two seven thirty three twelve green students against essential security administration there was some fault now that the arbitrator could make a determination if systems of the douglas factors to reach a conclusion that backpay was no have to answer this question at the back pay act says if an employee is found to have been the victim of an unwarranted personnel action he shall be reinstated with back  the this court in the american federation case faced with a truly bizarre set of facts held that the back pay act is not applied in a case where the employee was guilty of some misconduct which led the the agency to end correctly firing which is a well actually there's a distinction what actually happened in american federation if i read the court's summary of the arbitrators rationale the employees misconduct in withholding information had led or contributed to the agency's improperly firing her i think that was  well if that is correct if the back pay act does not apply in a case where the employee has guilty of some misconduct then it is impossible for the m s p to mitigate a discharge to a two week or two months suspension and have the employee pay the difference between the suspension and the full discharge this is very very serious the whole the promise of the civil week and two year suspension there isn't any difference yet that is one of the things were saying but also what gets to what american federation was saying is that no one the m s p b or this court can effectively mitigate discharge to two we a suspension because a back pay act doesn't apply and the back pay act doesn't apply and if the supreme court the united states is correct intestine versus us that the only basis for providing back pay in case of an unjustified personal action is a back pay act which sort of at a loss of where the government is authorized to pay back pay case of it just of personnel action if this court has to if this court feels determines that it cannot rule mr green streets favor without trespassing on american federation and we certainly the back pay act does mandate that the employee get the back pay for the difference between two weeks and the two years that this is very serious isn't really your best argument that  that a determination of penalty based on time served without war is arbitrary absolutely and there's two aspects to this this question one is should this to score set aside decisions that are arbitrary and secondly is the decision arbitrary on the first point which is challenged by the agency the six five u s c seventy seven oath three c one unequivocally says this court shout set aside a decision which is arbitrary and then there's eight or nine other grounds on which it could set aside a decision but they're all  and the government is telling us that this court cannot and should not set aside an arbitrary decision on penalty unless the underlying decision is also unsupported by substantial evidence or unless a penalty taken by itself is disproportionate to the offense but that's not what the law says in the wall says this court shall do it and that is a restraint on yemen skippy an arbitrator's from doing things and yemen's p b reach it that way if it's purely arbitrary if let's take the let's take the original that how do we know whether this is arbitrary or not because the that the arbitrator's analysis going to impose a three hundred forty two day suspension then we would have a problem but it's clear from the from what he did if he had issued a bench decision on april fifth he would have said  without backpay but he certainly recognize the period of time because the period of time is explicitly mention here that's what he did it's not like this was just you know not not even in his realm of consideration yes but the point to question is is employee entitle let's let's take a starting point when he's magnificent initially deciding to disappoint him and management decides what's is not we're not going to fire him i'm going to give a suspension so we'll roll the dice and we'll give him thirty days for each you know the number comes up and maybe comes up and it's a sixty day suspension comes up and it's a three hundred one hundred day suspension as this court sports predecessor said to cliff oh when you determine the penalty by accident that's not a process of of logical group deliberation that is arbitrary and that really is it's not a i'm afraid it's not much complexity here either is arbitrary was the arbitrator asked after the decision finally came out in all this time parents to review the penalty w and it which was to assess brain state without backpack there was no lack of clarity say that neither he nor the amas p p and the m s p agrees with us on this is authorized to simply set the severity based on the length of time it takes to make the decision len it it might i don't we'd have a challenge if he said this is a sort of thing which you two years penalty two years discharge would be too long six months would be too sure i'm looking at the calendar it's obviously not obvious can't you can't have absolute precision in this sort of thing i'm establishing a penalty of three hundred forty two days or three hundred  that's reviewed you know can be a year or so and that just doesn't make sense and it doesn't cost anybody very much to have the arbitrator if you remain and there's no guarantee that he'll reduce the penalty appeal is simply that employees are title to a non arbitrary calculation and if it's within the realm of reason it's going to be upheld but it's just we're just i'm ti employing agency or the m s p be or an arbitrator at least to this that we don't decide the guilt or innocence by flipping a coin and we don't decide penalties by rolling dice and that's what happened here good morning may have please the court the arbitrator's decision in this case was neither arbitrary capricious and abuse of discretion and it was not and it was supported by substantial evidence this court has consistently held an arbitrator street engaged in serious misconduct which warranted a substantial suspension therefore the imposition of a three hundred forty two day disciplinary suspension without back pay was reasonable and proportionate to the offense but yours  suspension is reasonable and proportionate to the effect but there seems to me that the entire thrust of the decision was to assess whether the removal was in order or a suspension would be in order and the analysis throughout was addressing that particular question and concluded at the very last age that considering the douglas factors a substantial suspension is the maximum reasonable penalty and then sets forth the award just summarily grievance shall be reinstated without that fact i don't find any analysis  or rationale or basis that goes with the determination that that the entire period of the suspension is is a reasonable period of of  honor there's not it's not specifically analyze but it's implicit in his decision that he determines a substantial suspension is the appropriate penalty after consideration of the di with the factors and then he specifically sa israel's stated without back pay no i don't disagree with you it is just a question of of having concluded that a substantial suspension is in order then the question is what what does that mean is that six unjustified because he admitted condom that's correct your honor and actually he admitted it before the arbitrator that he was committed serious misconduct and that a substantial suspension was the remedy seeking so yes and in accordance with this court's decisions in american federation and all that he did commit serious misconduct which warranted a strong response from it only arguing length of time which mr green street has and he doesn't specifically address that length of time with the exception of the award but now i believe the douglas factors also address the seriousness of misconduct which would merit a substantial suspension like you received in that case for example he noted that misconduct occurred in a secure area of the national computer center that if he had not gain control of himself at the time he could have damaged more property or perhaps injured his coworkers so he he specifically noted that it did it was serious misconduct that did deserve for a firm response from the agency do you agree that if the penalty was determined solely on time served that that would be arbitrary without a consideration of the douglas factors yes there could be an argument that would be  conclusory statements agreement show be reinstated without back a without any analysis whatsoever doesn't that at least raise a question as to whether that was jeff's conclusion based on time served also the mitigating factors he doesn't like and mention for it doesn't mean you're correct it doesn't specifically address whether three hundred forty two days the difficulty is reasonable  the determination of a period of suspension and then there's a determination on the back page question and here they're here that actually there isn't any there isn't any decision is there on reinstated but i would actually object to that because i mean yes that's correct now he has he actually has been reinstated here back work i checked ok i mean he's definitely back working for this a security administration but i'm an american federation of government employees arbitrator mitigated the rule to a fifteen day suspension but tonight back pay for a period during which employee was out of work which was over six months so is in effect a six month suspension even though he found fifteen days was the proper award and this court upheld that that decision and then and still a which is a non presidential decision that's correct from two thousand and seven almost identical facts of this case i believe the employee  took some medical tests for her own use to govern government expense and because she didn't have a union representative with her when she was questioned the arbitrator mitigated the penalty to a time services vention which was over a year in that case and out of proportion to the offense was a relatively minor offense the court considered you know the different components of the offense and also we felt was part of now has been incorporated into the douglas rather than on a back page there yes absolutely your honor but in those cases i believe it's not that fresh in my mind that the expansion of these suspension was before the arbitrator but it is that there was something to show we need here one might read this decision as thinking that the arbitrator intended that the date of the arbitration would control and the salary penalty rather then so many months later when the decision finally came out i'm sorry to understand your question really are i'm trying to remedy with arbitrators they frequently order time served suspensions and usually don't take this long to shooting now actually the i believe this is a pretty common the year tends to be from from the cases i saw it tends to be kind of a standard amount now there were certain i believe on procedural issues that may have delayed the opinion in this case just fine ina hearing date that was good for both parties and everything but and i know the s p v a slightly different because they have one hundred twenty day time limit but like i mentioned before i have no i haven't read the arbitrator's decision behind stilling but i believe arbitrator order time served suspension in that case of over a year and there's been several other instances where this court has considered  might have been implicated for example maybe there were policy statements with the agency at the time that you know if you do this that subject a ninety day suspension if you do that it's subject to a one hundred eighty day suspension etc et there's no discussion of any of that now does that mean that there were no such policy statements or guidelines or that that wasn't considered there was not a table of penalties provided to the arbitrator i do know that your honor and also there was not examples of similar misconduct but there were the only thing i believe he considered was various provisions of the collective bargaining agreement which didn't specifically address time period arbitrary to determine penalties on the basis of accidental factors follow i think can be fairly read as a court saying two things and i was operating under the america mr procedures act law on what had been done below was arbitrary and should be overturned for that reason to the length this of the suspension in that particular case was out of proportion to the offense and should be overturned for that reason those are two different bases it's like coming to a core or i mean welcome to the court and saying the decision is not supported by substantial evidence and it's an abuse of discretion the court can rule oath or one or the other and quit follow it i think it unequivocally said what was done deciding federation was a funny thing because there in contrast to this case there was a suspension i mean i guess a doctor did impose a two week suspension and he also said as remedy the person gets back recites american federation but the facts in that case and it went back a second time to the court and the object still couldn't do it right you have to or simply wouldn't say the words i find the hirsute guilty of an offense or not it recognize that non presidential cases decisions by this court have gone wrong way but that's why the court in terms of the non presidential i suppose i think you ought to in this case given their rony yes concession that the back pay act at least allows would allow arbitrator johnson in this case to impose a sixty day suspension and give mr greenstreet the money for that you should just focus on the question seven seven zero three arbitrary but if you believe that that there are there is a tension it's obvious tension between quick and american federation and with all due respect  think the quote you consider that on bop because just goes to the sooner or later is the patience going to come to a score and with that overturned thirty or forty years of practice in federal sector and radically change labor employer match relations and should