                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT


                               ___________________

                               No. 98-60232
                            (Summary Calendar)
                           ____________________



HILLARY C. PERDUE,

                                                                 Petitioner,

                                     versus


FEDERAL AVIATION
ADMINISTRATION,

                                                                 Respondent.


                           _____________________

                   On Petition For Review of An Order
                 of the Federal Aviation Administration
                       Northern District of Texas
                            (GFT-SW-98-HR-02)
                          _____________________

                                February 3, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

         Hillary C. Perdue (“Perdue”) petitions this court for review

of   a    decision   of   an    appeal   panel   of   the   Federal   Aviation

Administration (“FAA”) to demote Perdue by two grades because of




       Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
his ongoing refusal to pay the balance due on his government-issued

credit card after being reimbursed by the FAA.             Perdue argues that

the appeal panel’s decision to demote him was not supported by

substantial record evidence; that the FAA improperly retaliated

against him for filing a grievance; and that the FAA’s decisions to

suspend him twice, remove him, and ultimately demote him violate

the Double Jeopardy Clause of the Fifth Amendment.                       For the

following reasons, we conclude that Perdue’s claims are without

merit.

                                      I.

     Perdue was employed by the FAA for fifteen years and for the

time relevant to this dispute was an Aviation Drug Abatement

Program Specialist.       Because Perdue incurred traveling expenses

while on     government   business,    he   was   issued    a   United    States

Government American Express (“AMEX”) Card.           Perdue agreed to pay

all charges promptly upon receipt of his monthly AMEX bill, for

which he would be reimbursed by the government.

     Perdue argues that since December 1995, he had an ongoing

dispute with AMEX concerning alleged unauthorized charges totaling

$2,293.50.     Perdue admits that even though AMEX credited his

account in the amount of the disputed charges after canceling the

card, he withheld all payment to AMEX as a means of protesting

AMEX’s handling of his dispute. Despite Perdue’s agreement to

promptly pay AMEX for government travel expenses, Perdue refused to

pay an outstanding balance of $3,218.66, which represented only

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charges incurred during official government travel and for which he

had been fully reimbursed by the FAA.

     In early 1997, in connection with an FAA inquiry to determine

whether   Perdue   and    several    other     FAA   employees    were   using

government property for personal purposes, the FAA confiscated

Perdue’s computer hard drive.            In response to this action, on

February 28, 1997, Perdue filed a grievance with Diane J. Wood,

acting manager of the FAA’s Drug Abatement Division, complaining of

the “Gestapo-like tactics” of the FAA agents.

     On March 14, 1997, the FAA informed Perdue of a proposed five-

day suspension because of his refusal to pay the AMEX credit card

debt after he had been reimbursed by the government.                     Perdue

responded that he would not satisfy the debt “until such time as

[he] deem[ed] appropriate.”         On April 10, 1997, the FAA advised

Perdue that he was being suspended for five days for refusal to pay

his credit card debt.      Perdue did not respond nor did he pay the

amount owed.   On May 30, 1997, the FAA notified Perdue that he had

until June 9, 1997 to furnish documentation of a payment plan to

eliminate this debt.      When Perdue failed to respond, on June 11,

1997, an employee of the FAA Compliance and Enforcement Branch

called Perdue to determine whether he intended to respond to the

May 30, 1997 memorandum, and Perdue told her that he would take

care of the matter when he felt “it [was] right.”

     On July 3, 1997, the FAA notified Perdue of a second proposed

ten-day   suspension     for   failure    to   satisfy   this   indebtedness.

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Perdue responded, “I will resolve this issue with American Express

when I am ready.        All your bully-boy, reprisal, and attempted

intimidation tactics will not cause my [sic] to expedite paying

American Express.”      On July 28, 1997, the FAA advised Perdue that

he was being suspended for ten days for failing to pay his debt,

and that “failure to promptly liquidate this indebtedness may

result in an additional disciplinary measure.”            Perdue did not

respond to this notice.      On September 11, 1997, the FAA notified

Perdue of his proposed removal from his position for failure to pay

his AMEX account. Perdue responded by letter on September 25, 1997

stating that he had paid the AMEX debt, and that he was sorry for

the “embarrassment that [he] had caused the Federal Service,” that

he had “allowed [his] pride to overrule [his] good judgment” and

that he had “no one to blame but [himself].”       On October 23, 1997,

the FAA notified Perdue that he was removed from his position.

       On October 30, 1997, Perdue timely filed a written request for

relief under the FAA Personnel Management System’s “Guaranteed Fair

Treatment” Appeals Procedure.           In accordance with the appeals

procedure, the FAA impaneled a tripartite appeal panel.          After a

hearing at which evidence was presented and closing arguments were

made, a majority of the panel concluded that because Perdue had

paid the AMEX debt before the decision to remove him was made,

there was an insufficient basis for a removal action.          The panel

also   decided   that   although   removal   was   “too   severe,”   “some

significant level of discipline for [Perdue’s] behavior [was]

                                    4
appropriate.”      The panel found that Perdue was a long-term federal

employee with an unblemished record, except for his failure to pay

the AMEX debt, and that this was an isolated transaction, albeit in

“extremely poor judgment.”               Therefore, the panel mitigated the

FAA’s decision to remove Perdue by reinstating him two grades below

his previous position and denying him back pay.                             Perdue seeks

review in this court of the FAA’s decision pursuant to 49 U.S.C. §

46110(a).

                                          II.

       The    appeal   panel’s     findings          of    fact,    “if     supported   by

substantial evidence, are conclusive.”                    49 U.S.C. § 46110(c); see

King v. NTSB, 766 F.2d 200, 203 (5th Cir. 1985).                                 Under the

substantial evidence test, this court must determine whether “‘the

agency . . . could fairly and reasonably find the facts as it

did.’” Chritton v. NTSB, 888 F.2d 854, 856 (D.C. Cir. 1989)

(citation      omitted).      “‘As       an       appellate       court    reviewing    an

administrative      order,    it    is    not        [this    Court’s]       function   to

reevaluate the weight of the evidence or to reexamine credibility

choices made by the finder of fact.’”                     King, 766 F.2d at 203.        In

reviewing      nonfactual    matters,             this    court    should    follow     the

standards of the Administrative Procedures Act (“APA”), 5 U.S.C. §

706.    See Public Citizen, Inc. v. FAA, 988 F.2d 186, 196 (D.C. Cir.

1993).       Under APA’s the scope of review standard, “the reviewing

court    shall    decide    all    relevant         questions      of     law,   interpret


                                              5
constitutional and statutory provisions, and determine the meaning

or applicability of the terms of an agency action.”                  5 U.S.C. §

706.   This court shall set aside agency action that is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law.”   5 U.S.C. § 706(2)(A).

                                      III.

       Under the FAA’s Personnel Management System procedures for

handling disciplinary and removal actions, “[t]he panel . . . shall

have the authority to mitigate the penalty on cases involving

conduct.”    In determining the severity of the discipline pursuant

to these procedures, the panel must consider, inter alia, “the

nature and seriousness of the offense, and its relation to the

employee’s     duties,    position,     and      responsibilities,      including

whether the offense was intentional or technical or inadvertent, or

was committed maliciously or for gain, or was frequently committed.

. . .”    In this case, there was record evidence showing that for

more than eighteen months after receiving reimbursement from the

government, Perdue repeatedly refused to pay a debt that he was

obligated to pay.        Perdue, who was responsible for enforcing FAA

regulations, knew that removal was the penalty for a third offense

of “failure to pay Government contractor-issued credit card after

receiving    reimbursement,”      yet       despite    two   suspensions,     he

deliberately     withheld    payment        in   violation   of   FAA    policy.

Moreover, Perdue gained financially by accepting $3,218.66 in


                                        6
reimbursement from the government, but not paying this amount owed

to AMEX.   We conclude that there is substantial record evidence to

support the panel’s conclusion that “some significant level of

discipline for [Perdue’s] behavior is appropriate,” and to support

its decision to demote Perdue by two grades and deny him back pay.

     Addressing Perdue’s second claim, we find that Perdue has

presented no evidence supporting his allegation that the FAA’s

decision to issue him a notice of proposed suspension on March 14,

1997 was in retaliation for his having filed a grievance on

February 28, 1997.

     Finally, the FAA’s decisions to suspend Perdue twice, remove

him and ultimately demote him do not violate the Double Jeopardy

Clause of the Fifth Amendment.       It is well established that the

Double Jeopardy Clause protects only against the imposition of

multiple criminal punishments for the same offense.       Hudson v.

United States, 118 S. Ct. 488, 493 (1997) (citing Breed v. Jones,

421 U.S. 519, 528 (1975); Helvering v. Mitchell, 303 U.S. 391, 399

(1938)).

     For these reasons, we find no abuse of discretion in the FAA

appeal panel’s decision to demote Perdue two grades and deny him

back pay for failing to pay government-issued credit card expenses

after receiving reimbursement.    The February 25, 1998 Opinion and

Award of the Arbitrators is AFFIRMED.




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