Volatile Mix: Conviction, Suspension, Back Pay and Attorney Fees

The Court of Appeals for the Federal Circuit sends a case back to an arbitator after the arbitrator denied a request for attorney fees from a federal employee who won his case

Finding an arbitrator erred in changing his theory of a case between ruling for the employee and setting aside an indefinite suspension, but then denying the employee attorney fees and costs under the Back Pay Act, the Federal Circuit sent the case back to the arbitrator. (Morrison v. National Science Foundation, No. 04-3247, September 20, 2005)

Mr. Morrison’s troubles began when he was stuck in an elevator for about an hour with a female co-worker at National Science Foundation. The next day, the co-worker filed assault and battery charges against Morrison, claiming he had improperly touched her. Morrison was arrested and charged in Arlington County, Virginia, and released on his own recognizance.

While awaiting trial, Morrison remained at work although he was ordered by his bosses to avoid any contact with the co-worker who had filed the charges. He was a model employee during this period. Eventually Morrison was found guilty as charged in the local court but his sentence was suspended and he was placed on supervised probation for one year, required to get counseling, and ordered to stay away from the co-worker.

However, the agency placed him on administrative leave and suspended him indefinitely, invoking the crime exception to the normal thirty-day notice requirement. (Opinion, p. 2) Waging his battle on two fronts, Morrison appealed the conviction and was successful in having it overturned. He also grieved the suspension and eventually ended up before an arbitrator.

Following a hearing, the arbitrator overturned the suspension and ordered Morrison reinstated with back pay. Morrison petitioned the arbitrator for attorney fees and costs. The arbitrator rejected his argument that the agency’s action against him was “clearly without merit” and denied Morrison’s fee request.

Undaunted, Morrison petitioned the Federal Circuit Court of Appeals. (p. 3). The astute reader has already figured out what tripped the agency up in this case. It tried to invoke the crime provision and the emergency suspension process after Morrison stayed on the job for at least four months following the alleged incident. They took steps to protect the co-worker by ordering Morrison to stay away from her, which he did. He also performed in an exemplary manner while awaiting trial on her charges. Once he was convicted, the agency acted but had trouble at that point persuading the arbitrator that their belated action promoted the efficiency of the service.

The crime provision and indefinite suspension is used typically when an employee is charged with a serious crime, but not after conviction. In the court’s words: “…a court decision typically serves as the trigger for some appropriate agency disposition pursuant to proper procedures and for terminating an indefinite suspension, not initiating one….Under the circumstances presented by this case, there is no evidence that an indefinite suspension imposed more than four months after the alleged misconduct would promote the efficiency of the service.” (p. 5)

The court goes on to hold that under the Back Pay Act, the arbitrator should have awarded Morrison attorney fees and costs since he was the prevailing party and the award would be in the interest of justice. The arbitrator denied the attorney fees since he viewed the merits of the case presented a “close call.” The court jumped on this logic: “Not only is that statement inaccurate in view of this court’s case law indicating that an indefinite suspension is intended for use only as an emergency procedure, but it is also inconsistent with the arbitrator’s own earlier decision overruling the agency’s action….[T]he arbitrator may not revise the merits decision as a basis for denying attorney fees.” (pp. 6-7)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.