Martin v. Dep't of Homeland Sec.

CLAY MARTIN, Petitioner v. DEPARTMENT OF HOMELAND SECURITY, Respondent

2020-1810

United States Court of Appeals for the Federal Circuit

May 5, 2021

NOTE: This disposition is nonprecedential.

Petition for review of an arbitrator's decision by Samuel Vitaro.

CLAY MARTIN, Macomb, MI, pro se.

RUSSELL JAMES UPTON, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JOHN V. COGHLAN, ROBERT EDWARD KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.

Before TARANTO, BRYSON, and CHEN, Circuit Judges.

PER CURIAM.

Clay Martin was removed from his position as a Deportation Officer with the United States Immigration and Customs Enforcement (ICE or Agency) in the Department of Homeland Security in October 2018, based on four charges: conduct unbecoming a law enforcement officer, unauthorized use of a government database, unauthorized use of an agency resource, and lack of candor. Mr. Martin and the American Federation of Government Employees, Local 46 (the Union) invoked arbitration following removal. An arbitrator affirmed the Agency's decision, finding that all four charges were supported by the evidence and the penalty of removal reasonable. S.A. 1-46. We affirm.

I

A

Mr. Martin began working for ICE in August 2008, and he eventually became a Deportation Officer, a GS-12 position, in the Detroit Field Office. S.A. 2. His removal stems from events that began on the evening of May 18, 2017, when Mr. Martin was off duty and driving in his personal vehicle in Macomb Township, Michigan, with his 10-year-old son. The prelude to the disputed aspects was Mr. Martin driving on a road when a car, driven by Donald Van-Zile III, merged into Mr. Martin's lane very closely in front of him. S.A. 2. According to a traffic-camera video, Mr. Van-Zile braked, and Mr. Martin braked behind Mr. Van-Zile's car. S.A. 2, 71. Mr. Van-Zile then turned right into an apartment complex and stopped his car in the driveway. S.A. 2, 71. Mr. Martin soon stopped behind Mr. Van-Zile's car, though he testified that he did not purposely follow Mr. Van-Zile into the driveway; instead, he asserted, his car slid into the driveway after he braked on the road. See S.A. 2, 244, 362-63.

According to Mr. Martin, Mr. Van-Zile immediately jumped out of his vehicle and ran toward Mr. Martin while yelling. Mr. Martin left his vehicle and confronted Mr. Van-Zile—in an attempt, in Mr. Martin's version, to protect himself and his son. See S.A. 3, 134, 244, 273-74. Then he escorted Mr. Van-Zile, without force, back to Mr. Van-Zile's car and ordered him to get in and turn off the engine. See S.A. 3, 193, 246, 339, 344. Mr. Van-Zile sat down in his driver's seat but refused to turn off the engine, and Mr. Martin reached into the vehicle through the open driver door to try to turn off the engine himself. S.A. 3, 344-45. But before the engine could be turned off, Mr. Van-Zile, again in Mr. Martin's version, accelerated his car, dragging Mr. Martin a few feet before he fell out of the vehicle through the still-open door. S.A. 3, 193, 346-48, 363-64, 371. Mr. Martin further recalled that he believed Mr. Van-Zile was intoxicated because he smelled alcohol. See S.A. 3, 193.

Mr. Van-Zile recalled the events somewhat differently, and the arbitrator credited his recollection. S.A. 3; see also S.A. 111-28, 199-218. According to Mr. Van-Zile, after he stopped his car in the driveway, Mr. Martin approached him. See S.A. 116, 202-05. While Mr. Van-Zile was opening the door to his car, Mr. Martin allegedly grabbed his arm and pushed him back into the vehicle. See S.A. 117-19, 202-05. Mr. Van-Zile claims that he then tried to get away from Mr. Martin but denies "dragging" Mr. Martin. See S.A. 209-11.

Mr. Martin then returned to his vehicle and called 911. S.A. 4, 78. Thereafter, Mr. Martin called his supervisor Ken Watson, as well as ICE attorney Tim McDonald. S.A. 4. According to Mr. Martin, Mr. McDonald instructed him to take steps to identify the other driver; Mr. Martin then logged into an agency database, Consolidated Lead Evaluation and Reporting (CLEAR), to "run" the license number on Mr. Van-Zile's car and obtain his home address. S.A. 5-6, 303-05. Mr. McDonald, however, denied authorizing Mr. Martin to use government resources to gather information about Mr. Van-Zile. See S.A. 5 n.3, 233-37.

Deputies Nicholas Macioce and Anthony Szalkowski of the Macomb County Sheriff's Office then arrived on the scene. S.A. 6. On recordings from their body cameras, Mr. Martin can be heard telling them, in his account of the preceding events, that he "grabbed" Mr. Van-Zile by the arm, took him back to Mr. Van-Zile's vehicle, and told him to sit down and shut his engine off; that he asked for Mr. Van-Zile's identification; and that he believed Mr. Van-Zile was intoxicated. See S.A. 6, 89-90. In his interaction with the deputies, Mr. Martin grew upset with Deputy Macioce, partly due to a previous incident between the two, involving Mr. Martin's stepdaughter. See S.A. 7. Mr. Martin also had some conflict with Deputy Szalkowski, who advised Mr. Martin several times to return to his vehicle, which he refused to do. S.A. 7, 152-54.

On the following day, Mr. Martin accessed the National Criminal Information Center (NCIC) database, which required him to first log into the Agency's Treasury Enforcement Communication System (TECS), to conduct a record inquiry for Mr. Van-Zile. S.A. 8-9, 590. Both databases are for official use only. See S.A. 9.

In September 2017, Mr. Martin submitted a complaint to the Malcomb County Sheriff's Office regarding the police report that Deputy Macioce prepared about the events of May 18, 2017. S.A. 219-22; see also S.A. 188-92 (police report). In his complaint, Mr. Martin disputed the facts listed in the police report and noted that some of his actions on May 18, i.e., running Mr. Van-Zile's license plate and speaking with Mr. Van-Zile's spouse, were in service of the "federal investigation" into Mr. Van-Zile "that was underway." S.A. 219-20.

B

On June 1, 2017, the Deputy Field Office Director for the Detroit Field Office of ICE reported Mr. Martin's May 18 incident to the Agency's Joint Intake Center. S.A. 196-97. The Agency's Office of Professional Responsibility then investigated. S.A. 11. After the investigation, which included an interview of Mr. Martin in January 2018, the Deputy Field Office Director proposed removing Mr. Martin based on four charges: conduct unbecoming a law enforcement officer, unauthorized use of a government database, unauthorized use of an agency resource, and lack of candor. S.A. 609-19 (Notice of Proposed Removal). On October 16, 2018, the Field Office Director, Rebecca Adducci, sustained all the charges and underlying specifications and decided on removal as the penalty. S.A. 47-64.

The Union invoked arbitration, and a hearing was held on June 11, 2019, during which both Mr. Martin and Ms. Adducci testified in person. S.A. 17, 69. Written closing arguments were submitted on August 12, 2019. S.A. 1.

On February 23, 2020, the arbitrator issued his opinion, sustaining all four charges for removal but finding that not all underlying specifications were proven by a preponderance of the evidence. S.A. 1, 19-36. The arbitrator also upheld removal as a reasonable penalty to promote the efficiency of the service. S.A. 36-44.

Mr. Martin timely appealed. We have jurisdiction under 5 U.S.C. §§ 7703(b)(1)(A) and 7121(f).

II

A federal employee may challenge disciplinary action taken by an employer by appealing to the Merit Systems Protection Board or by seeking arbitration under a grievance procedure established by a collective bargaining agreement. See 5 U.S.C. § 7121(e)(1). Here, Mr. Martin invoked arbitration. We review the arbitrator's decision "under 5 U.S.C. § 7121(f) using the same standard of review that applies to appeals from decisions of the [Board]." Buffkin v. Dep't of Defense, 957 F.3d 1327, 1329 (Fed. Cir. 2020).

Thus, we must uphold the arbitrator's decision unless we conclude it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," was "obtained without procedures required by law, rule, or regulation having been followed," or is "unsupported by substantial evidence." 5 U.S.C. § 7703(c); see also Buffkin, 957 F.3d at 1329-30. On factual questions, we do not "substitute our judgment for that of the [arbitrator]," Whitmore v. Dep't of Labor, 680 F.3d 1353, 1366 (Fed. Cir. 2012), but ask only if, on all the evidence, the arbitrator's findings were reasonable, even if contrary findings might also have been reasonable, see Jones v. Dep't of Health & Hum. Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016).

A

As an initial matter, Mr. Martin argues that the arbitrator's decision was untimely for failure to comply with the deadlines listed in the collective bargaining agreement that governs the arbitration. Martin Opening Br. at 2-3. The agreement outlines an "expedited procedure" in matters involving removal, in which "the parties have agreed to ask the arbitrator to adhere to the following time lines": "Arbitrators are to render a decision within fifteen (15) workdays of closing of the record. The record will be considered closed upon receipt of briefs, receipt of transcript, or completion of hearing whichever is later." Pet. Appx. 70. Mr. Martin argues that the deadline for the arbitrator to render his decision was September 3, 2019, 15 workdays after the submission of written closing arguments on August 12, 2019. Martin Opening Br. at 2-3. But the collective bargaining agreement does not set a firm deadline; it simply "ask[s] the arbitrator to adhere" to a "time line[]." Pet. Appx. 70. When an agreement "specifies no consequence for failure to observe" a deadline, it is "merely a housekeeping rule" that is not binding on the parties. Muller v. Gov't Printing Off., 809 F.3d 1375, 1382 (Fed. Cir. 2016).

B

To prove Charge 1 (conduct unbecoming a law...