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03/06/84 Jeffrey Otherson, v. Department of Justice

March 6, 1984





Petition for Review of an Order of the Merit Systems Protection Board.


Robinson, Chief Judge, Tamm, Circuit Judge, and Gordon,* Senior District Judge. Dissenting opinion filed by Senior District Judge Gordon.


Opinion filed PER CURIAM.

This case comes before the court on a petition to review an order of the Merit System Protection Board *fn1 upholding the temporary suspension without pay of petitioner Otherson by the Immigration and Naturalization Service from his employment as a Border Patrol agent. *fn2 Otherson was suspended pending trial on an indictment accusing him of conspiring to defraud the United States *fn3 and of depriving aliens suspected as illegal entrants of their civil rights under color of law; *fn4 later, following his conviction, *fn5 Otherson was permanently removed from service. Only the temporary suspension is now in issue. *fn6

Otherson contends (1) that the fact of indictment for job-related criminality, standing alone, cannot constitute statutory "cause" to temporarily suspend an employee; *fn7 (2) that such a suspension without pay, when so based, violates the Due Process Clause of the Fifth Amendment; *fn8 (3) that in Otherson's instance, temporary suspension was an unreasonable penalty, and thus did not promote the "efficiency of the service." *fn9 We find these claims wanting and accordingly affirm.

Our recent decision in Brown v. Department of Justice *fn10 disposes of Otherson's first two arguments. There we held that neither the Due Process Clause *fn11 nor any relevant statute *fn12 prohibits a temporary suspension without pay of a Border Patrol agent though predicated solely on a criminal indictment for job-related activity. *fn13 With regard to Otherson's third thesis -- that, under the circumstances, temporary suspension was an unreasonable penalty -- our task is to determine whether MSPB has "'review[ed] the agency's penalty selection to be satisfied (1) that on the charges substantiated by the agency's penalty is within the range allowed by law, regulation, and any applicable table of penalties, and (2) that the penalty "was based on a consideration of the relevant factors and . . . there has [not] been a clear error of judgment."'" *fn14

Otherson challenges the reasonableness of his suspension under the criteria established by MSPB in Douglas v. Veterans Administration. *fn15 He asserts that a less sever penalty -- limited duty -- should have been imposed in lieu of temporary suspension. Otherson also claims that the suspension violated the principle of like penalties for like offenses because other Border Patrol agents indicted for serious crimes had simply been placed in limited-duty positions.

Douglas does refer to the importance of resorting to milder alternative sanctions when available, and to the need for consistency in penalties imposed for wrongful employee conduct. *fn16 Douglas specifies, however, that the alternative should be adequate and effective to deter similar future conduct by the involved employee and others. *fn17 Douglas also declares that the principle of like penalties for like offenses does not require "mathematical rigidity or perfect consistency regardless of variations in circumstances," *fn18 and that mere "' surface consistency should be avoided.'" *fn19

In addition to these considerations, Douglas lists a number of equally important factors bearing on the appropriateness of a penalty. *fn20 Included are the employee's job level and type of employment, the visibility of his position, and the degree of contact with the public; the nature and seriousness of the offense, its relationship to the employee's position and responsibilities, and whether it was intentional, maliciously committed or frequently repeated; the notoriety of the crime; and any impact which the criminal episode may have upon the agency's reputation. *fn21 Douglas admonishes agencies to "exercise responsible judgment in each case, based on rather specific, individual considerations, rather than acting automatically on the basis of generalizations unrelated to the individual situation." *fn22

We think MSPB's holding that Otherson's temporary suspension was reasonable survives the test of Douglas. *fn23 MSPB justified the disparate treatment INS accorded Otherson in comparison with other Border Patrol employees charged with violent crime *fn24 by noting the conspiratorial nature of the accusation against Otherson and the fact that his behavior was alleged to be "planned," "brutal," "sustained, repeated, and cooperative." *fn25 Although the presiding official at Otherson's hearing did find it "administratively practical" for INS to place Otherson in a limited-duty position, *fn26 that bare conclusion reflects nothing on whether a mere position transfer would suffice to deter him and others from future illegal conduct, and would satisfactorily protect INS's interests in its reputation and in avoidance of future liability *fn27 were any Border Patrol agent to engage in further wrong-doing. *fn28

In light of the narrowness of our review authority, *fn29 these considerations lead us to defer to MSPB's determination that an assignment of Otherson to limited duty would not substitute adequately and effectively for temporary suspension. We similarly defer to MSPB's conclusion that, because of the nature and seriousness of the crimes charged, and the absence of any alternative penalty that would have protected the employing agency's interests sufficiently, it was not unreasonable to suspend Otherson without pay pending the outcome ...

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