Fannie Plenty v. Dept. of the Interior , 373 F. App'x 58 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3184
FANNIE PLENTY,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Thomas Malee, Attorney at Law, of Billings, Montana, for petitioner.
Scott D. Austin, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson,
Director, and Kirk T. Manhardt, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3184
FANNIE PLENTY,
Petitioner,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Petition for review of the Merit Systems Protection Board in DE-0752-08-0324-I-2.
__________________________
DECIDED: March 29, 2010
__________________________
Before BRYSON, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
Fannie Plenty petitions for review of the final decision of the Merit Systems
Protection Board (“Board”), which affirmed her removal from the Department of the
Interior. Plenty v. Dep’t of the Interior, No. DE-0752-08-0324-I-2, 2009 MSPB LEXIS
1488 (M.S.P.B. Mar. 13, 2009), review denied, 110 M.S.P.R. 662 (2009). Because the
Board’s findings are supported by substantial evidence, its decision is not legally
erroneous and it is not arbitrary or capricious, we affirm.
BACKGROUND
In 1989, Ms. Plenty began working at the Bureau of Indian Affairs (“Agency”), a
division of the Department of the Interior. She worked in the Land Title and Records
Office (“Office”), which secures, processes, and maintains records on interests in real
property held in trust by the United States for individual Native Americans and tribes.
Ms. Plenty was removed from her position as a legal instruments examiner on
April 7, 2008.
The evidence indicates that, on December 13, 2007, Ms. Plenty, herself a Native
American, requested that Mamie Charette, an Office cartography technician, print out
Ms. Plenty’s mother’s land holding reports and associated maps. Ms. Charette provided
Ms. Plenty with five bound booklets pertaining to her mother’s trust property, including
an Individual/Tribal Report (“ITI”) and Title Status Reports (“TSRs”). Ms. Charette
testified that her work in response to Ms. Plenty’s request was performed on two
separate days. She estimated that it took her approximately six hours to complete the
work.
Ms. Plenty admitted that she was aware of the Office’s policy on conflicts of
interest, which prohibited its employees from performing work on relatives’ estates.
In addition, as a “probable heir,” Ms. Plenty was required to make a request to the
Agency office having administrative jurisdiction over the Indian land and was not entitled
to receive the TSRs that she obtained from Ms. Charette. A TSR contains information
on all fractional owners and their interests, and its dissemination is more restricted than
an ITI.
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Ms. Plenty testified that she had Ms. Charette print her mother’s reports so that
she and her sisters could use the information to reach agreements on how to divide her
mother’s estate, but contended that she did so as a way to train Ms. Charette and she
did not ask for TSRs.
After her supervisor learned of Ms. Plenty’s actions, Ms. Plenty was issued a
Notice of Proposed Removal based on charges of improper use of government records
and improper use of official time. Mr. Darry LaCounte, the deciding official, issued
Ms. Plenty a removal decision letter, sustaining the charges and removing her from the
Agency.
Ms. Plenty appealed her removal to the Board. The administrative judge
sustained both charges and affirmed the Agency’s decision to remove Ms. Plenty from
her position. The full Board denied Ms. Plenty’s petition for review; thus, the initial
decision became final. Ms. Plenty timely appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review of the Board’s decision is limited. We may set aside the
Board’s decision 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.”
5 U.S.C. § 7703(c) (2006); see Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1381
(Fed. Cir. 2004).
Ms. Plenty argues that the Board erred in sustaining Charge One of the Notice of
Proposed Removal because the label of this charge was “Improper Use of Government
2009-3184 3
Records,” and the supporting narrative did not allege that Ms. Plenty ever made use of
the records provided to her by Ms. Charette. Instead, the narrative set forth that
Ms. Plenty improperly requested and obtained the records for other than official
purposes.
We agree with Ms. Plenty that the Agency erred in conflating the charges of
misuse of government records and improper acquisition of those records.
Nevertheless, we construe Charge One of the Notice of Proposed Removal as charging
Ms. Plenty with both misconducts. See Allen v. U.S. Postal Serv., 466 F.3d 1065, 1070-
71 (Fed. Cir. 2006) (interpreting a Notice of Proposed Removal as charging petitioner
with two separate charges, even though the heading of the notice only indicated a
single charge). Ms. Plenty understood the Agency’s primary concern was her improper
acquisition of the government records and she responded to this charge. Pet’r’s Br. at
7-12.
Ms. Plenty contends that the administrative judge erred in finding that the
testimony of Ms. Charette was more credible than hers. As we have frequently stated,
however, the credibility determinations of an administrative judge are “virtually
unreviewable on appeal.” Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364
(Fed. Cir. 2002). The administrative judge explained his credibility determination by
noting that (1) much of Ms. Plenty’s testimony was in response to leading questions on
direct examination from her counsel; (2) Ms. Plenty provided testimony that was
inconsistent with Ms. Charette’s; (3) there was no evidence that Ms. Charette was
biased against Ms. Plenty; and (4) Ms. Charette’s version of the facts was not inherently
improbable. The administrative judge specifically discredited Ms. Plenty’s testimony
2009-3184 4
concerning her desire to provide Ms. Charette with training, reasoning that “[h]ad
[Ms. Plenty’s] purpose been to simply give Charette a training exercise in the course of
official business, she could have used an estate on which she was officially working.”
Thus, the administrative judge correctly concluded that, because Ms. Plenty knowingly
went through improper channels by requesting these records from Ms. Charette, she
committed improper conduct.
In addition, the administrative judge correctly sustained the charge of improper
use of official time. The record reflects that Ms. Plenty caused Ms. Charette to
improperly use official time in gathering those reports. Ms. Plenty presents no clear
argument challenging the Board’s decision sustaining Charge Two in her appeal before
this court.
Finally, Ms. Plenty challenges her removal as the result of a failure to fully
consider the Douglas factors. It is well established that the determination of the proper
disciplinary action to be taken to promote the efficiency of the service is a matter within
the discretion of the agency. Miguel v. Dep’t of the Army, 727 F.2d 1081, 1083
(Fed. Cir. 1984). Accordingly, we give deference to the agency’s judgment unless a
penalty violates a statute or regulation or is “so harsh and unconscionably
disproportionate to the offense that it amounts to an abuse of discretion.”
Villela v. Dep’t of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984).
In the instant case, the Board did not abuse its discretion when it affirmed the
reasonableness of the removal penalty. As the administrative judge explained, the
deciding official in this case considered Ms. Plenty’s nineteen years of service, but he
determined that other relevant Douglas factors, including the nature and seriousness of
2009-3184 5
the offenses, her high level position, her prior disciplinary actions for misconducts, and
the consistency of the penalty with those imposed on similarly situated employees,
justified the removal. Accordingly, there was appropriate consideration of the relevant
Douglas factors to establish that the penalty was reasonable. Thus, there was no
abuse of discretion in determining that the Agency appropriately considered the relevant
factors.
In sum, although the Agency did not prove that Ms. Plenty ever misused the
reports Ms. Charette provided to her, substantial evidence supports that Ms. Plenty
improperly requested and obtained those records and caused Ms. Charette to
improperly use official time. The evidence clearly supports a conclusion that Ms. Plenty
violated Agency policy and regulation. Accordingly, a remand is not necessary because
the Board considered the relevant Douglas factors and the charges sustained were
sufficiently serious to warrant removal. See Kumferman v. Dep’t of the Navy, 785 F.2d
286, 292-93 (Fed. Cir. 1986) (holding it was unnecessary to remand the case to the
Board to reevaluate the penalty since the record reflected “a reasoned concern for the
factors appropriate to evaluating a penalty”) (internal citations omitted).
For these reasons, we affirm the Board’s decision.
COSTS
No costs.
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