Roy Hursh v. General Services 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
04-3454
ROY HURSH,
Petitioner,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
__________________________
DECIDED: March 11, 2005
__________________________
Before MICHEL, Chief Judge, LOURIE, and PROST, Circuit Judges.
PER CURIAM.
Petitioner Roy Hursh (“Hursh”) seeks judicial review of an arbitration decision in
which the arbitrator reduced the General Service Agency’s (“GSA”) removal of Hursh to
a five and a half month suspension without pay. We affirm.
I. BACKGROUND
Hursh was removed from his position as an Information Technology Specialist in
the Federal Technology Service (“FTS”) on March 19, 2004. The removal was based
on one charge of improper contracting practices, with four specifications subsumed
under that charge, and one charge of misconduct that impairs job performance,
trustworthiness, or otherwise affects the ability of FTS to perform its mission.

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Hursh’s union, the American Federation of Government Employees, brought the
matter of his removal to arbitration against the General Services Administration (“GSA”).
The arbitrator held Hursh responsible for his conduct, but sustained only two of the
specifications: improper modification of contract, for using letters to change the contract
at issue without authority; and split procurements under 48 C.F.R. § 19.805-1(c), for
using two procurements close in time and for basically the same work in order to avoid
the competitive threshold of $3,000,000. The arbitrator rejected the remaining bases for
removing Hursh.
Pursuant to this split decision on the charges against him, the arbitrator reduced
Hursh’s penalty. Instead of removal, Hursh was given a suspension without pay from
the original removal date to the date of the arbitration decision, September 7, 2004.
II. DISCUSSION
Hursh seeks review of the arbitrator’s decision to sustain the improper
modification and split procurement specifications and to penalize him with a five and a
half month suspension without pay.
A. Standard of review
We review the decision of an arbitrator “in the same manner and on the same
basis as” we review decisions of the Merit Systems Protection Board. 5 U.S.C.
§ 7121(f) (2000). Under this standard, we set aside the arbitrator’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the
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).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
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adequate to support a conclusion.” Consol. Edison v. NLRB, 305 U.S. 197, 229 (1938).
In this case, we consider whether substantial evidence supports the arbitrator’s finding
that the GSA proved the two sustained specifications by a preponderance of the
evidence.
B. Arguments
Hursh alleges error in the arbitrator’s factual findings. Specifically, he contends
that the arbitrator sustained the split procurement specification on the basis that Hursh
was a contracting officer, which is false, and that the actual contracting officer had
already admitted to the splitting. With respect to improper modification, Hursh claims
that the arbitrator sustained the specification on the “non-fact” that Hursh actually
changed the scope of the contract.
Hursh further asserts that the arbitrator applied the wrong regulation on split
procurement and should have held that there were no restrictions on split procurement
pursuant to 48 C.F.R. § 19.804-6(b), which states, “The requirements of 19.805-1 do
not apply to individual orders that exceed the competitive threshold as long as the
original contract was competed.” Finally, he claims that the arbitrator violated 5 U.S.C.
7121(b)(2) and the applicable collective bargaining agreement by failing to decide the
matter within fifteen days after selection.
The Government cites testimony in the record that supports the challenged
specifications. The Government argues, further, that Hursh’s case does not qualify for
the § 19.804-6(b) split procurement exception because the original procurement was
not subject to competition.
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C. Analysis
As discussed below, substantial evidence supports the arbitrator’s decision on
liability for improper modification and split procurement. The resulting penalty was not
an abuse of discretion.
1. Improper Modification
The arbitrator had a substantial factual basis on which to sustain the specification
of improper modification. Hursh’s contention that he “did not change the scope of the
underlying contract, the delivery order, or the statement of work” is contravened by the
testimony of three witnesses. They indicated that Hursh signed technical direction
letters and contract line item numbers in order to procure architectural engineering and
construction services, even though agreement at issue and the associated statements
of work did not concern the construction of any buildings. This testimony constitutes
substantial evidence in support of the arbitrator’s decision on this issue.
2. Split Procurement
Hursh argues that the split procurement for which he was charged was actually
attributed to Senior Contracting Officer Ron Heald (“Heald”) at the arbitration hearing.
The arbitrator’s opinion tells otherwise. He found that Hursh knowingly participated in
the improper splitting along with Heald. This conclusion was supported by substantial
evidence in the record, including the testimony of Gary Casteel and Ed De Paoli. The
arbitrator found that these witnesses were wrong about some of the details, but their
testimony nonetheless credibly demonstrated Hursh’s knowing participation in the
restriction of competition.
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That Hursh was a Business Development Specialist, rather than a contracting
officer, does not immunize him from liability for split procurement. Hursh cites no
authority for the proposition that one must be a contracting officer to be charged with
split procurement. We see no error in the arbitrator’s conclusion that an employee
acting in concert with a contracting officer can be disciplined under the regulation
prohibiting split procurement.
We also do not accept Hursh’s assertion that his case falls under 48 C.F.R.
§ 19.804-6(b). This exception applies when “the original contract was competed.” 48
C.F.R. § 19.804-6(b) (2005). Hursh views the “original contract” as the original base
FAST Multiple Award contract, not the individual procurement he is accused of splitting.
It is not clear from the record that even this contract was competed. Regardless,
though, our review of the complete record of this arbitration has uncovered no evidence
that Hursh raised this argument prior to appeal. An appellate court need not consider
arguments that a party failed to raise during arbitration. See, e.g., Gunn v. Veterans
Admin. Med. Ctr., 892 F.2d 1036, 1039 (Fed. Cir. 1990). Without passing on the merits
of Hursh’s “original contract” argument, we hold that it has been waived.
3. Penalty
The arbitrator did not abuse his discretion in maintaining a suspension of
approximately five and a half months as Hursh’s penalty. After not sustaining two of the
specifications and one of the charges against Hursh and finding that he did not bear
primary responsibility for one of the two specifications that was sustained, the arbitrator
reasonably reduced Hursh’s penalty from removal to the aforementioned suspension. It
was not an abuse of discretion to decline to shorten the suspension further.
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That the collective bargaining agreement’s deadlines may not have been
complied with is also not a sufficient reason to modify Hursh’s penalty under the
circumstances of this case. Although Hursh’s ultimate suspension in this case was
commensurate with the time it took for the arbitrator to issue his opinion, Hursh has not
convinced us that the arbitrator would have based the penalty on “time served” if the
opinion had been issued sooner. The arbitrator could have determined that Hursh’s
suspension would end on September 7, 2004, regardless. Because, as noted above,
the five and a half month suspension was a permissible exercise of the arbitrator’s
discretion, we decline to overturn it.
For the reasons stated above, we affirm the decision of the arbitrator.
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