Kimm v. Department of the Treasury
61 F.3d 888 (1995)
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Rule of Law:
For a government employee's use of a government vehicle to constitute 'willful use' for a non-official purpose under 31 U.S.C. § 1349(b), the employee must have actual knowledge that the use is non-official or act with reckless disregard for its non-official nature. An employee's reasonable, good-faith belief that their actions are necessary to maximize availability for official duties during an emergency can negate a finding of willfulness.
Facts:
- Kevin R. Kimm was a criminal investigator for the Bureau of Alcohol, Tobacco and Firearms (ATF) who was required to be on call 24 hours a day, seven days a week.
- In August 1992, Kimm's pregnant wife experienced medical complications and was ordered by her doctor to remain on complete bed rest.
- Due to his wife's medical emergency, Kimm transported his son to and from daycare in his government-owned vehicle (GOV) on three or four occasions.
- This deviation from his normal commute was 2.6 miles each way.
- Kimm was heavily involved in a dangerous conspiracy investigation and working significant overtime during this period.
- Kimm believed that using his GOV, which was equipped with special communication gear, was the most efficient use of his time to handle the family emergency while remaining available for his official duties.
- ATF policy required employees to exercise 'good judgment' in determining if transporting a person was essential to an official mission.
Procedural Posture:
- The Department of the Treasury proposed to suspend its employee, Kevin R. Kimm, for thirty days.
- Following Kimm's reply, the agency imposed the suspension.
- Kimm appealed the suspension to the Merit Systems Protection Board (MSPB).
- An MSPB Administrative Judge held a hearing and issued an initial decision reversing the agency's suspension.
- The agency (appellant) petitioned the full Merit Systems Protection Board for review of the Administrative Judge's decision, with Kimm as the appellee.
- The full Board reversed the Administrative Judge's decision and sustained the thirty-day suspension.
- Kimm (petitioner) then sought review of the Board's final decision in the U.S. Court of Appeals for the Federal Circuit.
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Issue:
Does a federal employee's use of a government vehicle to transport their child to daycare during a family medical emergency, when the employee is on-call 24/7 and believes this action maximizes their availability for official duties, constitute 'willful use' for a non-official purpose under 31 U.S.C. § 1349(b)?
Opinions:
Majority - Lourie, Circuit Judge.
No. A federal employee's use of a government vehicle under such circumstances does not constitute willful misuse. To violate the statute, an employee must have actual knowledge that the use was non-official or act with reckless disregard of its nature. Here, there is no evidence to support a finding that Kimm knew or should have known his actions constituted misuse, or that he acted with reckless disregard. The court found that the Administrative Judge's credibility assessment of Kimm was sound and should not have been overturned by the board without good reason. Given Kimm's 24/7 on-call status, the family medical emergency, his demanding work on a dangerous case, and the agency's policy requiring 'good judgment,' his belief that he was maximizing his availability for work was reasonable. His actions did not amount to reckless disregard for the regulations but rather reflected a conscientious effort to fulfill his duties under stressful circumstances.
Analysis:
This decision clarifies the 'willfulness' standard for misuse of government property under 31 U.S.C. § 1349(b), emphasizing that an employee's subjective intent and the reasonableness of their judgment are critical. It establishes that exigent personal circumstances, when coupled with demanding, on-call job responsibilities, can justify minor deviations from standard policy without rising to the level of 'willful misuse' or 'reckless disregard.' The ruling provides protection for government employees who make good-faith judgment calls in stressful situations, making it more difficult for agencies to impose mandatory penalties without strong evidence of the employee's culpable state of mind.
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