Doze v. Social Security Administration

56 F. App'x 924
Court of Appeals for the Federal Circuit·Decided February 13, 2003·No. No. 01-3262·Published

Opinion

PER CURIAM.

Petitioner Rita Doze (“Doze”) challenges an arbitration award sustaining her removal from federal service, No. LA 98-R-002 (April 23, 2001), contending that the Arbitrator “fail[ed] to take into account acting as an agent with criminal intent.” We affirm.

I

Effective July 10, 1997, Doze was removed for misconduct from her position as a claims representative employed by the Social Security Administration (“SSA” or “agency”). The SSA charged Doze with: 1) acting as an agent for a group of boarding home operators; 2) giving preferential treatment to a group of boarding home operators; and 3) failing to follow SSA procedures governing the handling of claims for benefits and claims-related matters. These charges were set out in a 46-page letter proposing Doze’s removal and were supported by more than 300 documents that were provided to Doze.

The American Federation of Government Employees (“AFGE” or “union”) filed a grievance against the SSA on Doze’s behalf, and the case was referred to arbitration pursuant to the parties’ collective bargaining agreement. Doze was rep[925] resented by an AFGE representative at the six-day arbitration proceeding. On April 23, 2001, the Arbitrator issued his Opinion and Award. The Arbitrator found that removal was proper and denied the grievance, concluding that Doze had “simply denied the first two charges,” and that the “[vjolumes of evidence, transcript and argument” generated during the arbitration provided ample evidence to support a finding of misconduct warranting Doze’s removal.

Doze timely sought review of the Arbitrator’s decision pursuant to 5 U.S.C. § 7121(f). In her informal brief, Doze contends that the Arbitrator erred by “fail[ing] to take into account [whether she] act[ed] as an agent with criminal intent.” In addition, Doze summarily denies the truth of several of the Arbitrator’s factual conclusions, and requests a reversal of the Arbitrator’s decision, reinstatement, an award of back pay, and her “name cleared of any wrongdoing.”

II

This court reviews the decisions of arbitrators in grievances affecting federal employees under the same standard of review that is applied in reviewing decisions of the Merit Systems Protection Board. See 5 U.S.C. § 7121(f); Cornelius v. Nutt, 472 U.S. 648, 656, 105 S.Ct. 2882, 86 L.Ed.2d 515 (1985); Frank v. Dep’t of Transp., 35 F.3d 1554, 1556 (Fed.Cir.1994). The standard applied is deferential, requiring this court to 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)(1)-(3); see also Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed.Cir. 1984).

In her two-page informal brief, pro se Petitioner Doze contends that the Arbitrator erred by “failing] to take into account [whether she] act[ed] as an agent with criminal intent.” In addition, Doze summarily denies the truth of several of the Arbitrator’s factual findings, stating: “I never got involved in any type of scheming. I never showed preferential treatment to the recipients or boarding home operators. Nor did I act as an agent for any boarding home operators.”

As pointed out in the SSA’s informal brief, as a technical matter, Doze has failed to carry her burden by failing to proffer anything more than conclusory denials or to direct this court to any basis in the record that would support her assertions of error. See Darwin Constr. Co. v. United States, 811 F.2d 593, 596 n.1 (Fed. Cir.1987). The SSA also notes that Doze apparently concedes that the Arbitrator applied the correct law. Accordingly, the SSA claims, Doze’s assertions on appeal are subject to summary rejection.

Despite these defects, we choose to read Doze’s pro se pleading liberally, and-in light of the arguments presented in the arbitration proceedings-conclude that Doze’s assertion that the Arbitrator failed to take into account whether she acted “as an agent with criminal intent” is an attempt to reassert a legal argument asserted by Doze’s union representative in the arbitration proceedings.

In the union’s written submission to the Arbitrator, it argued that under this court’s holding in King v. Nazelrod, the SSA had charged Doze with a criminal violation and was therefore required to prove each element of that violation by a preponderance of the evidence. 43 F.3d’ 663, 666 (Fed.Cir.1994) (holding that “[i]t would be unfair ... to permit the Agency to brand [an employee] a criminal without [926] requiring it to prove the elements commonly associated with the crime”). The union contended that the SSA’s first charge, that Doze “acted as an agent,” implicated the criminal violation defined in 18 U.S.C. § 205(a), thereby subjecting the SSA to the requirement set forth in King. The union further contended that the SSA had failed to demonstrate two elements of the crime of “acting as an agent” against the Government: criminal intent and the existence of a traditional agency relationship. Accordingly, the union asserted, charge one could not be lawfully sustained under this court’s precedents.

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Doze v. Social Security Administration, 56 F. App'x 924 (Fed. Cir. 2003).

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Related

Cornelius v. Nutt
472 U.S. 648 (Supreme Court, 1985)
Loyce E. Hayes v. Department of the Navy
727 F.2d 1535 (Federal Circuit, 1984)
Darwin Construction Co., Inc. v. United States
811 F.2d 593 (Federal Circuit, 1987)