Office of Personnel Management v. Tim Dale, No. 01-0502 (Fed. Cir. January 26, 2004)

The Federal Circuit held that the agency's burden of proving a charge of associating with a known or suspected narcotics violator does not require proof that the narcotics violator was convicted, and that the standard of proof for determining if an individual is a suspected narcotics violator is the objective standard.

The Immigration and Naturalization Service removed a border patrol agent for "associating with a known or suspected narcotics law violator," in violation of the agency's Border Patrol Handbook and Officer's Handbook. An internal agency investigation found that a female residing with the agent had been arrested at the agent's residence on two separate occasions on warrants for possession of cocaine. Following both arrests, the agent posted bond for the female and she returned to the agent's residence. The female was indicted for felony cocaine possession but was never convicted.

In overturning the charge and reversing the removal, the arbitrator concluded that the agency had not proven its charge because whether the charge against the female was true or not, the agent believed the female at the time. Therefore, according to the arbitrator, the agent was not associating with a person suspected by him as a narcotics law violator. The arbitrator thus gave considerable weight to the agent's subjective belief that the female was not guilty of the charged crimes.

In its request for reconsideration, OPM argued that the arbitrator (1) erroneously applied a subjective standard of proof by relying upon the agent's belief in the female's innocence and (2) improperly substituted his own charge for the agency's by relying upon the lack of a conviction. The arbitrator denied OPM's request, responding that he had not applied a subjective standard since a reasonable person could have believed that the female was not a suspected narcotics law violator based on other facts of the case and reiterating the significance of the fact that the female was never convicted. As a result, OPM petitioned the Federal Circuit for review of the arbitrator's final decision.

The Federal Circuit agreed with OPM, finding that because the agency's charge was only that the female was a known or suspected (rather than convicted) narcotics law violator, the agency had only to prove by a preponderance of the evidence that the female was a suspected narcotics law violator: proof of a conviction was not required. The court also concluded that the proper objective test the arbitrator should have applied is: would a disinterested observer with knowledge of the essential facts known to or readily ascertainable by the employee reasonably conclude that the associate of the employee was a suspected law violator? (Cf. LaChance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).) Furthermore, the female's grand jury indictment and related arrests would lead a disinterested observer to conclude that the female was a suspected narcotics law violator. In the absence of this test, the arbitrator relied heavily on the employee's subjective belief in the female's innocence and did not view the situation from the viewpoint of a disinterested observer.

The Federal Circuit reversed the arbitrator's decision. A dissenting opinion was filed by Circuit Judge Newman.