Facer v. Department of Air Force

• Decision Date: 06 January 1988
• Docket Number: No. 87-3382,87-3382
• Citation: 836 F.2d 535
• Parties: Christian FACER, Petitioner, v. DEPARTMENT OF the AIR FORCE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 535

836 F.2d 535

Christian FACER, Petitioner, v. DEPARTMENT OF the AIR FORCE, Respondent.

No. 87-3382.

United States Court of Appeals Federal Circuit.

Jan. 6, 1988.

Daniel Minahan, Minahan and Shapiro, P.C., Denver, Colo., submitted for petitioner.

Hillary A. Stern, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., submitted for respondent. With her on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and Robert A. Ruetershan, Asst. Director. Also on the brief was David M. Diver, Major, USAF, General Litigation Div., Office of the Judge Advocate General, Washington, D.C., of counsel.

Before BISSELL, Circuit Judge, NICHOLS, Senior Circuit Judge, and MAYER, Circuit Judge.

NICHOLS, Senior Circuit Judge.

In this case we confront a petition by Christian Facer, a former aircraft mechanic once employed at Hill Air Force Base, Utah. The Merit Systems Protection Board (MSPB) in 33 M.S.P.R. 243 (1987) upheld an agency decision removing Facer for smoking marijuana on the base, and thereby modified a tentative decision by its administrative judge (AJ) which would have sustained the charges but mitigated the penalty to a 30-day suspension plus demotion, thus requiring reinstatement at a lower grade, with back pay. This tentative decision did not question the commission of the offense or nexus with the efficiency of the service, nor its seriousness in view of the critical nature of Facer's work and the possible fatal consequences of its being done by a person enjoying a marijuana "high." The AJ relied on the disparately lenient treatment he found to have been meted out to other offenders at the same base and notably to one Cahill who was caught with Facer and apparently sharing a "joint" with him. We remand for further clarification as to the effect, meaning, and intent of AFR 40-750, Attachment 3, for hearing of Cahill's testimony which was mistakenly excluded over the objections of Facer's counsel, if it can be obtained consistent with the fifth amendment, and possibly other matters.

Background

The story of this case commences the evening of December 5, 1985, with a pair of Air Force Military Police making a "walking patrol" of a portion of the base, in course of which they came upon a jeep, parked with motor not running. Two men were seated in it, Facer at the wheel and Cahill in the passenger position. As the military police approached, the "passenger" was seen to be lighting a cigarette which, however, disappeared as they drew nearer. They requested ID cards and noticed a strong odor of marijuana. The two men were temporarily off duty for a half hour lunch period, after which they were to return to their jobs. Facer and Cahill were handcuffed, led away separately, and questioned separately, first being told of their Miranda rights. Cahill's answers went from denial that marijuana was smoked in the jeep, to the statement he would not incriminate himself. Facer stated that he had been smoking marijuana just before the police arrived. Facer also stated that Cahill did not smoke any marijuana on that occasion. On obtaining authority, the officers searched the vehicle and found a pair of hemostats with a suspected "roach" between the forks. This tested positively. Facer's eyes were very bloodshot and Cahill's slightly so. After some time, Facer and Cahill were returned to their workplace and they resumed work.

There is nothing in the record to suggest that criminal prosecution of Facer and Cahill was ever seriously considered but, on the other hand, nothing to show that Cahill was ever ordered to respond to questions about his conduct with a promise that his answers and their fruits would not be used against him in a criminal prosecution. See Weston v. U.S. Department of Housing and Urban Development, 724 F.2d 943 (Fed.Cir.1983); Kalkines v. United States, 200 Ct.Cl. 570, 473 F.2d 1391 (1973).

Facer rejected suggestions that he receive counseling, either at an Air Force operation on the base, or at a church off the base. He viewed himself as not drug dependent.

Under date of January 10, 1986, the Air Force served on Facer a Notice of Proposed Removal. It recited the facts above stated, and the following:

Items 11a and 11b, Attachment 3 to AFR 40-750, have been used in determining the degree of the proposed remedy.

The text of the document thus referred to is in the appendix to this opinion. It will be noted that the regulation only states "typical" penalties and does not take away management's authority to impose removal in any case when it is appropriate; however, paragraph d limits recourse to removal to extreme cases perceived to warrant it, as there defined. Air Force Regulation 40-750, Attachment 3, does not suggest demotion as an appropriate sanction for any variety of drug abuse by employees.

Facer made oral and written responses. The written one admits his guilt and is in effect a plea for clemency. There is nothing in the record to show Facer ever, before trial, modified or retracted his statement to the police exonerating Cahill. Cahill was retained in duty status although his supervisor considered him so untrustworthy he accorded his work a degree of supervision and reinspection making his retention on duty a most uneconomical proposition for the government, even assuming the standard of safety of the aircraft Cahill worked on was maintained. The supervisor believed there was nothing to be done about it, evidently in view of the statements Facer and Cahill had made. Facer's response failed to serve its purpose inasmuch as his removal followed effective February 7, 1986.

A timely appeal to the MSPB followed, with a trial before Administrative Judge Kasic who made his "initial decision" under date June 26, 1986. Inasmuch as Facer continued to admit his guilt, the government proof of his guilt is of minimal interest and need not be discussed further. Since both Facer's able counsel, and the AJ, attach great weight to alleged disparity of penalty as between Facer and Cahill, we have thought it necessary to ascertain just how Facer handled this in his testimony. It was never transcribed, but we have listened to the tapes provided us by the MSPB.

According to what we may call the new Facer, it was Cahill on that December evening who suggested they go out and "smoke a joint." Cahill pulled a marijuana cigarette out of his pocket and lit up. They shared the cigarette after Cahill started it, but it was Cahill who was lighting up (again?) when the police approached. Facer, however, as he testified to the AJ, accepted responsibility for the cigarette, told the police there was no one else smoking, that he was smoking marijuana and Cahill was not. Why? "I just didn't feel it was up to me to implicate him. I figured he could own up on it himself." As no urine test was run, there was no clear and convincing evidence to refute Facer's exoneration of Cahill on December 5, suspicious though the circumstances were, and the foreman's feeling there was nothing to be done about Cahill is explained.

Facer acknowledged that some years earlier, while a marine, he had been obliged by lack of funds for his impending marriage, to resort to sale of LSD. Having unwisely accepted two undercover security agents as customers, he was court-martialed and sentenced to confinement at hard labor and a dishonorable discharge. By clemency of higher authority, Facer was allowed to complete his enlistment and receive an honorable discharge.

While in the course of his employment as an aircraft mechanic at the base, Facer had gone out from time to time to share a "joint" during the half hour lunch break, usually with someone else, not Cahill. His "high" lasted from an hour to two to four, depending on the purity of the marijuana and whether he had smoked the whole thing or shared it. These incidents were infrequent and only once or twice a year did they smoke on the base, four to six times in all. To the inevitable inference he had returned to work still high on several occasions, Facer attempted to show in great detail that his conduct could not have endangered the aircraft or the pilot because of the constant inspections, his working in the view of other workers, the fact any defective work would be clearly visible, etc. This testimony did not impress the AJ and we need not consider it further. The aircraft in question were F-4 military types capable of Mach 2 speed, i.e., twice the speed of sound.

Neither on direct nor on cross was Facer asked whether, between his release on December 5 and his trial before the AJ, did he make any effort to correct his initial exoneration of Cahill with what he now said was the truth.

Facer then called Cahill as a witness, but after conferring off the record with counsel, the AJ refused to hear him, to which counsel for Facer noted an objection. Some statement as to what was to be proved by Cahill must have been made, but if so, it was off the record. As petitioner wanted his testimony, it appears he must have expected testimony favorable to him. The AJ apparently thought Facer's own testimony left a situation where nothing Cahill could say would add any relevant fact not already established.

The final witness, called at the instance of the AJ, was a base personnel officer who testified as to the status of drug control and testing programs at the base. At the time of Facer's and Cahill's arrest, no program of drug-use testing was in effect.

The AJ in his June 26, 1986, opinion said the sole issue for his resolution was the appropriateness of the removal penalty. He noted the MSPB had previously held in numerous cases that mere possession of marijuana on duty justified removal. He called it unthinkable that the public should have to bear the risk of a "high" employee working on these sophisticated F-4 fighter wing folds "essentially without close supervision." But he thought removal unreasonable because of the agency's past imposition of...