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