                       NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit
                                       2008-3290

                                 JOSEPH V. ARRIETA,

                                                     Petitioner,

                                            v.

                      DEPARTMENT OF HOMELAND SECURITY,

                                                     Respondent.


        Morris E. Fischer, Law Office of Morris E. Fischer, of Bethesda, Maryland, for
petitioner.

       Maame A.F. Ewusi-Mensah, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
her on the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Harold D. Lester, Jr., Assistant Director. Of counsel on the brief
was Frances Silva Ross, Associate Legal Advisor, Office of the Principal Legal Advisor,
Immigration and Customs Enforcement, Department of Homeland Security, of Washington,
DC.

Appealed from; Arbitrator’s Decision
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2008-3290


                                 JOSEPH V. ARRIETA,


                                                        Petitioner,

                                            v.

                     DEPARTMENT OF HOMELAND SECURITY,

                                                        Respondent.



                    Petition for review of an arbitrator’s decision
                    by John M. Donoghue.


                           __________________________

                               DECIDED: July 7, 2009
                           __________________________



Before MICHEL, Chief Judge, LINN, Circuit Judge, and ST. EVE, * District Judge.

ST. EVE, District Judge.

      Petitioner Joseph V. Arrieta challenges an arbitrator’s final decision that affirmed

his removal from the position of Deportation Officer by Respondent Department of



      *
              The Honorable Amy J. St. Eve, District Judge, United States District Court
for the Northern District of Illinois, sitting by designation.
Homeland Security, Immigration and Customs Enforcement (the “Agency”). Because

the arbitrator’s decision is supported by substantial evidence, we affirm.

                                 I.     BACKGROUND

       Mr. Arrieta commenced working for the Agency, then the Immigration and

Naturalization Service, in 1991. Until his removal from service, effective December 7,

2007, he served in various Law Enforcement Officer (“LEO”) positions, including that of

a Supervisory Immigration Enforcement Agent (“SIEA”), and beginning in 2006, a

Deportation Officer.

       On May 29, 2005, police officers from the Fairfax County, Virginia Police

Department (“FCPD”) responded to the scene of a machete attack that occurred at a

home adjacent to the home of Mr. Arrieta’s girlfriend, Gloria Rodriguez.       The FCPD

suspected the involvement of Gloria Rodriguez’s son, Cesar Rodriguez, who was

known by the FCPD to be a member of one of Northern Virginia’s largest gangs, MS-13.

When FCPD Officer Albert Cruz arrived at the Rodriguez home in search of Cesar

Rodriguez, Officer Cruz found Mr. Arrieta, who identified himself as a federal LEO and

told Officer Cruz that he was armed. Officer Cruz told Mr. Arrieta of the machete attack

at the home next door and asked to speak with Mr. Rodriguez. Mr. Arrieta told Officer

Cruz that Mr. Rodriguez had left with his mother and was not at home.

       Mr. Arrieta’s subsequent sworn statement reveals that although he did not

witness the machete attack, he had been inside the Rodriguez home when the machete

attack occurred and had heard a faint scream in the distance.           Mr. Arrieta further

stated that a “couple” of minutes after he heard the scream, Mr. Rodriguez knocked on

his mother’s bedroom door and asked Ms. Rodriguez to step outside the room. The two


2008-3290                                   2
subsequently left. Sometime later, Officer Cruz arrived at the home and spoke to Mr.

Arrieta. Mr. Arrieta did not tell Officer Cruz about the faint scream, however, or provide

any additional information.

       Shortly thereafter, Ms. Rodriguez returned home, and Mr. Arrieta informed her

that the police were looking for her son.    According to Mr. Arrieta’s sworn statement,

Officer Cruz “gave us his business card and told us to tell Cesar to call him as soon as

possible.” Mr. Arrieta and Ms. Rodriguez were standing together at the time, but Mr.

Arrieta later testified at the arbitration hearing, in conflict with his previous statement,

that Officer Cruz spoke directly to Ms. Rodriguez and not to Mr. Arrieta. When Mr.

Rodriguez returned home later that evening, Mr. Arrieta and Ms. Rodriguez gave him

Officer Cruz’s business card and told him to call Officer Cruz. Mr. Arrieta testified that

Mr. Rodriguez went into another room to make the call but when he tried, no one

answered the phone.      Mr. Arrieta, however, made no effort to contact Officer Cruz to

notify him of Mr. Rodriguez’s return.

       A few days later, on June 2, 2005, the FCPD executed a search warrant at the

Rodriguez home. When the FCPD arrived, an unmarked police car assigned to Mr.

Arrieta was parked in the driveway of the home, but no one was home. As FCPD

performed the search, Mr. Arrieta and Ms. Rodriguez both returned to the home. Mr.

Arrieta translated into Spanish as the FCPD questioned Ms. Rodriguez on the

whereabouts of her son.       Although Ms. Rodriguez was evasive at first, Mr. Arrieta

encouraged her to reveal the location of the company where Mr. Rodriguez worked.

The FCPD arrested Mr. Rodriguez later that day. Mr. Rodriguez was subsequently

convicted and sentenced to six years in prison for charges related to his gang activities.



2008-3290                                    3
       While still at the Rodriguez household on June 2, 2005, one of the FCPD officers,

an experienced member of the Northern Virginia Gang Task Force, expressed his

concern to Mr. Arrieta at seeing an Agency LEO, who had access to gang files, at Mr.

Rodriguez’s home. The next day, the FCPD reported the incident to the Agency. The

Agency’s Office of the Inspector General (“OIG”) opened an investigation that included,

among other things, placing a GPS tag on Mr. Arrieta’s car. Contrary to Mr. Arrieta’s

claim that he visited the Rodriguez home only a few times, the GPS tag revealed that

Mr. Arrieta visited the Rodriguez home no fewer than twenty times in the three to four

months following the start of the investigation.

       The OIG investigation concluded that Mr. Arrieta had engaged in misconduct.

Specifically, the Agency charged Mr. Arrieta with: (1) conduct unbecoming a LEO; (2)

inappropriate association with an individual suspected of criminal conduct; (3) lack of

candor; (4) unauthorized disclosure of sensitive government information; and (5) use of

an immigration database for other than official purposes. The events of May 29, 2005

and June 2, 2005 gave rise to the first charge—the Agency found that Mr. Arrieta failed

to contact the FCPD upon Mr. Rodriguez’s return home on May 29 and that Mr. Arrieta

exercised poor judgment in failing to notify his Agency supervisors of his interaction with

the FCPD on both days. 1


       1
              The Agency’s Guidance to Offenses and Penalties prohibits, among other
things, Paragraph H(9), “[k]nowingly and inappropriately associating with…persons
connected with criminal activities”; Paragraph F(1), “failing to provide honest and
complete information or displaying [a] lack of candor in any official inquiry or
proceeding”; and Paragraph H(6), “using government property…for other than official
purposes,” which includes “querying confidential or sensitive databases for other than
official purposes.” The Agency’s proposal to remove Mr. Arrieta also references
Paragraph H(31) as prohibiting the unauthorized disclosure of sensitive government
information, but H(31) is not included in the table provided in the joint appendix.


2008-3290                                    4
       The remaining charges arise from facts uncovered during the Agency’s

subsequent investigation. As to the second charge—inappropriate association with an

individual suspected of criminal conduct—the Agency found that Mr. Arrieta continued

to associate with Mr. Rodriguez, including driving Ms. Rodriguez to visit him in prison

and, at one point, offering words of encouragement during a phone conversation. Mr.

Arrieta also admitted that he delivered a payment to Mr. Rodriguez’s attorney because

the attorney’s office was close to his own.    As to the fourth charge, unauthorized

disclosure, Mr. Arrieta admitted discussing certain Agency operations, including

upcoming MS-13 raids, with Ms. Rodriguez.         Mr. Arrieta’s conflicting statements

regarding what he discussed with Ms. Rodriguez formed the basis for the third charge—

lack of candor. Finally, Mr. Arrieta admitted to the fifth charge, specifically that he

queried Ms. Rodriguez’s record in the Agency’s Central Index System (“CIS”) for other

than official purposes.

       The arbitrator concluded that the Agency’s removal was justified as to each of

the charges, and this appeal followed.

                                 II.     DISCUSSION

       This court’s review of an arbitrator’s decision is narrow. The court reviews the

arbitrator’s decision under the same standard that applies to a decision of the Merit

Systems Protection Board. Giove v. Dep’t of Transp., 230 F.3d 1333, 1338 (Fed. Cir.

Regardless, the Agency’s introduction specifically notes that the guide “does not cover
the entire range of possible offenses…[and] [o]ffenses not covered in the guide can be
separately identified and may become a basis for disciplinary or adverse action.” In
addition, the accompanying memorandum states that the guide “provides guidance” and
that “[a]s members of a federal law enforcement agency and the Department of
Homeland Security, we have a special responsibility to demonstrate the highest level of
integrity to the public that we serve and protect on a daily basis.”


2008-3290                                  5
2000); see also James v. Dale, 355 F.3d 1375, 1378 (Fed. Cir. 2004). Consequently,

the court must affirm an arbitrator’s decision unless it is: (1) arbitrary or capricious, an

abuse of discretion, or otherwise not in accordance with law; (2) obtained without

procedure required by law, rule, or regulation having been followed; or (3) unsupported

by substantial evidence. 5 U.S.C. § 7703(c) (2000); James, 355 F.3d at 1378–79;

Giove, 230 F.3d at 1338; Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

Substantial evidence means such “relevant evidence that a reasonable person,

considering the record as a whole, might accept as adequate to support a conclusion

even though other reasonable persons might disagree,’” and is “‘a lower standard of

proof than preponderance of the evidence.’” Giove, 230 F.3d at 1338 (quoting 5 C.F.R.

§ 1201.56(c)(1)).

       An agency may remove an employee only “for such cause as will promote the

efficiency of the service.” James, 355 F.3d at 1378 (quoting 5 U.S.C. § 7513(a) (2000)).

To support its decision to discharge an employee, an agency must establish by

preponderance of the evidence (1) that misconduct occurred; (2) that a nexus exists

between the misconduct and the efficiency of the service; and (3) that the agency

imposed a reasonable penalty. James, 355 F.3d at 1378–79; Brown v. Dep't of Navy,

229 F.3d 1356, 1358 (Fed. Cir. 2000); Lachance v. Devall, 178 F.3d 1246, 1251 (Fed.

Cir. 1999).

       Mr. Arrieta has never disputed that he committed the offense described in charge

5––accessing the Agency’s CIS database to query Ms. Rodriguez’s immigration status.

Instead, he contends that the punishment for this infraction was too harsh and that the

remaining charges were not supported by substantial evidence. In addition, he argues



2008-3290                                    6
that the arbitrator ignored the significance of Mr. Arrieta’s promotion during the pending

investigation, failed to analyze the reasonableness of the Agency’s penalty, and failed to

consider appropriate mitigating factors.

       As an initial matter, Mr. Arrieta challenges a number of the arbitrator’s findings

based on the arbitrator’s choice to credit the statements of other witnesses––or Mr.

Arrieta’s past statements––over his arbitration testimony.              Such “[c]redibility

determinations are within the discretion of the arbitrator,” however, and “are virtually

unreviewable on appeal.” Raney v. Fed. Bureau of Prisons, 222 F.3d 927, 939 (Fed.

Cir. 2000) (en banc) (citing Rogers v. Dep’t of Def. Dependents Sch., Germany Region,

814 F.2d 1549, 1553–54 (Fed. Cir. 1987)).          It is not for us to second-guess the

arbitrator’s assessment of the evidence. Hayes, 727 F.2d at 1537. Accordingly, the

arbitrator was entitled to credit the testimony of investigating agents––or even Mr.

Arrieta’s past sworn statements––over Mr. Arrieta’s hearing testimony.

       Mr. Arrieta also argues that his “casual” association with Mr. Rodriguez does not

provide a basis for termination.     The arbitrator, however, did not find credible Mr.

Arrieta’s testimony that he did not know of Mr. Rodriguez’s gang affiliation. Instead, the

arbitrator found that Mr. Arrieta knew of the gang affiliation as early as the May 29, 2005

incident, when Officer Cruz questioned him.        After that date, the relationship went

beyond mere association: “The relationship continued after D.O. Arrieta became aware

that [Mr. Rodriguez] was subject to very serious criminal charges” and included visiting

Mr. Rodriguez and even delivering a fee payment to his attorney.            As Mr. Arrieta

conceded, law enforcement officers are held to higher standards than other public

employees, and the arbitrator found that Mr. Arrieta’s behavior fell short of this standard:



2008-3290                                    7
       the essence of his job is law enforcement. He is a trained officer who has
       worked MS-13 cases. And while doing so, Mr. Arrieta has, in his private
       life, socially associated with at least one MS-13 gang member. When the
       two aspects of his life intersected, he chose loyalty to his social ties to the
       detriment of the efficiency of his law enforcement service. The nexus is
       clear, unmistakable and obvious to any reader of the facts.


       The arbitrator also rejected Mr. Arrieta’s claims that he had no obligation

to call Officer Cruz with Mr. Rodriguez’s whereabouts or even to inform his

Agency supervisors of the incident.        In particular, the arbitrator found this

argument to conflict with the policy goals of the agency:

       his own testimony reveals that D.O. Arrieta had no intention of being
       candid and direct with his supervisors. To the contrary, he maintains that
       unless regulations specifically require him to make reports in a certain
       way, or to certain people, he will persist in having no obligation to do so…
       [But] [t]he supervisors under which he works are entitled to full and candid
       disclosure of D.O. Arrieta’s observations while at work and his judgment of
       what those observations mean.


The arbitrator thus stated a rational basis for his decision, grounded in substantial

evidence—namely, Mr. Arrieta’s own testimony.

       Mr. Arrieta also contends that the arbitrator failed to give due consideration of the

factors enumerated in Douglas v. Veteran’s Admin., 5 MSPB 313, 5 M.S.P.R. 280

(MSPB 1981), when reviewing the Agency’s penalty. This court, however, does not

require an arbitrator to consider each and every one of the 12 Douglas factors

“mechanistically by [a] preordained formula.’” Farrell v. Dep’t of Interior, 314 F.3d 584,

593–94 (Fed. Cir. 2002) (quoting Webster v. Dep't of Army, 911 F.2d 679, 686 (Fed. Cir.

1990)). Although the arbitrator in this case did not organize his analysis by Douglas

factors, it is clear that the arbitrator considered and applied these factors. The arbitrator

found that Mr. Arrieta’s offenses went to the “essence of his job,” and that the violations


2008-3290                                    8
were serious enough to call into doubt whether Mr. Arrieta could “work within the

Agency and testify for the U.S. Attorney” as his job required. The arbitrator essentially

found that Mr. Arrieta’s violations undermined the Agency’s confidence in his ability to

exercise sound judgment.     Such concerns outweigh Mr. Arrieta’s history of service,

especially given Mr. Arrieta’s law enforcement position. The arbitrator’s discussion of

the Douglas factors was sufficient.

       Mr. Arrieta also urges that the arbitrator erred by failing to sufficiently consider

mitigating factors. Mr. Arrieta, for example, points out that the Agency promoted him to

Deportation Officer during the pendency of the investigation. The arbitrator considered

this promotion and noted that the promotion was an “unexplained lapse,” but did not

“constitute a waiver of its right to discipline” Mr. Arrieta for his inappropriate conduct.

Given that the OIG investigation did not conclude until well after Mr. Arrieta’s promotion,

this view does not constitute an arbitrary or capricious determination.

       Mr. Arrieta also relies on the range of penalties in the Agency’s Guide to

Offenses and Penalties to argue that removal was too harsh a punishment.               The

Agency, however, did not exceed the range of penalties listed in its table. For each

charge against Mr. Arrieta, the guide provides removal as a possible penalty for either a

second or third offense, and the lack of candor charge alone could warrant removal for

even a single offense. Given that the multiple charges against Mr. Arrieta represented

multiple offenses, and given that the Agency found its confidence in Mr. Arrieta’s

judgment to be compromised, the Agency had a supportable basis for exceeding the

guide’s proposed penalties. Regardless, the guide specifically provides that it “does not

cover the entire range of possible offenses…[and] [o]ffenses not covered in the guide



2008-3290                                   9
can be separately identified and may become a basis for disciplinary or adverse action.”

The court’s review of penalties imposed by agencies “is highly deferential, and requires

a showing that the penalty is grossly disproportionate to the offense charged.” Farrell,

314 F.3d at 593–94; (quoting Bieber v. Dep't of Army, 287 F.3d 1358, 1365 (Fed. Cir.

2002)).   Under this deferential standard, and in light of the substantial evidence of

misconduct, Mr. Arrieta has failed to show that removal was grossly disproportionate to

the offenses charged.

                                 III.   CONCLUSION

      For the reasons stated above, the court affirms the arbitrator’s decision.



                                        COSTS

      No costs.




2008-3290                                  10
