George F. Metz v. Department of the Treasury, Federal Law Enforcement Training Center

gent petitioner present because failed to appropriate

DOT information with in-

which have a further triggered could

quiry.

IV. sum,

In hold that decision of denying petitioner’s request at-

Board arbitrary,

torney capricious, is not con- fees law,

trary unsupported or substantial Attorney are not warranted

evidence. fees justice

in the when the adminis- interest deliberately improp- process

trative

erly pre- actions drawn out of the

vailing party himself.

Affirmed. METZ,

George Petitioner, F. George Rountree, Brunswick, Ga., M. ar- petitioner. gued, for With him on brief TREASURY, DEPARTMENT OF Terry Floyd. K. Training Law Federal Enforcement Snider, Litigation William J. Commercial Center, Respondent. Branch, Justice, Dept. D.C., Washington, Appeal 85-922. No. argued, respondent. With him on brief Willard, Acting were Richard K. Asst. Appeals, United States Court of Gen., Cohen, Atty. David M. Director and Federal Circuit. Burnett, M. Susan Asst. Director. Barbara Fredericks, S. Asst. General Counsel and Jan. Dept. N. Bridges, Treasury, Florence Washington, D.C., of counsel. KASHIWA, Judge, Before Circuit NICH- OLS, SMITH, Judge, Senior Circuit Judge. Circuit SMITH, Judge. EDWARD S. Circuit In this Government Systems (board) Merit Protection Board sustained the of the Trea- sury’s (agency) George decision remove (Metz) position F. Metz from his as an at instructor the Federal Law Enforcement Training (FLETC). Center 1002 threatening siding kill

Metz’ to his official’s initial decision removal and sus- tained the superiors, the board reversed initial removal. official, presiding decision of its which deci- Opinion suspension agen- for the

sion substituted a cy’s reverse. Legal removal. We A. Standards This court reviews board decisions for

Issues errors of law. this we decide applied proper legal whether the appeal. First, board address two issues on We actually test to determine if Metz threat- we decide if the board used the correct superiors. ened his We outline a method to legal to decide whether Metz’ standard Second, analyze the evidence in order to effect the statements threats. we de- were legal given by standard our cases. Al- termine the board had whether substantial though the proper legal board recited the to find that Metz evidence threatened his standard, analysis its of supervisors, given applicable legal the evidence was stan- guide- insufficient. We conclude that clear dard. analyzing type lines for evidence in this of Background1 reaching legal- case will assist the board in (Lanier) supervised Lanier Metz in James ly correct results. specialties the driver branch FLETC. Any threat a super made to Government 7,1982, Metz July gave On Lanier an annu- clearly visor a serious matter that im performance rating al of “excellent.” Metz pairs efficiency of the service. In some upset became he believed he de- because cases, however, agen it is difficult for the “outstanding” rating and served an stated cy if to determine a threat has been made. that he would harm himself and others. This court has held that the board must use July On Metz met with Lanier and person “the connotation which reasonable di- confirmed his earlier statement. Lanier give would to the words”2 in order to supervisor’s rected his attention to the determine if the constituted a words threat. superiors statements. Lanier’s decided to meet with Metz in order to alleviate Metz’ apply In order to the reasonable Epstein (Epstein) David frustrations. standard, however, person the board must meeting scheduled a with Robert McKann weigh the We direct the to evidence. board Lanier, (McKann), Epstein and Metz. following evidentiary consider the factors asked Metz to affirm the earlier statements deciding whether an threat so, question Metz did or co-workers: quite vague. Additional- answer were both (1) reactions; The listener’s ly, reported two of Metz’ co-workers con- (2) harm; apprehension The listener’s versations with Metz in which Metz had (3) intent; speaker’s The superiors. stated threats to kill his (4) Any nature of the conditional state- agency subsequently removed Metz ments; and threatening superiors his and for dis- (5) The attendant circumstances. ruptive presiding official behavior. making threatening Supreme found Metz innocent The United States provided statements and the removal. The the basis for these standards reversed official, however, writing initially requires found that “the statute ”3 inappropriate prove to a true ‘threat.’ Metz made remarks that Government applies agen disruption imposed caused minor sus- This standard to Government pension. pre- cy regulations as well as the statute con The full board reversed Serv., reported Postal 718 F.2d 1. The board’s final decision is 2. Meehan v. United States Metz (Fed.Cir.1983). 1075 Treasury, Fed. Law En- Center, Training 23 M.S.P.R. 576 forcement States, 705, 708, 3. Watts v. United 394 U.S. 89 (1984). 1399, 1401, (1969). 22 L.Ed.2d 664 S.Ct. guidelines However, strued Our effect the official. Watts. both Olsen and Barton appropriate by directing the standard board also testified expect did not Metz give objective heavy weight. carry out the “threats.” How did the apply The standards direct the agency find out about the conversations person by considering reasonable criterion between Metz and Olsen and Barton? Bar- persons what reasonable who heard the happened ton to mention his talk with Metz instance, actually statements did. For a in a casual conversation to a friend who by calling police listener who reacted after supervisor. was a in day, Later the an hearing likely to a statement is more have agency official asked Barton to make a heard a threat than listener who did statement. Barton did find Metz’ remarks Likewise, nothing. employee an who made interesting enough to mention them in cas- generalized conditional statement is less conversation, ual but Barton did nothing likely to have intended to threaten a co more. Olsen volunteered his conversation employee worker than an who stated a only with Metz after he returned from his simple threal.4 We do not instruct the vacation and learned agency that in- rely objective board to on evidence alone. discipline tended to Metz. The record does supervisor might testify A credible that he provide not a shred of evidence showing harm; testimony feared such tends to show that Barton or Olsen reacted to Metz’ state- employee that a threal. an made Evidence they ments if employee’s making of an as were threats. intent a state ment can show that the statement was a supervisors’ Now consider the we testi- Rumors, however, threal. or fear based on mony. Lanier testified presid- before the rumors, prove cannot suffice to that an ing personal official that he never feared anyone. threatened While we do Metz, harm from nor did he fear that Metz disregard subjec not instruct the board any would attack other FLETC official. intent, tive evidence of fear or dowe direct Epstein testified tacitly that Metz admitted give objective heavy the board to threats, making Epstein also stated weight.5 that he never heard Metz make a threal. gentlemen Both of these testified that their B. Substantial Evidence primary concern towas relieve Metz’ frus- We now decide whether the board’s deci- Only tration. McKann testified that Metz supported sion was substantial evidence. by Epstein threatened and McKann in their states, employees board’s decision “the meeting presid- with Lanier and Metz. The who heard the statements were concerned ing specifically official found that McKann reported agen- and the statements to the 6 by inferred a threat from actions Metz that cy.” We examine this evidence in detail. presiding did not occur. The official exer- Barton, employees, Two alleg- Olsen and making findings cises wide discretion when edly heard Metz make remarks that threat- credibility. may not overturn superiors. How did Olsen and presiding credibility official’s determi- Barton react to these “threats”? Olsen articulating nations without a sound rea- camping in went North Carolina for a week son, Therefore, based on the record.7 literally and Barton went to work. It is properly board could not credit McKann’s true that Olsen and Barton were “con- cerned”; testimony finding both Olsen and Barton stated con- Metz threatened testimony cern in their FLETC officials. Serv., (these (1981)

4. See Broadnax v. United States Postal 9 M.S.P.R. 523 cases illustrate how 404, 412-13, 142, M.S.P.B. (1982). 10 M.S.P.R. considered). 153-55 the evidence should be Metz, 23 M.S.P.R. at 578. Admin., 764, 5. See Williams v. Veterans 701 F.2d (8th Cir.1983); Meehan, 1069; 765-66 718 F.2d Admin., 1325, 7. Jackson v. Veterans 768 F.2d Broadnax, 404, 142; 9 M.S.P.B. 10 M.S.P.R. Sier- (Fed.Cir.1985). 1331 514, Army, ra v. 5 M.S.P.B. 5 evidence, reviewing may After this rule and often will apply to cases Here, observe that the board sustained Metz’ re other than the one before the court. however, testimony factors,” men. “evidentiary moval based on the five five they Epstein Lanier and testified did not board is ordered to consider in future threats; cases, perceive Metz’ statements as Ol the fourth fifth do not seem they sen any opinion and Barton testified had no even to relate to issue the deals expectation supe with, though they may suggest- that Metz would harm his have been riors, by writings nor did consider his statements ed other in this enough reporting; Supreme cited, serious authority warrant Watts testimony States, McKann’s was discredited v. United 394 U.S. 89 S.Ct. (1969). presiding official. We conclude that the 22 L.Ed.2d 664 We are controversy board’s decision Metz’ removal midst of a national about the supported by judge” substantial evidence “activist and the need to return to principles distinguishing legisla- and must be reversed. basic the judicial tive and the functions. Conclusion same, No two cases are the and no case sustaining removal, In its decision Metz’ yet not the court is foreseeable in person the board decided that a reasonable aspects. judge all its The wise retains his hearing Metz’ statements would think freedom to deal unexpected by with the those statements were threats. While this avoiding commitments he how will decide standard, legal is the correct the board cases whose ramifications he cannot fore- erred objec- because it did not consider the court, Judge see. A senior of this member in the tive evidence record. When the Laramore, active, say when used to it is the must decide whether statements are unnecessary discourse that comes back to threats, we instruct it to consider the reac- Surely simple haunt one. this case can be apprehensions listeners, tions and of the simply, decided on its facts. wording statements, speaker’s of the the rules, If prescribe surely we are to factor intent, and the attendant circumstances. “apprehen- not the two should be listener’s apparently The board did not do so in this alone, sion of harm” also that of but the no sup- case. Because substantial evidence person threatened, allegedly if he becomes ports finding the board’s that Metz threat- alleged being by aware the threat its superiors, charges that Metz repeated to him. supervisors threatened to kill his and be- part Mr. Metz’s of the school’s curric- disruptively by threatening haved to kill his ulum was the course in to drive a car how supervisors proved. were not We reverse having endangered passenger, an official the board’s decision re- Metz’ pupils so as to elude assassins. had to moval. mastery necessary their demonstrate REVERSED. one, driving skills one a car with the instructor, Metz, posing passen- Mr. as the NICHOLS, Judge, Senior Circuit concur- ger. unique His was a and stressful occu- ring in the result. pation, as others realized as much as he did but, respectfully, I concur in the reversal Believing getting himself. he was not join in am unable to much that is said should, recognition indulged in he he over- opinion. this wrought hyperbole. It reached the ears of gave supervisors it his who him a chance to Its most basic flaw is that tells retract, take, ,“[w]e explain to do in future and which he did not board what cases: following recognizing danger job to his direct the board to consider the not * * *,” and, Basically problem evidentiary presum- factors career. arises from (and agent the fact that an enforcement ably, no others. It is an exercise rule especially agents, of such making. always Now the court should an instructor model), relies, supposed to it and who must be a role is state rule law which always unflappable, to be cool and which more we need more cases before declar- ing to On rules. ideal Metz had failed conform. hand, supervisors sup- other their are that, To me excluding it suffices

posed frightened. What easily to be Metz fact, disbelieved trier there is no paid most needed was a three-week vaca- evidence that Metz intended to state that isle, some tropic tion on and eventless really he kill would or commit serious bodi- govern- thing this is the last our benevolent ly else, harm against anyone himself or no likely overwrought ment its is to offer em- evidence that his listeners so understood ployees. him, or the supervisors, they when it, heard about believed that were ordinary speech, nothing more com- panel unanimously threatened. So our mayhem language importing mon than or language holds. His choice of Examples murder. are: “When word of overwrought persons normal and no out, gets this blunder heads roll!” “I will upsetting, doubt but a misconduct termi- off cut him at the knees!” “I am tired of nation is for life. it is Since the function of repeating argument having my this judges interpret words, meaning this, you head bloodied!” hear “When it legal consequences of assigning course you!” will kill “All he wants arm is an them, interpretation their must be con- (of leg” driving bargain). one a hard trolling here. supposed at first Metz’s his opinion does not state whether the overwrought language denoted mental panel suspension reinstates the 30 days affliction, attempts to deal with it official, ordered or directs along collapsed psychiatrists that line when a holding completely exonerating petition- dangerous he ruled that was not to himself I latter, er. favor the reason that apparently or others. An arrest warrant remarks,” “inappropriate im- offense was never executed. The “adverse action” puted by presiding official, was not now us followed. not, think, charged I and is a “lesser includ- agency, has fairness it to be offense,” ed as normally that term is un- admitted that even as in “reformed” derstood. are Civil Service laws still not flexible the means afford personnel deal prob- with somewhat bizarre

lems, falling into the well-worn slots disability, inadequate performance,

mental And,

or willful misconduct. in our far- service,

flung civil even the bizarre is the This, course, ordinary somewhere. does FOGARTY, The Reverend P. Gerald sympathy not mean out of execu- S.J., Appellant, problems application tive we must condone stigma of deserving misconduct to a employee when the record fails show STATES, Appellee. The UNITED misconduct has occurred. Appeal No. 85-1218. Watts case teaches caution inter- Appeals, United States alleged preting literally. too But “threats” Federal Circuit. and, moreover, a criminal case implications. one first It with amendment Jan. could “threat” be well be that a must more in a seriously intended criminal case and protected political

an environment of

speech. I think are more our own recognizes. our opinion

here than So all

Case Details

Case Name: George F. Metz v. Department of the Treasury, Federal Law Enforcement Training Center

Court Name: Court of Appeals for the Federal Circuit

Date Published: Jan 2, 1986

Citation: 780 F.2d 1001

Docket Number: Appeal 85-922

Court Abbreviation: Fed. Cir.