Richardson v. U.S. Customs Service

• Decision Date: 08 February 1995
• Docket Number: No. 93-3022,93-3022
• Citation: 47 F.3d 415
• Parties: Edward RICHARDSON and Lorenzo Mosely, Petitioners, v. UNITED STATES CUSTOMS SERVICE, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 415

47 F.3d 415

Edward RICHARDSON and Lorenzo Mosely, Petitioners, v. UNITED STATES CUSTOMS SERVICE, Respondent.

No. 93-3022.

United States Court of Appeals Federal Circuit.

Feb. 8, 1995.

Elaine Kaplan, Deputy Gen. Counsel, Nat. Treasury Employees Union, of Washington, DC, argued, for petitioners. With her on the brief were Gregory O'Duden, Gen. Counsel and David F. Klein, Asst. Counsel.

Steven J. Abelson, Attorney, Commercial Litigation Branch, Dept. of Justice, of Washington, DC, argued, for respondent. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director and Jeanne E. Davidson, Asst. Director. Of counsel was Terrence S. Hartman.

Before RICH, PLAGER, and LOURIE, Circuit Judges.

PLAGER, Circuit Judge.

This is an appeal of a decision of an arbitrator that federal employees, suspended on the basis of a criminal indictment, but subsequently acquitted and reinstated, are not entitled to reinstatement with pay for the period of the suspension. ¹ We vacate the decision of the arbitrator and remand for further proceedings consistent with this opinion.

BACKGROUND

The facts are not in dispute. In 1990, petitioners Edward Richardson and Lorenzo Mosely, Customs Inspectors for the United States Customs Service (the Agency), shared an apartment in Miami. Apparently thinking a postman was an intruder, Richardson went to the door of the apartment with a gun. Both petitioners were later arrested and both were subsequently indicted under 18 U.S.C. Sec. 111 ² for assault on a federal officer. The Agency suspended them for an indefinite period without pay based upon the fact of their indictment. Both petitioners were tried before a jury and acquitted.

The Agency thereafter reinstated petitioners with pay, effective beginning with the date of their acquittal. The Agency denied their claim "to be re-instated with back pay, overtime and benefits which would have accrued from the time of the indefinite suspension." With the support of the National Treasury Employees Union, petitioners sought arbitration of their dispute with the Agency as provided under 5 U.S.C. Sec. 7121(e). Petitioners claimed reinstatement with pay for the entire period of their suspension.

The arbitrator recognized that there was an apparent split among the circuits over the question of whether an employee is entitled to reinstatement with pay under these circumstances. Reading the law of this circuit as against such relief, the arbitrator denied the grievance. Petitioners bring their grievance here. As the parties do not dispute the facts of this case, only a question of law is before us.

DISCUSSION

A. The Nature of the Dispute and the Arbitrator's

Jurisdiction

Petitioners' grievance is based on the theory that the suspension imposed by the Agency was invalid, and that they were entitled to full reinstatement with pay. Their point is that an indefinite suspension without pay based on the issuance of an indictment, is a "conditional" suspension. In order ultimately to be justified, say petitioners, the suspension must ripen into a termination action. Absent that, the suspension itself becomes unjustified and a violation of the employee's rights.

Chapter 75, Title 5, United States Code, specifies a range of adverse personnel actions which a federal agency may take against an employee. Subchapter II, Secs. 7511-14, lists certain adverse actions by an agency that trigger particular procedural protections available to the employee. Included in that group is suspension for more than 14 days.

A related section, 5 U.S.C. Sec. 7701, provides, on petition by an employee, for review of agency adverse action decisions by the Merit Systems Protection Board (MSPB), and section Sec. 7121(e)(1) authorizes review by an arbitrator if the union's negotiated grievance procedure so provides. In either case, the exclusive forum for appeal is this court. See 5 U.S.C. Sec. 7703 (for MSPB cases); 5 U.S.C. Sec. 7121(f) (for arbitration cases). Both the petitioners and the Government base the jurisdiction of this court to hear this appeal on 5 U.S.C. Secs. 7703 and 7121(f). ³

Petitioners' theory regarding the "conditional" nature of the suspension in this case finds authority in Brown v. Department of Justice, 715 F.2d 662 (D.C.Cir.1983), which provides the legal underpinning upon which petitioners framed their claim. It was also the theory the arbitrator accepted to characterize the issue before him. The arbitrator viewed the case as "a common arbitration scenario," raising the question "whether the employer had 'just cause' to suspend the employee even though he was later found not guilty." In re United States Customs Serv., available on Westlaw LRR-LA database, LEXIS Labor library, LRRLA file at * 4. ⁴

As we will explain, there are now conflicting views among the courts regarding how these summary suspension cases should be analyzed, of which Brown is one. Although we analyze the case somewhat differently than do either of the parties, and ultimately we reject the theory of Brown, petitioners stated a cause of action that unquestionably brings their case within the ambit of Subchapter II. ⁵ The arbitrator had jurisdiction under Sec. 7121(e)(1) to entertain their complaint; this court has jurisdiction to hear and decide an appeal from the decision of the arbitrator under the present circumstances. ⁶

B. The Statutes

Under ordinary circumstances, a federal employee against whom an agency proposes to take an adverse personnel action under Subchapter II is entitled to: (i) 30 days' advance written notice of the proposed action; (ii) an opportunity to contest the action; (iii) opportunity to be represented by counsel; and (iv) a written, reasoned decision. 5 U.S.C. Sec. 7513(b). There is, however, a special provision applicable when suspicion of a crime is at issue:

(b) An employee against whom an action is proposed is entitled to--

(1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action.

5 U.S.C. Sec. 7513(b)(1) (emphasis added).

That is all the statute has to say on the subject of suspensions based solely on allegations of serious crime. The statute does not say what constitutes "reasonable cause;" it does not say how long a suspension may stay in place; it does not say what triggers its termination. And it does not say what actions must be taken when such a suspension is terminated. Indeed, the statute provides mostly negative inferences, its affirmative role being simply to provide an exception to only one of the rights--30 days' advance written notice--available to an employee before an adverse action under Subchapter II may be taken.

Given the paucity of Congressional direction, courts of necessity have filled in some of the missing parts. The clause is read as establishing an independent standard for a limited adverse action: an indictment for a crime for which a sentence of imprisonment may be imposed will, as a general rule, provide reasonable cause for an agency to believe that the employee has committed such a crime, and, when the nature of the crime alleged relates to the employee's ability to perform his or her duties, an agency may summarily suspend the employee, without pay, pending the outcome of the criminal proceedings. See, e.g., Pararas-Carayannis v. Department of Commerce, 9 F.3d 955 (Fed.Cir.1993); Dunnington v. Department of Justice, 956 F.2d 1151 (Fed.Cir.1992); Engdahl v. Department of the Navy, 900 F.2d 1572 (Fed.Cir.1990). See also Thomas v. General Servs. Admin., 756 F.2d 86 (Fed.Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 129, 88 L.Ed.2d 106 (1985).

While such a summary suspension may be indefinite, it is not unlimited. When the criminal justice system has arrived at its conclusion, the agency must terminate the suspension within a reasonable amount of time. See Dunnington, 956 F.2d at 1156 (summary suspension "must be terminated within a reasonable time following resolution of the criminal charges"); Engdahl, 900 F.2d at 1578 (delay in terminating summary suspension was reasonable under the circumstances).

Thus it can be seen that, while the statute is silent on many of the consequences related to a summary suspension under the special clause found in Sec. 7513(b)(1), the courts have filled in some of the blanks. One of the blanks, the issue involved here, namely under what circumstances, if any, may an employee be entitled to reinstatement with pay to a date earlier than the date of acquittal, has been filled in with somewhat inconsistent, if not conflicting, results.

C. The Cases

Two cases are cited by the parties as dispositive of the issue before us: Jankowitz v. United States, 533 F.2d 538, 209 Ct.Cl. 489 (1976), decided in 1976 by our predecessor court, the Court of Claims, and upon which the Government bases its position; and Brown v. Department of Justice, 715 F.2d 662, mentioned earlier, decided in 1983 by the Court of Appeals for the District of Columbia Circuit (D.C.Circuit), upon which petitioners stand.

In Jankowitz, the petitioner, an employee of the Federal Housing Administration, was indicted for bribery and suspended by the agency. He was later acquitted of all charges in a jury trial, and restored to duty. The Government agreed he was entitled to reinstatement with back pay for the period between his acquittal and his restoration to duty, but denied reinstatement with back pay for the time he was suspended prior to acquittal.

Jankowitz then brought suit for the withheld back pay in the Court of Claims, basing his suit on the Back Pay Act of 1966, 5 U.S.C. Sec. 5596 (1970). The Court of Claims denied his claim. "[T]he Back Pay Act of 1966 authorizes us to make such an award only where it appears that the plaintiff has undergone 'an unjustified or unwarranted personnel action.' " Jankowi...