Delille v. Internal Revenue Service

75 F. App'x 753

• Court: Court of Appeals for the Federal Circuit
• Decided: September 3, 2003
• Docket: No. 02-3182
• Status: Published

Opinion

ORDER

PROST, Circuit Judge.

Joseph DeLille moves for summary reversal and for a remand. DeLille states that the Internal Revenue Service consents.

The IRS imposed a 30-day suspension and a one-grade demotion on DeLille based a charge that DeLille deliberately and willfully made false and misleading statements on official IRS records. The dispute went to arbitration. The arbitrator determined that the IRS had not shown that DeLille had engaged in intentional falsification and misleading activity, the only alleged misconduct. Nevertheless, the arbitrator determined that DeLille negligently undertook certain unauthorized actions. Based on his finding that DeLiile had acted negligently, the arbitrator reduced the 30-day suspension to a one-day suspension and rescinded the one-grade demotion.

DeLiile argues that the arbitrator improperly imposed a one-day suspension because the arbitrator rejected the agency’s only charge of misconduct against DeLiile. The IRS agrees that the arbitrator’s decision cannot be sustained.

We agree that the arbitrator’s decision should be reversed. See, e.g., Mattson v. Treasury, 86 F.3d 211 (Fed.Cir.1996) (reversing Merit Systems Protection Board decision sustaining demotion where agency did not prove charge against employee by preponderance of evidence); Burroughs v. Army, 918 F.2d 170 (Fed.Cir.1990) (determining that Merit Systems Protection Board erred in imposing penalty on petitioner based on finding that agency had proved only portion of one charge).

Accordingly,

IT IS ORDERED THAT:

(1) DeLille’s motion for summary reversal is granted. The arbitrator’s January 11, 2002 opinion and award is reversed.

(2) DeLille’s motion for a remand is denied.