Perdue v. FAA

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 98-60232
(Summary Calendar)
____________________
HILLARY C. PERDUE,
Petitioner,
versus
FEDERAL AVIATION
ADMINISTRATION,
Respondent.
_____________________
On Petition For Review of An Order
of the Federal Aviation Administration
Northern District of Texas
(GFT-SW-98-HR-02)
_____________________
February 3, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Hillary C. Perdue (“Perdue”) petitions this court for review
of a decision of an appeal panel of the Federal Aviation
Administration (“FAA”) to demote Perdue by two grades because of
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
his ongoing refusal to pay the balance due on his government-issued
credit card after being reimbursed by the FAA. Perdue argues that
the appeal panel’s decision to demote him was not supported by
substantial record evidence; that the FAA improperly retaliated
against him for filing a grievance; and that the FAA’s decisions to
suspend him twice, remove him, and ultimately demote him violate
the Double Jeopardy Clause of the Fifth Amendment. For the
following reasons, we conclude that Perdue’s claims are without
merit.
I.
Perdue was employed by the FAA for fifteen years and for the
time relevant to this dispute was an Aviation Drug Abatement
Program Specialist. Because Perdue incurred traveling expenses
while on government business, he was issued a United States
Government American Express (“AMEX”) Card. Perdue agreed to pay
all charges promptly upon receipt of his monthly AMEX bill, for
which he would be reimbursed by the government.
Perdue argues that since December 1995, he had an ongoing
dispute with AMEX concerning alleged unauthorized charges totaling
$2,293.50. Perdue admits that even though AMEX credited his
account in the amount of the disputed charges after canceling the
card, he withheld all payment to AMEX as a means of protesting
AMEX’s handling of his dispute. Despite Perdue’s agreement to
promptly pay AMEX for government travel expenses, Perdue refused to
pay an outstanding balance of $3,218.66, which represented only
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charges incurred during official government travel and for which he
had been fully reimbursed by the FAA.
In early 1997, in connection with an FAA inquiry to determine
whether Perdue and several other FAA employees were using
government property for personal purposes, the FAA confiscated
Perdue’s computer hard drive. In response to this action, on
February 28, 1997, Perdue filed a grievance with Diane J. Wood,
acting manager of the FAA’s Drug Abatement Division, complaining of
the “Gestapo-like tactics” of the FAA agents.
On March 14, 1997, the FAA informed Perdue of a proposed five-
day suspension because of his refusal to pay the AMEX credit card
debt after he had been reimbursed by the government. Perdue
responded that he would not satisfy the debt “until such time as
[he] deem[ed] appropriate.” On April 10, 1997, the FAA advised
Perdue that he was being suspended for five days for refusal to pay
his credit card debt. Perdue did not respond nor did he pay the
amount owed. On May 30, 1997, the FAA notified Perdue that he had
until June 9, 1997 to furnish documentation of a payment plan to
eliminate this debt. When Perdue failed to respond, on June 11,
1997, an employee of the FAA Compliance and Enforcement Branch
called Perdue to determine whether he intended to respond to the
May 30, 1997 memorandum, and Perdue told her that he would take
care of the matter when he felt “it [was] right.”
On July 3, 1997, the FAA notified Perdue of a second proposed
ten-day suspension for failure to satisfy this indebtedness.
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Perdue responded, “I will resolve this issue with American Express
when I am ready. All your bully-boy, reprisal, and attempted
intimidation tactics will not cause my [sic] to expedite paying
American Express.” On July 28, 1997, the FAA advised Perdue that
he was being suspended for ten days for failing to pay his debt,
and that “failure to promptly liquidate this indebtedness may
result in an additional disciplinary measure.” Perdue did not
respond to this notice. On September 11, 1997, the FAA notified
Perdue of his proposed removal from his position for failure to pay
his AMEX account. Perdue responded by letter on September 25, 1997
stating that he had paid the AMEX debt, and that he was sorry for
the “embarrassment that [he] had caused the Federal Service,” that
he had “allowed [his] pride to overrule [his] good judgment” and
that he had “no one to blame but [himself].” On October 23, 1997,
the FAA notified Perdue that he was removed from his position.
On October 30, 1997, Perdue timely filed a written request for
relief under the FAA Personnel Management System’s “Guaranteed Fair
Treatment” Appeals Procedure. In accordance with the appeals
procedure, the FAA impaneled a tripartite appeal panel. After a
hearing at which evidence was presented and closing arguments were
made, a majority of the panel concluded that because Perdue had
paid the AMEX debt before the decision to remove him was made,
there was an insufficient basis for a removal action. The panel
also decided that although removal was “too severe,” “some
significant level of discipline for [Perdue’s] behavior [was]
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appropriate.” The panel found that Perdue was a long-term federal
employee with an unblemished record, except for his failure to pay
the AMEX debt, and that this was an isolated transaction, albeit in
“extremely poor judgment.” Therefore, the panel mitigated the
FAA’s decision to remove Perdue by reinstating him two grades below
his previous position and denying him back pay. Perdue seeks
review in this court of the FAA’s decision pursuant to 49 U.S.C. §
46110(a).
II.
The appeal panel’s findings of fact, “if supported by
substantial evidence, are conclusive.” 49 U.S.C. § 46110(c); see
King v. NTSB, 766 F.2d 200, 203 (5th Cir. 1985). Under the
substantial evidence test, this court must determine whether “‘the
agency . . . could fairly and reasonably find the facts as it
did.’” Chritton v. NTSB, 888 F.2d 854, 856 (D.C. Cir. 1989)
(citation omitted). “‘As an appellate court reviewing an
administrative order, it is not [this Court’s] function to
reevaluate the weight of the evidence or to reexamine credibility
choices made by the finder of fact.’” King, 766 F.2d at 203. In
reviewing nonfactual matters, this court should follow the
standards of the Administrative Procedures Act (“APA”), 5 U.S.C. §
706. See Public Citizen, Inc. v. FAA, 988 F.2d 186, 196 (D.C. Cir.
1993). Under APA’s the scope of review standard, “the reviewing
court shall decide all relevant questions of law, interpret
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constitutional and statutory provisions, and determine the meaning
or applicability of the terms of an agency action.” 5 U.S.C. §
706. This court shall set aside agency action that is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A).
III.
Under the FAA’s Personnel Management System procedures for
handling disciplinary and removal actions, “[t]he panel . . . shall
have the authority to mitigate the penalty on cases involving
conduct.” In determining the severity of the discipline pursuant
to these procedures, the panel must consider, inter alia, “the
nature and seriousness of the offense, and its relation to the
employee’s duties, position, and responsibilities, including
whether the offense was intentional or technical or inadvertent, or
was committed maliciously or for gain, or was frequently committed.
. . .” In this case, there was record evidence showing that for
more than eighteen months after receiving reimbursement from the
government, Perdue repeatedly refused to pay a debt that he was
obligated to pay. Perdue, who was responsible for enforcing FAA
regulations, knew that removal was the penalty for a third offense
of “failure to pay Government contractor-issued credit card after
receiving reimbursement,” yet despite two suspensions, he
deliberately withheld payment in violation of FAA policy.
Moreover, Perdue gained financially by accepting $3,218.66 in
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reimbursement from the government, but not paying this amount owed
to AMEX. We conclude that there is substantial record evidence to
support the panel’s conclusion that “some significant level of
discipline for [Perdue’s] behavior is appropriate,” and to support
its decision to demote Perdue by two grades and deny him back pay.
Addressing Perdue’s second claim, we find that Perdue has
presented no evidence supporting his allegation that the FAA’s
decision to issue him a notice of proposed suspension on March 14,
1997 was in retaliation for his having filed a grievance on
February 28, 1997.
Finally, the FAA’s decisions to suspend Perdue twice, remove
him and ultimately demote him do not violate the Double Jeopardy
Clause of the Fifth Amendment. It is well established that the
Double Jeopardy Clause protects only against the imposition of
multiple criminal punishments for the same offense. Hudson v.
United States, 118 S. Ct. 488, 493 (1997) (citing Breed v. Jones,
421 U.S. 519, 528 (1975); Helvering v. Mitchell, 303 U.S. 391, 399
(1938)).
For these reasons, we find no abuse of discretion in the FAA
appeal panel’s decision to demote Perdue two grades and deny him
back pay for failing to pay government-issued credit card expenses
after receiving reimbursement. The February 25, 1998 Opinion and
Award of the Arbitrators is AFFIRMED.
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