                        NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2009-3043

                                  ANTHONY TORRES,

                                                             Petitioner,

                                            v.

                              DEPARTMENT OF JUSTICE,

                                                             Respondent.


        Aaron L. Martin, Martin & Kieklak Law Firm, of Fayetteville, Arkansas, argued for
petitioner.

       Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent. With her on the brief were Michael F. Hertz, Acting Assistant Attorney
General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. Of
counsel on the brief was Delaine Martin Hill, Assistant General Counsel, Federal
Bureau of Prisons, United States Department of Justice, of Washington, DC.

Arbitrator’s Decision
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2009-3043


                                 ANTHONY TORRES,

                                                              Petitioner,

                                           v.

                             DEPARTMENT OF JUSTICE,

                                                              Respondent.


                 Petition for review of an arbitrator’s decision in FMCS
                 No. 08-56247 by Harvey Shapiro.

                            _________________________

                            DECIDED: August 10, 2009
                            _________________________


Before NEWMAN, SCHALL, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge SCHALL.        Opinion concurring in part,
dissenting in part filed by Circuit Judge Dyk.

                                      DECISION

      Anthony Torres appeals the September 22, 2008 decision of Arbitrator Harvey A.

Shapiro (“Arbitrator”) that denied Mr. Torres’s grievance of the action of the Department

of Justice (“agency”) removing him from his position as a Correctional Officer with the

Federal Bureau of Prisons in Honolulu, Hawaii. Council of Prisons (AFL-CIO) v. Dep’t

of Justice, No. 08-56247 (Lab. Arb. Sept. 22, 2008) (Shapiro, Arb.) (“Arbitrator’s

Decision”). We reverse and remand.
                                       DISCUSSION

                                              I.

       Beginning in October of 2002, Mr. Torres was employed as a Correctional Officer

with the Federal Bureau of Prisons in Honolulu, Hawaii. On May 12, 2008, Mr. Torres

was removed from his position based upon the charge of “Use of an Illegal Substance.”

The “illegal substance” was the steroid Boldenone Undecylenate, also known as

“Equipoise” or “Nandrolone,” a Class III controlled substance.          21 U.S.C. § 812,

Schedule III(e).   It was undisputed that Mr. Torres, who at the relevant time was

involved in the “Ultimate Fighting Championship,” was, on five occasions, injected with

the steroid by his trainer to treat hand and shoulder injuries. Mr. Torres told the agency

that he believed the injections were some sort of cortisone, and that it was not until after

the fifth injection that his trainer told him that he had been administering a controlled

steroid. Mr. Torres said that at that point he fired the trainer.

       Pursuant to 5 U.S.C. § 7121 and Articles 31 and 32 of the Master Agreement

between the Federal Bureau of Prisons and the Council of Prison Locals (American

Federation of Government Employees), Mr. Torres grieved his removal. Following a

hearing, the Arbitrator denied Mr. Torres’s grievance, thereby sustaining the agency’s

action. Starting from the premise that it was undisputed that Mr. Torres had been

injected with a controlled substance, the Arbitrator referred to Mr. Torres’s “conduct and

poor judgment.” Continuing, the Arbitrator stated: “Although feelings of sympathy were

evoked for the Grievant since he apparently had no knowledge that steroids were being

administered, the [agency’s] zero tolerance policy must take precedence over these




2009-3043                                     2
feelings, especially for a law enforcement officer in a federal detention center.”

Arbitrator’s Decision, slip op. at 8.

       Mr. Torres has timely appealed the denial of his grievance. We have jurisdiction

over his appeal pursuant to 5 U.S.C. §§ 7121(f) and 7703.

                                           II.

       In an appeal from an Arbitrator’s decision we apply the same standard of review

as in the case of an appeal from a final decision of the Merit Systems Protection Board.

5 U.S.C. § 7121(f). That means that we must affirm the Arbitrator’s decision unless we

find it to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C.

§ 7703(c)

       Before the Arbitrator, the agency was required to establish that (1) the charged

conduct occurred, (2) a nexus existed between the conduct and the efficiency of

service, and (3) the penalty imposed was reasonable. Pope v. U.S. Postal Serv., 114

F.3d 1144, 1147 (Fed. Cir. 1997). On appeal, Mr. Torres argues that the Arbitrator’s

decision is flawed because the agency did not meet its burden of establishing a nexus

between the misconduct and the efficiency of the service.

       “[O]ff duty misconduct has been held sufficient to justify an employee’s removal

where that misconduct was found to be inconsistent with the mission of the employing

agency.” Brown v. Dep’t of Navy, 229 F.3d 1356, 1361 (Fed. Cir. 2000). Mr. Torres

contends, however, that his steroid use cannot be inconsistent with the mission of the

agency because his conduct was not criminal, either under Federal or Hawaii state law.




2009-3043                                  3
Section 844 of title 21 of the U.S. Code makes it a crime to “knowingly or intentionally . .

. possess a controlled substance,” and the relevant provisions of the Hawaii Revised

Statutes, H.R.S. §§ 712-1246 and 712-1246.5, similarly require knowledge. Because

the Arbitrator specifically found that Mr. Torres did not know he was injected with a

controlled steroid, Mr. Torres argues that he did not commit an illegal act, the conduct

with which he was charged.

       The government responds that, in certain cases, illegal drug sales or use can be

sufficiently egregious to warrant a presumption of nexus. See, e.g., Strothers v. United

States, 618 F.2d 121 (Ct. Cl. 1979) (heroin sale); Masino v. United States, 589 F.2d

1048, 1056–57 (Ct. Cl. 1978) (off-duty marijuana use). Further, the government urges

there can be no doubt that the use of illegal steroids negatively impacts the mission of a

law enforcement facility like a prison. The government points to the agency’s Drug-Free

Workplace policy, which states that “[a]ny illegal drug use, or abuse of legal drugs by

bureau employees, has an adverse impact on the accomplishment of the Bureau’s law

enforcement mission and will not be tolerated.”         The government also points to

statements by the warden of the facility where Mr. Torres was employed. According to

the government, those statements indicate that the warden questioned Mr. Torres’s

ability “to exercise correct and sound judgment” in light of his willingness to be injected

with an unknown substance.

                                            III.

       We agree with Mr. Torres that the agency failed to demonstrate that his removal

promoted the efficiency of the service. The critical point is that the Arbitrator found as a

matter of fact—and the government does not challenge the finding—that Mr. Torres




2009-3043                                    4
“apparently had no knowledge that steroids were being administered.”           It does not

promote the efficiency of the service for an agency to remove an employee for using an

“[i]llegal substance” (the charge Mr. Torres faced) when the employee could not be

guilty of criminal conduct because he did not know the substance with which he was

being injected was a controlled substance.

       The Arbitrator found that Mr. Torres was unaware he was being injected by his

trainer with Boldenone Undecylenate, and the government does not contest that Mr.

Torres’s lack of knowledge shields him from liability under 21 U.S.C. § 844. Certainly,

employing a law enforcement officer who engaged in, or was engaging in, illegal

conduct would impact the agency’s mission. However, based on the Arbitrator’s fact

finding, Mr. Torres did not engage in illegal conduct, and it was the alleged illegal nature

of Mr. Torres’s conduct that formed the basis for the agency’s removal action. In other

words, since Mr. Torres was charged with use of an illegal substance, but he did not

know he was using such a substance, he did not commit the offense with which he was

charged (which required intent). Under these circumstances, his removal could not

promote the efficiency of the service.

       The government contends that Mr. Torres’s conduct did not have to be illegal for

the Arbitrator to find nexus. The government states that Mr. Torres’s failure to question

his trainer showed “poor judgment.” According to the government, this exercise of poor

judgment undermined the agency’s confidence in his ability to perform his job, directly

affecting the efficiency of the service.   We are not persuaded by the government’s

argument. While the Arbitrator did refer to Mr. Torres’s “conduct and poor judgment,”

Mr. Torres was not removed for unspecified “conduct” or “poor judgment.” He was




2009-3043                                    5
removed for use of an “[i]llegal substance,” and we can only sustain the agency’s action

based on that ground. See, e.g., Lizzio v. Dep’t of Army, 534 F.3d 1376, 1384 (Fed.

Cir. 2008) (“‘Agency action must be sustained, if at all, on the actual grounds relied on

by the agency.’” (quoting Gose v. U.S. Postal Serv., 451 F.3d 831, 839 n.4 (Fed. Cir.

2006))). The government does not challenge the Arbitrator’s finding that Mr. Torres

“apparently had no knowledge” that he was being injected with a controlled substance.

As discussed, this means that the charge of “use of an illegal substance,” the only

charge at issue, cannot be sustained. Nexus cannot be found based on some other

charge.

      Finally, the Arbitrator’s decision to sustain Mr. Torres’s removal is further flawed

by his reliance on the Bureau of Prisons’ purported “zero tolerance policy.” We have

previously stated that an “agency may be free to adopt and enforce, under the Drug-

Free Federal Workplace Program as a condition of employment, a reasonable zero

tolerance policy pursuant to which any . . . employee who refuses to submit to or fails a

drug test, will be removed.” Baird v. Dep’t of Army, 517 F.3d 1345, 1351 (Fed. Cir.

2008). In fact, however, the Bureau of Prisons did not have a zero tolerance policy.

The Program Statement implementing the drug free workplace program states that

“[t]he severity of the disciplinary action taken against an employee determined to be

using illegal drugs shall depend on the circumstances of each case” (emphasis added).

The Program Statement further states that the “full range of disciplinary actions, up to

and including dismissal, are available” (emphasis added). In addition, the Program

Statement has a safe-harbor provision, which the Arbitrator specifically found

inapplicable in this case. Arbitrator’s Decision, slip op. at 8. The agency specifically




2009-3043                                  6
provides in its Drug Free Workplace policy that an employee “who identifies himself or

herself voluntarily as an illegal drug user, prior to identification through other means, will

be given an opportunity for treatment and protection from disciplinary action.” A zero-

tolerance policy means just that: there is zero tolerance for the activity sought to be

regulated.   See, e.g., Tucker v. Veterans Admin., 11 M.S.P.R. 131, 133–34 (1982)

(discussing zero-tolerance policy for theft).     In this case, the agency indicated an

employee could receive a range of penalties or be completely shielded from liability.

This is inconsistent with a zero-tolerance policy. Thus, it was error for the Arbitrator to

state that “the zero tolerance policy must take precedence.” Arbitrator’s Decision, slip

op. at 8.

       For the foregoing reasons, the decision of the Arbitrator is reversed. Mr. Torres

is entitled to reinstatement with the agency and back pay. The case is remanded to the

Arbitrator for a determination of the further relief to which Mr. Torres may be entitled.




2009-3043                                     7
                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                       2009-3043


                                 ANTHONY TORRES,

                                                                 Petitioner,

                                            v.

                             DEPARTMENT OF JUSTICE,

                                                                 Respondent.


Petition for review of an arbitrator’s decision in FMCS No. 08-56247 by Harvey Shapiro.

DYK, Circuit Judge, concurring in part and dissenting in part.

      I agree with the majority that the arbitrator’s decision must be set aside because

it relies on a non-existent “zero tolerance policy.” I disagree insofar as the majority

holds that (1) the government must prove illegal conduct by the government employee

to sustain a charge of “Use of an Illegal Substance” and (2) the discharge of the

employee here could not promote the efficiency of the service. 1

      It is well known that the use of illegal drugs in the workplace is a serious problem;

it is also well known that employees found to be using illegal drugs frequently claim that

they did not know that they were doing so. It may be difficult in many cases for the

government to prove knowledge, and it is entirely appropriate in many circumstances to

discharge an employee for illegal drug use without proof of knowledge or criminal

      1
              The substance involved here, Boldenone Undecylenate, is illegal in the
sense that it cannot be dispensed without a prescription. There is no suggestion here
that Torres took the drug pursuant to a prescription.
activity. The majority’s approach would impair the government’s legitimate interest in

preventing the use of illegal drugs by its employees. I would remand to the arbitrator to

determine whether removal in the circumstances of this case would promote the

efficiency of the service.




2009-3043                                  2
