Raymond L. McClaskey v. United States Department of Energy

720 F.2d 583 Raymond L. McCLASKEY, Petitioner, v. UNITED STATES DEPARTMENT OF ENERGY, Respondent. No. 82-7528. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 4, 1983. Decided Oct. 18, 1983. William W. Kinsey, Portland, Or., for respondent. D. Richard Hammersley, Portland, Or., for petitioner. Petition for Review of Order of the Merit Systems Protection Board. Before GOODWIN, WALLACE and REINHARDT, Circuit Judges. WALLACE, Circuit Judge: 1 McClaskey appeals from an order of the Merit Systems Protection Board (board) affirming his discharge by the Bonneville Power Administration (agency) for "knowingly participating in a plan to prevent Government investigators from learning the truth about the unauthorized acquisition and use of wire paid for by the Bonneville Power Administration." McClaskey contends that the penalty of dismissal constituted excessive punishment, that the board failed to follow its own precedent in upholding the dismissal, and that his dismissal did not promote the efficiency of the service. We affirm. 2 * McClaskey was an agency electrician with fourteen years of service and no disciplinary record. Two of McClaskey's co-employees, Lapp…

McClaskey appeals from an order of the Merit Systems Protection Board (board) affirming his discharge by the Bonneville Power Administration (agency) for “knowingly participating in a plan to prevent Government investigators from learning the truth about the unauthorized acquisition and use of wire paid for by the Bonneville Power Administration.” McClaskey contends that the penalty of dismissal constituted excessive punishment, that the board failed to follow its own precedent in upholding the dismissal, and that his dismissal did not promote the efficiency of the service. We affirm.

I

McClaskey was an agency electrician with fourteen years of service and no disciplinary record. Two of McClaskey’s co-employees, Lapp and Rhew, unlawfully used agency purchase documents to acquire wire for their personal use. The value of the wire was later estimated to be $418. Upon discovering this fraudulent use of its doeuments, the agency commenced an investigation. When Lapp and Rhew learned of it, they met with McClaskey to discuss ways to prevent the agency from discovering the theft The three employ¿es agreed to buy wire from a local electrical store to replace the stolen wire. McClaskey…

dissenting:

When reviewing a penalty imposed by the Merit Systems Protection Board, it is our statutory responsibility to determine whether the sanction is so harsh or disproportionate as to constitute an abuse of discretion, 5 U.S.C. § 7703 (c) Supp. V 1981, whether the Board failed to follow its own principles and precedents, and whether there is substantial evidence to support the conclusion that the penalty promotes the efficiency of the government agency involved, 5 U.S.C. § 7513 Supp. V 1981. By routinely deferring to the conclusory findings of the Board, the majority has, in my opinion, ignored its responsibility and affirmed the imposition of an arbitrary and irrational penalty. Moreover, it has also ignored the failure of the Board to follow its own principles, and has erred in finding substantial evidence that the penalty promotes the efficiency of the service. I therefore respectfully dissent.

I.

How the facts in a particular case appear is often dependent on how the author of an opinion chooses to characterize them. That is certainly the case here. Although the majority opinion accurately sets forth certain historical occurrences, the picture that emerges of Raymond…