BYE, Circuit Judge.
Kathy D. Massey was removed for misconduct from her position as a Program Technician (PT) by the Jackson County (Arkansas) Executive Director of the United States Department of Agriculture and its Farm Service Agency (FSA; agency). After exhausting her administrative appeals, Massey brought an action in the district court under the Administrative Procedures Act (APA), claiming the decision to terminate her was arbitrary and capricious or an abuse of discretion, violated her Fifth Amendment rights, and was not based on substantial evidence. The district court
A. Factual Background
Massey was employed for fourteen years as a PT in the Jackson County FSA Office in Newport, Arkansas. She was in charge of reconstitutions
In 1997, the Jackson County FSA Office came under investigation following concerns about allegations of farm program irregularities and conflicts of interest. Following initial conflicting reports, the Office of the Inspector General conducted an audit of the Jackson County FSA Office.
The Special Report alleged that, inter alia, CED Campbell failed to disclose his financial interests in a farming operation in Jackson County, which presented a conflict of interest. The Special Report alleged five Jackson County FSA reconstitutions allowed producers to use the farm division and combination process to improperly build rice crop acreage bases (CAB)
B. Procedural Background
The STC sent a letter to Massey notifying her she was suspended without pay pending removal for conduct issues and numerous program deficiencies.
Reason two of Massey's suspension letter stated she had impeded the effectiveness of FSA operations. The first specification under this reason stated as a PT, she failed to effectively manage the programs for which she was directly responsible, resulting in overpayments of government monies and expenditures of numerous staff resources to correct these program deficiencies. The second specification under this reason stated as a PT, Massey, inter alia, improperly executed program documents, allowing the disbursement of government funds by permitting producers to use the reconstitution process to build rice CAB.
Following a non-adversarial proceeding, the STC concluded Massey did not provide sufficient responses to the charges and she
The EDSO adopted Chott's decision, and this determination is a final administrative decision. See 7 C.F.R. § 7.30. Massey then filed suit in the district court for judicial review of the agency's decision. The district court affirmed and this appeal followed.
When reviewing the district court's opinion upholding the administrative agency's decision, this court must render an independent decision on the basis of the same administrative record as that before the district court. Moore v. Custis, 736 F.2d 1260, 1262 (8th Cir.1984). This court should hold unlawful and set aside agency action if it is arbitrary, capricious, an abuse of discretion, contrary to constitutional right, or without observance of procedure required by law. Id. This standard of review is a narrow one and the court is not permitted to substitute its judgment for that of the agency. Sierra Club v. Davies, 955 F.2d 1188, 1192-93 (8th Cir.1992). The appellant bears the burden of proving the agency's action was arbitrary and capricious. Id. at 1264.
Massey first contends the STC did not consider all relevant factors and relied on false information, and requests this court remand the case back to the STC for additional investigation. Specifically, Massey contends the STC was unaware someone else was changing the contribution percentages in the farm-record history which then contributed to the reconstitution problem. Significantly, however, Massey does not cite to any proof the STC was unaware other employees had access to the computer system. For example, as to one of the reconstitutions in question, A20116, the hearing officer expressly found although Massey was not in the office when three of the CABs resulting from the reconstitution were altered, Massey was in the office when the improper processing of the reconstitution was done in May 1992. We find Massey has produced no evidence which would call this conclusion into question, and therefore find no basis for remand on this issue.
Massey's attempts to refer to alleged errors regarding charges that were not sustained by the hearing officer are similarly unavailing, as this appeal only concerns the charges sustained by the hearing officer.
Massey also contends the agency's action was arbitrary and capricious because it failed to consider the allegations made against her involved actions or policies which had been approved, reviewed, and rejected by higher agency authority. The bulk of Massey's citations from the hearing transcript in support of her argument concern the issue of whether rice planted later
Significantly, Massey does not dispute she worked on all five of the questioned reconstitutions. And while it is true the reconstitutions were approved by her superiors, the STC had knowledge of this approval, and the CED in Jackson County Floyd Campbell (Massey's supervisor) was also terminated for improper conduct. Also, District Director Gary Roger Davis had only limited contact with the Jackson County FSA (performing "spot checks" during a monthly visit to ascertain how the programs are being administered overall). Therefore, we find unpersuasive Massey's contention she should be absolved of responsibility for the improper reconstitutions and their results based on Davis's supervisory role. In sum, although we suspect Massey may have found herself in an unfortunate circumstance, she has not presented sufficient evidence to indicate she was merely a scapegoat.
Massey further contends she has a "reasonable expectation of continued employment" creating a property interest protected by the Due Process Clause of the Fifth Amendment of the United States Constitution. Unlike employees covered by the Civil Service Reform Act, however, county employees serve at the pleasure of the county executive director. Buchholz v. Aldaya, 210 F.3d 862, 864 (8th Cir.2000) (concluding a county employee from the Agricultural Stabilization and Conservation Service had no protected interest in her employment and therefore no due process claim).
Massey argues the existence of her property interest is demonstrated by the agency's rules or regulations concerning discharge by the agency itself. In Bucholz, this court rejected a similar argument, concluding the agency's procedural requirements which allowed an employee the right to an informal hearing and review by the Area Director did not confer a property interest for due process purposes and were consistent with the declaration that county employees work at the pleasure of the County Director. Buchholz, 210 F.3d at 867.
Additional discussion of Massey's remaining claims would serve no useful purpose, and we affirm. See 8th Cir. R. 47B.
We affirm the agency's decision to terminate Massey.