McClaskey v. U.S. Dept. of Energy

• Decision Date: 18 October 1983
• Docket Number: No. 82-7528,82-7528
• Citation: 720 F.2d 583
• Parties: Raymond L. McCLASKEY, Petitioner, v. UNITED STATES DEPARTMENT OF ENERGY, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 583

720 F.2d 583

Raymond L. McCLASKEY, Petitioner, v. UNITED STATES DEPARTMENT OF ENERGY, Respondent.

No. 82-7528.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 4, 1983.

Decided Oct. 18, 1983.

William W. Kinsey, Portland, Or., for respondent.

D. Richard Hammersley, Portland, Or., for petitioner.

Petition for Review of Order of the Merit Systems Protection Board.

Before GOODWIN, WALLACE and REINHARDT, Circuit Judges.

WALLACE, Circuit Judge:

McClaskey appeals from an order of the Merit Systems Protection Board (board) affirming his discharge by the Bonneville Power Administration (agency) for "knowingly participating in a plan to prevent Government investigators from learning the truth about the unauthorized acquisition and use of wire paid for by the Bonneville Power Administration." McClaskey contends that the penalty of dismissal constituted excessive punishment, that the board failed to follow its own precedent in upholding the dismissal, and that his dismissal did not promote the efficiency of the service. We affirm.

I

McClaskey was an agency electrician with fourteen years of service and no disciplinary record. Two of McClaskey's co-employees, Lapp and Rhew, unlawfully used agency purchase documents to acquire wire for their personal use. The value of the wire was later estimated to be $418. Upon discovering this fraudulent use of its documents, the agency commenced an investigation. When Lapp and Rhew learned of it, they met with McClaskey to discuss ways to prevent the agency from discovering the theft. The three employees agreed to buy wire from a local electrical store to replace the stolen wire. McClaskey purchased the replacement wire with a personal check and, on the following morning, placed it in the appropriate storage bins at the agency. Later that day, Rhew informed McClaskey that the presence of the wire would not deceive the investigators, who already knew that the original wire had not been properly delivered. McClaskey removed the wire from the storage bins.

In response to the agency charge, McClaskey admitted knowing that Lapp had secured the wire without authorization using agency purchasing orders and that the incident was being investigated by government investigators. He further admitted using his personal check to purchase substitute wire and putting it in an agency storage bin for the purpose of ending the investigation and helping his friends. In his own words, McClaskey had attempted to "cover-up" the crimes of his two friends. All three men were discharged.

McClaskey appealed the agency's decision to the board's Seattle Regional Office. The presiding officer at the regional level reversed the agency's dismissal and suspended McClaskey for thirty days. The agency then petitioned the board for review and it reversed the regional presiding officer and reinstated McClaskey's dismissal. ¹

II

McClaskey admits committing the offense with which he was charged. His primary argument, and the only contention advanced at oral argument, is that the penalty of removal was excessively harsh and so disproportionate to his wrongdoing as to be unconscionable.

Our standard of review of the board's decision is set forth in 5 U.S.C. Sec. 7703(c):

[T]he court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be--

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.

Under section 7703(c), our review of the board's choice of sanctions is extremely limited. We defer to the board's judgment unless the penalty is so harsh or disproportionate to the offense as to constitute an abuse of discretion. Debose v. United States Department of Agriculture, 700 F.2d 1262, 1269 (9th Cir.1983) (Debose ); Francisco v. Campbell, 625 F.2d 266, 267, 269 (9th Cir.1980); Albert v. Chafee, 571 F.2d 1063, 1068 (9th Cir.1977) (per curiam); accord Gipson v. Veterans Administration, 682 F.2d 1004, 1011 (D.C.Cir.1982); Brewer v. United States Postal Service, 647 F.2d 1093, 1098, 227 Ct.Cl. 276 (1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982); Power v. United States, 531 F.2d 505, 507, 209 Ct.Cl. 126 (1976).

We have found the penalty of dismissal to be excessively harsh only when the offense committed was extremely minor. In Francisco v. Campbell, for example, the only charge proved against a civilian naval educational counselor was her failure to comply with an order that she not become involved in university administrative affairs. 625 F.2d at 267-69. We stated that the penalty of dismissal may have been excessively harsh, but left this question to be resolved by the board on remand. Id. at 270.

Likewise, in Albert v. Chafee the most serious offense against a naval employee was that he had used an official vehicle for a one-mile private errand to buy his son a cadet uniform. 571 F.2d at 1065. Although other charges were also brought, we stated that "[the] record supporting [the dismissal] when challenged develops into trivia." Id. at 1068. We concluded that "the discipline invoked is so harsh when compared with the transgressions charged that it is simply illegal. De minimis wrongdoing is made completely disproportionate to the punishment." Id.

McClaskey relies upon Power v. United States, a Court of Claims case which we cited with approval in Albert v. Chafee, 571 F.2d at 1068. In Power, an employee submitted false information on travel claims, including overstating his payment for temporary lodging by $50 and requesting reimbursement for certain meals for his wife. The agency was unable to prove, however, that the employee had acted in bad faith in submitting the claims; indeed, the court found it doubtful that he knew of the discrepancies. 531 F.2d at 508-09. The court found that dismissal for such minor offenses was "clearly too harsh and out of all proportion." Id. at 509.

McClaskey's case is clearly distinguishable from these cases. His offense is more serious. He admits deliberately committing the offense. Furthermore, because of the nature of his job, his deception will have a more deleterious effect on the agency.

McClaskey emphasizes that he did not participate in the original theft and that his only motivation for participating in the cover-up was to help his friends. These facts, however, do not negate the seriousness of his offense. When Lapp and Rhew approached McClaskey, they both informed him that the agency had already commenced an investigation. At that point, McClaskey did not merely fail to report his knowledge of the theft, but became actively involved in the attempt to deceive the agency and thwart its investigation.

McClaskey also stresses that he has worked for the agency for fourteen years, has had no disciplinary record, and is highly regarded by his supervisors and fellow employees. The board considered these factors in McClaskey's favor, but concluded that they were outweighed by other factors. Relying on the testimony of an agency official, the board stated that the "agency's mission requires that its employees be delegated a substantial amount of authority to make purchases of expensive tools and equipment, and that the only way in which the agency's system of allowing employees such purchasing authority can work effectively is to require each employee to meet a very high standard of honesty." The board found further that such a rigorous standard could only be maintained if employees were made aware that untrustworthy or dishonest employees would be disciplined quickly and firmly. Thus, the board did not automatically approve McClaskey's dismissal, but concluded that the penalty was reasonable in light of the seriousness of the offense, the agency's legitimate goal of fostering honesty on the part of its employees, and the damage the offense would have on the relationship between McClaskey and his employer. We cannot say that in striking the balance as it did the board abused its discretion.

We observe finally that both this and other circuits have upheld dismissals in other cases involving offenses which appear less serious or concerning employees with longer service records than McClaskey's. See Book v. United States Postal Service, 675 F.2d 158 (8th Cir.1982) (per curiam) (postmaster discharged for unofficial use and unauthorized possession of Postal Service property worth approximately $22); Brewer v. United States Postal Service, 647 F.2d 1093, 227 Ct.Cl. 276 (postal employee of 25 years discharged for falsifying another employee's timecard and removing an undeliverable piece of third-class mail from the post office); Alsbury v. United States Postal Service, 530 F.2d 852 (9th Cir.1976) (employee discharged for removing several items of postal property upon his transfer to a new post office).

We conclude that the penalty imposed by the board here was not so disproportionate to the offense as to amount to an abuse of discretion.

III

McClaskey next argues that in imposing the dismissal sanction the board failed to follow its own precedent as set forth in Douglas v. Veterans Administration, 5 M.S.P.B. 313 (1981) (Douglas ). Generally, an agency must follow its own precedent or explain its reasons for refusing to do so in a particular case. Atchison, Topeka & Santa Fe Railway v. Wichita Board of Trade, 412 U.S. 800, 807-08, 93 S.Ct. 2367, 2374-75, 37 L.Ed.2d 350 (1973); Secretary of Agriculture v. United States, 347 U.S. 645, 652-54, 74 S.Ct. 826, 830-32, 98 L.Ed. 1015 (1954); see Public Interest Research Group v. FCC, 522 F.2d 1060, 1064 (1st Cir.1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976). If the board has failed to follow its own precedent, without offering a sufficient explanation, we may be required to reverse its decision.

In Douglas the board...