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01/07/83 Donald J. Devine, Director v. Harold C. White

January 7, 1983





Petition for Review of an Order of Harold C. White, Arbitrator.


Lumbard,* Senior Circuit Judge, United States Court of Appeals for the Second Circuit, Harry T. Edwards and Bork, Circuit Judges. Opinion for the Court filed by Circuit Judge Harry I. Edwards. Concurring Opinions filed by Senior Circuit Judge Lumbard and Circuit Judge Bork. Lumbard, Senior Circuit Judge, concurring. Bork, Circuit Judge, concurring.


This appeal involves a review of an arbitrator's decision in an "adverse action" case arising under the Civil Service Reform Act of 1978 ("CSRA" or "Act").1 The case poses several highly significant issues focused on the propriety of judicial review of arbitrators' decisions in the federal sector. In particular, and for the first time, this court clearly faces questions concerning the circumstances under which the Director of the Office of Personnel Management may seek judicial review of an arbitrator's decision; whether the Director must or may first request "reconsideration" of an arbitrator's award before seeking judicial review; the time limits on petitions for judicial review of an arbitrator's award; the application of the "harmful error" standard in adverse action cases; the reviewability of an arbitrator's decision; and the amount of deference that is due arbitral decisions involving adverse actions under the CSRA.

To address these questions, we have been required to wade through the statutory maze of the CSRA. In undertaking this task, we have come to realize that the Act is fraught with ambiguities, peppered with provisions that appear at cross purposes, and often lacking any useful legislative history. Despite these hazards, we endeavor here to enforce strictly the literal terms of those provisions of the Act that are unambiguous and internally consistent, and to remain faithful to the central congressional purposes underlying the enactment of the CSRA. Where the terms of the statute are ambiguous and we can find no guidance in the legislative history, we look to the common law of labor arbitration to devine statutory meaning. I. BACKGROUND

A. Introduction

Exercising the authority conferred on him by the CSRA, the Director of the OPM seeks review of an arbitrator's decision -- issued pursuant to a collectively bargained grievance procedure -- setting aside a disciplinary sanction imposed by the Immigration and Naturalization Service ("INS" or "Service") on one of its agents. Mindful of the considerable threats to the congressionally mandated system of grievance arbitration posed by such petitions for review, we approach with caution the issues raised herein, several of which have never been considered in the courts of appeals. The need to resolve these unsettled interpretative questions tips the balance in favor of reviewing the arbitrator's decision,2 and we ultimately decide that it cannot stand. For the reasons set forth below, however, we deem inappropriate a simple reinstatement of the INS's suspension, and we remand the case to the arbitrator for clarification of his decision in accordance with the principles enunciated in this opinion.

B. Factual Background

The facts relevant to the disposition of this petition for review are uncontroverted. On May 9, 1980, INS agent Noe Lopez, on temporary assignment in Florida to assist in handling the unusual influx of Cuban Refugees, was involved in an automobile accident while driving a government vehicle after work under such circumstances that it could "only be concluded that the vehicle was used without authorization and used for purposes other than official business"3 in violation of federal law and agency regulations.4 No citations were issued or charges filed, but Lopez was returned to his permanent duty station in Texas on May 13, 1980. On May 20, eleven days after the accident, an internal INS memorandum reviewing the details of the accident was prepared and sent to the Chief Patrol Agent in Miami, but the matter lay dormant until June 26, when the driver of the vehicle that Lopez hit threatened to sue the INS and informed the Service that he had reported the incident to his Senator.

The day after he received the irate citizen's letter, the Chief Patrol Agent in Miami forwarded the Service's investigative report to the Regional Commissioner in Dallas for consideration of possible violations by Lopez. Almost four months later, on October 20, the INS informed Lopez of its intention to suspend him for thirty days without pay for misusing a government vehicle. Lopez responded to this notice on October 29, agreeing with the charges and requesting leniency. The agency's final decision -- imposing a thirty-day suspension without pay "to promote the efficiency of the service"5 -- was rendered on November 10, and Lopez was informed of his right to appeal to the Merit Systems Protection Board or to request his union to pursue a grievance through the arbitration mechanism established by its collective bargaining agreement.6 He chose the latter alternative.

C. The Arbitral Proceedings

The grievance protesting Lopez' thirty-day suspension was brought before arbitrator Harold C. White. Although arbitrator White found that Lopez had violated federal law and the INS's rules and that a one-month suspension was the minimum penalty required by statute,7 the decision that he issued on May 13, 1981 ordered the Service to reverse the suspension because it had neither conducted its investigation nor administered discipline in a timely manner as required by Article 31F(3) of the collective bargaining agreement between the INS and the American Federation of Government Employees ("Union").8 In reaching this conclusion, arbitrator White first observed that Lopez had been unaware of the INS's investigation until October 20, 1980, over five months after his accident. The arbitrator then rejected the Service's explanation -- based on the administrative and operational burdens imposed by the influx of Cuban refugees and the Iranian student crisis -- for the delay in processing Lopez' case.

On June 11, 1981, twenty-nine days after the arbitrator rendered his decision, the OPM, which had not participated in the arbitral hearing, requested reconsideration on the ground that the decision was "clearly erroneous and [would] have a substantial impact on civil service law."9 The OPM found statutory authority for its intervention in 5 U.S.C. 7703(d) (Supp. V 1981),10 and advanced two contentions that the INS had not raised in arbitration. It argued first, untenably, that arbitrator White's decision improperly allowed the negotiated agreement to override the statutorily mandated penalty for misuse of a government vehicle.11 Second, and more plausibly, the OPM argued that an agency disciplinary decision supported by the preponderance of the evidence12 could be reversed on procedural grounds only if the employee demonstrated that the procedural defect constituted "harmful error."13

The OPM's petition for reconsideration was opposed by the Union,14 and was rejected by arbitrator White on July 8, 1981, on the grounds that (1) it contained materials not presented in the hearing and (2) he had no authority to reconsider because "the submission of the arbitrator's decision ends the arbitrator's involvement in the arbitration process."15 The OPM apparently did not receive notice of this decision until July 17; on August 7, twenty-one days after the OPM learned that its petition for reconsideration had been denied and almost three months after the arbitrator's reversal of the INS's disciplinary action, the Director of the OPM petitioned for review by this court. II. ARGUMENT

Continuing the trend toward the provision of meaningful bargaining rights for public employees,16 Congress included in the CSRA its first codification of arbitration as a dispute resolution mechanism for federal employees.17 Under the terms of the Act, every collective bargaining agreement must contain a "fair and simple" grievance procedure that "provide[s] for expeditious processing" and allows both the union and the employer to invoke "binding arbitration" in the event of a failure to reach a satisfactory settlement. 5 U.S.C. § 7121(a)-(b) (Supp. V 1981).18 These negotiated grievance procedures can be applied to four different types of disputes, each of which "entails its own uniquely complex processing machinery."19

In adverse action cases such as this one, the CSRA affords the aggrieved employee a choice of procedures; he must initially and irrevocably decide either to pursue his claim through the negotiated grievance mechanism included in the collective bargaining agreement between his union and his employer or to utilize the statutorily established appellate procedures of the MSPB. 5 U.S.C. § 7121(e) (1) (Supp. V 1981).20 To promote consistency and to discourage forum shopping,21 Congress has provided that an employee's choice of procedural routes cannot affect the applicable standard of review: Section 7121(e) (2) requires arbitrators to apply the same statutorily established evidentiary standards that govern the MSPB's review of agency actions.22 For a similar reason,23 arbitral decisions are subject to judicial review "in the same manner and under the same conditions as if the matter had been decided by the ." 5 U.S.C. § 7121(f) (Supp. V 1981).24

Although section 7121 provides substantial guidance to arbitrators and courts reviewing arbitral decisions, a number of important questions concerning both the procedures governing appeals to the MSPB and judicial review of MSPB decisions and the applicability of those procedures to cases brought under negotiated grievance mechanisms remain unresolved. One of the most important of these questions -- whether arbitrators are required to apply the MSPB's "harmful error" standard25 when reviewing agencies' procedural defaults -- is squarely presented by the OPM's petition for review. Before reaching this issue, however, we must decide whether the OPM's petition was timely filed and whether the discretionary assertion of this court's jurisdiction is appropriate in this case.

A. Timeliness of the Petition for Review

1. Introduction

By its reference to section 7703, section 7121(f) authorizes the Director of the OPM to seek judicial review of an arbitrator's decision in any matter covered under sections 4303 and 7512 by filing a petition for review with this court.26 "Notwithstanding any other provision of law," section 7703(b) (1) declares, such petitions "must be filed within 30 days after the date the petitioner received notice of the final order or decision" of the arbitrator. This requirement is jurisdictional, Miller v. United States Postal Service, 685 F.2d 148, 149 (5th Cir. 1982); Parton v. MSPB, 684 F.2d 530, 533 (8th Cir. 1982) (per curiam); Boehm v. Foster, 670 F.2d 111, 113 (9th Cir. 1982) (per curiam), and the statutorily specified filing period is not subject to enlargement, Brown v. National Highway Traffic Safety Administration, 218 U.S. App. D.C. 153, 673 F.2d 544, 545 (D.C. Cir. 1982) (per curiam); see FED. R. APP. P. 26(b). Because the OPM did not seek judicial review until nearly three months after arbitrator White's decision, the respondent argues, its petition must be rejected as untimely.

Although the command of section 7703(b) (1) is unequivocal, one could argue that, by virtue of its placement within the overall scheme established by section 7703, the filing requirement applies only to petitions filed by adversely affected employees. Subsections (a) and (b) establish procedures for appeals by aggrieved employees, and subsection (c) sets forth the standard of review; only in subsection (d) did Congress authorize appeals by the Director of the OPM, and subsection (d) contains no time limits.27 A similar parsing of the section led the Eighth Circuit to conclude that there exists "no authority to support the application of the section 7703(b) time limits to section 7703(d)." Parton v. MSPB, 684 F.2d at 533 (dicta). We disagree.

We note first that the Senate Report on the CSRA stated that "the Director, like any other petitioner, is required to seek review within 30 days of the decision of the ."28 In context, however, this statement does not resolve the matter, for the Committee, in the course of describing the circumstances under which the Director could seek judicial review, of necessity discussed the requirement that the Director seek reconsideration by the MSPB before requesting judicial review.29 As a result, we cannot determine with certainty whether the Committee's reference to the thirty-day limit pertained to the timing of a petition for judicial review or a petition for reconsideration by the MSPB.30 Our conclusion that a petition for judicial review filed by the Director of the OPM more than thirty days after he received notice of a final order or decision of the MSPB or an arbitrator is untimely rests, therefore, not on the legislative history of the Act, but on two other compelling reasons.

First, the applicability of the thirty-day limit in section 7703(b) (1) is not, by its terms, restricted to appeals brought by aggrieved employees; on the contrary, the section purports to govern "any petition for review." We can discern no basis in either logic or public policy for limiting the section's broad scope by distinguishing between the treatment of petitions filed by the OPM and those filed by aggrieved employees. Second, the Eighth Circuit's reading of section 7703(d) imposes no limits on the time in which the OPM may petition for review. Although the Director could eventually become subject to the defense of laches,31 expanding the time period within which he could seek judicial review is flatly inconsistent with the congressional purposes underlying the CSRA. Congress was, after all, motivated in large part by a desire to reduce substantially both the amount of time consumed by the appellate process32 and the courts' role in reviewing federal agencies' decisions to discipline and dismiss their employees;33 these goals would be ill-served by a potentially limitless expansion of the length of the appellate process. Recognizing, as did Congress,34 ...

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