James Abrams v. United States Department of the Navy

GARTH, Circuit Judge,

dissenting.

The sole issue presented by this appeal is whether the Navy may dismiss the petitioner, James Abrams, for an “excessive unauthorized absence” caused by his incarceration, when the Navy could not dismiss Abrams for the conviction leading to his incarceration, and when Abrams offered to participate in a work-release program with the Navy in lieu of his incarceration — but was refused. Rather than reach this issue, however, the majority addresses an issue which the Navy never appealed, let alone briefed or argued on appeal. Because the issue which the majority decides is not before us on appeal, because a remand to the Board, in light of the record before us, is unnecessary and unauthorized by statute, and because I conclude that the Navy may not dismiss Abrams, I respectfully dissent.

I.

Petitioner James Abrams is a painter formerly employed by the Philadelphia Naval Shipyard, an agency of the Department of the Navy (“the Navy”). In May and June of 1980, Abrams committed two infractions that are not at issue here. On May 21, 1980, Abrams made an unauthorized telephone call during work hours. On June 1, 1980, Abrams was absent without excuse from work. On the basis of these absences, the Navy proposed a ten-day suspension.

More importantly, on October 14, 1979, in an incident unrelated to Abrams’ employment, Abrams shot and wounded a fellow poker player in the shoulder. The October 14 shooting led to Abrams’ conviction by the Court of Common Pleas of Philadelphia, and his subsequent sentence of not less than eleven months nor more than twenty-three months. Before his incarceration, Abrams offered, with court approval, to continue to work for the Navy under the Philadelphia County Prison’s work-release program. Although the Navy granted Abrams’ work-release request initially, several days later the Navy informed Abrams that his request to *1228 continue working under the release program would be denied. This action was apparently taken because of Abrams’ prior infractions on May 21 and June 1.

Abrams served out his sentence of incarceration in the Philadelphia County Prison from July 28, to December 8, 1980. On October 1, 1980, however, two months before the expiration of his term of imprisonment, the Navy proposed to terminate Abrams’ employment. The Navy’s Notice of Proposed Removal cites five grounds for removal:

1. The May 21 absence;

2. The June 1 absence;

3. The conviction arising from Abrams’ October 14 shooting;

4. An “excessive unauthorized absence” from July 28, 1980 through October 1, 1980, caused by his incarceration for the October 14 shooting; and

5. Prior infractions relating to unauthorized absences.

Abrams returned to work in December of 1980 and continued his employment until January 30, 1981, the effective date of his removal. According to Abrams’ testimony, his fellow employees were “glad to see [him] back”, and his conviction in no way prevented him from carrying out his duties as a painter. Thereafter, Abrams challenged his removal in the Merit Systems Protection Board (“the Board”). On June 12, 1981, the Board affirmed the Navy’s dismissal in all respects, finding that “removal for these charges serves to promote the efficiency of the service.”

On July 17, 1981, Abrams petitioned the Board for review of its June 12 order. The Board granted that petition on July 21, noting that on June 8 — four days before its June 12 order — the Board rendered a decision in Merritt v. Department of Justice, 6 MSPB 493 (1981), requiring a “nexus” between discharge for misconduct committed while off-duty and the “efficiency of the service.” The Board proceeded to hold that the Navy had not shown a “nexus” between Abrams’ discharge for the October 14 shooting and the efficiency of the service. “Accordingly,” the Board concluded, “the third charge of the removal action based on [Abrams’] criminal conviction for off-duty misconduct may not be sustained for want of the requisite nexus to support such a charge.”

Nevertheless, the Board concluded, Abrams’ discharge could be supported by the Navy’s charge of “excessive unauthorized absence” from July 28 to October 1, 1980. The Board so concluded despite the circumstance that the cause of Abrams’ absence was his conviction — a circumstance for which the Board had just held Abrams could not be discharged. Further, the Board so held, despite Abrams’ offer to continue employment, and the Navy’s refusal to accept his employment, as part of the prison’s work-release program.

II.

The only question presented for our review by this petition is whether the Navy may rely on its fourth ground for terminating Abrams’ employment — Abrams' absence caused by his incarceration — when it may not rely on its third ground for removing him — Abrams’ conviction resulting in his incarceration — particularly when the Navy itself declined to permit Abrams to return to work in lieu of his incarceration. The question whether the Navy may rely on Abrams’ conviction itself was neither briefed nor argued on appeal. Indeed, the Navy’s brief states expressly that “[s]ince the [Navy] did not appeal, the Board’s finding [of “no nexus”] is not at issue.” Br. at 8. 1 Nevertheless, despite the Navy’s failure *1229 to appeal this finding, and without the benefit of briefing or argument, the majority finds that the Board improperly concluded that Abrams could not be dismissed by reason of his conviction. Because the Navy did not appeal the finding of “no nexus,” it is not now before us. I therefore find it remarkable that Abrams’ petition should be resolved on this ground.

A.

Even if the Navy had appealed the Board’s finding that the “third charge of the removal action based on [Abrams’] criminal conviction for off-duty misconduct may not be sustained for want of the requisite nexus to support such a charge,” I conclude that the record amply supports the Board’s decision without the necessity of a remand.

As the majority notes, the Navy may take action against an employee “only for such cause as will promote the efficiency of the service.” 5 U.S.C. § 7513 (a) (Supp. V 1981). In Merritt v. Dept. of Justice, 6 MSPB 493 (1981), the Board held that a “nexus” must be established between an employee’s off-duty conduct and either the employee’s ability to accomplish his or her duties satisfactorily, or some other legitimate governmental interest promoting the “efficiency of the service.” Id. at 501 , citing Doe v. Hampton, 566 F.2d 265, 272 (D.C.Cir.1977). In order to establish a “nexus,” the agency must come forward with “evidence linking the employee’s off-duty misconduct with the efficiency of the service.” Id. at 509. In “certain egregious circumstances,” however, Merritt held that the Navy may rely on “a presumption of nexus which may arise from the nature and gravity of the misconduct.” In these cases, “the presumption may be overcome by evidence showing an absence of adverse effect on service efficiency.” Id. 2

The majority concludes that the Board improperly found that Abrams overcame the presumption of “nexus.” The Board erred, the majority holds, because it failed to consider whether Abrams showed that his conviction did not interfere with (1) the agency’s overall achievement of its goals and responsibilities, and (2) its other employees’ performance of their jobs. Maj. op., at 1224. 3

Only the second of these two considerations is significant here. The first factor— whether Abrams introduced evidence that his conviction did not interfere with the Navy’s “goals and responsibilities” — is amply supported by the record. As the majority concedes, Maj. op., at 1226 n. 14, Abrams never served as a spokesman for the Navy on any official policy matter nor, indeed, ever came into contact with the public at *1230 all. Because it is conceded that Abrams’ conviction had nothing to do with his ability to paint, it can hardly be contended that Abrams’ off-duty actions and conviction interfered with the Navy’s “goals and responsibilities.”

The second consideration — whether Abrams established that his conviction did not interfere with job performance by other employees — involves the question of which party must introduce evidence of the attitudes of co-employees toward Abrams. The Board found that the Navy “did not present any testimony by [Abrams’] co-workers,” and discounted speculation by two of Abrams’ supervisors, John Stull and Thomas Hare, that they were “apprehensive for the safety of their employees.” Abrams v. Dept. of the Navy, MSPB Docket No. PHO7528110312, slip op. at 5 (July 20,1982). According to the majority, however, Abrams, and not the Navy, must present the testimony of co-workers that his coworkers did not fear for their safety. The majority so finds even though Abrams himself testified that his co-workers were “glad to see [him] back,” and even though the Navy purported to rebut this testimony with nothing more than the speculations of two supervisors — evidence rejected by the Board.

Our standard of review is provided in 5 U.S.C. § 7703 (c) (Supp. Y 1981), which requires that this court hold unlawful agency action found to be arbitrary, capricious, or an abuse of discretion, proeedurally defective, or unsupported by substantial evidence. See D.E. v. Department of the Navy, 707 F.2d 1049, 1050 (9th Cir.1983). No claim is made that the Board acted arbitrarily or capriciously in making its findings. Further, there is undoubtedly substantial evidence to support the Board’s finding that Abrams’ conviction will not adversely affect his co-employees’ performance of their jobs: Abrams so testified, and the Navy did not refute that testimony.

If we were to follow the Ninth Circuit’s analysis — which rejects the Board’s presumption of “nexus,” see note 2 supra —the Navy would have to prove adverse effect without the benefit of any presumption. However, even if we adopt the Board’s Merritt presumption, Abrams undertook and achieved the task of rebutting that presumption to the satisfaction of the Board. The Navy’s attempt to dilute or contradict Abrams’ testimony with the speculations of two supervisors was not credited by the Board, and we have no basis for questioning this finding of fact. In these circumstances, a remand for further factfinding is unwarranted, unnecessary, and unauthorized, to the extent that substantial evidence exists for the Board’s findings. See 5 U.S.C. § 7703 (c)(3) (Supp. V 1981).

B.

Before turning to the only issue presented to us on appeal, it is appropriate to address momentarily the basis for the majority opinion, which depends almost wholly on Gueory v. Hampton, 510 F.2d 1222 (D.C. Cir.1974), and on regulations adopted in 1975. See 5 C.F.R. § 731.202 (1983). Both Gueory and these regulations preceded the Board’s own “nexus” decision .in Merritt . Indeed, Merritt carefully considered Gueory and adopted the Gueory theory as to a presumption of nexus. Gueory expressly held, and the Board properly observed, that the presumption of “nexus” is not “irrebuttable.” Gueory, supra, 510 F.2d at 1227 ; see Merritt, supra, 6 MSPB at 501. Accordingly, the Board held that a presumption of nexus could be overcome by evidence showing an absence of adverse effect on service efficiency, “in which case the agency [here the Navy] may no longer rely solely on the presumption but must present evidence of carrying its burden of proving nexus.” 6 MSPB at 509.

It was precisely this analysis which the Board in this case utilized when it applied Merritt — an analysis and conclusion from which no appeal was ever taken by the Navy. See note 1 supra. The majority’s reliance on Gueory cannot help us in reviewing whether the Board properly found “no nexus”; all Gueory holds is that there is a presumption of “nexus.” Gueory does *1231 not instruct us as to what is needed to overcome that presumption. Thus, I find it particularly inappropriate for the majority to hark back to Gueory as a basis for directing a remand in this case, thereby ignoring Merritt and those authorities which find that even Merritt has negated the intent of Congress by permitting a presumption of “nexus.” See D.E. v. Department of the Navy, supra; note 2 supra.

III.

I therefore turn to the issue that was in fact presented for our review, and which the parties argued and briefed on this petition: whether the Navy could dismiss Abrams for his absence during his incarceration when it could not dismiss him for the conviction leading to his incarceration, particularly when it refused to permit Abrams to return to work on a work-release program in lieu of his incarceration. I conclude that in such circumstances, the Navy could not dismiss Abrams.

I can think of nothing more arbitrary and capricious than the Navy’s actions in claiming that Abrams was absent without authorization (AWOL) when it was advised by the Philadelphia Court of Common Pleas that Abrams could return to work under a work-release program. Plainly Abrams was ready and able to work, and was absent only because the Navy forced him to be so. While the Navy has ample discretion to deny permission for an employee to engage in a work-release program, once having so denied permission, it would be arbitrary and capricious for the Navy then to complain that its employee was absent without leave. 4

Because I am satisfied that the Common Pleas Court, by making Abrams available to the Navy by its work-release program, overcame any obstacle to Abrams’ continued employment by the Navy, I need not reach the question whether, even in the absence of any work-release program, the Navy would be able to rely on an absence due to incarceration as a ground for discharge when it could not rely on the underlying conviction leading to incarceration. The Seventh Circuit, rejecting the Navy’s argument in such a situation, stated in Young v. Hampton, 568 F.2d 1253 (7th Cir.1977):

This obvious point not only smacks of “bootstrapping,” but it also ignores the real issue, which is whether the activities of which Young was convicted affected the efficiency of the service. If we were to accept the defendant’s argument on this point, we would be accepting a procedure whereby an agency could suspend an employee for a relatively minor offense and then dismiss that same employee because his absence from work affected the “efficiency of the service.” This double punishment for the same “crime” clearly renders such a procedure unacceptable.

Id. at 1260 . As indicated, I need not resolve that issue here. Thus, the distinctions between Young and this case urged by the Navy and the Board are not relevant. 5 It is *1232 enough that under the circumstances here, the Navy’s action in dismissing Abrams was inexcusable.

IV.

Because we ultimately must meet the issue of what sanctions, if any, may be imposed upon Abrams by the Navy, it seems appropriate for me to address that subject even though the majority has failed to do so.

It does not follow that the Navy may not discipline Abrams at all. The Navy’s rules regarding infractions by reason of absence provide that two successive absences shall be punished by a five-to-ten day suspension. See Record on Appeal, vol. I, at 117. In accordance with these rules, the Navy proposed, on the basis of Abrams’ May 21 and June 1 absences, to impose a ten-day suspension. It would appear to me, therefore, that the maximum penalty the Navy could impose for Abrams’ infraction is a ten-day suspension.

The Navy argues, however, Br. at 24, that Abrams’ June 1 absence constitutes a “third offense,” 6 and further that this third offense “amounts to an unexeused or unauthorized absence on one or more scheduled days of work.” Under Navy rules, such a third offense could be a ground for discharge.

This “third offense” argument was never argued or presented to the Board below, and is not before us on appeal. Moreover, this interpretation is contrary to the Navy’s own recommendation, attested to during Abrams’ hearing, that Abrams receive a ten-day suspension. By implication, the Navy decided at that time that Abrams’ June 1 absence was a second offense, not a third offense. It does not seem unreasonable to hold the Navy to the same interpretation at this juncture.

Our standard for review of punishment for violations of personnel regulations is that of abuse of discretion. See Francisco v. Campbell, 625 F.2d 266, 269 (9th Cir. 1980); Phillips v. Bergland, 586 F.2d 1007 , 1012 & n. 14 (4th Cir.1978). Because the Navy had previously determined that the appropriate sanction for Abrams’ conduct would be no more than a ten-day suspension, in my opinion it would be an abuse of discretion to impose a sanction of discharge in these circumstances.

V.

The issues as they have proliferated in this appeal have required discussion of (1) the Navy’s failure to cross-appeal; (2) the focus of the majority opinion on the Board’s finding of “no nexus,” an issue that was not appealed; (3) the majority’s attraction to Gueory v. Hampton, supra, which exalts the presumption of nexus beyond the Board’s own interpretation of its statutory authority; and finally, (4) the legality of the Navy’s discharge of Abrams for his absence due to incarceration, the question actually presented on appeal.

*1233 Reasoning that the question of “nexus” has never been appealed and is not before us, and concluding that the Board’s findings on “nexus” are ample and conclusively establish the absence of a “nexus” without the necessity of a remand, I cannot agree with the majority’s judgment that a remand should be ordered. Moreover, in my opinion the Navy acted arbitrarily and capriciously in rejecting Abrams for the work-release program and then charging him with being absent without leave. These reasons have led me respectfully to dissent from the majority opinion’s judgment.

. Abrams appeals from the determination that his employment could be terminated because he was absent from work when that absence was caused by his incarceration, even though the Board found that the incarceration alone was not ground for Abrams’ dismissal. That question is the only issue presented on appeal.

The Navy did not cross-appeal, although it could have filed a cross-appeal stating that if Abrams were to prevail on his appeal, then the Navy would seek to have the Board reversed on the ground that the Board’s “nexus” determination was erroneous in that the mere conviction itself provided sufficient “nexus” to warrant discharge. Because the Navy did not cross-ap *1229 peal, the sole issue presented on appeal is the narrow argument which Abrams has made and which the majority has not addressed.

. The courts of appeals do not uniformly agree that Merritt’s presumption of “nexus” is consistent with the intent of Congress. See D.E. v. Department of the Navy, 707 F.2d 1049 (9th Cir.1983); Bonet v. United States Postal Service, 661 F.2d 1071, 1078 (5th Cir.1981). In D.E., supra, the Ninth Circuit held, in circumstances analogous to these, that no presumption of nexus arises from a Navy employee’s plea to a charge of child molestation. Rather, the Navy has the burden to show that the employee’s off-duty conduct actually affects the employee’s or the Navy’s overall performance adversely. The Ninth Circuit thereupon rejected the Board’s Merritt presumption, concluding that Congress intended to place the full burden of proof on the Navy.

While I find the Ninth Circuit opinion persuasive insofar as it places the burden of proof on the agency without benefit of presumption, I need not address that issue here. Under Merritt — and it may be argued that we should defer to the Board’s interpretation of its statutory authority, see Udall v. Tallman, 380 U.S. 1, 16-18 , 85 S.Ct. 792, 801-802 , 13 L.Ed.2d 616 (1965) — it is clear that Abrams has met the standard for rebutting the presumption which the Board itself has established.

.The majority also suggests that the Board must consider whether Abrams’ conviction adversely “affected his ability to paint Navy ships.” Maj. op., at 1225 & n. 12. The Board, however, already expressly considered this factor. Indeed, the Board found that the Navy “conceded in its closing brief ... that [Abrams’] criminal misconduct had no adverse impact on his ability to perform his duties as a Painter.” Abrams v. Dept. of the Navy, MSPB Docket No. PH07528110312, slip op. at 4-5 (July 20, 1982).

. Further, an argument could well be made under these circumstances, where the Navy itself was responsible for Abrams’ absence, that the Navy would thereafter be estopped to charge Abrams with that very absence as a ground for terminating his employment. See Community Health Services v. Califano, 698 F.2d 615 (3d Cir.1983) (government estoppel generally).

. In the view of the Board and the Navy, the agency in Young did not allege, as the ground for discharge, the employee’s absence. Rather, the agency sought to use the absence to establish a nexus between Young’s conviction and the efficiency of the service. In this view, the government’s mistake in Young was to allege a nexus between the wrong things: rather than alleging a nexus between conviction and efficiency, the government should have alleged a nexus between absence and efficiency. As for the latter, the Navy asserts, there is a nexus between absence and the efficiency of the service, citing Board authority for this proposition. See Belton v. Department of the Navy, MSPB Docket No. ATO7528090171 (April 15, 1982) (App. at 1); Pearson v. Department of the Navy, supra; McDuffie v. Department of the Air Force, MSPB Docket No. ATO75209028 (May 22, 1982) (App. at 26). Belton, Pearson, and McDuffie all permit absence due to incarceration to be a basis for discharge. See also Chiaverini v. United States, 157 Ct.Cl. 371 (1962); Rubin v. United States, 150 Ct.Cl. 28 (1960); Chiriaco v. United States, 235 F.Supp. 850 (N.D.Ala. 1963), aff’d, 339 F.2d 588 (5th Cir.1964) (AWOL an appropriate basis for removal).

*1232 I note here that the AWOL cases cited above are inapposite: in those cases, the employee’s absence is the product of his own choice, and it plainly promotes the efficiency of the service to discharge employees who frequently choose to be absent. Further, Young itself did not turn on the form of the government’s pleading. The theory of Young is that a discharge for absence ought to have, as its basis, that the employee’s absence indicates a character fault which impairs the efficiency of the agency. An absence due to incarceration does not do so — unless the employee’s conviction itself could support a discharge.

Moreover, as the record here discloses, and as I have emphasized, Abrams offered to participate in a work-release program. In none of the foregoing cases was the absent employee afforded entry into a work-release program which, if accepted by the agency, would have obviated any absence.

. According to the Navy’s theory — a theory neither presented to nor ruled upon by the Board — Abrams was charged with a first offense on August 24, 1979, for the failure to report to work on August 3. Abrams was charged with a second offense on April 8, 1980, for several other lapses in attendance. Br. at 25. The May 21, 1980 charge — which heretofore the Navy considered one of the offenses justifying Abrams’ discharge — would not be counted as an “offense” under this theory, since it related to an unauthorized telephone call rather than an absence.