Devine v. Sutermeister

• Decision Date: 14 December 1983
• Docket Number: No. 83-813,83-813
• Citation: 724 F.2d 1558
• Parties: 116 L.R.R.M. (BNA) 2495 Donald J. DEVINE, Director, Office of Personnel Management, Petitioner, v. R.A. SUTERMEISTER, Arbitrator; United States Customs Service, San Francisco Region; and National Treasury Employees Union, Respondents. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1558

724 F.2d 1558

116 L.R.R.M. (BNA) 2495

Donald J. DEVINE, Director, Office of Personnel Management, Petitioner, v. R.A. SUTERMEISTER, Arbitrator; United States Customs

Service, San Francisco Region; and National

Treasury Employees Union, Respondents.

Appeal No. 83-813.

United States Court of Appeals, Federal Circuit.

Dec. 14, 1983.

Lenore C. Garon, Washington, D.C., argued for petitioner. With her on the brief were J. Paul McGrath, Asst. Atty. Gen., and David M. Cohen, Washington, D.C., Director.

Kerry L. Adams, Washington, D.C., argued for respondent. With her on the brief were Robert M. Tobias, General Counsel, Lois G. Williams, Washington, D.C., Director of Litigation and David Handsher, San Francisco, Cal.

Before KASHIWA, BENNETT and MILLER, Circuit Judges.

BENNETT, Circuit Judge.

Donald J. Devine, Director of the Office of Personnel Management (OPM), brings this petition for review of an award by R.A. Sutermeister (arbitrator) that mitigated the removal of the grievant, Richard Walton, to a 30-day suspension. OPM also named the United States Customs Service (the employing agency) and the National Treasury Employees Union (NTEU) as respondents. OPM asserts that the arbitrator erred in his application of civil service law and that his decision will have a substantial impact on civil service law in that the arbitrator was without authority to mitigate the penalty imposed by the agency once he determined that Mr. Walton had obtained his appointment through fraud or misrepresentation. See 5 U.S.C. Sec. 7703(d) (1982). ¹ Alternatively, OPM asserts that the arbitrator erred in substituting his judgment for that of the agency regarding the appropriateness of the penalty. We exercise our discretion to grant petitioner's request for review and affirm the arbitrator's award in all respects.

BACKGROUND

On July 29, 1979, Richard Walton was hired by the Customs Service as a GS-4 Clerk under the Veterans' Administration Programs Extension Act of 1978, Pub.L. No. 95-520, 92 Stat. 1820. Mr. Walton submitted Standard Form 171, Personal Qualifications Statement, dated April 21, 1978, and July 11, 1979. In November 1979 he was reassigned as a Customs Entry Aide, considered a sensitive position because it involved the handling of money, checks, keys, computers, merchandise, and other sensitive matters, including intelligence. A full background investigation was thus required. In furtherance of the investigation, Walton submitted a new Form 171 and a Form 86, Security Investigation Data for Sensitive Position, both dated February 17, 1981.

A security investigation was conducted in June 1981. The investigation revealed information not disclosed by Walton on Forms 86 and 171: additional previous employment, an arrest and conviction in 1970 for carrying a concealed weapon, convictions for driving with an expired vehicle license and with no operator's license on his person, and a court-martial.

As a result of the information discovered in the investigation, Walton was sent a notice of proposed removal dated December 1, 1981, on the basis of his falsification of Forms 86 and 171. The agency's notice contained numerous counts of intentional falsification. Walton was sent a letter dated February 19, 1982, announcing his removal effective March 5, 1982. Walton was notified of his right to appeal the action either to the Merit Systems Protection Board (MSPB) or under the grievance and arbitration procedure of the National Agreement between the Customs Service and NTEU, an option provided for in 5 U.S.C. Sec. 7121(e)(1) (1982).

Walton chose to contest his removal through the negotiated grievance procedure set out in the National Agreement. The National Agreement provided a procedure for submitting an unresolved grievance to binding arbitration. See 5 U.S.C. Sec. 7121(b)(3)(C). Pursuant to the agreement, the parties selected an arbitrator, R.A. Sutermeister, and submitted the following issues for resolution: (1) whether the removal of Richard Walton was for just cause; and (2) assuming removal is not an appropriate penalty, what lesser penalty would be appropriate. ²

In a decision dated June 30, 1982, the arbitrator made the following findings: ³ (1) Walton, though careless in filling out the forms, did not deliberately and willfully make false statements in listing his previous employment; (2) Walton did not deliberately and willfully make false statements about his reasons for termination from previous jobs; (3) Walton knew of his convictions for carrying a concealed weapon and motor vehicle offenses and deliberately failed to list them on his forms, and a penalty for that offense is justified; (4) the removal may have been promptly carried out after the need for adverse action arose, but the agency was dilatory in starting the investigation; and (5) Walton's removal would not promote the efficiency of the service.

Regarding his conclusion concerning the efficiency of the service, the arbitrator stated:

There is no doubt that the Agency must take a very firm position when an employee falsifies forms. Certainly an arbitrator cannot condone proven falsification. I can understand the Agency's stance, from hindsight, that if Walton's application had been complete, he would not have been hired. However, he was hired; he performed well enough to be promoted to Customs Aid[e]; he advanced a step in salary; and there is no evidence that he has been unreliable, dishonest, lacking in integrity, or untrustworthy in the performance of his duties in his sensitive position. In fact, there was considerable evidence to the contrary. Walton has had access to money, checks, keys, computer, intelligence, and other sensitive matters. He was continued in his position even after Ms. Maguire reviewed form 86 in November 1980.

Thus, I do not find persuasive that the efficiency of the Service will be promoted by his removal. Based on a preponderance of evidence, my conclusion is that Walton's actual performance of his duties is a much better indication of his potential with the Service than his previous employments, reasons for leaving previous jobs, and arrests and convictions which occurred (with the single exception of the aggravated assault charge which was dismissed) over 10 years ago during the turbulent period in his life following his release from duty in Viet Nam.

[Footnote omitted. Emphasis in original.]

After concluding that Walton's removal was not for just cause because it would not promote the efficiency of the service, the arbitrator mitigated the penalty to a 30-day suspension, thus providing for reinstatement and back pay. The arbitrator denied an award of attorney fees to the respondents, as he found that the agency had acted in good faith. On appeal, respondents do not contest this denial.

OPM filed a motion for reconsideration, pursuant to 5 U.S.C. Sec. 7703(d), that was denied by the arbitrator on October 18, 1982. OPM filed its petition for review with this court on November 17, 1982.

DISCUSSION

I

At the outset, it is worth noting that this appeal by OPM is brought under 5 U.S.C. Sec. 7703(d), which in relevant part states:

The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing a petition for judicial review in the United States Court of Appeals for the Federal Circuit if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive.... The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.

The legislative history of the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, 92 Stat. 1111 (codified in scattered The Committee amended this section to emphasize that the OPM should seek judicial review only in those exceptional cases where it finds that the Board erred, as a matter of law, in interpreting the civil service laws, and that the erroneous decision will have a substantial impact on how aspects of the civil service rules are interpreted in the future. The Director of OPM should not seek judicial review if the potential effect of the decision will be limited to the facts of the case.... While an employee or applicant aggrieved by the agency action is entitled as a matter of right to judicial review, this will not be the case when the Director seeks review. The subsection specifies that judicial review shall be at the discretion of the court. If it determines, for example, that the issues raised will not have a substantial impact on the administration of civil service laws ... the court may decline to accept the petition for review.

sections of 5 U.S.C.), elaborates on the clear meaning of the statute:

S.REP. NO. 969, 95th Cong.2d Sess. 64, reprinted in 1978 U.S.CODE CONG. & AD.NEWS 2723, 2786. While the above references speak of appeal from a board decision, 5 U.S.C. Sec. 7121(f) (1982) explicitly applies similar considerations to an award by arbitration. See note 13, infra.

From the foregoing, it is clear that it is incumbent upon OPM to demonstrate that the decision appealed from will have a "substantial impact" on civil service law. As recognized in our recent decision in Devine v. Nutt, 718 F.2d 1048, 1052 (Fed.Cir.1983), OPM's assessment of "substantial impact" is not binding on the court. Rather, it is the duty of this court independently to assess whether an exercise of our discretionary jurisdiction is warranted because the decision below will have a substantial impact on civil service law. See Devine v. White, 697 F.2d 421, 434 (D.C.Cir.1983).

Another factor bearing upon our discretionary authority to accept OPM's petition for review is the fact that OPM is challenging an award made pursuant to binding arbitration. As stated in Devine v. Nutt:

In...