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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 903

## Text

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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

il

"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

iv
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 .. .

13

13
14
16
18

Vv

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

23
23
25
26

28

V1

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

i

Vil

United States,
ee

Estep V.
327 US 114 Mi oe

onal Labor Relations Board,
24

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)

ee

of the Navy,
9, 21

Hayes V. Department
727 F2d 1535 (1984)
e v. Merit Systems Protection Board,

18

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,
24

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

ee

1X

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

X

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).

2
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.

3

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;

4

(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).

5

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).

6

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).

7

"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:

8

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).

9
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

10

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).

11

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.

12

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

13

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.

14

(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,
or

(B) in any other case, is supported by a
preponderance of the evidence.

15

(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

16

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

17

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

18

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

19

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

————

20

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).

6

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).

21

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

22

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.

23

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.

24

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

25

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.

26

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

27

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.

TR

: 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 ‘.

SS

28
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2253%3A1. Public record. Not legal advice.