Haebe v. Department of Justice

• Decision Date: 29 April 2002
• Docket Number: No. 01-3119.,01-3119.
• Citation: 288 F.3d 1288
• Parties: Todd R. HAEBE, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

288 F.3d 1288

Todd R. HAEBE, Petitioner, v. DEPARTMENT OF JUSTICE, Respondent.

No. 01-3119.

United States Court of Appeals, Federal Circuit.

April 29, 2002.

COPYRIGHT MATERIAL OMITTED

Thomas G. Roth, of West Orange, NJ, argued for petitioner.

E. Michael Chiaparas, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington DC, argued for respondent. With him on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; and Robert E. Kirschman, Assistant Director. Of counsel on the brief was Monica Pantos, Senior Attorney, Office of Counsel, Drug Enforcement Administration, of Alexandria, Virginia.

Before NEWMAN, MICHEL, and GAJARSA, Circuit Judges.

GAJARSA, Circuit Judge.

Todd R. Haebe, a Special Agent with the Drug Enforcement Agency ("DEA") in San Jose, California, appeals a decision of the Merit Systems Protection Board ("MSPB" or "Board" or "board"). In a split decision,¹ the MSPB reversed certain elements of an initial decision by an MSPB Administrative Judge ("AJ"). See Haebe v. Dep't of Justice, 81 M.S.P.R. 167, 176 (1999) ("Final Decision"). The AJ overturned the DEA's decision to remove Mr. Haebe from his position as a Criminal Investigator and ordered the DEA to reinstate Mr. Haebe and provide back pay. Haebe v. Dep't of Justice, No. SF-0752-97-0426-I-1, slip op. at 1, 21 (M.S.P.B., August 8, 1997) (Hughes, Admin.J.) ("Initial Decision"). The DEA had removed Mr. Haebe because it determined that he wrongly falsified statements on a report and failed to follow written instructions with respect to that report. Final Decision at 170. Because the MSPB substituted its credibility findings in lieu of the AJ's demeanor-based credibility findings without sufficiently sound reasons for doing so, and misapplied the intent element of the falsification charge, the MSPB's decision in the Final Decision is arbitrary, capricious, and unsupported by substantial evidence. Accordingly, we reverse.

I. BACKGROUND

This case arises from Mr. Haebe's law enforcement efforts on the morning of March 30, 1995, and the report he filed several weeks later describing the events of that morning. The incident in question on the morning of March 30 resulted in Mr. Haebe reporting to authorities in Portland, Oregon that a Mr. Ricardo Ortiz Alcala would be arriving in Portland on a flight that morning. This resulted in the arrest of Mr. Alcala at the Portland airport and he was found to be carrying four pounds of methamphetamine. Mr. Haebe reported the incident on a DEA Form 6 that he signed on April 18, 1995 (the "Report"). Initial Decision at 2-3.

Early in the morning of March 30, 1995, Mr. Haebe was paged at home by a confidential informant ("CI") who worked as an airline ticket agent at the San Jose, California Airport. The CI contacted Mr. Haebe because the CI noticed that Mr. Alcala fit the profile of a suspected drug trafficker.² Airline computer records show that at 6:32 a.m., March 30, 1995, Mr. Alcala purchased, with cash, a one-way ticket from San Jose to Redmond, Oregon on a flight that went through Portland, Oregon.³ Airline records also show that the Portland-bound flight departed at 7:00 a.m. that morning. The Portland authorities intercepted Mr. Alcala in Portland and found him carrying four pounds of illegal narcotics. The authorities arrested Mr. Alcala, but later dropped his prosecution due to alleged falsifications in the Report.

The DEA's Office of Professional Responsibility investigated the Report and eventually filed two charges against Mr. Haebe. The first charge, with five specifications, was Making False Statements. The second charge, with two specifications, was Failure to Follow Written Instructions. In leveling these charges, the DEA in essence alleged that Mr. Haebe never went to the San Jose Airport on the morning of March 30, 1995, and thus never observed Mr. Alcala directly. Rather, under the DEA's theory, Mr. Haebe took the observations of the CI and used them as his own when he wrote the Report.

Based on these charges, the DEA removed Mr. Haebe, effective on March 14, 1997. Mr. Haebe filed a timely appeal to the MSPB. The MSPB assigned the case to the AJ, who held a hearing and took testimony from various witnesses, and issued his initial decision. The AJ reversed all specifications of both charges against Mr. Haebe. The Department of Justice ("DOJ") filed a timely petition for review by the full MSPB. The MSPB granted the petition for review, and overturned the AJ's decisions on charge one, specifications two and three, and charge two, specification one. Mr. Haebe filed a timely appeal to this court for charge one. We have jurisdiction over Mr. Haebe's appeal pursuant to 28 U.S.C. § 1295(a)(9). The content of both the AJ's initial decision and the MSPB's reversal are central to the disposition of this case. We will discuss each decision in turn for those charges and specifications that the MSPB reversed, however, Mr. Haebe seeks our review only for the specifications under charge one.

A. The AJ's Initial Decision

The AJ's twenty-page opinion reflects a three-day hearing and extensive consideration and discussion of disputed issues that the AJ resolved in large measure based on his assessment of the credibility and demeanor of the various witnesses who testified.⁴ As recognized by the MSPB, "to sustain a falsification charge, the agency must prove by preponderant evidence that the employee knowingly supplied incorrect information with the intention of defrauding or deceiving the agency." Final Decision at 176 (citing Coleman v. Dep't of the Air Force, 66 M.S.P.R. 498, 506 (1995), aff'd, 79 F.3d 1165 (Fed.Cir.1996) (Table)).

Presence of Mr. Haebe at the San Jose Airport — charge one, specification two

The DEA charged that Mr. Haebe made knowingly false statements about his observations of Mr. Alcala, in essence alleging that Mr. Haebe did not go to the San Jose Airport that morning in response to the page from the CI. In his Report, Mr. Haebe stated that he observed Mr. Alcala purchase the ticket, appear nervous, and saw him proceed through security to the gate, avoiding eye contact at security and looking around as if to identify law enforcement.⁵ The Report indicated that this occurred at "approximately 6:50 a.m." Initial Decision at 8.

Throughout the case, Mr. Haebe maintained in both his deposition and hearing testimony that he personally made these observations of Mr. Alcala documented in the Report. The AJ characterized the DEA's view of the situation as "based on the contention that known times of events precluded [Mr. Haebe] from carrying out his claimed observations." Id. at 8. The AJ noted that the only two times not based on the recollection of witnesses are the times supplied by the airline records, a ticket sale at 6:32 a.m., and departure of the flight at 7:00 a.m.

Mr. Haebe testified to the AJ as follows. He received the page from the CI between 6:00 6:30 a.m. on the morning of March 30. Mr. Haebe called the CI and discovered that Mr. Alcala inquired about a flight to Redmond, Oregon. This piqued Mr. Haebe's interest because of another arrest several weeks earlier of a person carrying methamphetamine who wanted to travel to Redmond. The CI described Mr. Alcala as a Hispanic adult male, wearing a black sweatshirt⁶ and a gold ring. After the call with the CI, Mr. Haebe drove to the airport immediately, which is nine and a half miles from his house, taking about ten minutes for the trip.⁷ He parked and upon entering the terminal saw an individual that appeared to be Mr. Alcala, although wearing a grey sweatshirt. He then went back outside to see if anyone was waiting for Mr. Alcala, and continued to observe him from that vantage.⁸ He saw Mr. Alcala interact with the CI in a way that he presumed was the purchase of a ticket and saw him go through security.⁹ Then, Mr. Haebe waited in an airport deli to ensure that Mr. Alcala boarded the plane, and saw him near the gate. Mr. Haebe does not own a watch and uses his pager for his timepiece, but forgot to bring it to the airport, and thus estimated the time as "approximately 6:50 a.m." in the Report based on the departure time of the flight. Mr. Haebe then went home and the CI called him again to relate that Mr. Alcala purchased the ticket with cash and that it was one-way without a prior reservation.¹⁰ Id. at 9-10.

The AJ recognized that Mr. Haebe's credibility was of the utmost importance. The AJ found Mr. Haebe to have an extraordinarily high reputation for honesty, integrity and devotion to duty.¹¹ The DEA needed to prove its case by a preponderance of the evidence, yet its allegations were based in part on the improbability that Mr. Haebe could have made it to the airport in time. The testimony of the CI was critical on these points, in particular the issue of whether the CI initially called Mr. Haebe before or after the ticket was sold to Mr. Alcala, and, less critically, whether the CI called Mr. Haebe once or twice. If the CI first called after Mr. Alcala's initial inquiry, this would support Mr. Haebe's version of events and rebut the DEA's arguments about the timing: the first call could have been early enough to allow Mr. Haebe to be at the airport to observe Mr. Alcala purchase the ticket at 6:32 a.m.

The CI was interviewed and deposed a number of times from the beginning of the investigation up to the hearing, and also submitted affidavits. See Final Decision at 178 n. 4. While noting that among the CI's various statements there were some differences, the AJ noted that they were not great differences. Initial Decision at 12 n. 16. Significantly, in the CI's last two affidavits and at the hearing, the CI testified that Mr. Alcala approached the ticket counter twice, after the first encounter the CI paged Mr. Haebe, but the CI could not remember whether Mr. Alcala purchased the ticket on the first or second visit. Id. at 13.

Although...