                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               OCT 14 1999
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                      Clerk

 DANIEL A. PIPER,

          Petitioner,
 v.
                                                             No. 98-9515
 FEDERAL AVIATION
 ADMINISTRATION,

          Respondent.


                             ORDER AND JUDGMENT*


Before KELLY, Circuit Judge, BRISCOE, Circuit Judge, and McWILLIAMS, Senior
Circuit Judge.


      On August 21, 1997, H. Stanley McClain, Assistant Air Traffic Manager for the

Federal Aviation Administration (“FAA”) Air Route Traffic Control Center in Salt Lake

City, Utah, advised Daniel A. Piper by letter that within 30 days he proposed to demote

Piper from his position of Supervisory Air Traffic Control Specialist (“Area

Supervisor”), with a salary of $84,681.00 per annum, to the position of Air Traffic

Control Specialist, the salary for which was $73,697.00 per annum. The reason for the



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3
proposed demotion, according to McClain’s letter, was “conduct unbecoming a

supervisor/inappropriate behavior.” In that letter, McClain stated that Piper’s misconduct

was in connection with Piper’s report to his supervisor of his “suspicions” of sexual

harassment on the part of a fellow employee. On September 12, 1997, McClain, again by

letter, after reviewing Piper’s response to a prior proposed demotion which was later

withdrawn, demoted Piper to an Air Traffic Control Specialist at a salary of $75,803.00

per annum. (Piper had received an in-grade increase in the interim between August 21

and September 12.)

       Thereafter, Piper appealed his demotion through the FAA appeals procedure. The

FAA Appeals Panel consisted of three members, one of whom was a “partisan” appointed

by Piper, a second was a “partisan” appointed by the agency and the third was a so-called

“neutral” arbitrator selected jointly by Piper and the agency.

       The Appeals Panel thereafter conducted a four-day evidentiary hearing at which

Piper was represented by counsel. At that hearing Piper called 14 witnesses and the FAA

called 9. On February 23, 1998, the Appeals Panel made its award in a detailed 18-page

opinion, the gist of which was that Piper’s reported suspicions of misconduct by a fellow

employee were misleading and based on rumors that he did not verify or accurately

report, but, though his conduct warranted some disciplinary action, permanent demotion

was “too harsh.” Accordingly, the Appeals Panel restored Piper to his former position,

but denied him back pay for the five-month period between his administrative demotion


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and the issuance of the Appeals Panel decision, believing that this “temporary loss of his

supervisory position” was sufficient and appropriate disciplinary action. (The award of

the Appeals Panel constitutes the final order of the FAA. See Federal Aviation

Administration Personnel Management System, Chapter III § 5(m) (March 28, 1996)).

Pursuant to 49 U.S.C. § 46110, on April 23, 1998, Piper, through counsel, filed in this

court a petition to review portions of the award of the FAA Appeals Panel.

       On review, Piper, of course, does not challenge that part of the award by the

Appeals Panel that he be reinstated to his previous position with the FAA. However,

Piper does challenge that part of the award which, in effect, denied him back pay, i.e., pay

lost during the five-month period he was demoted from his previous, higher paying

position. As indicated, the Appeals Panel found that Piper’s conduct justified some

disciplinary action, which was the pay differential between his previous salary and the

salary he received for the lesser position he held for five months.

       Our review of the award of the Appeals Panel is a narrow one. 49 U.S.C. §

46110(c) provides as follows:

                     (c) Authority of court.–When the petition is
                     sent to the Secretary or Administrator, the court
                     has exclusive jurisdiction to affirm, amend,
                     modify, or set aside any part of the order and
                     may order the Secretary or Administrator to
                     conduct further proceedings. After reasonable
                     notice to the Secretary or Administrator, the
                     court may grant interim relief by staying the
                     order or taking other appropriate action when
                     good cause for its action exists. Findings of fact

                                            -3-
                     by the Secretary or Administrator, if supported
                     by substantial evidence, are conclusive. (Emphasis added).

       “Substantial evidence” is “such relevant evidence as a reasonable mind might

accept as adquate to support a conclusion.” Castellano v. Secretary of Health and Human

Services, 26 F.3d 1027, 1028 (10th Cir. 1994). In our review of the award here under

attack, we “neither reweigh the evidence nor substitute our judgment for that of the

agency.” Hinkle v. Apfel, 132 F.3d 1349, 1351 (10th Cir. 1997). An agency’s findings

and conclusions should be upheld unless they be “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). And the

“arbitrary and capricious” standard of review is a narrow one. Citizens to Preserve

Overton Park, Inc., v. Volpe, 401 U.S. 402, 416 (1971).

       Based on that standard of review, we are not inclined to disturb the Appeal Panel’s

determination that there was just cause for some sort of disciplinary action against Piper.

Nor are we inclined to disturb the Panel’s further determination that appropriate

disciplinary action would be the loss of the pay for the five-month period that Piper was,

in effect, “temporarily demoted.” To do so would inject this court into the fact finding




                                            -4-
field.1 Our study of the administrative record convinces us that the award of the Appeals

Panel was neither arbitrary nor capricious.

       In this court Piper also asks that we award him attorney’s fees to cover the cost of

his legal representation in the proceedings before the Appeals Panel, as well as

compensatory and consequential damages for his five-month demotion. Also, he asks

that we order that all references to such demotion be removed from his FAA files.

Although it is not entirely clear, it is doubtful that these matters were presented to the

Appeals Panel. It is certain, however, that none of these matters was mentioned in the

award of the Appeals Panel. And the present proceeding in this court is Piper’s petition

to review the award of the Appeals Panel. In such circumstances, we decline to consider

these additional matters which Piper seeks to raise.

       Award affirmed.

                                           ENTERED FOR THE COURT

                                           Robert H. McWilliams
                                           Senior Circuit Judge




       1
         The Appeals Panel Award stated that “[a]ll members of the Panel concurred in the
following Award.” Attached to Piper’s brief filed in this court was a statement, dated
October 27, 1998, from Thomas C. Bonacki, a member of the Appeals Panel who had
been selected by Piper, that though he agreed that Piper should be reinstated to his
previous position, he, unlike the other two members of the Panel, “supported the
awarding of back-pay and making Mr. Piper whole.” Thereafter, the FAA filed a motion
to strike Bonacki’s statement on the grounds that it was not a part of the administrative
record. Piper filed a response thereto. The motion to strike is now granted.

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