Lizzio v. Department of the Army ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3136
PETER J. LIZZIO,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Lawrence A. Berger, Mahon & Berger, of Glen Cove, New York, for petitioner.
Gregg M. Schwind, Trial Attorney, 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 Reginald T. Blades, Jr, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
2009-3136
PETER J. LIZZIO,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Petition for review of the Merit Systems Protection Board in PH0752060546-M-1.
___________________________
DECIDED: May 6, 2010
___________________________
Before MAYER, SCHALL, and DYK, Circuit Judges.
PER CURIAM.
Peter J. Lizzio (“Lizzio”) petitions for review of a decision of the Merit Systems
Protection Board (“Board”), dismissing his appeal for lack of jurisdiction. The Board
found that Lizzio failed to prove that he did not engage in misconduct in violation of the
Last Chance Agreement (“LCA”). See Lizzio v. Dep’t of Army, 110 M.S.P.R. 442, 449-
50 (2009) (“Remand Determination”). We affirm.
BACKGROUND
Lizzio worked as a Special Agent within the U.S. Army Criminal Investigation
Command (“CID”), Major Procurement Fraud Unit (”MPFU”). The Department of the
Army (“the Army”) decided to remove him from his position as a criminal investigator in
October of 2005 for insubordination and conduct unbecoming of a federal employee.
Lizzio and the Army entered into an LCA, which provided that the Army would hold in
abeyance for one year its decision to remove him from employment. The Army agreed
that if Lizzio complied with the terms of the LCA, the removal would be cancelled.
Lizzio’s obligations under the LCA included an agreement to “[a]void any misconduct.”
The LCA also included a waiver of Board appeal rights if Lizzio were removed for
breach of the agreement.
In April 2006, the CID Standards of Conduct Office (“SOCO”) initiated an
investigation into allegations of misconduct by Lizzio. The investigation arose after the
security manager at a General Electric (“GE”) facility complained that Lizzio had acted
in an unprofessional manner when he came to the facility to interview a witness in a
procurement investigation on April 10, 2006. According to eyewitnesses, Lizzio was
apparently “insistent,” “agitated,” and “rude” when he was delayed entry at the security
gate. Remand Determination, 110 M.S.P.R. at 448. The SOCO inquiry concluded that
Lizzio had violated Army and CID regulations by “fail[ing] to maintain the highest
standards of personal conduct and professionalism to avoid embarrassment to the Army
and the government,” in violation of Army Regulation (“AR”) 195-3 and CID regulation
(“CIDR”) 195-1. AR 195-3 provides in pertinent part:
a. The nature of the CID Program necessitates that all individuals
assigned to the program, regardless of their status, maintain the highest
standards of personal conduct and professionalism to—
(1) Preclude the possibility of compromising criminal investigations.
(2) Prevent criticism that assails the credibility of the CID Program.
(3) Avoid embarrassment to the Army and the Government.
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CIDR 195-1 permits CID to remove “any agent who is considered substandard in
performance or conduct, deficient in character, or otherwise unsuited for the USACIDC
program.” On June 2, 2006, Lizzio was issued a “Notice of Intention to Invoke Last
Chance Agreement,” which stated the following:
On 9 May 2006 I received a report of an investigation from the
Standards of Conduct Office (SOCO), U.S. Army Criminal Investigation
Command, conducted as a result of allegations made against you for
failing to maintain the standards of personal conduct and professionalism
as directed by AR 195-3 and CIDR 195-1 and a possible violation of the
Joint Ethics Regulation and CIDR 195-1. The SOCO conclusion was that
you engaged in misconduct by failing to maintain the standards of
personal conduct and professionalism required by AR 195-3 and CIDR
195-1. I have reviewed the investigation and the supporting
documentation and have determined that you did engage in misconduct.
As a result of that misconduct I also concluded that you failed to comply
with paragraph 2a of the Last Chance Agreement you signed on 15
December 2005.
Pet’r’s App. 66. Lizzio was removed effective June 8, 2006.
Lizzio filed a timely appeal. The administrative judge (“AJ”) first noted that “[t]he
Board is required to review an agency’s decision on an adverse action solely on the
grounds invoked by the agency.” Lizzio v. Dep’t of the Army, No. PH-0752-06-0546-I-1,
slip op. at 7 (M.S.P.B. Oct. 18, 2006) (“Initial Determination”). She furthermore
concluded that the Deciding Officer (“DO”) “applied AR 195-3 . . . to the appellant’s
conduct,” and that AR 195-3 was “the only standard of conduct relied upon by the
agency to invoke the LCA.” Id. at 8-9. The AJ noted that the record evidence
“support[s] a finding that the appellant’s conduct at GE on April 10, 2006 was rude and
obnoxious.” Id. at 12. However, she concluded that the evidence was insufficient to
demonstrate that Lizzio’s conduct resulted in embarrassment to the government, which
she concluded was required to establish a violation of AR 195-3. Id. at 13-14. The AJ
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thus reversed the removal decision and ordered the Army to provide interim relief. Id. at
14.
The Army appealed to the full Board, arguing that the Initial Determination was
erroneous. The Board reversed, concluding that Lizzio failed to meet his burden of
showing that he did not breach the LCA. Lizzio v. Dep’t of Army, 105 M.S.P.R. 322, 331
(2007) (“Final Determination”). The Board concluded that it was free to rely on a
different ground than the one invoked by the agency to determine whether or not Lizzio
complied with the LCA. Id. The Board furthermore concluded that regardless of
whether Lizzio violated AR 195-3, rude and discourteous behavior towards members of
the public constituted “misconduct” within the meaning of the LCA. Id. Lizzio appealed,
and we vacated and remanded, holding that the Board “erred when . . . it relied on a
ground for breach of the last chance agreement . . . different from the ground found by
the AJ to have been asserted by the agency in the notice of breach. . . . In so doing, the
Board deprived Mr. Lizzio of due process.” Lizzio v. Dep’t of Army, 534 F.3d 1376,
1386 (Fed. Cir. 2008). We vacated the Final Determination and remanded, instructing
the Board to address the arguments that the Army raised in its petition for review. Id. at
1387 n.8.
On remand, the Board concluded that the AJ erred in holding that the Army only
relied on AR 195-3, because the Army specifically referenced both AR 195-3 and CIDR
195-1 in its notice to Lizzio that he was in breach of the LCA. Remand Determination,
110 M.S.P.R. at 447. The Board found that Lizzio had violated AR 195-3 because his
behavior “was an embarrassment to his agency and the government,” as indicated by
the testimony of several government officials. See id. at 448-49. The Board also held
2009-3136 4
that Lizzio violated CIDR 195-1, as rude and discourteous behavior constituted
“substandard” performance under the regulation. Id. at 449. The Board thus dismissed
the appeal for lack of jurisdiction. Id. at 449-50. Lizzio timely appealed, and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm a decision of the Board unless we find it to be: “(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). Whether the Board has
jurisdiction to adjudicate an appeal is a question of law which we review de novo.
Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008).
The Board lacks jurisdiction to adjudicate the merits of an appeal where the
employee has waived the right to appeal in an LCA. See Buchanan v. Dep’t of Energy,
247 F.3d 1333, 1338 (Fed. Cir. 2001). To overcome the waiver, and thereby confer
jurisdiction over the merits, the employee must show: (1) the employee complied with
the LCA; (2) the agency breached the LCA; or (3) the employee did not knowingly and
voluntarily enter into the LCA. Id. On appeal Lizzio asserts only the first ground for
establishing jurisdiction.
Lizzio argues that the Board incorrectly interpreted AR 195-3, and that
“embarrassment to the Army and the Government” must be established via a proven
nexus between the employee’s misconduct and public obloquy or notoriety. The Army,
while agreeing with the Board that Lizzio’s conduct violated both AR 195-3 and CIDR
195-1, also believes that the Board erred in its interpretation of AR 195-3. The Army
2009-3136 5
asserts that causing actual embarrassment is not an element of a violation of AR 195-3,
and proof of such embarrassment is not required to sustain the charge.
We agree that no proof of actual embarrassment is required to establish a
violation of AR 195-3. The language of AR 195-3 broadly states that CID personnel are
required to “maintain the highest standards of personal conduct and professionalism.”
The three clauses that follow this requirement provide amplification of the purpose
behind the requirement of the maintenance of the highest standards of conduct. We
conclude that proof that the employee’s behavior creates the potential for
embarrassment, criticism, or harm to an ongoing criminal investigation is all that is
required in order to establish a violation of AR 195-3. The Army is not required to prove
the existence of actual embarrassment to the agency or government, criticism that
assails the credibility of the program, or harm to a criminal investigation.
Furthermore, the Board found that Lizzio engaged in “rude and obnoxious”
behavior, Remand Determination, 110 M.S.P.R. at 449; this was sufficient to create the
potential for embarrassment to the Army. Thus, the Board did not err in finding that
Lizzio violated AR 195-3.
Lizzio also argues that the Board erred in considering CIDR 195-1, as that
charge was not properly before the Board in its Remand Determination. He argues that
the issue was not raised by the Army in its petition for review of the Initial Determination
and thus was not within the scope of our remand order in Lizzio v. Department of the
Army, 534 F.3d at 1386-87. However, we need not reach this issue because the finding
as to a violation of AR 195-3 constitutes sufficient grounds to affirm the Board’s
2009-3136 6
conclusion that Lizzio violated the LCA and the Board’s subsequent dismissal of the
appeal for lack of jurisdiction.
COSTS
No costs.
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