious and philosophical systems of thought, and ethnic ties. Cf. R. Niebuhr, A Note on Pluralism, in Religion in America 42 (1958). In the advancement of this pluralistic society, the parochial school system has played a not insignificant part. Lemon, I fear, will tend toward a homogenization of American education. There will, therefore, be all the more reason to search for ways within the American system of public education that will preserve, indeed promote, the diversity of individual belief — religious, political and social — that, along with our Bill of Rights, distinguishes us so plainly from certain uniform, unified and uni-governed societies elsewhere in the world.


R. DE V. CARROLL, Trustee in Bankruptcy of the Herman Keck Manufacturing Company, Bankrupt.
Messrs. P. Lincoln Mitchell and Walter A. De Camp for appellant.
Messrs. Joseph S. Graydon, Joseph L. Lackner, and Lawrence Maxwell for appellee.
An involuntary petition in bankruptcy was filed against the Keck Manufacturing Company on February 8, 1909, in the district court of the United States for the southern district of Ohio, and it was later adjudicated a bankrupt. Upon application a receiver was appointed for the Duhme Jewelry Company, an adjunct of the Keck Manufacturing Company, all of the stock of the former being owned by the latter company, and subsequently the receiver, in pursuance of an order of the court, transferred all the property and assets of the Duhme Jewelry Company to the trustee of the bankrupt, by him to be kept under separate account.
The Mitchell Store Building Company had leased certain premises to the Duhme Jewelry Company, which on June 30, 1910, the rent being paid to that time, the latter company vacated, although the lease had not yet expired. The Mitchell Store Building Company brought suit against the Duhme Jewelry Company in the common pleas court of Hamilton county, Ohio, to recover under the lease, also applying to the district court for an order on the trustee to withhold sufficient in amount of the assets of the Duhme Jewelry Company to satisfy its claim, which was eventually refused by the referee, and is now before the district judge upon petition for review.
The jurisdiction of the appellate courts of the United States, including this court, under the bankruptcy act, is regulated by §§ 24 and 25 of that act. Under the latter section appeals may be taken in certain cases from the district court to the circuit court of appeals, and, under certain limitations, appeals may be allowed from the latter court to this court, from final decisions of the circuit court of appeals allowing or rejecting claims. This case does not come within § 25. Section 24a provides for appeals in controversies arising in bankruptcy proceedings, and controls the present case. In such cases the appeal takes the course prescribed in the circuit court of appeals act (26 Stat. at L. 826, 828, chap. 517, U. S. Comp. Stat. 1901, pp. 488, 549). See Hewit v. Berlin Mach. Works, 194 U. S. 296, 48 L. ed. 986, 24 Sup. Ct. Rep. 690; Coder v. Arts, 213 U. S. 223, 53 L. ed. 772, 29 Sup. Ct. Rep. 436, 16 Ann. Cas. 1008.
It is undertaken to sue out the appeal in this case from the circuit court of appeals under § 6 of the circuit court of appeals act, as the petition for allowance of appeal shows; while the appeal to the circuit court of appeals was under § (7 of that act, as amended (31 Stat. at. L. 660, chap. 803, U. S. Comp. Stat. 1901, p. 551), providing for an appeal from an interlocutory order of a district or circuit court, granting an injunction, to the circuit court of appeals in a cause in which an appeal from a final decree might have been taken under the act. No provision is made in this section, or in any other, for a further appeal concerning such interlocutory orders, to this court.
Section 6 regulates appeals from the circuit court of appeals to this court, providing that cases not made final by that section shall be entitled to review in this court. While this case, taken to the circuit court of appeals under § 7, is not one of the class made final in that court by § 6, it is well settled that this court's jurisdiction under § 6 relates solely to final orders of the district court reviewed by the circuit court of appeals. The decree in the district court being an interlocutory order granting a temporary injunction, and the circuit court of appeals simply affirming that order, it is not a proper case for appeal to this court. Kirwan v. Murphy, 170 U. S. 205, 42 L. ed. 1009, 18 Sup. Ct. Rep. 592.
If this case were treated as an appeal from the judgment of the circuit court of appeals upon a petition to revise under § 24b of the bankruptcy act, this court would not entertain the appeal. Holden v. Stratton, 191 U. S. 115, 48 L. ed. 116, 24 Sup. Ct. Rep. 45.
It follows that the appeal must be dismissed. The petition for a writ of certiorari, filed in this cause, is denied.