Jeffrey Otherson v. Department of Justice, Immigration and Naturalization Service , 728 F.2d 1513 ( 1984 )

PER CURIAM:

This case comes before the court on a petition to review an' order of the Merit System Protection Board (MSPB)¹ upholding the temporary suspension without pay of petitioner Otherson by the Immigration and Naturalization Service (INS) from his employment as a Border Patrol agent.² Otherson was suspended pending trial on an indictment accusing him of conspiring to defraud the United States³ and of depriving aliens suspected as illegal entrants of their civil rights under color of law;⁴ later, following his conviction,⁵ Otherson was permanently removed from service. Only the temporary suspension is now in issue.⁶

Otherson contends (1) that the fact of indictment for job-related criminality, standing alone, cannot constitute statutory “cause” to temporarily suspend an employee; ⁷ (2) that such a suspension without pay, when so based, violates the Due Process Clause of the Fifth Amendment;⁸ and (3) that in Otherson’s instance, temporary suspension was an unreasonable penalty, and thus did not promote the “efficiency of the service.”⁹ We find these claims wanting and accordingly affirm.

Our recent decision in Brown v. Department of Justice¹⁰ disposes of Otherson’s first two arguments. There we held that neither the Due Process Clause¹¹ nor any relevant statute¹² prohibits a temporary suspension without pay of a Border Patrol agent though predicated solely on a criminal indictment for job-related activity.¹³ With regard to Otherson’s third thesis— that, under the circumstances, temporary suspension was an unreasonable penalty— our task is to determine whether MSPB has “ ‘.review[ed] the agency’s penalty selection to be satisfied (1) that on the charges substantiated by [MSPB] the agency’s penalty is within the range allowed by law, regulation, and any applicable table of penalties, and (2) that the penalty “was based on a consideration of the relevant factors and ... there has [not] been a clear error of judgment.” ’”¹⁴

Otherson challenges the reasonableness of his suspension under the criteria established by MSPB in Douglas v. Veterans Administration.¹⁵ He asserts that a less severe penalty — limited duty — should have been imposed in lieu of temporary suspension. Otherson also claims that the suspension violated the principle of like penalties for like offenses because other Border Patrol agents indicted for serious crimes had simply been placed in limited-duty positions.

Douglas does refer to the importance of resorting to milder alternative sanctions when available, and to the need for consistency in penalties imposed for wrongful employee conduct.¹⁶ Douglas specifies, however, that the alternative should be adequate and effective to deter similar future conduct by the involved employee and others.¹⁷ Douglas also declares that the principle of like penalties for like offenses does not require “mathematical rigidity or perfect consistency regardless of variations in circumstances,” ¹⁸ and that mere “ ‘surface consistency should be avoided.’ ”¹⁹

In addition to these considerations, Douglas lists a number of equally important factors bearing on the appropriateness of a penalty.²⁰ Included are the employee’s job level and type of employment, the visibility of his position, and the degree of contact with the public; the nature and seriousness of the offense, its relationship to the employee’s position and responsibilities, and whether it was intentional, maliciously committed or frequently repeated; the notoriety of the crime; and any impact which the criminal episode may have upon the agency’s reputation.²¹ Douglas admonishes agencies to “exercise responsible judgment in each case, based on rather specific, individual considerations, rather than acting automatically on the basis of generalizations unrelated to the individual situation.”²²

We think MSPB’s holding that Otherson’s temporary suspension was reasonable survives the test of Douglas.²³ MSPB justified the disparate treatment INS accorded Otherson in comparison with other Border Patrol employees charged with violent crime²⁴ by noting the conspiratorial nature of the accusation against Otherson and the fact that his behavior was alleged to be “planned,” “brutal,” “sustained, repeated, and cooperative.”²⁵ Although the presiding official at Otherson’s hearing did find it “administratively practical” for INS to place Otherson in a limited-duty position,²⁶ that bare conclusion reflects nothing on whether a mere position transfer would suffice to deter him and others from future illegal conduct, and would satisfactorily protect INS’s interests in its reputation and in avoidance of future liability²⁷ were any Border Patrol agent to engage in further wrongdoing.²⁸

In light of the narrowness of our review authority,²⁹ these considerations lead us to defer to MSPB’s determination that an assignment of Otherson to limited duty would not substitute adequately and effectively for temporary suspension. We similarly defer to MSPB’s conclusion that, because of the nature and seriousness of the crimes charged, and the absence of any alternative penalty that would have protected the employing agency’s interests sufficiently, it was not unreasonable to suspend Otherson without pay pending the outcome of his criminal prosecution. Put another way, we find no “clear error of judgment”³⁰ in MSPB’s decision, and its order is accordingly

Affirmed.

1 . The petition for review was filed here prior to the effective date of the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, 96 Stat. 25 (1982) (codified primarily in scattered sections of 28 U.S.C.), which confers jurisdiction to review MSPB orders exclusively upon the Court of Appeals for the Federal Circuit. 28 U.S.C.A. § 1295(a)(9) (West Supp.1983).

2 . MSPB reversed the initial decision of the presiding official, which had held Otherson’s suspension unreasonable. Dick v. Department of Justice, No. SF075209119 (MSPB June 1, 1982) (decision and order), Appendix (App.) 111.

3 . Pursuant to 18 U.S.C. § 371 (1982).

4 . Pursuant to 18 U.S.C. § 242 (1982). More specifically, Otherson allegedly abused these aliens over a two-month period, concealed this maltreatment, and misinformed Border Patrol trainees who witnessed the incidents.

5 . See United States v. Otherson, 637 F.2d 1276 (9th Cir.1980), cert. denied, 454 U.S. 840, 102 S.Ct. 149, 70 L.Ed.2d 123 (1981).

6 . This court has heretofore affirmed the legality of Otherson’s discharge. Otherson v. Department of Justice, 228 U.S.App.D.C. 481, 711 F.2d 267 (1983). Otherson seemingly theorizes that if the suspension was unreasonable, he is entitled to backpay and other benefits accruing prior to discharge.

7 . See 5 U.S.C. § 7513(a) (1982).

8 . U.S. Const. amend. 5.

9 . See 5 U.S.C. § 7513(a) (1982).

10 . 230 U.S.App.D.C. 188, 715 F.2d 662 (1983).

11 . Id. at 193, 715 F.2d at 667.

12 . Id. at 192-193, 715 F.2d at 666-667.

13 . If such employee is later acquitted of the crimes charged and reinstated by the agency, we said, he or she will be entitled to backpay. Id. at 195, 715 F.2d at 669.

14 . Parsons v. United States Dep’t of Air Force, 228 U.S.App.D.C. 1, 4, 707 F.2d 1406, 1409 (1983), quoting in turn Douglas v. Veterans Admin., 5 M.S.P.B. 313, 328 (1981), and Citizens to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136, 153 (1971). See also 5 U.S.C. § 7703(c) (1982); Gipson v. Veterans Admin., 221 U.S.App.D.C. 55, 62, 682 F.2d 1004, 1011 (1982).

15 . Supra note 14.

16 . 5 M.S.P.B. at 332.

17 . Id.

18 . Id. at 333.

19 . Id., quoting Federal Personnel Manual, ch. 751, subch. 1 — 2c(l), (2) (Dec. 21, 1976) (emphasis in original).

20 . Id. at 332.

21 . Id.

22 . Id. at 330.

23 . MSPB referred explicitly to Douglas in the decision under review. Dick v. Department of Justice, supra note 2, at 10, App. 121. This court has declared that such a “reference constitutes sufficient indication that the MSPB took into account potentially mitigating considerations in accordance with [the Douglas ] decision.” Moffer v. Watt, 223 U.S.App.D.C. 300, 304 n. 14, 690 F.2d 1037, 1041 n. 14 (1982).

24 . Two other INS officers, who were indicted for the same incidents as Otherson, were also suspended temporarily by INS. See Brown v. Department of Justice, supra note 10, 230 U.S.App.D.C. at 190, 715 F.2d at 664.

25 . Dick v. Department of Justice, supra note 2, at 15, App. 126; see Brown v. Department of Justice, supra note 10, 230 U.S.App.D.C. at 194 n. 3, 715 F.2d at 668 n. 3.

26 . Dick v. Department of Justice, No. SF075209119 (MSPB Feb. 27, 1980), at 7, App. 108 (initial decision of presiding official).

27 . These interests clearly would be implicated if Otherson, even in the course of limited duty, would have any contact with aliens. Although disputed by Otherson, INS maintains that aliens would have been exposed to Otherson in any of the limited-duty positions available. Brief for Respondents at 8. The presiding official did not base his decision to reverse Other-son’s suspension on a finding that he would not come into contact with aliens in a limited-duty post; rather, he stated that “[t]he record [did] not persuade [him] that there is any reasonable likelihood that [Otherson] would commit violence against aliens while working as [a] dispatcher ], in the garage, on construction work, etc.” Dick v. Department of Justice, supra note 26, at 8, App. 109.

28 . In Brown v. Department of Justice, supra note 10, we noted that neither reassignment nor administrative leave appeared to be a practical alternative to temporary suspension of two similarly-situated Border Patrol agents. 230 U.S.App.D.C. at 194 n. 3, 715 F.2d at 668 n. 3. Our dissenting colleague suggests that 5 C.F.R. § 752.404(d)(1) (1983), which prohibits the granting of administrative leave for longer than ten days, may not be “congressionally mandated,” and may be unconstitutional as applied in this case. Dissenting Opinion at 1519 & n. 3. Since these questions have not been raised by the parties on this appeal, we do not reach them.

29 . See text supra at note. 14.

30 . See text supra at note 14.