Joseph Cooke v. Social Security Administration

Note: Pursuant to Fed. Cir. R. 47.6, this disposition
Is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3131
JOSEPH COOKE,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
___________________________
DECIDED: December 22, 2004
___________________________
Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.
RADER, Circuit Judge.
Appellant, Joseph Cooke, sought arbitration on the grounds that the Social
Security Administration suspended him unjustly because a criminal proceeding had
been commenced against him. In the Matter of Arbitration Between New Jersey District
Office of the Social Security Administration and AGFE, Local Union 2369 Re: Joseph
Cooke, PH-2003-R-0010 (Nov. 8, 2003) (Cooke). Because substantial evidence
supports the arbitrator’s decision that Mr. Cooke's indefinite suspension was for just
cause and promoted the efficiency of the service, this court affirms.

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BACKGROUND
The Social Security Administration employed Mr. Cooke in its Trenton office as a
Claims Representative. Cooke, slip op. at 2. In October 2000, Mr. Cooke became a
Union Representative. In that capacity he did not assist claimants as a Claims
Representative. Id. Pursuant to a citizen complaint received in February 2002, the
Office of the Inspector General for the SSA (OIG) conducted an audit of Mr. Cooke’s
electronic inquiries on the SSA computer system. Id. OIG found that Mr. Cooke made
inquiries into the Detailed Earnings Query database, the subject of which was not part
of his duties at the SSA. Id. OIG investigators interviewed the persons who were the
subject of Mr. Cooke's inquiries and determined that he did not have permission to
access their information. The OIG informed the United States Attorney’s Office, which
filed a criminal complaint against Mr. Cooke for nine violations of the Computer Fraud
and Abuse Act, 18 U.S.C. § 1030, on December 13, 2002. On December 20, 2002, the
SSA issued a proposal to suspend Mr. Cooke without pay seven days from his receipt
of their proposal. Id. at 2-3. The proposal informed Mr. Cooke that he had seven days
to respond with any reasons against commencement of the suspension. Id. at 3.
The proposal to suspend, although bearing the signature of Mr. Plantier,
Operations Supervisor, was actually drafted by a Resource Specialist, Mr. Regan. Id. at
23. Mr. Regan sent out the proposal after discussing it with Mr. Plantier's supervisor
because Mr. Plantier was unavailable. Id. Mr. Plantier became aware of the proposal
after it was sent and testified that he agreed with the content of the proposal after
reading it. Id. at 24.
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Mr. Cooke, through counsel, obtained an extension of time to respond to the
proposal until January 23, 2003, at which point Mr. Cooke did not respond. Id. at 3.
The SSA issued its decision to suspend Mr. Cooke on January 24, 2003. Id. at 4.
The Union filed a grievance on behalf of Mr. Cooke, which the SSA denied. Id.
The Union then invoked arbitration proceedings, in which the arbitrator upheld the
decision of the SSA to indefinitely suspend Mr. Cooke and dismissed his grievance. Id.
at 26. Mr. Cooke timely appealed to this court and seeks to reverse the indefinite
suspension and receive back pay because: (i) the SSA erroneously invoked the
statutory “crime provision”; (ii) the SSA violated his due process rights as a result of the
procedures used; and (iii) SSA did not properly consider the requisite Douglas factors in
reaching the decision to suspend.
DISCUSSION
This court reviews the decisions of arbitrators in grievances of federal employees
under the same standard of review that applies to decisions of the Merit Systems
Protection Board (Board). Giove v. Dep’t of Transp., 230 F.3d 1333, 1338 (Fed. Cir.
2000). Accordingly, this court must affirm the decision of the arbitrator unless it is
"(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (2000);
Giove, 230 F.3d at 1338.
I.
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Applicability of 5 U.S.C. § 7513(b)
Where an agency proposes an adverse action to be brought against an
employee, thirty days advance written notice must be given, “unless there is reasonable
cause to believe the employee has committed a crime for which a sentence of
imprisonment may be imposed, stating the specific reasons for the proposed action.”
5 U.S.C. § 7513(b)(1) (2000).
This court has stated:
In order . . . to sustain an indefinite suspension, the agency must establish
by a preponderance of the evidence that it had reasonable cause to
believe the employee committed a crime for which imprisonment may be
imposed. . . . [and] must prove that the suspension would promote the
efficiency of the service. 5 U.S.C. § 7513(a) (1988). To show that a
suspension promotes the efficiency of the service the agency must
establish a nexus between petitioner's alleged acts of misconduct and the
employee's job responsibilities.
Pararas-Carayannis v. Dep’t of Commerce, 9 F.3d 955, 957 (Fed. Cir. 1993) (footnotes
omitted). An agency may satisfy the nexus requirement by showing a loss of trust in the
employee characterized by use of government property to carry on illegal acts. See
Sanders v. United States Postal Serv., 801 F.2d 1328, 1332 (Fed. Cir. 1986).
Mr. Cooke argues that the arbitrator erred in finding that the SSA properly
invoked 5 U.S.C. § 7513(b)(1) (the crime provision) when it indefinitely suspended
Mr. Cooke with less than thirty days notice. Mr. Cooke asserts that the SSA improperly
relied on the criminal charges as a justification reason for his indefinite suspension
when the crime provision may only be used to truncate the notice period. In addition,
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Mr. Cooke challenges SSA’s reliance on the crime provision at all because it had
already completed its investigation.1
Contrary to Mr. Cooke’s assertion, this court has held that the criminal charges
may constitute the substantive basis for indefinite suspension without pay pending the
outcome of the criminal proceedings, as long as the agency also shows that “the nature
of the crime alleged relates to the employee's ability to perform his or her duties.”
Richardson v. United States Customs Serv., 47 F.3d 415, 419 (Fed. Cir. 1995); see also
Pararas-Carayannis, 9 F.3d at 957. In this case, the record shows that the criminal
charges stem from Mr. Cooke’s unauthorized use of SSA records during employment.
The record also shows that SSA supervisors testified that they had lost trust and
confidence in Mr. Cooke. These aspects of the record establish the required nexus
between the alleged criminal conduct and the employee’s job responsibilities.
Further, Mr. Cooke argues that the SSA did not act in a timely manner in
deciding to indefinitely suspend him, instead imposing the suspension after completion
of the administrative investigation. Contrary to Mr. Cooke’s contentions, indefinite
suspension is appropriate pending the outcome of the criminal investigation. See
Richardson, 47 F.3d at 419. Moreover, the SSA had not even begun an administrative
1 Mr. Cooke also argues that because imprisonment was not the likely result
of the charges brought against him, the crime provision should not have been invoked.
The statutory language, however, only requires the crime to be one for which
imprisonment “may be imposed.” 5 U.S.C. § 7513(b)(1) (2000) (emphasis added). The
charges brought against Mr. Cooke include imprisonment as a possible penalty. See
18 U.S.C. § 1030 (2000).
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investigation.2 The SSA suspended Mr. Cooke shortly after filing of the criminal
complaint. Thus, SSA properly invoked 5 U.S.C. § 7513(b)(1).
II. Due Process Inquiry
Mr. Cooke also argues that his right to procedural due process was violated
because: (i) the relevant agency officials had no discretion with regard to determining
whether suspension would be imposed; and (ii) the agency official who drafted and
issued the suspension proposal acted outside of his authority. Mr. Cooke argues that
the agency has an incorrect policy to impose indefinite suspension once criminal
charges are filed against an employee regardless of the merits of any response.
Further, Mr. Cooke points to the procedure for issuing the proposal to suspend in this
case, where an agency employee other than the proposing official sent out the proposal
to suspend.
As the Supreme Court has instructed:
[I]dentification of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private interest that will be
affected by the official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally, the
Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.
Matthews v. Eldridge, 424 U.S. 319, 335 (1976); see also Gilbert, 520 U.S. at 931-934
(applying Matthews factors to determine whether due process requirements were met
where Government employee was indefinitely suspended without pay).
2 The initial investigation, which led to the criminal complaint was conducted
by the Office of the Inspector General of the Social Security Administration ("SSA"), an
independent arm of the SSA. In the Matter of Arbitration Between New Jersey District
Office of the Social Security Administration and AGFE, Local Union 2369 Re: Joseph
Cooke, PH-2003-R-0010 (Nov. 8, 2003).
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At the outset, although Mr. Cooke’s interest is significant, this court has
repeatedly upheld temporary suspensions without pay. See, e.g., Engdahl, 900 F.2d at
1579; Dunnington v. Dep’t of Justice, 956 F.2d 1151 (Fed. Cir. 1992). More
importantly, the Government interest outweighs Mr. Cooke’s interest because of the
need to retain the trust of the public, whose social security records may be viewed and
changed by employees like Mr. Cooke. See Gilbert, 520 U.S. at 932 (upholding
suspension without pay of police officer accused of felony after determining that
government interest in preserving public confidence in police force was significant).
Nonetheless, “[o]ne thing the government must do [ ] is give employees it seeks
to suspend the opportunity to challenge the alleged nexus between the crime of which
they are accused and the efficiency of the government service.” Engdahl, 900 F.2d at
1577. Here, the record shows that SSA afforded Mr. Cooke this opportunity. In
response, Mr. Cooke merely challenged the denial of extensions of time to respond and
the likelihood that his conduct would receive a jail sentence. Cooke, slip op. at 3-4.
Contrary to Mr. Cooke’s assertion that the responsible agency officials had no real
discretion in determining whether to suspend, those officials determined properly that:
(i) Mr. Cooke was charged with a crime for which a jail sentence can be imposed; and
(ii) a nexus linked the charges to Mr. Cooke’s employment. Id. at 15-16.
Finally, Mr. Cooke argues that a major procedural error marred the issuance of
the proposal to suspend, namely the proposal issued before the responsible official
even read it. Although Mr. Plantier, as the responsible official, neither drafted nor sent
out the proposal, he testified that he later agreed with the content of the proposal. See
Cooke, slip op. at 24. This court was faced with a similar situation in Darnell v.
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Department of Transportation, Federal Aviation Administration, 807 F.2d 943 (Fed. Cir.
1986). In Darnell, petitioners challenged their removal on the basis that the agency
issued their removal notices before receipt of their written replies. Id. at 944-45. This
court determined that because their replies would not have had an effect on the
decision to remove, premature issuance of the removal decision constituted harmless
error. Id. at 946. That principle applies to this case as well. Although the proposal to
suspend issued prematurely, that procedural defect is harmless error. Thus, this court
detects no deprivation of procedural due process in this case.
III. Consideration of the Douglas Factors
Mr. Cooke further argues that SSA did not conduct a proper analysis of the
Douglas factors in imposing the penalty of indefinite suspension. See Douglas v.
Veterans Admin., 5 M.S.P.B. 313 (1981). This court has counseled that:
Determination of an appropriate penalty is a matter committed primarily to
the sound discretion of the employing agency. This court defers to an
agency's choice of penalty unless the penalty exceeds the range of
permissible punishment specified by statute or regulation, or unless the
penalty is so harsh and unconscionably disproportionate to the offense
that it amounts to an abuse of discretion.
Brook v. Corrado, 999 F.2d 523, 528 (Fed. Cir. 1993) (citations and internal quotations
omitted). Further, in reviewing an agency's decision "arbitrators must apply the same
substantive standards that the [Board] would apply if the matter had been appealed to
it." Id. As such, it is proper to consider the framework of Douglas, where the Board set
out several factors to be considered in determining whether the penalty imposed was
reasonable. Douglas, 5 M.S.P.B. at 332. These factors are not exhaustive, nor will
each factor be relevant in every case. Id. at 332-33.
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The record reflects that the agency considered several relevant factors in the
penalty determination, including the nature and seriousness of the offense, the effect of
the conduct on the supervisor's confidence in the employee, the impact on the
reputation of the agency, the adequacy of the notice given the employee about the
rules, and mitigating circumstances. Mr. Cooke contends that his employment at SSA
without problems for twenty-nine years deserved greater weight. However, the
arbitrator found that Mr. Cooke's supervisors determined that other factors, specifically
the seriousness of the offense and the effect on the agency's reputation, were the
overriding factors. Cooke, slip op. at 18. Accordingly, the arbitrator did not err in
determining that SSA considered the relevant factors and acted reasonably in imposing
a penalty of indefinite suspension.
Therefore, after review of the record, this court discerns no error in the
arbitrator’s decision to dismiss Mr. Cooke’s grievance. This court affirms.
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