[00:00:30] Speaker 00:
Okay.

[00:00:30] Speaker 00:
The next case is number 143153, Arena against the United States Postal Service.

[00:00:38] Speaker 00:
Mr. Kachurgis.

[00:00:39] Speaker 01:
May it please the court.

[00:00:40] Speaker 01:
Matthew Kachurgis on behalf of Petitioner Patrick Arena.

[00:00:44] Speaker 01:
Arena seeks to reverse the decision of the Merit Systems Protection Board, modifying the decision of the administrative law judge and sustaining the postal services penalty of removal.

[00:00:57] Speaker 01:
Contrary to the administrative law judges,

[00:00:59] Speaker 01:
mitigation of that penalty to a 120-day suspension.

[00:01:06] Speaker 01:
So requesting, the board substituted its determination for the facts adduced at the hearing from the deciding officer, Michael Bose, wherein the administrative law judge made credibility determinations regarding Mr. Bose's testimony, most specifically that Mr. Bose

[00:01:26] Speaker 01:
testified that he gave consideration to all the relevant Douglas factors.

[00:01:31] Speaker 01:
However, the administrative law judge implicit in her decision was that he gave no such consideration.

[00:01:37] Speaker 01:
And it's apparent from the notice of agency action, the removal decision, and that's contained at page 82 of the record, wherein Mr. Bose states

[00:01:51] Speaker 01:
I've considered all of the relevant Douglas factors, and I find nothing to mitigate against the charges.

[00:01:57] Speaker 04:
During the Page 8 decision, did she say that the deciding official didn't consider the relevant factors?

[00:02:04] Speaker 01:
Well, one, she doesn't come out and say, Bose, I find him to be uncredible.

[00:02:09] Speaker 04:
However... Then how can you try to capture this as a credibility point?

[00:02:13] Speaker 01:
Because when you look at the record and Page 82 of the Notice of Decision,

[00:02:19] Speaker 01:
wherein it finds right after he makes the pronouncement that I've considered the Douglas factors, I found nothing that would militate against the charges.

[00:02:29] Speaker 01:
I find that your lack of honesty proves to me that you cannot be rehabilitated.

[00:02:33] Speaker 01:
When you look at the ALJ's decision and the portion of it that's relevant is page 189 to 191, the ALJ finds he appears to have good potential for rehabilitation and that's on page 191.

[00:02:47] Speaker 04:
That doesn't have anything to do with the ALJ's

[00:02:50] Speaker 04:
credibility determination as a deciding official, that may be her own assessment of the rehabilitation potential.

[00:02:58] Speaker 04:
I mean, you're really trying hard to get a credibility determination here where there's not.

[00:03:04] Speaker 04:
I mean, assume we agree, assume we conclude that there's no credibility determination by the ALJ, the AJ, sorry.

[00:03:12] Speaker 04:
Then there's no problem with the board coming to a different conclusion on the fact, is there?

[00:03:15] Speaker 01:
That's the way the board operates.

[00:03:19] Speaker 01:
No credibility issues with the AJA.

[00:03:21] Speaker 01:
It's a tough road to hoe for Mr. Arena.

[00:03:24] Speaker 01:
The language of this court I've seen in some opinions that in determining and trying to overturn a penalty determination by the board, this court's language and the standard of view bristles with limitation.

[00:03:37] Speaker 01:
I understand that.

[00:03:38] Speaker 01:
But in this case, where the deciding official clearly did not give consideration to the relevant Douglas factors,

[00:03:47] Speaker 01:
And I think it's implicit in the AJ's decision that they did it.

[00:03:51] Speaker 01:
And then the board adopts the deciding official or the agency gave complete and full consideration of all the relevant Douglas Factors when a contrary representation had been determined by the AJ that this court does have the authority to review that decision and reinstate the AJ's recommended penalty.

[00:04:10] Speaker 03:
What is the gap in the deciding official's decision on Douglas Factors?

[00:04:16] Speaker 03:
It appears that Mr. Bose identifies everything in terms of depression, divorce, lost home.

[00:04:24] Speaker 03:
Then on the following page talks about how he's attending EAP and it takes into account the length of service of this particular employee.

[00:04:38] Speaker 03:
It looks like the deciding official identified all of them, but ultimately concluded after weighing the seriousness of the offense and the

[00:04:46] Speaker 03:
fact that Mr. Arena failed to cooperate with the investigation, that these potential mitigating factors ultimately don't warrant mitigating the penalty.

[00:04:57] Speaker 01:
Well, with an 18-year veteran of the service with no prior disciplinary history, and I don't believe the deciding official touches upon that, but even in his own decision where he says, I find... Well, he talks about length of service.

[00:05:09] Speaker 01:
He talks about length of service, but he doesn't talk about his absence of any disciplinary record.

[00:05:15] Speaker 01:
But he says, I found nothing that would militate against the charges.

[00:05:18] Speaker 01:
I find it incredible that he can weigh these factors.

[00:05:22] Speaker 01:
He articulates them in the letter, but he finds nothing to mitigate.

[00:05:27] Speaker 01:
It's not that I've balanced these and on balance the seriousness of the offense warrants determination.

[00:05:32] Speaker 01:
It's rather, he gives lip service to considering, but clearly he did not.

[00:05:36] Speaker 03:
But the problem for both the board and this court is we're very limited in

[00:05:44] Speaker 03:
in reviewing the discretion of this deciding official on trying to cast what's an appropriate penalty here.

[00:05:51] Speaker 03:
And that was what the board was pointing at when it ultimately concluded that this particular AJ was substituting her judgment for that of the deciding official.

[00:05:59] Speaker 01:
And the way by which this court can review that decision is the way that the AJ determined.

[00:06:05] Speaker 01:
That if the deciding official does not give appropriate consideration to all the relevant Douglas factors, the AJ and the board can substitute their judgment

[00:06:14] Speaker 01:
and institute a penalty within the maximum of the offense charge.

[00:06:19] Speaker 04:
That's what happened here though.

[00:06:20] Speaker 04:
I mean, the AJ looked at that and said that the removal is more than a maximum reasonable penalty and mitigated.

[00:06:27] Speaker 04:
And the board looked at it as it's entitled to do and said, nope, we agree.

[00:06:32] Speaker 04:
The removal is within the boundaries.

[00:06:34] Speaker 01:
But they did so based upon the finding in the record on the note of decision at page seven that the official properly considered the mitigating factor.

[00:06:42] Speaker 01:
And it's clear from the record from his letter of decision and testimony that he didn't consider.

[00:06:50] Speaker 01:
He gave consideration only to the nature of the offense and the risk that it posed on other employees.

[00:06:56] Speaker 01:
He didn't give any consideration to the other relevant Douglas Factors.

[00:07:01] Speaker 04:
If you look at the record at the hearing... Do you think our case on the board case law requires a mechanical listing of all the Douglas Factors?

[00:07:10] Speaker 04:
basically a checklist of this one militates this one doesn't?

[00:07:14] Speaker 01:
No, it doesn't in the precedent.

[00:07:16] Speaker 04:
Don't we have to read his decision letter holistically and see that it looks like he did consider his length of service?

[00:07:23] Speaker 04:
He considered other things and he found nothing else that would militate against it.

[00:07:28] Speaker 04:
And those other, when he references nothing to militate, don't we presume implicitly that he considered those other things?

[00:07:37] Speaker 01:
If he considered there's other things, how could he find nothing to mitigate the charges?

[00:07:42] Speaker 01:
Nothing.

[00:07:43] Speaker 04:
Well, he thinks that they're not enough to reduce it to a removal.

[00:07:46] Speaker 01:
That's not what he stated.

[00:07:48] Speaker 01:
In his letter of decision, he states, I find nothing.

[00:07:50] Speaker 04:
It sounds to me like you're kind of nitpicking about his specific language in the letter or not, what he actually was doing.

[00:07:56] Speaker 01:
Well, I don't know that I'd characterize it as nitpicking.

[00:08:02] Speaker 01:
Even when he testified at the hearing, when he testified about the basis of his decision, it was solely based on the seriousness and the nature of the offense.

[00:08:11] Speaker 01:
All of the other mitigating Douglas Factors had to be discussed in cross and drawn out of them.

[00:08:17] Speaker 01:
And then the board latches on to what he had to say on cross to find, oh, he gave consideration to the relevant Douglas Factors.

[00:08:23] Speaker 00:
Which factor would you emphasize?

[00:08:28] Speaker 00:
potential for rehabilitation?

[00:08:30] Speaker 00:
That's right.

[00:08:31] Speaker 00:
More than mitigation of the seriousness?

[00:08:33] Speaker 01:
The length of time that he had in the service, 18 years.

[00:08:37] Speaker 01:
The fact that during that 18 years, he had an unblemished disciplinary history.

[00:08:41] Speaker 01:
During that 18 years, he was a trustworthy, valuable, and good employee to the service.

[00:08:46] Speaker 01:
And there was absolutely no consideration given to that.

[00:08:51] Speaker 01:
And I understand your honor's characterization.

[00:08:55] Speaker 04:
But both the AJA and the board looked at those issues.

[00:08:58] Speaker 04:
And they considered them, and they determined that even considering those, removal, at least the board removal, was not beyond a maximum reasonable penalty.

[00:09:08] Speaker 01:
That was the board's decision, finding that the agency gave appropriate weight and consideration to the relevant Douglas factors, which was contrary to the administrative judge's finding that they did not.

[00:09:20] Speaker 01:
That's the basis by which she mitigated the penalty to 120-day suspension.

[00:09:26] Speaker 01:
So I understand the question of the court, but the board's decision upholding the removal penalty was premised upon a deciding official giving those factors consideration and weight, and he did not.

[00:09:40] Speaker 01:
And because he did not, the board and this court can review that decision to impose what would be the appropriate maximum penalty under the circumstances.

[00:09:51] Speaker 03:
Would that be our rule, or would our rule be

[00:09:54] Speaker 03:
vacate the deciding official's decision to go back and do what you would regard as a more adequate analysis, a more complete analysis of all the factors?

[00:10:06] Speaker 01:
I don't think so because I think that analysis has already been engaged in by the administrative judge.

[00:10:11] Speaker 01:
She undertook to reweigh the relevant Douglas Factors on her own and determined that the maximum reasonable penalty was that of 120-day suspension.

[00:10:20] Speaker 03:
Her analysis

[00:10:22] Speaker 03:
seem to be predicated on a misunderstanding of the facts.

[00:10:25] Speaker 03:
As I understand it, please believe that the agency's view of the seriousness of the offense could not be credible because they had left Mr. Reno on the job for several months knowing that he was using drugs on duty, whereas the facts are actually that Mr. Bose did not know

[00:10:51] Speaker 03:
and did not hear anything from OIG until the actual day of Mr. Arena's removal from the job on August 27th.

[00:10:59] Speaker 01:
And with respect to that, I think what the AJ was stating was that the testimony of Mr. Bose about the significant harm that could occur in the workplace as a result of this conduct is somewhat belied by the fact that the OIG sat on this investigation for six months,

[00:11:21] Speaker 04:
But that presumes that OIG isn't all interested in the personnel issue.

[00:11:26] Speaker 04:
From all respects, it seems like OIG was more interested, if it could, in pursuing a criminal case.

[00:11:32] Speaker 01:
Well, it's interesting that you point that out, Your Honor, because when they first come in and try to interview Arena, he invokes his Fifth Amendment privilege.

[00:11:41] Speaker 01:
It then advises the supervisor that it's not going to pursue a criminal matter.

[00:11:47] Speaker 01:
and we get into the Kalkine's warnings and the Givens memorandum.

[00:11:50] Speaker 01:
However, I think it's interesting that OIG continues to conduct the interviews.

[00:11:55] Speaker 01:
They don't wash their hands up and say, this is a personnel matter, step in with the fruits of our labor.

[00:11:59] Speaker 01:
They come in and continue to pressure Arena in the attempt to have them submit to an interview.

[00:12:05] Speaker 01:
So I don't know if they are interested solely in a criminal matter because they're being utilized by management.

[00:12:13] Speaker 04:
We have no idea what OIG is doing here.

[00:12:15] Speaker 04:
Maybe they were looking for

[00:12:17] Speaker 04:
for broad reaching use of drugs in the workplace.

[00:12:20] Speaker 04:
Maybe they were thinking somebody was dealing on the premises.

[00:12:23] Speaker 04:
But the fact is the manager in charge of disciplining this man testified that he didn't know of the results of the investigation and therefore couldn't have done anything about it until the day he removed him.

[00:12:38] Speaker 01:
I can see that's what he testified to.

[00:12:42] Speaker 00:
Let's hear from the government.

[00:12:51] Speaker 00:
Mr. Furrata.

[00:12:54] Speaker 02:
Good morning.

[00:12:54] Speaker 02:
May it please the court.

[00:12:56] Speaker 02:
The only issue that's before this court in this appeal is whether the removal penalty that was imposed by the Postal Service should be sustained.

[00:13:04] Speaker 02:
Under the governing standards, the court must defer to the agency's choice of penalty.

[00:13:09] Speaker 02:
The question isn't whether this court would have imposed the same penalty or even whether the penalty that was imposed by the agency was the most effective.

[00:13:18] Speaker 02:
The court can only overturn or upset that penalty

[00:13:21] Speaker 02:
if it was, in the court's own language, outrageously disproportionate or so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.

[00:13:32] Speaker 02:
Here, Mr. Arena was charged with three different offenses.

[00:13:35] Speaker 02:
The first was improper conduct based on his long history of using illegal drugs on the job.

[00:13:40] Speaker 02:
The second was the charge for failing to stay gainfully employed based on the fact that he was taking

[00:13:47] Speaker 02:
multiple, in some cases hours long, unauthorized breaks in an abandoned warehouse.

[00:13:52] Speaker 02:
And the third was the failure to cooperate in the postal investigation, based not only on his refusal to speak to the OIG agents about the drug use, but also his outright lie to his supervisor on the one occasion when he did actually address his drug use.

[00:14:08] Speaker 02:
He outright lied about it multiple times.

[00:14:11] Speaker 02:
Mr. Arena denied all three of those charges up until the eve of his AJ administrative judge hearing, at which point he finally conceded the first two, but he continued to deny the charge for failing to cooperate in the investigation.

[00:14:26] Speaker 02:
The administrative judge found that the agency had met its burden and proved that charge because there was no plausible or reasonable basis for Mr. Arena to have continued to refuse to talk about his drug use once he was given

[00:14:41] Speaker 02:
Kalkine's warnings, the use of immunity on several occasions.

[00:14:47] Speaker 02:
Mr. Ria did not appeal that finding to the full board.

[00:14:49] Speaker 02:
And so at this point, all three of the charges have been conceded.

[00:14:52] Speaker 02:
And again, we're only talking about the penalty.

[00:14:55] Speaker 02:
Now, the only evidence in the case from the deciding official, Mr. Bowes, was that he considered all of the Douglas factors, all of the relevant Douglas factors that were potentially applicable to the facts of this case.

[00:15:08] Speaker 02:
He testified at the hearing before the administrative judge at great length about the factors that he considered and how he came to the result that he came to.

[00:15:17] Speaker 02:
In addition, the deciding official met with Mr. Arena before he was discharged and gave him the opportunity to offer any evidence he had to address the situation or any mitigating evidence that might support a lesser penalty.

[00:15:34] Speaker 02:
At that time, Mr. Arena didn't offer any evidence

[00:15:38] Speaker 02:
The only, the only potential mitigating factors that he identified were his length of service, the fact that he had apparently undergone a divorce recently and he alleged he had been diagnosed with depression and the fact that he had made a phone call after the fact to the employee assistance program.

[00:15:56] Speaker 02:
Again, no evidence was offered either to the deciding official or at the hearing to support that there was any causal connection between

[00:16:04] Speaker 02:
the divorce or the alleged depression, and the fact that he was using drugs on the job, according to his coworker, up to four times a month for an entire year.

[00:16:13] Speaker 02:
And that's why the full board found that regardless of those allegations, there was no supporting evidence, and so they couldn't support mitigating the removal penalty that was imposed by the agency.

[00:16:27] Speaker 02:
The only factors that Mr. Rena did offer, again, his length of service to EAP,

[00:16:33] Speaker 02:
Those in fact were cited in the deciding official's termination letter.

[00:16:38] Speaker 02:
They were cited as factors that were considered and Mr. Bowes testified at the hearing that he gave, in his words, significant weight to the length of Mr. Arena's employment and the lack of any discipline.

[00:16:51] Speaker 02:
In fact, Mr. Arena has admitted in his brief at page 11 that the deciding official acknowledged that Arena was attending the EAP and his length of service.

[00:17:01] Speaker 02:
So what Arena is really challenging in this case is the way in which the agency weighed the different Douglas factors.

[00:17:09] Speaker 02:
And essentially Mr. Arena is asking the court to weigh those factors anew without giving any deference either to the board or to the agency.

[00:17:16] Speaker 02:
And that's obviously improper under the court's case law.

[00:17:22] Speaker 02:
The agency here was fully entitled to rely upon the long history of Mr. Arena's lack of cooperation.

[00:17:30] Speaker 02:
Initially, when he was approached by the OIG agents in August, 2012, he refused to talk.

[00:17:37] Speaker 02:
And at that point, the documents in the record show that he was given a written copy of the Kalkine's warnings and asked to discuss those with his counsel and contact the agents again within four days.

[00:17:49] Speaker 02:
He never did so.

[00:17:51] Speaker 02:
When the OIG agents approached him again in early September, 2012, they orally gave him those Kalkine's warnings again.

[00:17:58] Speaker 02:
He was read a memorandum from his supervisor that directed him to cooperate with the agency now that he'd been given use immunity or face the penalty of potential removal.

[00:18:08] Speaker 02:
Again, he refused to talk.

[00:18:10] Speaker 02:
When he met with his supervisor later in September, that was the one occasion where he actually would address his drug use.

[00:18:17] Speaker 02:
And in doing so, he flat out lied about it on multiple occasions.

[00:18:21] Speaker 02:
If you look at the supervisor's notes, he was asked multiple times

[00:18:25] Speaker 02:
Were you using drugs on the job?

[00:18:27] Speaker 02:
He said, no, no, no, many times.

[00:18:29] Speaker 02:
And in fact, he said he was smoking flowers in the warehouse when he was caught on surveillance.

[00:18:34] Speaker 02:
And then after that, when he eventually met with the deciding official, again, he refused to discuss his drug use at that time.

[00:18:41] Speaker 02:
So the agency and in turn the board under the court's case law were fully entitled to weigh Mr. Arena's lack of cooperation in determining the appropriate penalty in this case.

[00:18:54] Speaker 02:
And finally, the penalty that was imposed to your removal is fully commensurate with punishments that had been imposed for similar offenses.

[00:19:03] Speaker 02:
The two other coworkers who also were implicated in the same operation were also both terminated.

[00:19:10] Speaker 02:
Now, Mr. Arena points out that one of those workers, Mr. Markhart, had a prior instance of discipline, which of course Mr. Arena did not.

[00:19:18] Speaker 02:
However, balancing against that, Mr. Markhart fully cooperated

[00:19:22] Speaker 02:
in the investigation and signed an affidavit under oath admitting to the charges, whereas Mr. Arena did not do so in any way.

[00:19:29] Speaker 02:
The other coworker, Mr. Leonard, who also was discharged, he had no prior history of discipline that was considered as part of the Douglas analysis, and yet he was also discharged as well.

[00:19:42] Speaker 02:
And finally, Mr. Bowes testified that he looked at any instances he could find at this facility in the Postal Service

[00:19:50] Speaker 02:
where there were other drug charges and the only instances he could find all involved removal as well.

[00:19:56] Speaker 02:
Mr. Arena argues that those may have involved harder core drugs, cocaine or selling drugs on the property, whereas this was just the use of drugs.

[00:20:06] Speaker 02:
But again, those were the only instances that the deciding official could find and they all resulted in removal.

[00:20:12] Speaker 02:
And at no time did Mr. Arena offer any evidence of any other drug charges for employees in the postal service

[00:20:20] Speaker 02:
where lesser penalties other than removal were imposed.

[00:20:25] Speaker 02:
And finally, the court's case law also is clear that there have been many cases where the court has upheld removal of employees who engaged in a one-time, one-off use of illegal drugs off government property on their off-duty hours.

[00:20:44] Speaker 02:
And even in those cases, removal was upheld.

[00:20:47] Speaker 02:
Here you had a ongoing pattern

[00:20:49] Speaker 02:
for many months of actual drug use on the job, on the clock.

[00:20:54] Speaker 02:
So clearly, the removal penalty is appropriate under those circumstances as well.

[00:20:58] Speaker 02:
And finally, again, it's important to remember that Mr. Arena was charged not only with illegal drug use, but also with failing to cooperate and failing to stay gainfully employed based on his unauthorized breaks.

[00:21:11] Speaker 02:
And we've cited cases in our papers where this court has upheld removals based on those charges alone without the accompanying illegal drug use.

[00:21:19] Speaker 02:
So when you combine all of those together under these circumstances, it would be impossible for the court to say that the agency's decision to remove, as upheld by the board, was grossly disproportionate to the facts of the case.

[00:21:34] Speaker 00:
Okay.

[00:21:34] Speaker 00:
Thank you.

[00:21:40] Speaker 00:
Thank you, Mr. Perot.

[00:21:42] Speaker 01:
And I don't mean to condone drug use on the job by any means, but I think the agency over-exaggerates the extent of Mr. Arena's involvement.

[00:21:51] Speaker 01:
It had mentioned a pattern of drug use over many months, the hearsay statement of the other employee that was terminated.

[00:21:57] Speaker 01:
But when you look at the OIG report on page 28 in the record, it identifies two dates where this has occurred.

[00:22:05] Speaker 01:
So I think that's somewhat exaggerated.

[00:22:07] Speaker 01:
As I said, I don't condone the use of drug use on the job.

[00:22:10] Speaker 01:
But taking all of that into account, when you look at the other coworkers, the one gentleman had a disciplinary history, Markhart.

[00:22:18] Speaker 01:
The other gentleman, Leonard, although he didn't have an active disciplinary history and it wasn't considered by the board, had a complete failure to cooperate.

[00:22:26] Speaker 01:
Unlike Arena, who went in and submitted to a drug test, Leonard

[00:22:30] Speaker 01:
basically washed his hands of the whole thing, I'm not cooperating at all.

[00:22:34] Speaker 01:
So the alleged failure to cooperate was making an incriminatory admission confession to OIG or his supervisors.

[00:22:41] Speaker 01:
In all other respects, Arena cooperated with the investigation.

[00:22:46] Speaker 01:
And so I think he's differently situated than the two other coworkers in those respects.

[00:22:54] Speaker 01:
In conclusion, I think because

[00:22:56] Speaker 01:
the board erred in finding that the deciding official gave considerable weight to the relevant Douglas factors, that the board erred in taking that position when the contrary position had been determined by the AJ.

[00:23:09] Speaker 01:
And for that reason, I would request that the court reverse the decision of the board and reinstate the penalty recommended by the AJ, a 120-day suspension.

[00:23:19] Speaker 00:
OK.

[00:23:19] Speaker 00:
Thank you, Mr. Kachegos.

[00:23:21] Speaker 00:
Are either the cases taken under submission?