Case v. Department of Army

• Decision Date: 08 September 1988
• Docket Number: No. 88-3003,88-3003
• Parties: Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Howard L. CASE, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 728

861 F.2d 728

Unpublished Disposition

NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

Howard L. CASE, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.

No. 88-3003.

United States Court of Appeals, Federal Circuit.

Sept. 8, 1988.

Before MARKEY, Chief Judge, NICHOLS, Senior Circuit Judge, and EDWARD D. RE, Chief Judge. ^*

PER CURIAM.

DECISION

The decision of the Merit Systems Protection Board (board), Docket No. SL07528610433, sustaining Department of the Army's (agency's) removal of Howard L. Case (Case) for notorious public conduct endangering the safety of persons, is affirmed.

OPINION

Case cites no authority to support his argument that his misconduct was insufficiently egregious to warrant presumption of nexus. He ignores that he admitted committing the charged misconduct and was convicted for wanton endangerment and terroristic threatening as a result of that misconduct. We agree with the board that Case's asserted "excuses" of diminished capacity and police provocation are not defenses to the charges. In sum, Case has shown no error in the board's finding that Case's "criminal misconduct was so egregious that there is a rebuttable presumption of nexus." See Sanders v. United States Postal Service, 801 F.2d 1328, 1332 (Fed.Cir.1986) ("egregious criminal conduct justifies a presumption that the required nexus has been met, even when the ... offenses have occurred off duty").

Case's argument that his "evidence was sufficient to rebut at [sic] presumption of nexus" fails to recognize that "[i]t is not our duty to find nexus [or to find that the presumed nexus was successfully rebutted] but rather to decide, under our statutory scope of review in 5 U.S.C. Sec. 7703(c), whether the MSPB affirmance of the agency conclusion on the nexus issue meets the statutory criteria for our affirmance." Hayes v. Department of the Navy, 727 F.2d 1535, 1539 (Fed.Cir.1984).

The record reveals, and Case does not otherwise show, that substantial evidence supports the agency's finding that Case had not successfully rebutted the presumption of nexus. That two co-workers testified they had no fear of working with Case, though relevant to whether Case's misconduct would interfere with the performance of his co-employees jobs, is irrelevant to whether Case's misconduct adversely affected the overall achievement of the agency's goals and responsibilities. See Abrams v. United States Dept. of the Navy, 714 F.2d 1219, 1224-26 (3d Cir.1983). It is similarly irrelevant that Case's jailer testified that Case was a model prisoner. As recognized by White v. Postal Service, 768 F.2d 334, 336 (Fed.Cir.1985), extensive publicity surrounding the misconduct of a federal employee can have severe repercussions on the mission of the agency. See also Wild v. Housing & Urban Dev., 692 F.2d 1129, 1133 (7th Cir.1982) (discharge of HUD appraiser moonlighting as slum lord following extensive publicity).

Contrary to Case's argument on appeal, the agency submitted documentary evidence and testimony linking Case's misconduct to critical publicity affecting the agency's mission. That nexus was not rebutted by Case's argument that "even if his job title was Explosives Operator, he had not handled ammunition for some time...." Case had unrestricted access to such ammunition, and the board recognized that Case may be required to handle such ammunition again in the future because Case's position required the handling of explosives.

Case asserts that factors mitigating the severity of his actions were not given proper weight. "It is well established [,however,] that the determination of the proper disciplinary action to be taken to promote the efficiency of the service is a matter peculiarly and necessarily within the discretion of the agency." Parker v. United States Postal Service, 819 F.2d 1113, 1116 (Fed.Cir.1987) (and cases cited). Case has not shown that the penalty of removal, though severe, "exceeds the range of permissable punishment," id., or "is so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion." Id. Accordingly, the agency's choice of penalty is affirmed.

NICHOLS, Senior Circuit Judge, dissenting.

Respectfully I must dissent, because in my view Case's best defense has been inadequately considered. The proceeding should be remanded for further testimony and findings.

The administrative judge (AJ) accepts, as on the record he must, that Case's unique, bizarre, and dangerous behavior was caused by his mistakenly mixing Valium and alcohol. That error sometimes produces an anomalous reaction, opposite to the usual. Case, troubled by insomnia, telephoned his physician but reached a nurse who said the doctor would call Case's druggist with a prescription for Valium, commonly known as a "tranquilizer." Case had no previous experience with Valium. He received from the druggist a bottle containing 10 Valium pills and labeled "take as directed." He had received no directions and had no knowledge what was a proper dose. He kept the Valium untouched for two days until he needed it; then took two tablets, "around four, I believe it was * * *. Well, I went and I got into bed. I thought maybe, you know, I could get a little rest. And I laid there about an hour. I guess it was around five o'clock and I had never taken them before, and I thought maybe they aren't any good or anything, so I got up and I got dressed again and I went out." He had a beer, went home again, had another Valium, and went out again. He had more beer until disoriented, and then...