United States Court of Appeals for the Federal Circuit 

06-3144 

NORBERTO PEREZ, 

Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

Respondent. 

Stuart A. Kirsch, Assistant General Counsel-Litigation, American Federation of 

Government Employees, of Riverdale, Georgia, argued for petitioner. With him on the 

brief was Mark D. Roth, General Counsel, of Washington, DC. 

Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for respondent. With 

him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, 

Director, and Todd M. Hughes, Assistant Director. 

Appealed from: Arbitrator Decision 
United States Court of Appeals for the Federal Circuit 

06-3144 

NORBERTO PEREZ, 

 Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

 Respondent. 

______________________________ 

DECIDED: March 16, 2007 

______________________________ 

Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and DYK, Circuit 

Judge. 

Opinion for the court filed by Senior Judge FRIEDMAN, in which Judge NEWMAN joins. 

Dissenting opinion filed by Judge DYK. 

FRIEDMAN, Senior Circuit Judge. 

 The petitioner, Norberto Perez, challenges an arbitrator’s rejection of his 

contention that the Bureau of Prisons (the “Bureau”) violated the Civil Service Reform 

Act of 1978, Pub. L. 95-454, 92 Stat 1111, (“Reform Act”) when it suspended him 

indefinitely. He contends that in addition to giving him thirty-days notice of its proposed 

action, the Bureau also was required to determine that there was reasonable cause to 

believe he had committed a crime. The arbitrator correctly rejected this contention, and 

we therefore affirm. 
I 

 Perez is a Correctional Counselor for the Bureau. On July 5, 2005, Perez 

received written notice from his supervisor that he would be suspended indefinitely 

pending an investigation into an inmate’s allegation that Perez had helped smuggle 

drugs into the prison where he worked. The inmate alleged that Perez had provided 

him with drugs in return for money—an accusation an FBI report supported. 

The notice stated that the suspension would occur no sooner than thirty days 

from its receipt. The notice also informed Perez that he had the right to respond in 

writing and orally to the proposed suspension, which Perez and his representative did. 

The Bureau suspended Perez indefinitely as of August 4, 2005—31 days after he 

received the notice. 

 Perez challenged his suspension by invoking the grievance procedure under the 

collective bargaining agreement. After an evidentiary hearing, the arbitrator ruled that 

the Bureau had complied with the statutory requirements by giving him thirty days 

notice, and was not required also to determine, as Perez contended, that there was 

reasonable cause to believe that Perez has committed a crime. The arbitrator therefore 

denied Perez’s grievance. Federal Mediation and Conciliation Service Case No. 05-

58351, 11-15 (Dec. 9, 2005). 

II 

 A. This case involves the provisions of the Reform Act that govern adverse 

actions by the government against its employees. Subchapter II of Chapter 75 of Title 5 

of the U.S. Code “applies to” five types of adverse actions, including removals, 

06-3144 2
reductions in grade or pay and “a suspension for more than 14 days.” 5 U.S.C. § 

7512(2). Section 7513, captioned “Cause and Procedure,” states in subsection (a) that 

an agency may take an action covered by this subchapter 

against an employee only for such cause as will promote the 

efficiency of the service. 

 Subparagraph (b) provides that “[a]n employee against whom an action is 

proposed is entitled to” followed by four specified rights of the employee. The first of 

these rights is 

(1) at least 30 days’ advance written notice, unless there is 

reasonable cause to believe the employee has committed a 

crime for which a sentence of imprisonment may be 

imposed, stating the specific reasons for the proposed 

action. 

 The employee also is entitled to at least seven days to answer the notice, has the 

right to have an attorney or other representative, and must receive “a written decision 

and the specific reasons therefor at the earliest practicable date.” 5 U.S.C. § 

7513(b)(2)-(4). 

 Perez has not challenged the arbitrator’s determination that his suspension met 

the “efficiency of the service” standard in § 7513(a). Perez’s sole contention is that the 

arbitrator misinterpreted § 7513(b)(1) in ruling that, when thirty-days notice has been 

given, the government need not have reasonable cause to believe the employee has 

committed a crime before suspending the employee indefinitely. Perez’s contention 

finds no support in, and is inconsistent with, the structure and language of § 7513. 

 Section 7513(a) establishes the substantive standard justifying adverse action—

promoting the efficiency of the service—and § 7513(b) prescribes the procedure to be 

followed in taking such action by defining the rights of affected employees. The first 

06-3144 3
right of employees is to receive “at least 30-days written notice.” The “unless” clause, 

which immediately follows the notice requirement, is a qualification of and limitation on 

the notice requirement. It is not, as Perez contends, a substantive requirement (in 

addition to that in subsection (a)) for the particular sub-category of indefinite suspension 

pending an investigation of an employee’s possible criminal conduct. 

 In other words, what § 7513(b) requires is that an employee against whom 

adverse action of the kinds listed in § 7512 is proposed must be given 30-days written 

notice, except that such notice need not be given if the reasonable cause requirement 

of the “unless” clause is satisfied. Nothing in that clause even suggests, let alone 

requires, that a reasonable cause determination must be made before an employee 

may be indefinitely suspended on 30-days notice of such proposed action. 

 The legislative history of the Reform Act is consistent with that conclusion. The 

sole reference to § 7513(b)(1) we have found in that history is the following statement in 

the Senate Committee Report: 

Subsection (b) specifies the minimum rights of an employee against whom 

an adverse action is proposed. These are: 

1. At least thirty days’ advance written notice of the proposed action. The 

thirty day period may be reduced only when there is reasonable cause to 

believe the employee is guilty of a crime for which a sentence of 

imprisonment can be imposed. 

S. Rep. No. 95-969, at 50 (1978), as reprinted in 1978 U.S.C.C.A.N. 2723, 2772. The 

last sentence in that statement supports our conclusion that the reasonable-cause 

provision relates only to authorizing reduction of the 30-day notice requirement. In any 

event, there is nothing in the legislative history that is inconsistent with our interpretation 

of the statute. 

06-3144 4
 The regulations under the statute also support our interpretation. As 5 C.F.R. § 

752.404 explains: 

Section 7513(b) of title 5 of the United States Code 

authorizes an exception to the 30 days’ advance written 

notice when the agency has reasonable cause to believe 

that the employee has committed a crime for which a 

sentence of imprisonment may be imposed and is proposing 

a removal or suspension (including indefinite suspension). 

 B. Perez makes no attempt to explain how the statutory language possibly could 

be read to support his position. Instead, he relies primarily on broad general statements 

in four of our opinions which, taken out of context, appear to support his view. In each 

of those four cases, however, the suspended employee was given less than 30-days 

notice, so that the suspension could be sustained only if the reasonable cause 

requirement was satisfied. See Morrison v. Nat’l Sci. Found., 423 F.3d 1366, 1368 

(Fed. Cir. 2005) (“The agency invoked the ‘crime exception’ to the thirty-day notice rule 

and gave Morrison only seven days to file a written reply.”); Richardson v. U.S. Custom 

Serv., 47 F.3d 415, 417, 421 (Fed. Cir. 1995) (discussing the Custom Service’s 

“summary suspension” of Richardson based on his indictment); Pararas-Carayannis v. 

Dep’t of Commerce, 9 F.3d 955, 957 (Fed. Cir. 1993) (employee’s suspension first 

proposed on May 14, 1992 and became effective June 8, 1992); Dunnington v. Dep’t of 

Justice, 956 F.2d 1151, 1153 (Fed. Cir. 1992) (“On June 17, DOJ [the Department of 

Justice] made the decision to indefinitely suspend Dunnington effective the following 

day—14 days after DOJ first proposed the suspension.”). 

 Broad statements in judicial opinions must be interpreted in light of the issue 

before the court, and cannot uncritically be extended to significantly different situations. 

N. States Power Co. v. United States, 224 F.3d 1361, 1367 (Fed. Cir. 2000) (citing 

06-3144 5
Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944) and Canadian Imperial Bank of 

Commerce v. Wells Fargo Bank, 811 F.2d 1490, 1494 (Fed. Cir. 1987)). In the present 

case, in which Perez admittedly received 31-days written notice, the “reasonable cause” 

clause does not come into play. We do not read those cases, as the dissent apparently 

does, as announcing the principle that indefinite suspensions may be imposed, even 

with 30-days notice, only if the reasonable-cause provision is satisfied. 

 Indeed, Richardson supports our interpretation of the statute rather than Perez’s. 

 There we stated that § 7513(b)(1) is designed “simply to provide an exception to only 

one of the rights—30 days’ advance written notice—available to an employee before an 

adverse action under Subchapter II may be taken.” 47 F.3d at 419. 

 In his reply brief, Perez also relies on the following statement in the Board’s 

opinion in Canevari v. Department of Treasury, 50 M.S.P.R. 311, 315 (1991): “An 

agency may suspend an employee indefinitely to allow ‘examination of the charged 

criminal involvement’ if the agency has reasonable cause to believe an employee has 

committed a crime for which imprisonment may be imposed. See Johnson v. U.S. 

Postal Serv., 37 M.S.P.R. 388, 393 (1988).” It is unclear from the Board’s Canevari

opinion whether the agency gave the employee 30-days notice. The Board’s opinion 

contains no discussion of the statutory language, but merely cites the earlier decision in 

Johnson. The Johnson case, however, involved the indefinite suspension of an 

employee who was given only 13-days notice. See 37 M.S.P.R. at 393. 

 Board decisions are not binding precedent in this court, and we give those 

decisions only whatever weight their persuasiveness suggests is appropriate. See

Jones v. Dep’t of Transp., 295 F.3d 1298, 1309 (Fed. Cir. 2002) (“[D]ecisions of the 

06-3144 6
Board are, of course, not binding authority upon this court.”); see also, Miller v. Office of 

Pers. Mgmt., 449 F.3d 1374, 1379 (Fed. Cir. 2006) (“[W]e are not bound by . . . 

decisions of the Board.”). The Board’s statement in Canevari on which Perez relies was 

pure dictum which, for the reasons we have given, is unpersuasive. We therefore 

cannot give it any, much less controlling, weight in interpreting the statute. There is 

therefore no occasion to address Perez’s contention that the Bureau did not have 

reasonable cause to believe that he had committed a crime for which imprisonment 

would be imposed. That issue is not present in this case. 

 Our decision here is a narrow one involving only the meaning of § 7513(a). We 

intimate no view on whether, if Perez is determined to not to have engaged in improper 

conduct and is restored to duty, he may obtain back pay (and other benefits) for his 

period of suspension. That is a claim that initially he must present to the Bureau. If he 

does so and the Bureau rejects the claim, he may then initiate whatever litigation may 

be appropriate to challenge such rejection. That, of course, is a different question from 

whether his indefinite suspension would promote the efficiency of the service—a 

question which as we have noted, Perez has not raised before us. 

 In sum, because the Bureau gave Perez 31-days notice before suspending him 

indefinitely, the “reasonable cause” provision § 7513(b)(1) is inapplicable. 

 There is nothing in our opinion that prevents any employee who believes that his 

indefinite suspension was arbitrary from obtaining review of such agency action. Since 

such a suspension would be “for more than 14 days,” the employee could challenge it 

before the Board under 5 U.S.C. § 7513(d), see Thomas v. Gen. Servs. Admin., 756 

F.2d 86, 89 (Fed. Cir. 1985), and obtain appropriate relief. The flaw the court finds in 

06-3144 7
Perez’s argument is not, as the dissent suggests, that he cited the wrong statutory 

provision, but that the provision on which he relies is not applicable here. Section 

7513(b) is solely a notice provision, and it provides an exception to the 30-day notice 

requirement for all the types of adverse actions specified in § 7512(2) if the agency has 

reasonable cause to believe an employee has committed a crime for which 

imprisonment may be imposed. The statute does not require the agency to have 

reasonable cause before it can indefinitely suspend an employee; it requires such 

cause only if the agency gives less than the 30-day notice. And if events suggest that 

the suspension was unwarranted, the employee may pursue the well-recognized 

remedies for improper agency action. 

 The substantive standard, set forth in § 7513(a), is that adverse actions against 

employees must “promote the efficiency of the service.” Arbitrary action against an 

employee would not satisfy that standard. Perez, however, challenges his indefinite 

suspension not as arbitrary or capricious, or as not promoting the efficiency of the 

service, but as violating the reasonable cause “requirement” of § 7513(b). The Bureau 

did not violate that requirement because it arises only if the agency gives an employee 

less than 30-days notice, and the Bureau gave Perez 31 days notice. Although Perez 

argues that the Bureau did not have reasonable cause to believe he committed a crime, 

that contention was ancillary to, and dependent on, his principal argument that under § 

7513(b) he could not be suspended unless here was such reasonable cause—an 

interpretation of the statute that is directly contrary to the explicit text of the statute. 

06-3144 8
CONCLUSION 

 The decision of the arbitrator denying Perez’s grievance is 

AFFIRMED. 

06-3144 9
United States Court of Appeals for the Federal Circuit 

 

06-3144 

NORBERTO PEREZ, 

 Petitioner, 

v. 

DEPARTMENT OF JUSTICE, 

 Respondent. 

DYK, Circuit Judge, dissenting. 

The majority in this case refuses to address petitioner’s claim that he was 

suspended without reasonable cause because, in briefing the issue, petitioner relied on 

decisions of this court which, in the majority’s view, improperly relied on 5 U.S.C. § 

7513(b) as the source of the reasonable cause requirement. In my view, the majority 

improperly declines to follow prior decisions of this court and unfairly faults the petitioner 

for relying on those prior decisions. I respectfully dissent. 

I 

Our prior decisions have recognized that, while the statute provides that 

agencies may suspend employees as a disciplinary measure, see 5 U.S.C. § 7512 

(2000), it makes no specific provision for indefinite suspensions during investigations. 

See Richardson v. U.S. Customs Serv., 47 F.3d 415, 419 (Fed. Cir. 1995). We have 

nonetheless held that agencies have the authority to indefinitely suspend employees, at 

least pending the outcome of criminal investigations, but that such suspensions are 
adverse actions appealable to the Board. See Dunnington v. Dep’t of Justice, 956 F.2d 

1151, 1153-54 (Fed. Cir. 1992). If the criminal charges are dismissed, the employee 

must be reinstated, but the reinstatement does not confer the right to an award of back 

pay. See Richardson, 47 F.3d at 421. We have also held that employees suspended 

pending a criminal investigation are not entitled to the usual 30 days advance notice of 

the indefinite suspension adverse action. See Morrison v. Nat’l Sci. Found., 423 F.3d 

1366, 1369 (Fed. Cir. 2005). This is because the provisions of § 7513(b)(1), which 

apply to all adverse actions, state that “[a]n employee against whom an action is 

proposed is entitled to—(1) at least 30 days' advance written notice, unless there is 

reasonable cause to believe the employee has committed a crime for which a sentence 

of imprisonment may be imposed, stating the specific reasons for the proposed action.” 

5 U.S.C. § 7513(b). 

In this case, the employee alleged that he had been indefinitely suspended 

without reasonable cause and sought to recover back pay during the period of the 

suspension. The arbitrator rejected the claim. He found that “[n]owhere in the proposal 

or decisions [sic] letters did the Agency allege or maintain it had reasonable cause to 

believe [Perez] had committed a crime for which a sentence of imprisonment may be 

imposed.” Pet’r App. 15. However, the arbitrator did not decide whether the agency 

had reasonable cause for the suspension. Instead, he concluded that all of the 

elements of § 7513 had been satisfied because 30 day notice was provided and that 

“[n]othing more is required under this federal statute.” Id. at 13. 

06-3144 2
II 

Since 1993 we have repeatedly stated that reasonable cause is required for all 

indefinite suspensions. The District of Columbia Circuit in Brown v. Department of 

Justice, 715 F.2d 662 (D.C. Cir. 1983),1 also reached the same conclusion. Perez here 

urges that these cases are inconsistent with the arbitrator’s decision. I agree. 

We first articulated the reasonable cause requirement in Pararas-Carayannis v. 

Department of Commerce, 9 F.3d 955 (Fed. Cir. 1993), where we sustained the 

Department of Commerce’s indefinite suspension of an employee because there was 

reasonable cause.2

 We concluded that “[i]n order for the MSPB to sustain an indefinite 

suspension, the agency must establish by a preponderance of the evidence that it had 

reasonable cause to believe the employee committed a crime for which imprisonment 

may be imposed.” Id. at 957. In clarifying the standard, we noted that “[i]n cases such 

as this, decisions of the MSPB have applied the same standard to the agency’s decision 

to waive notice and the agency’s decision to suspend.” Id. at 957 n.4. 

Following Pararas-Carayannis, in Richardson we confirmed that reasonable 

cause was required to indefinitely suspend an employee. There we acknowledged that 

the statute provides a “paucity of Congressional direction” thus requiring the “courts of 

 1

 The District of Columbia Circuit had jurisdiction over the appeal because 

the petition for review was filed on June 30, 1982, before The Federal Courts 

Improvement Act of 1982, Pub.L. No. 97-164, § 144, 96 Stat. 45 (codified at 5 U.S.C. § 

7703(b)(1) (1982)), which granted this court exclusive jurisdiction over appeals from 

MSPB decisions, became effective. Brown, 715 F.2d at 664 n.1. 

2

 We concluded that “[t]he agency’s reliance on the criminal charge, the 

detailed information in the affidavit, and the subsequent indictment was sufficient to 

support a conclusion that a reasonable cause existed to believe that petitioner 

committed a crime for which he was subject to imprisonment.” Pararas-Carayannis, 9 

F.3d at 958. 

06-3144 3
necessity [to] fill . . . in some of the missing parts.” Richardson, 47 F.3d at 419. We 

read the statute “as establishing an independent standard for a limited adverse action,” 

namely that an agency may suspend an employee when there is “reasonable cause for 

an agency to believe that the employee has committed . . . a crime, and, when the 

nature of the crime alleged relates to the employee’s ability to perform his or her duties.” 

Id. Finally, in Morrison, we noted that the question “whether there was reasonable 

cause . . . to believe a crime had been committed and whether the agency properly 

could have suspended” the employee was not before the court. Morrison, 423 F.3d at 

1369. But we reiterated that: 

While 5 U.S.C. § 7513(b)(1) refers only to the agency’s decision to waive 

the thirty-day notice period when proposing an adverse action, the same 

standard—that there is reasonable cause to believe the employee 

committed a crime for which a sentence of imprisonment may be 

imposed—has been applied as well to the agency’s decision to impose an 

indefinite suspension. 

Id. at 1368-69 n.*. 

 The District of Columbia Circuit’s decision in Brown, 715 F.2d 662, construed the 

statute in the same way. In that case, the court rejected the employee’s claim that he 

had been improperly suspended based on an indictment for criminal conduct. Id. at 

667. In finding that a substantive reasonable cause requirement exists, the District of 

Columbia Circuit reasoned that “[i]f ‘reasonable cause to believe the employee has 

committed a crime’ were not a substantive basis for suspension, it would be superfluous 

to include a special notice provision for that situation.” Id. at 666. The court concluded 

that “we believe an agency can justify its suspension of an employee by proving that it 

had reasonable cause to believe the employee had committed a work-related crime.” Id.

06-3144 4
at 667. However, it held that “once an employee is indicted on job-related charges . . . 

an agency has the ‘reasonable cause’ to justify suspending an employee.” Id.

 While § 7513(b)(1) standing alone does not compel a reasonable cause 

requirement, it seems to me quite clear that § 7513 assumes the existence of a 

reasonable cause requirement. In any event, I do not read our cases or Brown as 

resting primarily on an interpretation of § 7513(b)(1). In my view, our earlier cases rest 

on a bedrock principle of administrative law, reflected in the Administrative Procedure 

Act (“APA”), 60 Stat. 237 (1946), 5 U.S.C. §§ 701-706 (2000), and in cases long 

predating the APA, that agencies cannot engage in arbitrary action and that arbitrary 

action will be invalidated on judicial review. See 5 U.S.C. § 706; see, e.g., Am. Tel. & 

Tel. Co. v. United States, 299 U.S. 232, 236-37 (1936). Those principles are 

incorporated into the Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C. § 1201 et 

seq., itself in the general merit system principles set forth in § 2301. See 5 U.S.C. § 

2301 (2000). Section 2301 provides that “[e]mployees should be protected against 

arbitrary action, personal favoritism, or coercion for partisan political purposes.” Id. § 

2301(b)(8)(A). The legislative history of the CSRA illustrates the importance of these 

principles in governing agency actions by stating that § 2301 “places on federal 

agencies . . . an affirmative mandate to adhere to merit system principles.” S. Rep. 

No. 95-969, 19, 1978 U.S.C.C.A.N. 2723, 2741 (July 10, 1978). Moreover, it is the role 

of the MSPB to “safeguard[] the effective operation of the merit principles in practice.” 

Id. at 6, 1978 U.S.C.C.A.N. at 2728. 

We have held that the principles themselves do not create an independent cause 

of action when there is an adverse action. See Phillips v. Gen. Servs. Admin., 917 F.2d 

06-3144 5
1297, 1298 (Fed. Cir. 1990). Nonetheless, when the statute provides jurisdiction over 

an adverse action, the agency’s decision must be consistent with these merit system 

principles. In Wilburn v. Department of Transportation, 757 F.2d 260, 262 (Fed. Cir. 

1985), we specifically held that an adverse action that was inconsistent with the 

principles had to be set aside. We stated that “the purpose of [§ 2301] is to protect 

employees against political coercion, discrimination, personal favoritism and unfair, 

arbitrary or illegal action” and noted that “the linchpin of federal personnel management 

is fairness.” Id. Thus, we set aside the arbitrary agency action because it “undercut[] 

the merit system principles on which the [CSRA] was founded.” Id.; Phillips, 917 F.2d at 

1298 (“Merit systems principles can be used to interpret a law, rule, or regulation 

asserted to be violated by a government agency personnel practice.”). Indeed, at oral 

argument, government counsel conceded that the government “absolutely [could] not” 

“suspend [someone] indefinitely . . . arbitrarily.” 

An action taken without reasonable cause is plainly an arbitrary action. For 

example, when determining whether the government acted arbitrarily in reviewing bids 

for government contracts, this court has stated that government conduct is arbitrary 

when there is an “absence of a reasonable basis for the government decision.” Ctr. Ark.

Maint., Inc. v. United States, 68 F.3d 1338, 1342 n.4 (Fed. Cir. 1995); see Keco Indus., 

Inc. v. United States, 492 F.2d 1200, 1203-04 (Ct. Cl. 1974). 

Here the arbitrator had jurisdiction over Perez’s indefinite suspension. He was 

thus obligated to determine whether the suspension was arbitrary and erred in declining 

to address whether the agency had reasonable cause. 

III 

06-3144 6
The majority’s response is, in my view, untenable. First, the majority dismisses 

the statements in our prior cases and in Brown as mere dictum on the theory that in 

each case less than 30 days notice was provided. The majority states that Perez “relies 

primarily on broad general statements in four of our opinions which, taken out of 

context, appear to support his view. In each of those four cases, however, the 

suspended employee was given less than 30-days notice, so that the suspension could 

be sustained only if the reasonable cause requirement was satisfied.” Maj. Op., 5. The 

majority also concludes that the clear statements in our cases, to the effect that 

reasonable cause is required in all situations, are based on a misconstruction of the 

statute because § 7513(b)(1) itself does not impose a reasonable cause requirement. 

The majority has no authority to overrule our prior panel decisions even if they 

relied on the wrong provision of the statute (which, in my view, the prior decisions did 

not). See Hometown Fin., Inc. v. United States, 409 F.3d 1360, 1365 (Fed. Cir. 2005). 

Those decisions cannot be dismissed as “dictum.” At a minimum, our decisions in 

Pararas-Carayannis and Richardson hold that reasonable cause is required in all cases. 

Second, the majority appears to agree that there may in fact be a reasonable 

cause requirement imposed by other provisions of the statute, but the majority states 

that “the provision on which [Perez] relies is not applicable here.” Maj. Op. 8. However 

Perez clearly raised the reasonable cause issue. Perez squarely asked this court to 

decide “whether the ‘reasonable cause’ standard should be applied to indefinite 

suspensions” and “whether the [Bureau] satisfied that standard in this case.” Pet’r Br. 2. 

He stated that this court has established “clear precedents . . . regarding reasonable 

cause requirements for an indefinite suspension” and argued that the facts of his case 

06-3144 7
“clearly [do] not satisfy the reasonable cause standard established by the Federal 

Circuit.” Pet’r Br. 15, 19. 

The majority appears to be saying that petitioner’s mistake was relying on our 

prior cases because those cases, in turn, improperly relied on § 7513(b) as the source 

of the reasonable cause requirement. Even if those decisions could be disregarded by 

the panel, I think it is profoundly unfair to hold that the employee did not properly raise 

the reasonable cause requirement because he relied on our prior decisions that, in the 

majority’s view, cited the wrong section of the statute. The majority itself recognizes 

that those decisions contain explicit language requiring reasonable cause. As the First 

Circuit recently stated, when the law is “poorly developed and confusing,” “a litigant is 

not expected to guess just how a court will explain its result.” Broadley v. Mashpee 

Neck Marina, Inc., 471 F.3d 272, 276-77 (1st Cir. 2006); see also England v. La. State 

Bd. of Med. Exam’rs, 375 U.S. 411, 422-23 (1964). 

 Because in my view the arbitrator erroneously found that there was no 

reasonable cause requirement, I would vacate and remand for further proceedings 

under the correct standard. 

06-3144 8