Brewer v. Department of Defense , 249 F. App'x 174 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3072
RONALD BREWER,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
Neil C. Bonney, Bonney & Allenberg, PC, of Virginia Beach, Virginia, for petitioner.
Ronald G. Morgan, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, and
Todd M. Hughes, Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3072
RONALD BREWER,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
DECIDED: August 10, 2007
__________________________
Before LOURIE and LINN, Circuit Judges, and BUCKLO, District Judge. *
PER CURIAM.
Ronald Brewer appeals the final decision of the Merit Systems Protection Board
(“Board”) affirming his removal from employment as the Recreation Program Manager
at the Department of Defense’s Joint Forces Staff College (“JFSC”), National Defense
University, Norfolk, Virginia. Brewer v. Dep’t of Defense, No. DC-0752-06-0055-I-1
(M.S.P.B. Oct. 20, 2006). Because the Board’s decision is supported by substantial
evidence and is in accordance with the law, we affirm.
*
Honorable Elaine E. Bucklo, District Judge, United States District Court for
the Northern District of Illinois, sitting by designation.
I. BACKGROUND
Mr. Brewer became the Recreational Programs Manager at JFSC in 2002. His
responsibilities included coordinating and directing the activities of the Morale, Welfare
and Recreation Department (“MWR”) and the Visitors Quarters (“VQ”) and he
supervised approximately 75 civilian and military employees. On August 30, 2005, the
Department of Defense (“the agency”) proposed removing Mr. Brewer from federal
service based on charges of failure to cooperate in an agency investigation, misuse of
government property, and conduct unbecoming a supervisor.
Specifically, Mr. Brewer was charged with: (1) failure to cooperate in an agency
investigation (a) when he refused, on the advice of his attorney, to answer the
investigator’s questions, and (b) advising MWR employees not to implicate him in any
wrongdoing when they were interviewed by the investigator; (2) misuse of government
property (a) when he allegedly requested staff at the VQ to issue keys to the
Distinguished VQ to his subordinates, (b) failed to pay the full rental cost for his use of a
unit in the VQ for approximately six months, (c) failed to pay for several VQ units for
which he held keys during the period September 22, 2003, to March 27, 2004, (d)
improperly authorized a subordinate to spend MWR funds for exercise clothing, and (e)
on a regular basis consumed and allowed certain MWR employees to consume
alcoholic beverages and food free of charge at a small restaurant and pub on the JFSC
campus called Pub 1; (3) conduct unbecoming a supervisor for (a) allegedly regularly
consuming alcohol on duty with subordinates during working hours, regularly
encouraging subordinates to drink alcoholic beverages and eat food at Pub 1 without
paying while on and off duty, and (b) directing subordinates to encourage their
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employees to use the Equal Employment Opportunity (“EEO”) process to file complaints
against the commanding officer of JFSC, Captain Jeanne McDonnell.
Mr. Brewer submitted a written response to the agency denying the charges. On
October 12, 2005, Captain McDonnell—the deciding official—ordered Mr. Brewer’s
removal, which became effective October 21, 2005. In reaching her decision as to the
appropriate penalty, Captain McDonnell considered Mr. Brewer’s response, and
completed a “Disciplinary Penalty Worksheet for Managers.” Mr. Brewer appealed the
removal decision to the Board.
An administrative judge (“AJ”) conducted a two-day hearing. The evidence
against Mr. Brewer consisted primarily of witness testimony. In his defense, Mr. Brewer
explained that he refused to answer the investigator’s questions based on the initial
rights advisement warning him of his right to remain silent and that evidence obtained
from the interview could be used against him. Mr. Brewer also called witnesses to
dispute the agency witnesses’ accounts on the other charges.
After considering the evidence and testimony, the AJ sustained all of the charges
and specifications, except specifications one and three of charge two (misuse of
government property when he allegedly requested staff at the VQ to issue keys to the
Distinguished VQ to his subordinates and failed to pay for several VQ units for which he
held keys during the period September 22, 2003, to March 27, 2004). Brewer v. Dep’t
of Defense, No. DC-0752-06-0055-I-1 (M.S.P.B. April 28, 2006). The full Board denied
Mr. Brewer’s petition for review, thereby making the AJ’s decision final. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
2007-3072 3
This court may only set aside a Board decision 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). Credibility determinations are within the
AJ’s discretion and are “virtually unreviewable” on appeal. Frey v. Dep’t of Labor, 359
F.3d 1355, 1361 (Fed. Cir. 2004) (quoting King v. Dep’t of Health & Human Servs., 133
F.3d 1450, 1453 (Fed. Cir. 1998)).
As in Frey, Mr. Brewer has not advanced sufficient reason for overturning the
AJ’s credibility determinations. Id. The AJ properly considered the relevant testimony
and evidence before her, discussing it in detail and explaining her reasons for crediting
the testimony she believed. Moreover, substantial evidence supports the AJ’s findings.
Cumulatively, the testimony credited by the AJ with respect to all of the affirmed
charges and specifications is substantial. 1
Mr. Brewer also claims the charges against him were vague, in violation of due
process. As determined by the AJ, Mr. Brewer was sufficiently on notice of the
sustained charges and was able to defend himself. The omission of some of the
pertinent dates in the charges is not improper per se. See Pope v. United States Postal
Serv., 114 F.3d 1144, 1148-49 (Fed. Cir. 1997) (denying challenge to sufficiency of
1
Mr. Brewer’s argument that his refusal to answer questions by the
investigator was protected by the Fifth Amendment’s privilege against self-incrimination,
and therefore charge one/specification one (failure to cooperate during an agency
investigation) cannot be sustained, is legally incorrect. When answering an agency’s
question, an employee may invoke his Fifth Amendment right to remain silent.
However, an agency may still take into consideration and make an adverse inference
from the failure of the employee to respond. See LaChance v. Erickson, 522 U.S. 262,
267-68 (1998). Mr. Brewer chose to remain silent and face dismissal; accordingly the
Board did not err in sustaining charge one/specification one.
2007-3072 4
notice where appellant claims he was not provided “dates, times, and places”). “Due
process requires that the charges in the notice be set forth ‘in sufficient detail to allow
the employee to make an informed reply.’” Id. at 1148 (quoting Brook v. Corrado, 999
F.2d 523, 526 (Fed. Cir. 1993)). In this case, Mr. Brewer responded to all the sustained
charges and was able to mount a defense. Mr. Brewer does not point to any specific
portion of the record that suggests otherwise or that the AJ erred in making such a
determination.
Mr. Brewer argues his due process rights were also violated as a result of
Captain McDonnell’s bias against him and her attempts to influence some of the
witnesses against him. The AJ found the witnesses credible, however, and we see no
basis for departing from such credibility determinations.
Mr. Brewer also takes issue with the AJ’s discovery and evidentiary decisions.
He claims these violated his due process rights. With respect to the discovery rulings,
the AJ found that the documents sought by Mr. Brewer (the precise contents of which
are not identified by the appellant) were provided during discovery before the AJ, but
Mr. Brewer complained this was too late because he had already been ordered
removed from his employment. This ruling does not fail to comport with due process
and is not an abuse of discretion. “The essential requirements of due process . . . are
notice and an opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 545-46 (1985) (full adversarial hearing is not required before termination of public
employment). Mr. Brewer was not denied notice or an opportunity to respond to the
sustained charges. He did, in fact, file a response and the documents at issue were
available for the hearing before the AJ. Furthermore, Mr. Brewer fails to identify how his
2007-3072 5
possession of such documents would have altered his response to the agency prior to
his removal.
Similarly, Mr. Brewer’s claim that the AJ’s refusal to allow his counsel to ask
Captain McDonnell about her interpretation of the charges was a due process violation
is misguided. An administrative judge has discretion to exclude witnesses when
testimony would be irrelevant. See Guise v. Dep’t of Justice, 330 F.3d 1376, 1379
(Fed. Cir. 2003) (citing Tiffany v. Dep’t of Navy, 795 F.2d 67, 70 (Fed. Cir. 1986)). The
AJ’s decision did not constitute an abuse of discretion because such information was
not relevant to sustaining the charges. And once again, Mr. Brewer fails to establish
that the absence of such information actually prejudiced his case.
Finally, Mr. Brewer claims it was error to find that the agency’s choice of
penalty—removal—was reasonable. “The choice of penalty is committed to the sound
discretion of the employing agency and will not be overturned unless the agency’s
choice of penalty is wholly unwarranted in light of all the relevant factors.” Guise, 330
F.3d at 1382 (citing Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999)). The
relevant factors are enumerated in Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06
(1981).
Here, Captain McDonnell completed a Douglas factors work sheet. She
considered Mr. Brewer’s past disciplinary history, of which there was none, and the
seriousness of his misconduct. The AJ credited Captain McDonnell and the evidence of
the agency’s consideration of the factors bearing on the appropriate penalty, including
the nature of Mr. Brewer’s employment in a leadership position. We see no basis for
2007-3072 6
overturning the AJ’s determination, particularly in light of our limited scope of review on
this issue, and affirm.
2007-3072 7