Long v. U.S. Dept. of Air Force, 81-2281

• Decision Date: 28 December 1984
• Docket Number: No. 81-2281,81-2281
• Citation: 751 F.2d 339
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Joe C. LONG, Petitioner, v. UNITED STATES DEPARTMENT OF the AIR FORCE, Respondent.

Page 339

751 F.2d 339

Joe C. LONG, Petitioner, v. UNITED STATES DEPARTMENT OF the AIR FORCE, Respondent.

No. 81-2281.

United States Court of Appeals Tenth Circuit.

Dec. 28, 1984.

Steven M. Angel, Oklahoma City, Okl., for petitioner.

David W. Kerber, Major, USAF, Washington, D.C. (John E. Green, Acting U.S. Atty., Oklahoma City, Okl., and Richard W. Freeman, Jr., Asst. U.S. Atty., Oklahoma City, Okl., were also on brief), for respondent.

Before HOLLOWAY, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

HOLLOWAY, Chief Judge.

This case is before us on a petition for review from an arbitrator's decision upholding disciplinary action that the United States Department of the Air Force (Respondent or employer) took against Joe C. Long (Petitioner or Long). Long has petitioned to our court for review. The petition for review is denied.

I

Factual background

In February and March of 1980 petitioner was observed leaving his duty station at Tinker Air Force Base. He did not have permission, and his time card reflected that he had been working during his absence. When the employer discovered this, it decided to remove Long from the federal service. Long appealed this removal action. See 5 U.S.C. Secs. 7701(a), 7511-13.

Before the presiding official, with one exception, Long did not argue that he had not been absent during the seven instances charged. He admitted the accuracy of the charges except as to one of seven days of such occasions; as to that day it was discovered that Long had three hours of previously approved annual leave and was, therefore, absent without permission for only three hours and seven minutes, rather than six hours and seven minutes. I R. 38. Long claimed that his removal was too harsh and would not promote the efficiency of the service. See 5 U.S.C. Sec. 7513. In a decision dated October 2, 1980 the presiding official of the Merit Systems Protection Board (MSPB) agreed and reversed. I R. 36-47. The employer did not appeal this decision to the MSPB.

In December 1980, following the presiding official's decision, the employer notified Long of its proposal to suspend him for thirty days for the same conduct at issue in the earlier proceeding. I R. 28-30. In a letter dated January 30, 1981, the employer notified Long of its decision to suspend him for thirty days. I R. 33-34. Long elected to contest this second disciplinary proceeding through the contractual grievance and arbitration provision of the collective bargaining agreement. See 5 U.S.C. Sec. 7121(f), I R. 23, 27.

In September 1981, the arbitrator in the second disciplinary proceeding issued his decision finding that petitioner was disciplined for just cause. See docketing statement Exhibit B. ¹ He held that there was no persuasive support for the claim that the earlier decision requiring Long's reinstatement made the legal doctrine of res judicata governing in this instance. Arbitrator op. at 18. He reasoned that "[n]o reasonable reading of the Board's decision would [lead one to] conclude that Mr. Long was exonerated of the charges leveled against him." Id. at 17. "[T]he Hearing Officer merely concluded that the punishment did not fit the crime; that the penalty was 'unduly harsh'; that Mr. Long, considering his past record with the Agency, could be 'rehabilitated'; that 'a lighter penalty would have been more appropriate.' " Id. at 18.

The arbitrator believed that if he were to agree with Long's argument that the MSPB's reversal of his removal constituted res judicata as to this thirty-day suspension, he would have to read an "all or nothing" doctrine into the contract. The arbitrator concluded that nothing in the contract required the employer "to base its disciplinary determination on a 'roll of the dice,' meaning that if the MSPB rules the removal is too harsh, the Grievant is immune to any further disciplinary action of a lesser nature." Id. at 18-19. The arbitrator held that imposing a thirty day suspension for Long's actions was not arbitrary, capricious or discriminatory. Further, the arbitrator rejected the Union's argument addressed on behalf of Long "that the grievance should be dismissed on the grounds of timeliness," id. at 19, essentially an argument that the employer's action in seeking to impose the suspension was untimely.

Long makes four arguments for reversal: (1) the thirty day suspension is barred by the doctrine of res judicata; (2) the arbitrator based his decision strictly upon the contract, thereby violating 5 U.S.C. Sec. 7121(e)(2); (3) the thirty day suspension is disproportionate to the offense; and (4) the arbitrator's decision was contrary to the clear language of the contract. We are unpersuaded, and we deny the petition for review.

II Analysis

A. Timeliness of petition

Before addressing Long's arguments, we must first consider the employer's contention that Long did not file his petition for review in a timely manner, thereby depriving this court of jurisdiction.

In cases where review is sought of arbitrators' awards, 5 U.S.C. Sec. 7703 procedures apply. 5 U.S.C. Sec. 7121(f). Under 5 U.S.C. Sec. 7703(b)(1) any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board. The arbitrator issued his decision on September 22, 1981. See Docketing Statement, Exhibit B. On October 1, 1981, Long received the arbitrator's decision. See Petition For Review; Respondent's Brief 4. The Clerk's office for the court of appeals for the Tenth Circuit did not stamp the petition filed until November 12, 1981. See Petition for Review. Because petitioner received notice of the arbitrator's decision on October 1, and his petition for review was not stamped filed until November 12, the employer argues that the petition is untimely.

Long contends that the petition is not untimely because pursuant to Rule 25(a) it was "received by the clerk within the time fixed for filing." Fed.R.App.P. 25(a). He explains that the petition was mailed via express mail on October 29, 1981, and it should have been received on October 30. The reason the clerk failed to docket the petition until November 12 was because it was not accompanied by a filing fee or a certificate of service. Petitioner's Reply Brief 3.

We agree with petitioner that his petition was timely. A copy of the petition on file at the clerk's office reveals that it was received within the thirty day filing period on October 30, 1981, but not stamped "filed" until November 12, 1981. Under the plain wording of Rule 25, papers need only be "received by the clerk [of the court of appeals] within the time fixed for filing." Fed.R.App.P. 25(a) (emphasis added). Furthermore, the Supreme Court has held that when the clerk of the district court received a notice of appeal within the thirty day filing period, but did not "file" it within that period because the appellant inadvertently failed to include the filing fee, the notice of appeal is nevertheless timely. Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955); accord Brennan v. United States Gypsum Co., 330 F.2d 728, 729 (10th Cir.1964) (untimely payment of filing fee did not vitiate validity of notice of appeal when it was received within the thirty day period); see also Miller v. United States Postal Service, 685 F.2d 148, 149 (5th Cir.1982) (petition for review from MSPB's decision not timely when mailed before expiration of thirty day period, but not received until after expiration of this period), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983); Aldabe v. Aldabe, 616 F.2d 1089, 1091 (9th Cir.1980) (notice of appeal is timely if received by district court within specified time period even though not filed until expiration of that period); Deloney v. Estelle, 661 F.2d 1061, 1063 (5th Cir.1981) (adopting rule from Aldabe ), appeal reinstated, 679 F.2d 372 (1982).

We hold that the petition for review is timely. ²

B. Res Judicata

Long argues that the prior decision of the presiding official, reversing the employer's decision to remove him, is res judicata as to this second disciplinary proceeding and bars imposition of any penalty for the same allegations of misconduct. Petitioner's Brief 8.

The Supreme Court has said that "[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966); see also 4 K. Davis, Administrative Law Treatise Sec. 21:2, at 49 (2d ed. 1983) (res judicata applies to administrative adjudication); Restatement (Second) of Judgments Sec. 83(1) (valid and final administrative adjudication has same effect under rules of res judicata as judgment of a court); Neighbors v. Secretary of Health, Education & Welfare, 511 F.2d 80, 81 (10th Cir.1974) (noting application of res judicata in Social Security Administration rulings and holding that on rejection of second application raising claim for relief previously passed upon, without a hearing on the basis of res judicata, the court of appeals is without jurisdiction to review the dismissal because there is no final decision made after a hearing); cf. Taylor v. Heckler, 738 F.2d 1112, 1114-15 (10th Cir.1984) (court assumes, for sake of argument, applicability of doctrine of res judicata to administrative decision denying social security survival benefits; however, since ALJ reopened case in effect in later proceeding and rendered decision on merits, district court should review second decision on merits and not make determination that res judicata barred relitigating claim in second proceeding).

We conclude that the prior administrative adjudication met the requirements from Utah Construction so that courts should give it the same...