Appealed from Merit Systems Protection Board.
Bissell, Circuit Judge, Nichols, Senior Circuit Judge, and Mayer, Circuit Judge. Mayer, Circuit Judge, dissenting.
NICHOLS, Senior Circuit Judge.
In this case we confront a petition by Christian Facer, a former aircraft mechanic once employed at Hill Air Force Base, Utah. The Merit Systems Protection Board (MSPB) in 33 M.S.P.R. 243 (1987) upheld an agency decision removing Facer for smoking marijuana on the base, and thereby modified a tentative decision by its administrative judge (AJ) which would have sustained the charges but mitigated the penalty to a 30-day suspension plus demotion, thus requiring reinstatement at a lower grade, with back pay. This tentative decision did not question the commission of the offense or nexus with the efficiency of the service, nor its seriousness in view of the critical nature of Facer's work and the possible fatal consequences of its being done by a person enjoying a marijuana "high." The AJ relied on the disparately lenient treatment he found to have been meted out to other offenders at the same base and notably to one Cahill who was caught with Facer and apparently sharing a "joint" with him. We remand for further clarification as to the effect, meaning, and intent of AFR 40-750, Attachment 3, for hearing of Cahill's testimony which was mistakenly excluded over the objections of Facer's counsel, if it can be obtained consistent with the fifth amendment, and possibly other matters.
The story of this case commences the evening of December 5, 1985, with a pair of Air Force Military Police making a "walking patrol" of a portion of the base, in course of which they came upon a jeep, parked with motor not running. Two men were seated in it, Facer at the wheel and Cahill in the passenger position. As the military police approached, the "passenger" was seen to be lighting a cigarette which, however, disappeared as they drew nearer. They requested ID cards and noticed a strong odor of marijuana. The two men were temporarily off duty for a half hour lunch period, after which they were to return to their jobs. Facer and Cahill were handcuffed, led away separately, and questioned separately, first being told of their Miranda rights. Cahill's answers went from denial that marijuana was smoked in the jeep, to the statement he would not incriminate himself. Facer stated that he had been smoking marijuana just before the police arrived. Facer also stated that Cahill did not smoke any marijuana on that occasion. On obtaining authority, the officers searched the vehicle and found a pair of hemostats with a suspected "roach" between the forks. This tested positively. Facer's eyes were very bloodshot and Cahill's slightly so. After some time, Facer and Cahill were returned to their workplace and they resumed work.
There is nothing in the record to suggest that criminal prosecution of Facer and Cahill was ever seriously considered but, on the other hand, nothing to show that Cahill was ever ordered to respond to questions about his conduct with a promise that his answers and their fruits would not be used against him in a criminal prosecution. See Weston v. U.S. Department of Housing and Urban Development, 724 F.2d 943 (Fed. Cir. 1983); Kalkines v. United States, 200 Ct. Cl. 570, 473 F.2d 1391 (1973).
Facer rejected suggestions that he receive counseling, either at an Air Force operation on the base, or at a church off the base. He viewed himself as not drug dependent.
Under date of January 10, 1986, the Air Force served on Facer a Notice of Proposed Removal. It recited the facts above stated, and the following:
Items 11a and 11b, Attachment 3 to AFR 40-750, have been used in determining the degree of the proposed remedy.
The text of the document thus referred to is in the appendix to this opinion. It will be noted that the regulation only states "typical" penalties and does not take away management's authority to impose removal in any case when it is appropriate; however, paragraph d limits recourse to removal to extreme cases perceived to warrant it, as there defined. Air Force Regulation 40-750, Attachment 3, does not suggest demotion as an appropriate sanction for any variety of drug abuse by employees.
Facer made oral and written responses. The written one admits his guilt and is in effect a plea for clemency. There is nothing in the record to show Facer ever, before trial, modified or retracted his statement to the police exonerating Cahill. Cahill was retained in duty status although his supervisor considered him so untrustworthy he accorded his work a degree of supervision and reinspection making his retention on duty a most uneconomical proposition for the government, even assuming the standard of safety of the aircraft Cahill worked on was maintained. The supervisor believed there was nothing to be done about it, evidently in view of the statements Facer and Cahill had made. Facer's response failed to serve its purpose inasmuch as his removal followed effective February 7, 1986.
A timely appeal to the MSPB followed, with a trial before Administrative Judge Kasic who made his "initial decision" under date June 26, 1986. Inasmuch as Facer continued to admit his guilt, the government proof of his guilt is of minimal interest and need not be discussed further. Since both Facer's able counsel, and the AJ, attach great weight to alleged disparity of penalty as between Facer and Cahill, we have thought it necessary to ascertain just how Facer handled this in his testimony. It was never transcribed, but we have listened to the tapes provided us by the MSPB.
According to what we may call the new Facer, it was Cahill on that December evening who suggested they go out and "smoke a joint." Cahill pulled a marijuana cigarette out of his pocket and lit up. They shared the cigarette after Cahill started it, but it was Cahill who was lighting up (again?) when the police approached. Facer, however, as he testified to the AJ, accepted responsibility for the cigarette, told the police there was no one else smoking, that he was smoking marijuana and Cahill was not. Why? "I just didn't feel it was up to me to implicate him. I figured he could own up on it himself." As no urine test was run, there was no clear and convincing evidence to ...