Perez v. Department of Justice , 508 F.3d 1019 ( 2007 )

United States Court of Appeals for the Federal Circuit
2006-3144
NORBERTO PEREZ,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
Stuart A. Kirsch, American Federation of Government Employees, of Riverdale,
Georgia, filed a combined petition for panel rehearing and rehearing en banc for
petitioner. With him on the petition was Mark D. Roth, of Washington, DC.
Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, filed a response to the petition
for respondent. With him on the response were Peter D. Keisler, Assistant Attorney
General, Jeanne E. Davidson, Director, and Todd M. Hughes, Assistant Director.
Appealed from: Arbitrator Decision
United States Court of Appeals for the Federal Circuit
2006-3144
NORBERTO PEREZ,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
ON PETITION FOR PANEL REHEARING
AND REHEARING EN BANC
Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, ∗ NEWMAN, MAYER,
LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE,
Circuit Judges.
PER CURIAM.
BRYSON, Circuit Judge, with whom MICHEL, Chief Judge, and LOURIE, RADER, and
SCHALL, Circuit Judges, join, concurs in the denial of the petition for rehearing en banc.
DYK, Circuit Judge, with whom GAJARSA and LINN, Circuit Judges, join, dissents from
the denial of the petition for rehearing en banc.
ORDER
A combined petition for panel rehearing and rehearing en banc was filed by the
Petitioner, and a response thereto was invited by the court and filed by the Respondent.
The petition for rehearing was referred to the panel that heard the appeal, and
thereafter the petition for rehearing en banc and response were referred to the circuit
judges who are authorized to request a poll whether to rehear the appeal en banc. A
poll was requested, taken, and failed.
Upon consideration thereof,
∗
Senior Judge Friedman, who was on the original panel, participated only in
decision on the petition for panel rehearing.
IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The petition for rehearing en banc is denied.
(3) The mandate of the court will issue on November 26, 2007.
FOR THE COURT
November 19, 2007 /s/ Jan Horbaly_________
Jan Horbaly
Clerk
cc: Stuart A. Kirsch, Esq.
Michael J. Dierberg, Esq.
2006-3144 2
United States Court of Appeals for the Federal Circuit
2006-3144
NORBERTO PEREZ,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
BRYSON, Circuit Judge, with whom MICHEL, Chief Judge, and LOURIE, RADER, and
SCHALL, Circuit Judges, join, concurring in the denial of rehearing en banc.
I believe the panel opinion correctly analyzes the governing legal principles that
apply to the issue before the court regarding the indefinite suspension of a federal
employee because of alleged criminal conduct. There are other related issues
regarding such suspensions that may need to be addressed in the future, but in my view
they are not presented by the petition in this case. For those reasons, I do not favor
rehearing en banc in this case.
It is worth reviewing the pertinent statutory provisions:
First, the provisions of subchapter II of chapter 75 of title 5 (i.e., sections 7511
through 7514) apply to, inter alia, a suspension for more than 14 days. 5 U.S.C.
§ 7512(2). Employees who are suspended for 14 days or less are not entitled to review
by the Merit Systems Protection Board, but have rights to internal agency due process
procedures, as specified in 5 U.S.C. § 7503.
Second, an agency cannot avoid the provisions of subchapter II, including Merit
Systems Protection Board review, simply by denominating a suspension “indefinite.” An
indefinite suspension that lasts for more than 14 days clearly falls within the scope of
section 7512(2). This court has sensibly construed the statute to apply to such
indefinite suspensions. See Pararas-Carayannis v. Dep’t of Commerce, 9 F.3d 955,
957 n.4 (Fed. Cir. 1993); Dunnington v. Dep’t of Justice, 956 F.2d 1151, 1153 (Fed. Cir.
1992) (citing cases).
Third, an agency may take any action covered by section 7512, including
indefinite suspensions lasting more than 14 days, only for “such cause as will promote
the efficiency of the service.” 5 U.S.C. § 7513(a).
Fourth, when an action under section 7512 is proposed, the employee is entitled
to 30 days’ advance written notice unless there is reasonable cause to believe the
employee has committed a crime for which imprisonment may be imposed. 5 U.S.C.
§ 7513(b)(1).
Fifth, any employee against whom an action covered by section 7512 is taken
may appeal to the Merit Systems Protection Board. 5 U.S.C. § 7513(d).
Sixth, when an employee takes a Board appeal from an action falling within
section 7512, the agency’s decision must be “supported by a preponderance of the
evidence” in order for the Board to sustain the agency action. 5 U.S.C. § 7701(c)(1)(B).
This statutory scheme establishes two important, independent principles: First,
any employee who is suspended for more than 14 days may appeal to the Merit
Systems Protection Board, at which point the employing agency has the burden of
showing by a preponderance of the evidence that the employee’s suspension promoted
2006-3144 2
the efficiency of the service. 5 U.S.C. § 7513(a). Second, and separately, the agency
may initiate such a suspension without providing the statutory 30 days’ written notice if
the agency has reasonable cause to believe the employee has committed a crime. 5
U.S.C. § 7513(b)(1). Thus, regardless of whether the agency has invoked its right
under section 7513(b)(1) to avoid the 30-day notice requirement, the agency still has to
satisfy the requirement of section 7513(a) to show that the suspension promoted the
efficiency of the service. That requirement applies to every suspension, without regard
to whether the suspension in question is based on alleged criminal conduct, and without
regard to whether the agency has invoked the “reasonable cause” provision of section
7513(b)(1) to bypass the 30-day notice requirement. I understand the panel opinion to
embrace this interpretation of sections 7513(a) and 7513(b)(1). I certainly do not
interpret the panel opinion to suggest that a suspension based on alleged criminal
conduct need not be justified at all as long as the employing agency gives the employee
30 days’ notice of its intention to suspend him.
In prior cases discussed by the panel majority and dissent, beginning with the
Dunnington case, this court has made statements that suggest a different approach.
For example, in Pararas-Caryannis v. Department of Commerce, 9 F.3d 955, 957 (Fed.
Cir. 1993), the court stated that “[i]n order for the MSPB to sustain an indefinite
suspension, the agency must establish by a preponderance of the evidence that it had
reasonable cause to believe the employee committed a crime for which imprisonment
may be imposed.” See also Richardson v. U.S. Customs Serv., 47 F.3d 415, 419 (Fed.
Cir. 1995). That statement seems to me to conflate the requirements of sections
7513(a) and 7513(b), even though those two provisions address entirely different
2006-3144 3
matters—in the first, what is required to sustain a suspension (section 7513(a)), and in
the second, what is required to bypass the 30-day notice requirement (section
7513(b)(1)). The problem with conflating those two requirements was not highlighted in
those prior cases, because in each of them the suspension was imposed without
observance of the 30-day notice requirement, and it was thus proper for the court to
focus, at least for purposes of the notice provision, on whether the “reasonable cause”
requirement of section 7513(b)(1) was satisfied. But the problem with that approach is
clear in a case such as this one, where the 30-day notice requirement was satisfied.
Applying the approach used in the Dunnington line of cases to this case would seem to
import the “reasonable cause” requirement from a statutory provision—section
7513(b)(1)—that is inapplicable on its face to the suspension at issue. Moreover, that
approach would result in imposing different proof requirements on the agency
depending on whether the suspension was denominated “indefinite” and whether the
conduct that gave rise to the suspension is alleged to be criminal.
Thus, in the Dunnington line of cases this court has stated that indefinite
suspensions based on alleged criminal conduct can be sustained if the agency can
show reasonable cause to believe the criminal conduct occurred. Dunnington, 956 F.2d
at 1156 (“facts [supporting suspension] must be sufficient to meet the statutory test of
reasonable cause”); Pararas-Carayannis, 9 F.3d at 957 (“the agency must establish by
a preponderance of the evidence that it had reasonable case to believe the employee
committed a crime for which imprisonment may be imposed”); Richardson, 47 F.3d at
419 (section 7513(b) “is read as establishing an independent standard for a limited
adverse action”); Morrison v. Nat’l Science Found., 423 F.3d 1366, 1368-69 n.* (Fed.
2006-3144 4
Cir. 2005) (section 7513(b)(1) reasonable cause standard “has been applied as well to
the agency’s decision to impose an indefinite suspension”). Yet outside the context of
indefinite suspensions imposed without 30 days’ notice, this court has repeatedly held
that disciplinary actions can be upheld only if the agency can show by a preponderance
of the evidence that the employee has committed all the elements of the charged act.
See King v. Nazelrod, 43 F.3d 663, 666 (Fed. Cir. 1994); Jacobs v. Dep’t of Justice, 35
F.3d 1543, 1546-47 (Fed. Cir. 1994); Dixon v. Dep’t of Transp., 8 F.3d 798, 803 (Fed.
Cir. 1993); Burroughs v. Dep’t of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990); Naekel
v. Dep’t of Transp., 782 F.2d 975, 977 (Fed. Cir. 1986); Hale v. Dep’t of Transp., 772
F.2d 882, 885 (Fed. Cir. 1985). That rule has been applied to all forms of disciplinary
action covered by section 7512, and it has been applied to criminal as well as non-
criminal conduct, as the cited cases make clear. The statutory analysis in the
Dunnington line of cases therefore leads to an apparent conflict with the broader line of
cases involving the requirement that disciplinary charges be sustained by a
preponderance of the evidence. 1
The apparent conflict between these two lines of cases is not addressed or
resolved in the panel opinion and will likely require further attention in future cases. The
1
Apart from the fact that we have regularly applied the preponderance
standard to proof of conduct that is the basis for disciplinary action, even when that
conduct is criminal, it would be odd to apply a different ultimate burden of proof
depending on whether the charged conduct constituted a crime for which imprisonment
could be imposed. Suppose, for example, an employee is suspended for assaulting a
co-worker. Should the standard of proof to sustain the disciplinary action depend on
whether the charged conduct would be an imprisonable crime under applicable state or
federal law? If so, the standard of proof could end up turning on whether the conduct
qualified as aggravated assault rather than simple assault. Or, if the discipline was
imposed for theft, the standard of proof could depend on whether the amount taken
constituted grand larceny under the particular state’s law or merely petty larceny. That
makes no sense, and it is certainly not dictated by anything in section 7513.
2006-3144 5
conflict does tend to demonstrate, however, that the approach taken in the panel
opinion—construing section 7513(b)(1) to set forth the circumstances needed to justify
overriding the 30-day notice requirement and not the degree of proof ultimately needed
to justify the suspension itself—is the correct one. Because the panel opinion and the
petition for rehearing, as I read them, are limited to addressing that narrow question and
do not address broader issues such as those adverted to above, I do not favor granting
rehearing en banc to address them.
2006-3144 6
United States Court of Appeals for the Federal Circuit
2006-3144
NORBERTO PEREZ,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
DYK, Circuit Judge, with whom GAJARSA and LINN, Circuit Judges, join, dissenting
from denial of rehearing en banc.
I respectfully dissent from the denial of rehearing en banc in this case. This case
presents an important issue—whether, apart from section 7513(b)(1), an agency must
have reasonable cause before it may impose an indefinite suspension (lasting more
than fourteen days) pending an investigation. The majority’s decision here rests on its
holding that the employee failed to raise this reasonable cause issue, when in my view
the issue was squarely raised. While unfair to the particular employee, correction of this
error may not warrant en banc review. However, in my view en banc consideration is
warranted because the majority’s decision here has created confusion in an important
area.
The majority made clear that it did not interpret 5 U.S.C. § 7513(b)(1) to require
reasonable cause when an agency gives an employee more than thirty days’ notice of
an indefinite suspension. Perez v. Dep’t of Justice, 480 F.3d 1309, 1311 (Fed. Cir.
2007). The majority’s opinion is unclear, however, as to whether another provision
imposes a reasonableness requirement. For example, the opinion appears to leave
open whether section 7513(a), stating that the agency action shall be taken “only for
such cause as will promote the efficiency of the service,” might a require reasonable
basis to support an indefinite suspension. The majority notes that “[a]rbitrary action
against an employee would not satisfy that standard.” Perez, 480 F.3d at 1313. As
noted in my panel dissent, I think the answer is clear and uncomplicated: a reasonable
basis, or reasonable cause, requirement is applicable to all indefinite suspensions
lasting more than fourteen days, and necessarily follows from the agency’s admitted
obligation to avoid arbitrary action. In order to support an indefinite suspension pending
investigation there is no requirement that the agency establish by a preponderance of
the evidence that the employee committed the act being investigated (regardless of
whether the conduct charged is a crime), but there is a requirement that the agency
have reasonable cause to conclude that the employee did so.
The confusion is compounded by the majority’s statement that the conclusion in
our prior cases—that reasonable cause is required—was merely dictum. In my view our
previous decisions have in fact held that “[i]n order for the MSPB to sustain an indefinite
suspension, the agency must establish by a preponderance of the evidence that it had
reasonable cause to believe the employee committed a crime for which imprisonment
may be imposed.” Pararas-Carayannis v. Dep’t of Commerce, 9 F.3d 955, 957 (Fed.
Cir. 1993); see also Morrison v. Nat’l Sci. Found., 423 F.3d 1366, 1368-69 n.* (Fed. Cir.
2005) (“[T]he same standard—that there is reasonable cause to believe the employee
committed a crime for which a sentence of imprisonment may be imposed—has been
applied as well to the agency’s decision to impose an indefinite suspension.”). The
majority’s characterization of the holdings in those cases as dicta is, of course, itself
2006-3144 2
dictum, but the majority’s dictum has unfortunately cast doubt on the continued vitality of
those earlier decisions.
In my view, the panel opinion here will lead to unnecessary confusion as to what
is required of an agency before it may indefinitely suspend an employee. Although I
would grant en banc review in this case, I welcome Judge Bryson’s view expressed in
his concurrence that the court must address these issues in a future case. One may
hope that this will happen sooner rather than later given the importance of the standards
for indefinite suspensions pending investigation.
2006-3144 3