Spurlock v. Department of Justice

• Decision Date: 25 January 1990
• Docket Number: No. 89-3232,89-3232
• Citation: 894 F.2d 1328
• Parties: Ernest M. SPURLOCK, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1328

894 F.2d 1328

Ernest M. SPURLOCK, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.

No. 89-3232.

United States Court of Appeals, Federal Circuit.

Jan. 25, 1990.

R. Travis Douglas, Kenner, La., argued for petitioner.

David W. Long, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued for respondent. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director and Stephen J. McHale, Asst. Director.

Before MARKEY, Chief Judge, RICH, Circuit Judge, and COWEN, Senior Circuit Judge.

COWEN, Senior Circuit Judge.

Petitioner, Ernest M. Spurlock (Spurlock), seeks review of the final order of the Merit Systems Protection Board (board), 39 M.S.P.R. 670, which sustained the adverse action by the Immigration and Naturalization Service (INS or agency), Department of Justice against Spurlock. The agency suspended petitioner from duty without pay for 90 days and demoted him from GS-9 to GS-7. For the reasons to be set forth, the board's decision is reversed and the case is remanded.

BACKGROUND

The material facts in this case are essentially uncontroverted. On October 24, 1985, INS Border Patrol Agents Spurlock and his partner, Joseph C. Bashaw, were advised by the New Orleans Border Patrol Sector Headquarters that an alien who did not speak English was in custody of the Harbor Police. The agents took custody of the alien, Myroslaw Medvid (Medvid), a Russian seaman who had deserted his ship, the M/V Marshal Koniev, then moored in Belle Chasse, Louisiana. The agents then transported Medvid to the border patrol sector headquarters in New Orleans. After ascertaining that Medvid was a Ukranian who did not speak English, Spurlock arranged with Ms. Irene Padoch to serve as an interpreter during Spurlock's interrogation of Medvid, which was done for the purpose of, inter alia, enabling Spurlock to complete a form entitled "Record of Deportable Alien." The interrogation of Medvid was conducted entirely by telephone. In addition to obtaining biographical data regarding Medvid as required by the form, Spurlock asked him several times why he had jumped ship. Medvid's reply was "for many reasons." On at least three occasions, Spurlock asked Medvid if he desired political asylum, and the answer in each case was in the negative, coupled with a statement that Medvid just did not want to return to his ship. Near the end of the interview, Spurlock requested the interpreter to again ask Medvid why he had deserted his ship. There followed a brief discussion in the Ukranian language between the interpreter and Medvid, after which she stated that his response was "for moral and political reasons." Spurlock then entered the answer on the form and in his testimony gave the following explanation: "I saw no reason not to put it on there, because I'd already asked him several times if he wanted political asylum and why he had jumped ship and I put it on the [form]."

Thereafter, by letter of November 15, 1985, Spurlock was notified that he would be suspended from duty for a period of ninety days and demoted from his current position of GS-9 to GS-7 for violation of the agency's operating instruction Sec. 208.8, which provides in pertinent part as follows (b) Notification. When it comes to the attention of any Service employee that a person as described above may be seeking asylum, the district director will be notified immediately and furnished all the pertinent facts of the case, including the alien's identity, nationality, newsworthiness or prominence, and reason(s) given for requesting asylum. If the district director agrees that the asylum applicant falls into the immediate action category, he will expeditiously relate the facts of the case to the Associate Commissioner, Examinations, Central Office, or the Central Office duty officer, and the appropriate regional official. The Associate Commissioner, Examinations, or the Central Office duty officer will alert the Service's Public Information Officer and the Department of State's operation officer, telephone 202-032-1512 of the request for asylum.

Spurlock appealed to the MSPB regional office, and after a hearing, the administrative judge reversed the agency's action, finding: (1) that the agency had failed to prove, by a preponderance of the evidence, that Medvid had requested political asylum; (2) that Medvid specifically stated that he was not seeking asylum; and (3) therefore, that operating instruction Sec. 208.8 did not apply and could not have been violated.

The board granted the agency's petition for review and reversed the decision of the administrative judge, holding that Spurlock had violated the regulation in issue. In construing the regulation, the board declared that a determination of whether the regulation was violated "depends on an analysis of what a reasonable and knowledgeable Border Patrol Agent may perceive about the situation at hand, considering all the circumstances." The board then found that the circumstances were more than sufficient to show that Spurlock should have been aware that Medvid was seeking political asylum in the United States.

DISCUSSION

We agree with the board's interpretation of the regulation on the standard to be applied in determining whether Spurlock violated the regulation. However, after studying the entire record, including the reporter's transcript of the testimony adduced at the hearing before the administrative judge, we have concluded that the board's finding is not supported by substantial evidence.

In order to determine whether the board's finding is supported by substantial evidence, it was necessary for the court to "canvas" the entire record, because "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Exaggeration, inherent improbability, self-contradiction, omissions in a purportedly complete account, imprecision, and errors detract from the weight to be accorded the evidence upon which an administrative board bases its...