Kinslow v. Department of the Treasury , 315 F. App'x 286 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3030
JERENO S. KINSLOW,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
JeReno S. Kinslow, of Braselton, Georgia, pro se.
Jeffrey D. Klingman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Deborah A. Bynum, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3030
JERENO S. KINSLOW,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Petition for review of the Merit Systems Protection Board in consolidated case nos.
AT0752070609-I-2 and AT0752080092-I-1.
__________________________
DECIDED: March 10, 2009
__________________________
Before NEWMAN, RADER, and PROST, Circuit Judges.
PER CURIAM.
Jereno Kinslow appeals the September 10, 2008 decision of the United States
Merit Systems Protection Board (“MSPB”) denying his petition for review and adopting
the May 14, 2008 decision of the administrative judge terminating his employment as a
Supervisory Tax Examining Technician with the United States Department of the
Treasury, Internal Revenue Service (“IRS”). We affirm the decision of the MSPB.
I. BACKGROUND
On February 1, 2007, police were called to the home of Mr. Kinslow, his wife
Levetta Butler Kinslow, and her child. The responding officers found Mr. and Ms.
Kinslow with significant physical injuries. Based on their observations of Mr. and Ms.
Kinslow, the evidence visible at the scene, and the statements of Mr. and Ms. Kinslow,
the officers determined that Mr. Kinslow was the primary aggressor in an altercation
between the two. Mr. Kinslow was arrested for aggravated assault, battery, and cruelty
to children (related to the presence of Ms. Kinslow’s young child during the event). The
charges against Mr. Kinslow were later dropped at the request of Ms. Kinslow.
The IRS suspended and subsequently terminated Mr. Kinslow’s employment.
The removal was based on the original allegations against Mr. Kinslow and the
conclusions of an IRS investigator who interviewed both Mr. and Ms. Kinslow about the
event. The administrative judge reviewing Mr. Kinslow’s termination found that (1) Mr.
Kinslow was involved in a violent altercation with his wife and coworker Levetta Butler
Kinslow, (2) Mr. Kinslow’s involvement in this altercation caused the IRS to lose faith in
his ability to reliably, ethically, and/or effectively serve as a manager in the tax
examining department, and (3) termination of his employment was reasonable.
Following the administrative hearing, Mr. Kinslow acquired an affidavit from a
previously unknown eyewitness to the events and submitted the affidavit with an appeal
filed with the MSPB. The MSPB found that the affidavit did not constitute new evidence
and denied Mr. Kinslow’s petition for review, adopting the MSPB’s decision as final.
See 5 CFR § 1201.113. Mr. Kinslow now appeals to this court. We have jurisdiction
over the appeal pursuant to 5 U.S.C. § 7703.
II. PRELIMINARY MATTERS
Mr. Kinslow has requested that we strike from the record the Government’s brief
due to late filing. Mr. Kinslow’s appeal was received by this court on October 27, 2008,
2009-3030 2
via transfer from filing with the MSPB office in Georgia. Mr. Kinslow failed to serve the
Government with the appeal. On December 17, 2008, this court granted Mr. Kinslow’s
in forma pauperis petition, entered his appeal, and served the Government with the
appeal on Mr. Kinslow’s behalf. The Government’s twenty-one day time for response
runs from the date of service on the Government (December 17, 2008) and tolled on
January 7, 2009. The Government’s brief was received by this court and served by mail
on Mr. Kinslow on January 7, 2009, and is therefore accepted as timely.
The Government submits that Mr. Kinslow cannot challenge the administrative
court’s factual findings or rely on the record below because he failed to furnish a
transcript to this court. We disagree. This court timely received from Mr. Kinslow one
copy of the original monitored hearing compact disc from the administrative hearing
held April 1, 2008, before Administrative Judge Ramon V. Gomez of the Atlanta
Regional (Field) Office of the MSPB. We accept this recording as a substitute for a
written transcript, and consider its contents part of the record for review.
III. DISCUSSION
This court’s review of an appeal from a decision of the MSPB is limited by federal
statutory law. See 5 U.S.C. § 7703(c). This court may reverse a decision of the MSPB
only if it is “(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.” Id. An
agency decision is supported by “substantial evidence” if the record contains “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).
2009-3030 3
Mr. Kinslow challenges the MSPB’s conclusion that Mr. Walker’s affidavit did not
constitute new and material evidence that was previously unavailable. Mr. Kinslow
argues that Mr. Walker’s affidavit was previously unavailable because Mr. Walker
resides in a different town than Mr. Kinslow. Mr. Walker and Mr. Kinslow did not know
of each other prior to May of 2008 and Mr. Walker did not know of Mr. Kinslow’s arrest
or its connection to the events that Mr. Walker witnessed. We agree that Mr. Walker’s
affidavit would not likely have been available to Mr. Kinslow, even with due diligence,
but for the chance meeting between them in May of 2008.
Nonetheless, the MSPB’s determination that Mr. Walker’s affidavit does not
constitute new and material evidence is not reversible error. The fact that evidence was
not previously available does not make it new and material. The information contained
in Mr. Walker’s affidavit is nearly identical to the information offered by Mr. Kinslow
during his hearing testimony. Even if Mr. Walker’s affidavit were accepted as true and
corroborating evidence of Mr. Kinslow’s testimony, it would not preclude a conclusion
that Mr. Kinslow had a culpable role in a violent altercation between Mr. and Ms.
Kinslow, and that Mr. Kinslow engaged in conduct unbecoming of an IRS manager. It
was therefore not unreasonable for the MSPB to determine that Mr. Walker’s affidavit
did not present any new and material evidence that would require the MSPB to
reconsider the decision of the administrative judge.
We have reviewed Mr. Walker’s affidavit, the transcript of the administrative
hearing, the briefs of the parties, and the documents in the record. We are presented
with several competing versions of the events that took place on February 1, 2007,
none of which are completely supported or completely precluded by the evidence in the
2009-3030 4
record. Common to all credible versions of the events is that Mr. and Ms. Kinslow had a
disagreement in the early morning prior to his arrest, and that some sort of violent
altercation took place between them, during which both parties sustained serious
injuries from a pantera claw.
This court does not substitute its impression of the facts for that of the
administrative judge or the MSPB. We review the appeal only to determine whether,
based on the evidence in the record, a reasonable fact finder could have found that Mr.
Kinslow had a culpable role in the violent altercation, and engaged in conduct
unbecoming of an IRS employee. The preponderant evidence standard applicable to
an agency employment determination is a lower evidentiary standard than that required
in criminal proceedings. See 5 U.S.C. § 7701(c)(1)(B). A preponderance of the
evidence may be found by an agency even if there is not enough evidence to criminally
convict the accused of a crime arising out of the conduct for which his employment was
terminated.
We find there is sufficient evidence in the record that the administrative judge
could have reasonably sustained the IRS’s termination of Mr. Kinslow’s employment.
The evidence shows that a violent altercation took place, and that Mr. Kinslow lied to
the police about the nature of the altercation during their investigation. There is a
substantial nexus between the incident and Mr. Kinslow’s reliability, trustworthiness, and
ethical ability to perform his duties as a manager. The IRS responded harshly but not
unreasonably in terminating his employment. Further, for the reasons discussed above,
the MSPB did not commit reversible error in finding that Mr. Walker’s affidavit did not
2009-3030 5
constitute new and material evidence requiring the MSPB to reconsider the
administrative judge’s decision. The decision of the MSPB is affirmed.
COSTS
Each party shall bear its own costs.
2009-3030 6