NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GEORGE HERRERA,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
__________________________
2012-3101
__________________________
Appeal from the Merit Systems Protection Board in
Case No. CB7121110025-V-1.
___________________________
Decided: October 11, 2012
___________________________
GEORGE HERRERA, of Gilbert Arizona, pro se.
CAMERON COHICK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director.
__________________________
HERRERA v. DHS 2
Before RADER, Chief Judge, LINN and WALLACH, Circuit
Judges.
PER CURIAM.
INTRODUCTION
Petitioner George Herrera appeals the final decision
of the Merit Systems Protection Board (“Board”) in George
Herrera v. Department of Homeland Security, No. CB-
7121-11-0025-V-1 (M.S.P.B. Jan. 20, 2012). In its deci-
sion, the Board denied Mr. Herrera’s request to review an
arbitration decision that dismissed his grievance against
the Department of Homeland Security (“Agency”). Be-
cause the Board’s decision is supported by substantial
evidence, we AFFIRM.
BACKGROUND
Effective March 28, 2011, Mr. Herrera was removed
from his position as an immigration enforcement agent
with the Agency for lack of candor, failure to report an
arrest, and operating a Government-owned vehicle with a
suspended driver’s license. Subsequently, in a letter
dated March 29, 2011, Mr. Herrera’s union, the American
Federation of Government Employees (“Union”), sought
arbitration of Mr. Herrera’s removal pursuant to the
collective bargaining agreement (“CBA”) between the
Agency and the Union. Sam Vitaro (“Vitaro” or “Arbitra-
tor”) was selected to be the Arbitrator, and Thomas Tier-
ney (“Tierney”) represented the Union and Mr. Herrera as
the attorney in connection with the arbitration proceed-
ings.
On April 20, 2011, upon receiving notice that Mr. Vi-
taro had been selected as the arbitrator, Mr Tierney
3 HERRERA v. DHS
emailed 1 Mr. Vitaro requesting that Mr. Vitaro recuse
himself from the case. The basis for Mr. Tierney’s request
stems from a fee dispute between Mr. Vitaro and Mr.
Tierney in an earlier arbitration proceeding, which did
not involve Mr. Herrera. After several email exchanges
regarding Mr. Tierney’s request for recusal, Mr. Vitaro
denied the request.
On May 4, 2011, Mr. Vitaro sought to set a hearing
date for the arbitration. Mr. Vitaro offered six dates upon
which he was available: May 19; May 20; June 8; June 9;
June 15; and June 16. Notwithstanding the proposed
dates, Mr. Tierney responded the next day indicating that
the CBA required the hearing be held no later than May
11. In response to Mr. Vitaro and Mr. Tierney, James D.
Whitaker (“Agency Counsel”), informed the parties of the
Agency’s unavailability until July.
Thereafter, Mr. Vitaro inquired about available dates
in July. Mr. Tierney responded on May 5, 2011 stating, in
part:
Our contract calls for you to hold a hearing within
15 days after selection. Assuming arguendo that
15 days didn’t start to run until today, the con-
tract still requires you to hold a hearing before
May 26th . . . . If you don’t agree to hold a hearing
on or before May 26th, then contractually the un-
ion don’t (sic) have to use you as the arbitrator on
this case and will seek to have you removed on
that basis.
A55. On May 6, 2011, despite the Agency’s representa-
tion that it was not available until July, Mr. Vitaro
scheduled the hearing for May 26 stating: “I have not
1
Communication among the parties was con-
ducted via email unless stated otherwise.
HERRERA v. DHS 4
heard back from Mr. Tierney but on rereading his e-mail
to me yesterday, it is clear, as he demanded, that he is
available on May 26. Thus, the hearing in the Herrera
matter is scheduled for May 26.” A55. Mr. Tierney re-
sponded on the same day, stating that he had not “de-
manded” the hearing to be set on May 26 and that the
May 26 date is still in violation of the CBA. Mr. Tierney
also said that he and Mr. Herrera would not be available
on May 26. Further, Mr. Tierney reiterated his conten-
tion that Mr. Vitaro should recuse himself from the pro-
ceeding. Mr. Vitaro replied, requesting that Mr. Tierney
remain professional and stating that Mr. Tierney, despite
his intentions to seek recusal, should address the issue of
scheduling or otherwise risk prejudicing his client.
On May 9, 2011, Agency Counsel inquired about the
proposed May 26 date, to which Mr. Tierney responded:
“As previously stated, the union is unavailable on May
26th.” A53. Upon receiving Mr. Tierney’s email, Agency
Counsel replied citing to provisions of Article 48 of the
CBA:
Mr. Tierney has communicated the unavailability
for May 26th. He has not offered any other alter-
native dates but has stated his client does not rec-
ognize the arbitrator’s jurisdiction to hear this
matter. The CBA does not permit the unilateral
striking of an arbitrator by either party. The
proper procedure is for an arbitrator’s jurisdiction
to be challenged at the arbitration and then file
exception later on if need be. The CBA is clear on
its face, the arbitrator has the authority to estab-
lish a hearing date or dismiss the grievance . . . .
Once again, the agency is ready and willing to ar-
bitrate this matter and is available to dates the
arbitrator may have available.
5 HERRERA v. DHS
A52.
On May 13, 2011, Mr. Vitaro asked Agency Counsel
for available hearing dates, and Agency Counsel indicated
that he was available July 7 and July 26-28, 2011. On
that same day, Mr. Vitaro informed Mr. Tierney that the
hearing date was set for July 7 and that Mr. Tierney was
required to respond by May 27 indicating whether he
would be attending the hearing. If no response was
received, Mr. Vitaro warned Mr. Tierney that the hearing
would be canceled and appropriate actions considered,
including dismissal of Mr. Herrera’s grievance. On May
18, 2011, rather than responding to Mr. Vitaro regarding
the July 7 date, Mr. Tierney filed a motion to recuse the
arbitrator. On June 16, 2011, the motion to recuse was
denied.
Subsequently, Agency Counsel requested that the
July 7, 2011 hearing begin at 8 a.m. Mr. Vitaro agreed
and asked whether Mr. Tierney was amenable to that
time. Mr. Tierney replied stating that he was not avail-
able to appear on that date and time.
On June 20, 2011, the Agency moved to dismiss Mr.
Herrera’s grievance due to the Union’s failure to proceed
with due diligence in setting a hearing date citing the
CBA, in relevant part:
Each party has the obligation to cooperate
promptly with the designated arbitrator in setting
a date for a hearing. Failure of either party to
proceed with due diligence in responding to an of-
fer of dates may serve as a basis for establishment
of a hearing date by the arbitrator or dismissal of
the grievance.
A39. On June 22, 2011, the Union President emailed Mr.
Vitaro, stating that Mr. Tierney had stepped down as
HERRERA v. DHS 6
attorney for the Union and seeking an extension of time
to respond to the Agency’s motion in order to obtain new
counsel. Mr. Vitaro granted the Union’s request, extend-
ing the deadline to respond to July 29, 2011. The Union
failed to respond by July 29, 2011, and on August 2, 2011,
Mr. Vitaro granted the Agency’s motion to dismiss the
grievance for failing to proceed with due diligence in
setting a hearing date pursuant to the CBA.
On August 30, 2011, Mr. Herrera, once again repre-
sented by Mr. Tierney, filed a request for review of the
Arbitrator’s decision to the Board. On January 20, 2012,
the Board denied the request. A timely request for review
was filed with this court. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
As an employee covered by a labor union agreement,
Mr. Herrera had the option to either appeal his removal
to the Board or to follow the negotiated grievance proce-
dure described in the CBA. 5 U.S.C. § 7121(d). Specifi-
cally, § 7121(d) provides:
An aggrieved employee affected by a prohibited
personnel practice under section 2302(b)(1) of this
title which also falls under the coverage of the ne-
gotiated grievance procedure may raise the matter
under a statutory procedure or the negotiated pro-
cedure, but not both. An employee shall be
deemed to have exercised his option under this
subsection to raise the matter under either a
statutory procedure or the negotiated procedure at
such time as the employee timely initiates an ac-
tion under the applicable statutory procedure or
timely files a grievance in writing, in accordance
with the provisions of the parties’ negotiated pro-
cedure, whichever event occurs first. Selection of
7 HERRERA v. DHS
the negotiated procedure in no manner prejudices
the right of an aggrieved employee to request the
Merit Systems Protection Board to review the fi-
nal decision pursuant to section 7702 of this title
in the case of any personnel action that could have
been appealed to the Board . . . .
Because Mr. Herrera alleges discrimination, a prohibited
personnel practice under 5 U.S.C. § 2302(b)(1) 2 in connec-
tion with the underlying action, the Board properly exer-
cised jurisdiction to review the arbitration decision under
§ 7121(d).
In reviewing the Board’s decision, we set aside the de-
cision only if it was “(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); Whitmore v.
Dep’t of Labor, 680 F.3d 1353, 1366 (Fed. Cir. 2012).
“Under the substantial evidence standard of review, a
court will not overturn an agency decision if it is sup-
ported by ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Jacobs
v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
2
5. U.S.C. 2302(b)(1) states, in relevant part:
“Any employee who has authority to take, direct others to
take, recommend, or approve any personnel action, shall
not, with respect to such authority – (1) discriminate for
or against any employee or applicant for employment –
(A) on the basis of race, color, religion, sex, or national
origin, as prohibited under section 717 of the Civil Rights
Act of 1964 . . . .” Here, Mr. Herrera alleges discrimina-
tion on the basis of race and ethnicity. See A3.
HERRERA v. DHS 8
The Board’s standard of review of an arbitration deci-
sion is narrow; such decisions are entitled to a greater
degree of deference than initial decisions of the Board’s
administrative judges. Keller v. Dep’t of Army, 113
M.S.P.R. 557, 559 (2010). Even if the Board disagrees
with the arbitrator’s decision, absent legal error, the
Board cannot substitute its conclusions for those of the
arbitrator. Id. The Board will modify or set aside an
arbitrator’s decision only where the arbitrator has erred
as a matter of law in interpreting civil service law, rule, or
regulation. Id.
Here, the Board’s decision affirming the Arbitrator’s
dismissal of Mr. Herrera’s grievance against the Agency
was not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. Rather, substantial
evidence supports the Board’s decision. The Board re-
jected Mr. Herrera’s contention that the Arbitrator vio-
lated his due process rights by denying him a hearing and
finding that the Arbitrator acted properly within his
discretion and within the bounds of the CBA. This de-
termination is fully supported by substantial evidence.
Indeed, the record shows that the Arbitrator made nu-
merous attempts to schedule a hearing despite Mr. Tier-
ney’s refusal to confirm proposed hearing dates or propose
alternative hearing dates. The Arbitrator eventually
scheduled a hearing date and warned Mr. Tierney of the
consequence for any failure to appear. Mr. Tierney did
not respond to the Arbitrator regarding the scheduled
hearing date. As a result, the hearing was cancelled and
the Agency filed a motion to dismiss Mr. Herrera’s griev-
ance for failure to proceed with due diligence pursuant to
the CBA.
The Union subsequently informed the Arbitrator that
Mr. Tierney was removed from the case and requested an
extension of time to find new counsel. Although the
9 HERRERA v. DHS
Arbitrator granted the Union’s request, the Union failed
to find new counsel and ultimately failed to respond to the
motion. These facts render reasonable the Arbitrator’s
decision to grant the motion to dismiss. As a result, we
agree with the Board’s decision that Mr. Herrera did not
show that the Arbitrator “abused his discretion and
thereby erred as a matter of law in handling the arbitra-
tion proceedings,” and find that the decision to dismiss
the grievance is supported by substantial evidence.
Next, Mr. Herrera contends that the Arbitrator was
biased, as evidenced by the Arbitrator’s comments that
Mr. Tierney was unethical and “a joke.” Mr. Herrera’s
arguments regarding bias is not supported by the record
and fails to unsettle the evidence that substantially
supports the Board’s decision. The Board found Mr.
Herrera’s argument unpersuasive because these com-
ments were made to Mr. Tierney in the context of a billing
dispute in another arbitration matter involving another
grievant. In particular, the Board did not err because
comments alone generally do not constitute bias as a
matter of law, and Mr. Herrera fails to show how alleged
unprofessional comments from a prior proceeding in an
unrelated matter constitute bias in this case on appeal.
See Liteky v. United States, 510 U.S. 540, 555-56 (1994)
(“Not establishing bias or partiality, however, are expres-
sions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men
and women, even after having been confirmed as federal
judges, sometimes display.”); see also Bieber v. Dep’t of
Army, 287 F.3d 1358, 1362 (Fed. Cir. 2002) (quoting
Liteky, 510 U.S. at 555) (requiring a showing of “a deep-
seated favoritism or antagonism that would make fair
judgment impossible”). Accordingly, applying our defer-
ential standard of review, we see no error in the Board’s
HERRERA v. DHS 10
denial to review the Arbitrator’s decision dismissing Mr.
Herrera’s grievance.
AFFIRMED
No costs.