In re Dale

125 F. App'x 991

• Court: Court of Appeals for the Federal Circuit
• Decided: February 10, 2005
• Docket: No. MISC. 781
• Status: Published

Opinions

ORDER

MAYER, Circuit Judge.

Tim Dale petitions for a writ of mandamus to require “the Bureau of Customs and Border Protection of the Department of Homeland Security ... to participate in [arbitration] on the issue of whether the penalty of termination was reasonable after this Court’s decision in James v. Dale, 355 F.3d 1375 (Fed.Cir.2004).”

The Immigration and Naturalization Service (INS) removed Dale from his position as a border patrol agent on the ground that he associated with a “known or suspected law violator” in violation of the Border Patrol Handbook. The arbitrator reversed INS’s removal decision. In Dale, we reversed, concluding that the arbitrator abused his discretion and applied the wrong standard in concluding that Dale had not associated with a suspected law violator. Id. at 1378-79. We concluded that “[t]he charged misconduct was proven by the agency,” and further opined:

Determining that the misconduct occurred is the first step; the agency still must prove that disciplining an employee for associating with a suspect narcotics law violator is “for such cause as will promote the efficiency of the service.” .... [The arbitrator] concluded, without support, “that the grievant’s removal from service fails to promote the efficiency of the service.”

Association between border patrol agents and suspected criminals, especially those suspected of felony drug offenses, undermine the public’s confidence in the agency’s ability to fulfill its mission.... [T]he nexus between the misconduct of Dale, an agent of the Border Patrol, and the efficiency of the Border Patrol is readily apparent; indeed it was spelled out in the Border Patrol Handbook.

Id. at 1379-80. Having found that the misconduct occurred and discipline was appropriate, we stated that “[t]he reasonableness of the penalty is not at issue in this appeal.”

The traditional use of the writ of mandamus in aid of appellate jurisdiction, see 28 U.S.C. § 1651(a), “has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). A party who seeks a writ bears the burden of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Disk Court for Southern Disk of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable.” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35,101 S.Ct. 188, 66 L.Ed.2d 193 (1980).

In seeking this court’s aid in forcing the agency to further litigate the penalty issue, Dale essentially takes issue with the court’s decision in Dale that reversed, but did not remand for further penalty proceedings. However, Dale petitioned for panel and en banc rehearing pursuant to Rules 35 and 40 of the Federal Rules of Appellate Procedure in Dale and brought this issue to the court’s attention in the combined petition. The petition was denied. Rules 35 and 40, not a mandamus petition, provide the mechanisms for a party to ask a panel or court to change its opinion. Thus, Dale has not shown entitlement to mandamus.

Accordingly,

IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.