Appeals Court Sustains Ten-Day Suspension

This case challenging a ten-day suspension against a Border Patrol Agent made its way to the federal appeals court by way of a challenge to an arbitrator’s decision.

In Boss v Department of Homeland Security (CAFC No. 2017-2231, 11/13/18), a U.S. Border Patrol Agent was unhappy with a 15-day suspension that was based on three reasons: (1) failure to follow procedures relating to overtime, (2) failure to follow a supervisor’s instructions, and (3) conduct unbecoming. Originally, the agency’s CBP Discipline Review Board proposed a 30-day suspension but the deciding official, after reviewing the evidence, upheld all three charges but mitigated the penalty to a 15-day suspension. (Opinion p. 2)

The appeal went to an arbitrator and it came out at the hearing that the deciding official—with respect to the first charge—considered three agency policy documents speaking to administratively uncontrollable overtime pay. Mr. Boss cried “foul” over this ex parte communication and demanded that the entire disciplinary action be tossed out. The agency admitted that the three documents had not been furnished to Mr. Boss or the union until the arbitration proceedings. The arbitrator ruled that it violated the agency’s contractual due process obligations to not have made the documents available during the agency’s consideration of the disciplinary action. However, given that both parties agreed these documents related only to charge one and had no impact on the other two charges, the arbitrator threw out the first charge only and sustained the other two based on the agency’s evidence. Since he only sustained charges two and three, the arbitrator mitigated the penalty to a 10-day suspension. (pp. 2-3)

Mr. Boss took his appeal to court, arguing that the arbitrator erred by not throwing out all three charges and ordering the agency to conduct “a new constitutionally-correct disciplinary or adverse action procedure.” (p. 3) In essence he proposed that rather than analyze due process compliance on a charge by charge approach, the arbitrator should have ordered a do-over because of the due process problem on the one charge. The court’s response to this argument: “We disagree.” (p. 4) As the court further opined, “We see no error in the arbitrator’s application of due process on a charge-by-charge basis in this case. We conclude that there is no legal basis to vacate Charges Two and Three as a remedy for an alleged notice violation that was only relevant to Charge One.” (p. 12)

The arbitrator’s decision is affirmed by the Federal Circuit Court of Appeals.

Boss v. DHS 2017-2231

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.