697 F.2d 421 (D.C. Cir. 1983), 81-1893, Devine v. White

Docket Nº:81-1893.
Citation:697 F.2d 421
Party Name:Donald J. DEVINE, Director, Office of Personnel Management, Petitioner, v. Harold C. WHITE, Arbitrator, American Federation of Government Employees, National Border Patrol Council, and Noe Lopez, Respondents.
Case Date:January 07, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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697 F.2d 421 (D.C. Cir. 1983)

Donald J. DEVINE, Director, Office of Personnel Management, Petitioner,


Harold C. WHITE, Arbitrator, American Federation of

Government Employees, National Border Patrol

Council, and Noe Lopez, Respondents.

No. 81-1893.

United States Court of Appeals, District of Columbia Circuit

January 7, 1983

        Argued Oct. 18, 1982.

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        Petition for Review of an Order of Harold C. White, arbitrator.

        Howard S. Scher, Atty., Dept. of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and William Kanter, Atty., Dept. of Justice, Washington, D.C., were on the brief, for petitioner.

        William Stone, Washington, D.C., for respondents. James R. Rosa and Jane P. Danowitz, Washington, D.C., were on the brief, for respondents.

        Before LUMBARD, [*] Senior Circuit Judge, United States Court of Appeals for the Second Circuit, HARRY T. EDWARDS and BORK, Circuit Judges.

        Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

        Concurring Opinions filed by Senior Circuit Judge LUMBARD and Circuit Judge BORK.


Page I. BACKGROUND ----------------------- 425 A. Introduction ------------------ 425 B. Factual Background ------------ 426 C. The Arbitral Proceedings ------ 426 II. DISCUSSION ----------------------- 427 A. Timeliness of the Petition for

Review ------------------- 429 1. Introduction --------------- 429 2. Reconsideration of Arbitral

Decisions ------------------ 430 3. Conclusion ----------------- 433 B. The Propriety of Judicial Review ----------------------------------- 433 1. Introduction --------------- 433 2. Desirability of Limited Judicial

Review --------------------- 435 3. Application to this Case --- 440 C. The "Harmful Error" Standard 441 1. Applicability of the Standard

in Arbitral Proceedings ----- 441 2. The Meaning of "Harmful

Error" ---------------------- 442 III. CONCLUSION ------------------------ 443 APPENDIX A APPENDIX B Page 425

        HARRY T. EDWARDS, Circuit Judge:

        This appeal involves a review of an arbitrator's decision in an "adverse action" case arising under the Civil Service Reform Act of 1978 ("CSRA" or "Act"). 1 The case poses several highly significant issues focused on the propriety of judicial review of arbitrators' decisions in the federal sector. In particular, and for the first time, this court clearly faces questions concerning the circumstances under which the Director of the Office of Personnel Management ("OPM") may seek judicial review of an arbitrator's decision; whether the Director must or may first request "reconsideration" of an arbitrator's award before seeking judicial review; the time limits on petitions for judicial review of an arbitrator's award; the application of the "harmful error" standard in adverse action cases; the reviewability of an arbitrator's decision; and the amount of deference that is due arbitral decisions involving adverse actions under the CSRA.

        To address these questions, we have been required to wade through the statutory maze of the CSRA. In undertaking this task, we have come to realize that the Act is fraught with ambiguities, peppered with provisions that appear at cross purposes, and often lacking any useful legislative history. Despite these hazards, we endeavor here to enforce strictly the literal terms of those provisions of the Act that are unambiguous and internally consistent, and to remain faithful to the central congressional purposes underlying the enactment of the CSRA. Where the terms of the statute are ambiguous and we can find no guidance in the legislative history, we look to the common law of labor arbitration to devine statutory meaning.


  1. Introduction

            Exercising the authority conferred on him by the CSRA, the Director of the OPM seeks review of an arbitrator's decision--issued pursuant to a collectively bargained grievance procedure--setting aside a disciplinary sanction imposed by the Immigration and Naturalization Service ("INS" or "Service") on one of its agents. Mindful of the considerable threats to the congressionally mandated system of grievance arbitration posed by such petitions for review, we approach with caution the issues raised herein, several of which have never been considered in the courts of appeals. The need to resolve these unsettled interpretative questions tips the balance in favor of reviewing the arbitrator's decision, 2 and we ultimately decide that it cannot stand. For the reasons set forth below, however, we deem inappropriate a simple reinstatement of the INS's suspension, and we remand the case to the arbitrator for clarification of his decision in accordance with the principles enunciated in this opinion.

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  2. Factual Background

            The facts relevant to the disposition of this petition for review are uncontroverted. On May 9, 1980, INS agent Noe Lopez, on temporary assignment in Florida to assist in handling the unusual influx of Cuban refugees, was involved in an automobile accident while driving a government vehicle after work under such circumstances that it could "only be concluded that the vehicle was used without authorization and used for purposes other than official business" 3 in violation of federal law and agency regulations. 4 No citations were issued or charges filed, but Lopez was returned to his permanent duty station in Texas on May 13, 1980. On May 20, eleven days after the accident, an internal INS memorandum reviewing the details of the accident was prepared and sent to the Chief Patrol Agent in Miami, but the matter lay dormant until June 26, when the driver of the vehicle that Lopez hit threatened to sue the INS and informed the Service that he had reported the incident to his Senator.

            The day after he received the irate citizen's letter, the Chief Patrol Agent in Miami forwarded the Service's investigative report to the Regional Commissioner in Dallas for consideration of possible violations by Lopez. Almost four months later, on October 20, the INS informed Lopez of its intention to suspend him for thirty days without pay for misusing a government vehicle. Lopez responded to this notice on October 29, agreeing with the charges and requesting leniency. The agency's final decision--imposing a thirty-day suspension without pay "to promote the efficiency of the service" 5--was rendered on November 10, and Lopez was informed of his right to appeal to the Merit Systems Protection Board ("MSPB") or to request his union to pursue a grievance through the arbitration mechanism established by its collective bargaining agreement. 6 He chose the latter alternative.

  3. The Arbitral Proceedings

            The grievance protesting Lopez' thirty-day suspension was brought before arbitrator Harold C. White. Although arbitrator White found that Lopez had violated federal law and the INS's rules and that a one-month suspension was the minimum penalty required by statute, 7 the decision that he issued on May 13, 1981 ordered the Service to reverse the suspension because it had neither conducted its investigation nor administered discipline in a timely manner as required by Article 31F(3) of the collective bargaining agreement between the INS and the American Federation of Government Employees ("Union"). 8 In reaching this conclusion, arbitrator White first observed that Lopez had been unaware of the INS's investigation until October 20, 1980, over five months after his accident. The arbitrator then rejected the Service's explanation--based on the administrative and operational burdens imposed by the influx of Cuban refugees and the Iranian student crisis--for the delay in processing Lopez' case.

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            On June 11, 1981, twenty-nine days after the arbitrator rendered his decision, the OPM, which had not participated in the arbitral hearing, requested reconsideration on the ground that the decision was "clearly erroneous and [would] have a substantial impact on civil service law." 9 The OPM found statutory authority for its intervention in 5 U.S.C. Sec. 7703(d) (Supp. V 1981), 10 and advanced two contentions that the INS had not raised in arbitration. It argued first, untenably, that arbitrator White's decision improperly allowed the negotiated agreement to override the statutorily mandated penalty for misuse of a government vehicle. 11 Second, and more plausibly, the OPM argued that an agency disciplinary decision supported by the preponderance of the evidence 12 could be reversed on procedural grounds only if the employee demonstrated that the procedural defect constituted "harmful error." 13

            The OPM's petition for reconsideration was opposed by the Union, 14 and was rejected by arbitrator White on July 8, 1981, on the grounds that (1) it contained materials not presented in the hearing and (2) he had no authority to reconsider because "the submission of the arbitrator's decision ends the arbitrator's involvement in the arbitration process." 15 The OPM apparently did not receive notice of this decision until July 17; on August 7, twenty-one days after the OPM learned that its petition for reconsideration had been denied and almost three months after the arbitrator's reversal of the INS's disciplinary action, the Director of the OPM petitioned for review by this court.

           II. DISCUSSION

            Continuing the trend toward the provision of meaningful bargaining rights for public employees, 16 Congress included in the CSRA its first codification of arbitration as

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    a dispute resolution mechanism for federal...

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