Tuesday, April 10, 2012

CAFC: Norris v. SEC. Emails to Mark Cuban.

The outcome:

Jeffrey B. Norris (“Norris”) petitions for review of an arbitrator’s decision affirming his removal from his position as a Trial Attorney with the Securities and Exchange Commission (“SEC”). U.S. Sec. & Exch. Comm’n v. Nat’l Treasury Emps. Union Chapter 293, No. SEC-AR-09-005 (Apr. 19, 2011) (Winograd, Arb.) (“Arbitration Decision”). Because we hold that the arbitrator erroneously failed to consider new evidence bearing upon the reasonableness of Norris’s removal, we vacate and remand.

From the background:

Norris served as a Trial Attorney with the SEC from February 23, 1992, until he was removed on August 28, 2009. Before the events leading to his removal, discipline was initiated against Norris for exercising poor judgment and misuse of government email on two separate occasions. (...) from March to May 2007, Norris exchanged a series of antagonistic emails from his SEC email account, and in which he identified himself as SEC trial counsel, with businessman Mark Cuban, owner of the Dallas Mavericks professional basketball team.

Vermont Yankee appears in footnote 4:

See, e.g., Vt. Yankee Nuclear Power Corp. v. Natu- ral Res. Def. Council, Inc., 435 U.S. 519, 555 (1978) (“[T]he role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review.” (empha- sis added)); Co-Steel Raritan, Inc. v. Int’l Trade Comm’n, 357 F.3d 1294, 1316 (Fed. Cir. 2004) (“[I]f litigants could demand rehearing as a matter of law because of new circumstances, new trends or new facts, ‘there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening.’” (quoting Vt. Yankee, 435 U.S. at 554-55)).

The crux of this matter:

In this case, the arbitrator erred in holding that “post- removal . . . good conduct is not relevant to the issue before the arbitrator.” Arbitration Decision, slip op. at 57 n.17. In assessing the reasonableness of the penalty imposed, the arbitrator was required to consider post- removal evidence that was brought to his attention. On remand, the arbitrator should consider the post-removal evidence submitted by Norris in evaluating the relevant Douglas factors. We express no opinion as to the weight to be given such mitigating evidence.


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