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Kimm v. Department of Treasury

    Brief Fact Summary. Kimm was a high level criminal investigator who had served for over ten years at the agency’s Bureau of Alcohol, Tobacco and Firearms (AT). Since Kimm’s position required him to be “on call” around the clock, he took his son to daycare while his wife was on bed rest due to complications with her pregnancy. Kimm was later notified that he was suspended without pay for 30 days for willfully using a GOV for a nonofficial purpose.

    Synopsis of Rule of Law. The Court’s standard of review for board decisions governed by the statute was to set aside those found to be: 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.

    Facts. Kimm testified that he believed the agency’s regulations allowed him to make a “minor deviation,” in light of his wife’s medical emergency, to bring his son to daycare. He cited a number of minor deviations that were standard practice-such as finding a place to eat while on a mission, testified that the agency was lax in the enforcement of its GOV regulations, and cited a number of incidents to support his belief. The AJ found that Kimm did not act with the requisite knowledge or disregard that his GOV use constituted a nonofficial use, and that Kimm thought he had discretion to rectify a family emergency while still making the best use of his time to perform agency functions. The Board reversed the initial decision and sustained the suspension, and Kimm petitioned for review.

    Issue. Was the Board’s decision supported by substantial evidence in the record as a whole?

    Held. No. Reversed. The Board’s determination that Kimm willfully used a GOV for a nonofficial purpose was not supported by substantial evidence. There was no evidence of record to support a finding that Kimm knew or should have known that use of the vehicle in the circumstances of the case would be held to constitute use for a nonofficial purpose, or that the acted in reckless disregard for whether or not the use was for an official purpose. Official use was left to good judgment, and Kimm could have reasonably thought that saving time by using the vehicle to remain on call while taking his son to daycare would promote the success of his mission. Dissent. None. Concurrence. None.

    Discussion. Kimm illustrates how the credibility findings of initial adjudicators can be very valuable. The Court of Appeals emphasized that the Board failed to offer any explanation for its rejection of the AJ’s findings, which is a hallmark of modern administrative law. Agencies must account for the findings of their initial adjudicators.


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