Petition for Writ of Certiorari — Watson v. Department of Transportation

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IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1992

GERALD B. WATSON, JR..,

Petitioner,

Vv.

DEPARTMENT OF TRANSPORTATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Joel S. DeVore Ralph Fallon Cobb

Counsel of Record Luvaas, Cobb, Richards

Luvaas, Cobb, Richards & Fraser, P.C.

& Fraser, P.C. 777 High St., Suite 300

777 High St., Suite 300 Eugene, OR 97401

Eugene, OR 97401 (503) 484-9292

(503) 484-9292 Of Counsel for Petitioner

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

On December 4, 1988, an administrator discharged

petitioner from employment in the Federal Aviation

Administration for refusing a demand that he submit to

the particular random drug test authorized by the agency.

1. Must the Federal Circuit Court of Appeals and

the Merit Systems Protection Board defer to the finding

of the administrative judge who determined, based upon

the credibility of the administrator as a witness, that the

administrator, in selecting a penalty, had not exercised

any discretion, and thereby abused it?

2. May the Merit Systems Protection Board

review an agency’s penalty decision de novo, evaluate

the circumstances anew, and regard the agency's failure

of discretion to be immaterial?

3. Must an administrator consider that the

agency's random drug testing was unlawful in the

jurisdiction at the time, when he considers all

circumstances relevant to the selection of a penalty for an

employee’s refusal to submit to the test?

4. Regardless who may exercise discretion, does

the discharge of a long-term employee for refusal to

submit to the agency’s testing constitute an abuse of

discretion or a capricious penalty, where the employee

was not suspected of drug use, he had promptly

volunteered an independent drug test showing him to be

"clean," and his objection was consistent with a judicial

declaration in his jurisdiction that suspicionless drug

testing was then unconstitutional?

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ...-- i

OPINIONS BELOW .----- 0 l

JURISDICTION ...---- ss l

STATUTES a 5 Sa rer 2

STATEMENT OF wate CASE ...---:°°*** 4

Removal from Se 4

Proceedings Below..----"** °° °° 7

REASONS FOR GRANTING THE WRIT ..-- 2

Contrary to the decisions of this court, the

Federal Circuit sanctions the disregard of an

administrative judge's credibility determination

concerning a live witness and permits the

reassessment of the witness’s credibility from a

ween record. ---sscscc 9

Importance of Discretion..-----*°°" 9

No Discretion Exercised .---- °° °°” 10

Credibility Disregarded .---- °° 10

Conflict With This Court .-.---*° °° 12

Contrary to 5 USC § 7701(c)(1), the Federal

Circuit invites the Merit Systems Protection

Board to review an agency’s penalty decision de

novo and substitute board review after-the-fact

for agency discretion before-the-fact. .....

After-Discharge Discretion ........

Scope of Board’s Review ........

Danger in New Scope of Review. ....

pporiance OF Teswe ... . 6 ke i es

As a new development in federal law, the

Federal Circuit permits the agency to disregard,

among circumstances relevant to choice of a

penalty, (a) the employee’s mght to rely upon

decisional law of his jurisdiction and (b) the

agency's obligation to comply with that law at

Ce CE TR On ok kt ow

Discipline in Context ............

Prerequisite to Discretion .........

Undecided Question of Federal Law .. .

The Federal Circuit sanctions an abuse of

discretion whereby a long-term employee 15

discharged, although he was not suspected of

drug use, he demonstrated he was drug free,

and he relied upon 4 judicial determination at

Abuse of Discretion. -.---°c °C!

Agency’s Duty to Obey the Law .---°

Significance Beyond the Facts --:-°

HicpePGAIGIOM. acne fete TAT

TABLE OF AUTHORITIES

Cases

Page

Anderson v. City of Bessemer City,

ee ee TNO go nahi c oe ele ® ada eee Sea 12

Arnett v. Kennedy, 416 US 134 (1974) ....... 23

Boyce v. United States, 211 Ct Clms 57 (1976)... 24

Brown v. United States Postal Service,

860 F2d 884 (9th Cir 1988) ............. 24

Citizens To Preserve Overton Park, Inc.,

Be es | 10, 21, 22

Clark v. United States,

fer Ge ee Gre (ISOS) 6k kc ee ee ee 24

Cornelius v. Nutt, 472 US 648 (1985) ....... 19

Department of the Navy v. Egan,

8 Be: Seana aero eae 19

Douglas v. Veterans Administration,

Dee EP CUE) os eyo 9. 13, 41s a7

Vil

United States,

Estep V.

327 US 114 Mi oe

onal Labor Relations Board,

Sera eee eh tae tek oe

Garcia V. Nati

785 F2d 807 (1986)

United States Air Force,

me *

Gragg Vv:

13 MSPR 296 (1982)

Ne, ee ae ry

Graybil

782 F2d 1587 (1986)

of the Navy,

9, 21

Hayes V. Department

727 F2d 1535 (1984)

e v. Merit Systems Protection Board,

Horn

C Cir a eins

684 F2d 155 (D

ans Administration,

fic 1085) = «ee 11

Jackson V. Veter

768 F2d 1325 (Fed

y. United States,

ee ee peg a |

Jacobowltz

191 Ct Clms 444 (1970)

James B. Beam Distilling Co. ¥:

111 SCt 2439 WAS oo ee 25

Vill

McLeod v. Department of the Army,

45S Fae Bie COORG EGGS) cc te es 24

Miller v. Fenton, 474 US 104 (1985) ........ 13

National Treasury Employees Union v.

Von Raab, 489 US 656 (1989) ......... 5, 19

Penasquitos Village, Inc. v.

National Labor Relations Board,

Das Fae fare Ce ee FF ee 1]

Power v. United States,

Sa) Fae see Ct Cee VETO) fo oe 25k 24

Railway Labor Executives’ Ass’n v.

Burnley, 839 F2d 575 (1988) ........ 5, 19, 20

Rooker v. Fidelity Trust Co.,

eae We Gis te a ee te 25

Skinner v. Railway Labor Executives’ Ass'n,

See 070 Wee CEE be oe oe ees >

Universal Camera Corp. v.

National Labor Relations Board,

S40 Wie Bre te sa ee ee 12, 13

Fossen V. Department of

Van

an Developmen,

Housing & Urb

748 F2d 1579 (Fe

Walker v. City of Birmingham,

388 US 12 tp

Watson V. United States,

Case No 88(06363-E (

Yeager V. General Se

39 MSPR 147 (1988)

Young v. Hampton,

568 F2d 1253 ¢

d Cir 1984) -- ssc

D Or 1988) --- °°

rvices Administration,

ath Cir 1977) - ec

Statutes and Regulations

Page

SN PNET og hin de Sk Ke OO 6

5 USC § 7513 2,9, 14, 18, 23

he ey. | era 2, is, 4, 15, 16,

5 USC § 7703 .... Core fee ee Pe 3, 9, 18

I I ong ghd gla, pia ele e ey |

ee TI, fs ny ne ka e ae be Re oo 15

ogee ceca e ra ae 10, 27

PETITION FOR WRIT OF CERTIORARI

Petitioner Gerald Bruce Watson, Jr., respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Federal Circuit, entered in this

proceeding on November 18, 1992.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Federal Circuit 1s noted at 983 F2d 1088 (1992)

(table). It is unpublished. The three opinions, including

the dissent and a concurrence, are reprinted in the

Merit Systems Protection Board is reported at 49 MSPR

509 (App-22 to App-42). _ Its ‘nitial opinion by the

JURISDICTION

The decision of the United States Court of Appeals

for the Federal Circuit was filed and entered on

November 18, 1992. A timely petition for rehearing and

suggestion for rehearing in banc was filed on

December 2, 1992. The petition was denied

December 29, 1992. ‘This Court has jurisdiction

pursuant to 28 USC § 1254(1).

STATUTES INVOLVED

The standard for discipline of a federal employee, 5

USC § 7513(a), provides:

Under regulations prescribed by the Office of

Personnel Management, an agency may take an

action covered by this subchapter against an

employee only for such cause as will promote the

efficiency of the service.

The employee may seek review before the Merit Systems

Protection Board pursuant to 5 USC § 7701(c)(1), which

provides:

Subject to paragraph (2) of this subsection, the

decision of the agency shall be sustained under

subsection (b) only if the agency’s decision --

(A) in the case of an action based on unacceptable

performance descnbed in section 4303 or a removal

from the Senior Executive Service for failure to be

recertified under section 3393a of this title, is

supported by substantial evidence, or

(B) in any other case, is supported by a

preponderance of the evidence.

The board’s decision may be reviewed under 5 USC

§ 7703(a) and (b), which provides in relevant part:

(a)(1) Any employee or applicant for

employment adversely affected or aggrieved by

a final order or decision of the Merit Systems

Protection Board may obtain judicial review of

the order or decision.

(b)(1) Except as provided in paragraph (2) of

this subsection, 4 petition to review a final

decision of the Board shall be filed in the

United States Court of Appeals for the Federal

Circuit... -

The court’s scope of review is described in 5 USC

§ 7703(c), which provides:

In any case filed in the Court of Appeals for the

Federal Circuit, the court shall review the record

and hold unlawful and set aside any agency action,

findings, OT conclusions found to be --

(1) arbitrary, capricious, an abuse of discretion, OF

otherwise not in accordance with law;

(2) obtained without procedures required by law,

rule, or regulation having been followed; or

(3) unsupported by substantial evidence.

STATEMENT OF THE CASE

I. Removal from Service

Bruce Watson worked for the Federal Aviation

Administration’s field office in Eugene, Oregon. Over

the course of eleven years, his work had been reviewed

as fully successful. (App-81) About 11:45 a.m.,

August 18, 1988, his supervisor told him that drug

testing people would test him at 1:30 p.m.’ Mr. Watson

was told the test was a random one, it was not related to

his performance, and he was not suspected of using

drugs. (App-82)

Mr. Watson sought legal advice. He found an

attorney's name in the telephone directory listed under

constitutional law. The attorney advised that the drug

test was not legal. Coincidentally, the Ninth Circuit

Transcript of Hearing before the Merit Systems

Protection Board, Seattle Regional Office, John W.

Tapp, Administrative Judge, March 9, 1989, pp 46-47

(hereafter "Tr") (testimony of supervisor, Dean Stead).

Court of Appeals had ruled earlier that year that post-

accident drug testing of railway employees, without

individualized suspicion, was an unconstitutional search.

Railway Labor Executives’ Ass'n V. Burnley, 839 F2d

575 (Feb. 11, 1988), rev'd, Skinner v. Railway Labor

Executives’ Ass'n, 489 US 602; National Treasury

Employees Union v. Von Raab, 489 US 656 (March 21,

1989). The attorney informed the supervisor that Mr.

Watson had decided not to take the test. (Tr 47-48)

That afternoon, Mr. Watson told his lawyer he had

nothing to hide. The attorney arranged an independent

drug test at 4 local clinic. Within two hours of the

FAA’s intended test, Mr. Watson gave the clinic a

sample for screening.” The results were negative in all

particulars. Mr. Watson provided the agency with the

test report, when received, on August 23, 1989. Mr.

Watson discussed the test with the regional manager,

Donald Coones and recounted that it showed he was not

a drug user. (Tr 22 & 48) The manager admitted that

he had no reason not to believe Mr. Watson. (Tr 22)

Tr 48-49; International Clinical Laboratories,

Inc., Drug Test Results; Collected August 18, 1988;

Report, August 22, 1988: Appellant Exhibit E, from

Hearing Before Administrative Judge (March 9, 1989).

Nonetheless, on August 31, 1989, the regional

manager suspended Mr. Watson and notified him that the

FAA intended to remove him from federal employment

on grounds that he had refused to provide a urine

specimen as part of the authorized drug test program.

Quoting FAA Order 3910.6, the manager wrote:

Refusal to submit to testing, or failure to

cooperate with the collection procedures will be

grounds for removal from the Federal service.

(Letter, Coones to Watson (Aug. 31, 1989): Agency

Exhibit 19; see also Order 3910.1, Section 1(C)

[App-77]).

Mr. Watson sought a declaration and an injunction

in the United States District Court for the District of

Oregon. The court dismissed, finding the sole remedy

to be the Civil Service Reform Act, 5 USC § 7501 er

seq. In the meantime, Mr. Watson wrote manager

Coones, incorporated his constitutional objections to

suspicionless drug testing, and contended that dismissal

was unwarranted.

Finding discipline warranted, the manager

determined the penalty. He said no one directed him to

remove Mr. Watson (Tr 26), but, "to some point," he

felt constrained to remove (Tr 35). The manager gave

. Slip Opinion, Watson v. United States, Case

No 8806363-E (D Or, Oct. 25, 1988).

"very limited consideration” to doing something else to

Mr. Watson. (Tr 27) He testified that he looked for

extenuating circumstances OF any reason not to proceed

with "the normally prescribed adverse action that was

required.” (Tr 24) He looked for something to say that

this was not "just a direct case of refusal to submit [a]

specimen, " but he found no mitigating circumstances.

(Tr 24-25)

When asked at hearing to describe mitigating

circumstances that would permit a lesser penalty, he

offered two: one where a drug user enters rehabilitation,

and a second where the employee had never received

notice of the testing program. (Tr 32-33) When asked

for other mitigating circumstances he would consider, he

testified "Those are the two that come to mind,

obviously. I can’t think of any others.” (Tr 33)

On November 10, 1988, the manager wrote Mr.

Watson to announce that he would be removed from

federal service effective December 4. (DOT Removal

Letter)

Il. Proceedings Below

Mr. Watson sought review before the Merit Systems

Protection Board (hereafter "MSPB"). On April 21,

1989, administrative judge John W. Tapp found from the

manager’s demeanor that he was not credible when

claiming to have exercised some discretion when

reviewing the penalty. The administrative judge

declared:

Finally, Donald Coones, purportedly the

proposing and deciding official in this case, left

me with the clear impression that he had merely

gone through the motions of decision-making.

In response to the agency representative’s

question whether he had "felt constrained by the

program’s requirement for removal," he

responded, "to some point" (Tr 35-36), but still

maintained -he had discretion to select a lesser

penalty. (Tr 25) I did not find him convincing

on this point. Neither his affect, his demeanor,

nor the substance of his responses suggested that

he had in fact exercised any discretion.

(App-58) The administrative judge reinstated Mr.

Watson with backpay, finding the agency had abused its

discretion in imposing removal, and he ordered that a 45

day suspension be imposed instead.

On July 25, 1991, the MSPB reversed the initial

decision and sustained the agency’s decision to discharge

Mr. Watson. On November 18, 1992, the Federal

Circuit sustained the board’s decision. Judge Pauline

Newman dissented (App-8 to App-16), and Judge Paul

Michel responded to the dissent in a concurring opinion

(App-17 to App-21).

REASONS FOR GRANTING THE WRIT

1. Contrary to the decisions of this court,

the Federal Circuit sanctions the

disregard of an administrative judge’s

credibility determination concerning alive

witness and permits the reassessment of

the witness’s credibility from a written

record.

A. Importance of Discretion

An agency may discipline an employee "only for

such cause as will promote the efficiency of the service.”

5 USC § 7513(a). The Merit Systems Protection Board

construes this standard to pose two separate questions,

described as nexus and penalty. First, did the agency

demonstrate a relationship Or nexus between the

employee conduct and the efficiency of the service?

Second, did the agency consider the relevant factors of

the particular case and arrive at a penalty that was within

the "tolerable limits of reasonableness?” Douglas Vv.

Veterans Administration, 5 MSPB 313, 328-29 (1981).

The Federal Circuit reviews to determine whether there

was substantial evidence to support the nexus

determination, and whether the agency’s penalty was

“arbitrary, capricious, an abuse of discretion, OF

otherwise not in accordance with law." 5 USC

§ 7703(c); see, @-8:» Graybill v. United States Postal

Service, 782 F2d 1587 (1986); Hayes v. Department of

the Navy, 727 F2d 1535, 1537 & 1540 (1984). This

court has recognized that an administrator abuses

discretion, when failing to consider all the relevant

factors. Even more fundamentally, an administrator

abuses discretion, when failing to exercise it. See

Citizens To Preserve Overton Park, Inc., 401 US 402,

416 (1971) (reversed and remanded for demonstration

whether and how administrator considered factors

concerning a highway crossing a park).

B. No Discretion Exercised

One person alone made the decision to discharge

Bruce Watson. (Tr 20) That person, Donald Coones,

claimed to have had _ discretion. (Tr 37) The

administrative judge observed Mr. Coones testify,

expressly found that his demeanor revealed him not to be

believable, and concluded that he had not exercised any

discretion. (App-58) Indeed, the only two mitigating

circumstances, which Mr. Coones recognized, were not

matters of his discretion but were prohibitions on

discipline, which were mandated by rule.*

C. Credibility Disregarded

The board and court below disregarded this

credibility determination by reasoning that just because

Mr. Coones could only recall only two potentially

. See Exec Order 12564, § 5(b), 51 Fed Reg

32889 (1986) (no discipline if drug user enters

rehabilitation); DOT Order 3910.6 (3910.1), Ch III, §§

5 & 6 (advance notification of testing required).

mitigating circumstances did not mean he would not

consider others. (App-3 {majority opinion]; App-36 to

App-37 [board decision]) The board and court preferred

to take Mr. Coones’ statements at face value based on

the written record. (Jd.)

The court below was quite correct that, in

circumstances where the board articulates a sound reason

based on the record, the board may evaluate testimony

differently. Jackson V. Veterans Administration, 768

F2d 1325 (Fed Cir 1985). Additional independent

evidence may make a credibility determination less

decisive. 768 F2d at 1333 (presiding official overlooked

other witness). In a similar way, the Ninth Circuit Court

of Appeals employs 4 distinction between testimonial

inferences, which an administrative judge draws while

watching testimony, and derivative inferences, which

anyone may draw based on the objective content of the

testimony. Penasquitos Village, Inc. Vv. National Labor

Relations Board, 565 F2d 1074, 1078-79 (9th Cir 1977).

A board may reasonably draw derivative inferences from

testimony that has not been discredited so as to reach an

ultimate conclusion that differs from the administrative

judge. However, 4 board may not dispute the

administrative judge’s testimonial inferences. Id. In this

case, the Federal Circuit had no reason to reassess Mr.

Coones’ credibility. Precisely because he was not

believable, his statements cannot be given new

inferences.

There was nothing outside his testimony to make his

credibility immaterial. The board and court noted that,

at the hearing following discharge, the agency submitted

the affidavit of Melissa Allen, an official from

Washington, D.C. (App-3; App-35 to App-36) Her

affidavit asserted that at some undescribed time and

place, for reasons not explained, the agency had chosen

not to discharge two unnamed employees for failure to

cooperate in drug testing. Ms. Allen, however, was

never shown to have had any involvement in the slightest

with the circumstances leading to Mr. Watson’s

discharge. (See Tr 18, 20 & 26) Her affidavit might be

relevant to rebut a charge that the agency on the whole

invokes a predetermined penalty, but, as for Mr.

Watson’s circumstances, her affidavit is irrelevant. It

cannot be "a sound reason based on the record" for

disregarding Mr. Coones’ credibility. It is only his

failure to exercise discretion that matters.

D. Conflict With This Court

This court recognizes that the significance of a

credibility finding depends upon the importance of

credibility in a particular case. Universal Camera Corp.

v. National Labor Relations Board, 340 US 474, 496

(1951). This case turns upon Mr. Coones’ credibility.

The administrative judge is the only one who "can be

aware of variations in demeanor and tone of voice that

bears so heavily on [the] listener’s understanding and

belief in what is said." See Anderson v. City of

Bessemer City, 470 US 564, 575 (1985). Because this

case depends on demeanor, there are "compelling and

familiar justifications” for according weight to the

administrative judge’s findings. See Miller v. Fenton,

474 US 104, 114 (1985). Having heard the evidence and

seen the witnesses, the administrative judge is best

qualified to have decided whether Mr. Coones truly

exercised any discretion. See Universal Camera Corp.

y National Labor Relations Board, 340 US at 494.

Because the decision of the Federal Circuit conflicts

directly with the decisions of this court, and because its

decision represents a departure from the accepted and

usual course of proceedings, this court should grant

review.

Il. Contrary to 5 USC § 7701(c)(1), the

Federal Circuit invites the Merit Systems

Protection Board to review an agency’s

penalty decision de novo and substitute

board review after-the-fact for agency

discretion before-the-fact.

A. After-Discharge Discretion

The Federal Circuit determined that the discharge 1s

defensible because the Merit Systems Protection Board

has exercised discretion. The court stated:

Here, the full Board examined all the evidence

and concluded that the factors supporting

mitigation were simply outweighed by those

supporting removal.

(App-4; see also App-21 [Michel, J., concurring]

[concluding that the board did not abuse its discretion]).

The court’s rationale enlarges the board’s scope of

review beyond the bounds of federal statute and the

board’s decisional law.

B. Scope of Board’s Review

Subject to review for abuse, federal statutes place

discretion in the hands of the agency, not any reviewing

body. At 5 USC § 7513, it is "an agency" that is

authorized to discipline an employee for such cause as

promotes the efficiency of the service. The employee’s

recourse is an "appeal" to the board. 5 USC § 7513(d).

Although the board’s scope of review is broader in some

respects, "the agency decision” remains the focus of

attention. Subsection (c)(1) of 5 USC § 7701 provides

in relevant part:

[T]he decision of the agency shall be sustained

under subsection (b) only if the agency’s

decision --

(A) in the case of an action based on

unacceptable performance described in section

4303 . . . is supported by substantial evidence,

(B) in any other case, is supported by a

preponderance of the evidence.

(Emphasis added. ) These standards of review recognize

a difference in the issues before the board. Matters of

performance are reviewed only for substantial evidence.

Other matters require a preponderance of the evidence.

Id. And, claims of flaws in agency procedures require

proof of "harmful error." 5 USC § 7701(c)(2); 5 CFR

§ 1201.56(c)(3).

It is true that the board has described its

preponderance review aS de novo review. Douglas Vv.

Veterans Administration, 5 MSPB 313, 316 (1981). This

is true of review, for example, where finding facts that

reflect a nexus between employee conduct and the

efficiency of the service. The choice of a penalty,

however, is a different issue. The statutes do not

suggest that the board may simply substitute its review

for the agency's discretion in selecting a penalty. The

statutes do not suggest that the board may justify a

penalty after discharge in lieu of agency discretion in the

first instance. Employee discipline remains an "agency

decision” taken in the exercise of agency discretion.

With regard to the penalty issue, the board

previously construed its statutory authority carefully. In

Yeager V. General Services Administration, 39 MSPR

147 (1988), the board summarized:

The Board will review an agency-imposed

penalty only to determine if the agency

conscientiously considered all the relevant

factors and exercised management discretion

within tolerable limits of reasonableness. See

Douglas v. Veterans Administration, 5 MSPB

313, 5 MSPR 280, 306 (1981). Only if the

Board finds that the agency failed to weigh the

relevant factors, or that the agency’s judgment

clearly exceeded the limits of reasonableness, is

it appropriate for the Board then to specify how

the agency’s decision should be corrected to

bring the penalty within the parameters of

reasonableness. Id. In making such

determinations, the Board gives due weight to

the agency ’s primary discretion in exercising its

managerial function of maintaining employee

discipline and efficiency, recognizing that the

Board’s function is not to _ displace

management’s responsibility, but to assure that

managerial judgment has _ been _ properly

exercised.

(Emphasis added.) If the agency has responsibility to

exercise its discretion but it fails to do so, the discharge

cannot be rationalized after the fact by a board decision.

The board cannot say, "Well, we would have reached the

Same decision anyway."

C. Danger in New Scope of Review

In an analogous setting, the Interstate Commerce

Commission demoted two employees. The employees

contended that the decision amounted to a reduction in

force without the requisite procedural protections. The

Merit Systems Protection Board affirmed, finding that

the employees would not have fared better with proper

RIF procedures than with the board’s compromise.

Citing a decision of this Court, the Court of Appeals for

the District of Columbia rejected the attempt at

after-the-fact rationalization. The court explained:

In SEC v. Chenery, 3323 US 194, 67 SCt 1575,

91 LEd 1995 (1947), the Supreme Court set

forth a “simple but fundamental rule of

administrative law." Id. at 196, 67 SCt at

1577. That rule is to the effect that a reviewing

court, in dealing with a determination oF

judgment which an administrative agency alone

‘s authorized to make, must judge the propriety

of such action solely by the grounds invoked by

the agency. If those grounds are inadequate or

improper, the court is powerless to affirm the

administrative action by substituting what it

considers to be a more adequate or proper basis.

Id. (emphasis added). The rationale of this rule

is clear. “If an order is valid only as a

determination of policy or judgment which the

agency alone is authorized to make and which it

has not made, a judicial judgment cannot be

made to do service for an administrative

judgment... - [A]n appellate court cannot

intrude upon the domain which Congress has

exclusively entrusted to an administrative

agency.” The same rationale applies when the

reviewing body is an administrative tribunal

rather than a court. Simply put, the Board

should not be in the business of affirming

administrative decisions based upon how an

agency might have acted if it had followed

proper procedures. The role of review is to

evaluate agency discretion as it has been

exercised.

Horne v. Merit Systems Protection Board, 684 F2d 155,

157-58 (DC Cir 1982). The board’s decision was

vacated, and the matter remanded to the ICC to exercise

its discreyon in following the proper RIF process, which

may or may not have allowed the employees better

protection.

For the same reasons, the Federal Circuit may not

invite the board to rationalize this discharge after the

fact. First, the statutes require that discipline must occur

with an agency decision in the exercise of the agency’s

discretion. See 5 USC § 7513; 5 USC § 7701(c)(1).

Second, review cannot substitute for discretion. Such

review denies the employee the mght to have had

discretion exercised, before decision, on a local level,

one on one, with a full review of all the mitigating

circumstances, and with a chance at a lesser penalty.

Third, such review will be inherently biased toward

sustaining the decision already reached, rather than

beginning with a fresh review of available options.

D. Importance of Issue

The question of the board’s scope of review on

penalties is an important federal statutory issue. The

board’s jurisdiction is national and the Federal Circuit

reviews all board matters. 5 USC § 7703(b). The

board’s decision, as shown by the court’s reading of it,

will have national ramifications potentially affecting all

federal employees. The review statute, 5 USC

§ 7701 (c)(1), is subject to misunderstanding and needs

clarification. This court has visited the statute, but has

not yet construed it. Cornelius v. Nutt, 472 US 648,

660-62 (1985) (MSPB’s harmful error rule); see also

Department of the Navy v. Egan, 484 US 518 (1988);

Lindahl v. Office of Personnel Management, 470 US 768

(1985). For these reasons, the court should grant

review.

Ill. As anew development in federal law, the

Federal Circuit permits the agency to

disregard, among circumstances relevant

to choice of a penalty, (a) the employee ’s

right to rely upon decisional law of his

jurisdiction and (b) the agency ’s

obligation to comply with that law at the

time of its order.

A. Discipline in Context

The central fact in this case ‘s that on February 11,

1988, the Ninth Circuit Court of Appeals declared post-

accident drug testing of railway employees to be an

unconstitutional search, where individualized suspicion

was lacking. Railway Labor Executives’ Ass'n V.

Burnley, 839 F2d 575. Until reversed a year later in

Skinner v. Railway Labor Executives’ ASS n, 489 US

602: National Treasury Employees Union V. Von Raab,

489 US 656 (March 21, 1989), that judicial declaration

————

represented the law as it was understood in Mr.

Watson’s region of the country. It was during this

year’s time when the agency pressed forward with

suspicionless drug testing and during this time when Mr.

Watson objected to testing but still supplied a prompt

independent test.

On the same day that he tendered a "clean" test

result, Mr. Watson sought a judicial determination of the

constitutionality of the agency’s testing.* He cited the

Burnley decision, among others.®° He incorporated the

court documents by reference in his response to the

agency manager, who was then considering discharge.’

The seeming unlawfulness of the agency’s direction to

Mr. Watson was unmistakably a circumstance relevant to

the exercise of discretion in selecting a penalty.

Yet, the manager looked for only two situations as

potentially mitigating circumstances: a drug user who

begins rehabilitation or an employee without notice of

the testing program. (Tr 24, 25, 27, 32, 33, 36 & 37)

. Complaint, Watson v. United States, No.

88-6363-E, (D Or, August 23, 1988).

Request for Temporary Restraining Order,

p 15, Watson v. United States, No 88-6363-E, (D Or,

September 27, 1988).

’ Letter, Michael McGrady (attorney) to Donald

G. Coones (sector manager) (October 5, 1988): Agency

Exhibit 21 (Tab D).

Even if credibility problems are put aside, Mr. Coones’

testimony reveals that he did not consider the then

apparent unconstitutionality of the agency’s order to Mr.

Watson as a mitigating circumstance. Even if board

review could substitute for agency discretion, the board

did not consider the seeming unlawfulness of the

agency’s order among the mitigating factors it discussed.

(App-38 to App-40)

B. Prerequisite to Discretion

This Court understands that 4 prerequisite to

discretion is that the agency must have considered the

relevant factors. Citizens 10 Preserve Overton Park, Inc.

v. Volpe, 401 US 402, 416 (1971). At least until now,

the Federal Circuit has reviewed to assure "that the

agency considered all factors relevant to the case." See,

e.g., Hayes V. Department of the Navy, 727 F2d 1535,

1537 (1984). Similarly, the board has listed at least a

dozen factors for consideration in determining a penalty.

Douglas v. Veterans Administration, 5 MSPB 313, 331

& 332 (1981). The Federal Circuit has found that the

board’s “failure to consider a significant mitigating

circumstance constitutes an abuse of discretion.”

VanFossen V. Department of Housing & Urban

Development, 748 F2d 1579, 1581 (Fed Cir 1984).

This case, therefore, poses novel questions. After

finding that the employee IS subject to at least some

discipline for disobedience with an agency direction,

must the agency consider as a mitigating circumstance

the seeming unlawfulness of the agency Ss direction? The

employee may not be able to avoid discipline entirely, in

as much as the federal service generally requires that the

employee "comply now, grieve later." Gragg v. United

States Air Force, 13 MSPR 296 (1982). But, within the

context of the penalty phase, is the employee’s good faith

reliance upon the actual (not merely asserted) decisional

law of his jurisdiction a relevant circumstance that must

be considered? What was the agency’s obligation to

comply with that decisional law at the time of its order?

Is the agency’s obligation to have given a lawful order

relevant to punishing the employee for disobeying it?

C. Undecided Question of Federal Law

The decisions below in this case represent a new

development in federal law suggesting that the lawfulness

of the agency’s order need not be considered among

factors relevant to the exercise of discretion. (App-20

[Michel, J. concurring]). This development is

inconsistent with this Court’s view that consideration of

relevant factors is a prerequisite to discretion. Citizens

to Preserve Overton Park, Inc. v. Volpe, 401 US at 416.

The employee’s reliance on a judicial declaration and the

agency’s obligation to honor that declaration should be

relevant to the exercise of discretion. Because this is a

new issue of importance to the entire federal service, this

court should grant review.

IV. The Federal Circuit sanctions an abuse of

discretion whereby a long-term employee

is discharged, although he was nol

suspected of drug use, he demonstrated

he was drug free, and he relied upon a

judicial determination at the time.

A. Abuse of Discretion

Regardless whether the firing official exercised any

discretion, regardless whether the board may substitute

‘ts discretion, regardless whether a decision-maker must

consider the temporal unlawfulness of the agency Ss

order, this case ultimately asks whether firing Bruce

Watson reflects an abuse of discretion. For several

reasons, the question is compelling.

First, it is this Court’s decision after his objection,

that placed Mr. Watson in jeopardy. If the Ninth Circuit

had been sustained, the agency’s order to him would

have remained unlawful and his discharge, upon review,

would not likely have been sustained by the board. Ina

different setting, this Court observed that the prior

statute, which authorized discipline, was not intended to

authorize discharge for speech that is constitutionally

protected. Arnett Vv. Kennedy, 416 US 134, 163 (1974).

Presumably, the successor Statute, 5 USC § 7513(a),

would not authorize discharge for an employees

objection to an unlawful search and seizure.

Second, the decisions here are inconsistent with

decisions in other courts which found penalties to be

arbitrary, capricious, and abuses of discretion. See,

e.g., Brown v. United States Postal Service, 860 F2d

884 (9th Cir 1988) (willful failure to follow postal

procedures; removal reversed as overly harsh); McLeod

v. Department of the Army, 714 F2d 918 (9th Cir 1983)

(marijuana possession at lunchtime; removal reversed as

arbitrary and capricious; remanded); Young v. Hampton,

568 F2d 1253 (7th Cir 1977) (conviction for cannabis

possession off duty; removal reversed as arbitrary,

capricious, and abuse of discretion); Boyce v. United

States, 211 Ct Clms 57 (1976) (IRS employees’ failures

to file tax returns; removals reversed as disproportionate

to offense); Power v. United States, 531 F2d 505 (Ct

Clms 1976) (alleged false expense claims; removal not

reversed but backpay ordered); Jacobowitz v. United

States, 191 Ct Clms 444 (1970) (IRS officer’s grossly

negligent failure to process checks; removal reversed);

Clark v. United States, 162 Ct Clms 476 (1963)

(spouse’s use of government auto; removal reversed).

Third, the decisions below are contrary to

fundamental concepts in American law. This Court has

refused to sustain the convictions of persons who were

denied the chance to prove that their prosecutions were

based upon an invalid administrative order. Estep v.

United States, 327 US 114, 125 (1946) (Muprhy, J.,

concurring) (refusal to submit to induction). The Ninth

Circuit has held that punishing an employee for

disobeying an employer’s unlawful order was contrary to

public policy. Garcia v. National Labor Relations

Board, 785 F2d 807, 811 (1986) (refusal to violate

California Vehicle Code)*

B. Agency’s Duty to Obey the Law

In this case, the agency's order for suspicionless

testing was seemingly unlawful at the relevant time and

place. Unless and until reversed or modified, this

employee was entitled to have relied upon the Ninth

Circuit’s decision. See Rooker v. Fidelity Trust Co. , 263

US 413, 415 (1923). Even where the law is given

retroactive effect, it may be tempered to take into

account a person’s reliance on the existing law. See

James B. Beam Distilling Co. Vv. Georgia, 111 SCt 2439,

7443 (1991). To say this is not to excuse this employee,

but to suggest that, in the penalty phase of discipline, the

agency's own obligation has been forgotten.

' The Ninth Circuit commented:

The Board may not be charged with enforcing

all laws, but it surely is not empowered to

condone law violation.

We believe that even though UPS and other

employers may think they have legitimate

reasons for placing themselves above the law,

we as a court of law must not reinforce such a

view.

785 F2d at 811-12.

Although the Federal Aviation Administration may

have believed the Ninth Circuit was in error, the agency

was bound to follow the court’s decision until reversed.

A court’s decree is binding even when temporary and

even when critics doubt its constitutional foundation.

Walker v. City of Birmingham, 388 US 12 (1967). The

FAA should not have ordered Bruce Watson to submit to

suspicionless drug testing. His disregard for an

instruction may Justify some form of discipline, but the

agency’s disregard for the constitution must serve to

mitigate the penalty.

C. Significance Beyond the Facts

Bruce Watson was not hostile to the agency’s

interest in safety. He had worked eleven years to assure

the safety of the public. He had nothing to hide. He

was not suspected of drug use. He provided the agency

an independent drug screening, in all likelihood, before

the agency’s test results would have been returned. He

was "clean." To discharge him for fatling to use the

agency’s authorized process at a time when that process

would be deemed unlawful is to inflict a capricious

penalty.”

It is the novelty of these circumstances - the

employee’s reliance on the known law and the agency's

disregard of it -- that distinguishes this case and that

warrants this court’s attention to the final issue. This

court’s consideration would answer the relevance of

changing law to penalty considerations, no matter who

that decision-maker is to be. This court’s consideration

would illuminate the standards of review and make

discretion more than an empty promise.

: Additional considerations support finding 4

capricious penalty, but they are not recounted here. They

are better reserved for a brief on the merits. They

include, for example, consistency of the penalty in the

light of the agency's schedule of discipline, if any.

) Douglas v. Veterans Administration, 5 MSPB at 331-32.

By comparison, admitted drug users who undergo

rehabilitation are not discharged. Exec Order 12564,

§ 5(b), 51 Fed Reg 32889 (1986); DOT Order 3910.6

(3910.1), Ch IV, 8 ‘.

CONCLUSION

In the interest of federal agencies and employees

alike, Gerald Bruce Watson, Jr., respectfully prays that

a writ of certiorari issue to review the decisions below.

Respectfully submitted,

ae A. QO—

JOEL S. DeVORE

Luvaas, Cobb, Richards & Fraser, P.C.

777 High Street, Suite 300

Eugene, Oregon 97401

(503) 484-9292

Petitioner's Counsel of Record

RALPH FALLON COBB

Luvaas, Cobb, Richards & Fraser, P.C.

777 High Street, Suite 300

Eugene, Oregon 97401

(503) 484-9292

Of Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.