Case: 20-1607 Document: 27 Page: 1 Filed: 11/10/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONALD FRANCIS HAIRSTON,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2020-1607
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-20-0126-I-1.
______________________
Decided: November 10, 2020
______________________
DONALD FRANCIS HAIRSTON, Culpeper, VA, pro se.
STEPHANIE FLEMING, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JEFFREY
B. CLARK, DEBORAH ANN BYNUM, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before O’MALLEY, WALLACH, and TARANTO, Circuit
Judges.
Case: 20-1607 Document: 27 Page: 2 Filed: 11/10/2020
2 HAIRSTON v. DEFENSE
PER CURIAM.
Donald Francis Hairston appeals from a decision of the
Merit Systems Protection Board (“the Board”) affirming a
removal decision by the Department of Defense (“the
agency”). Hairston v. Dep’t of Def., No.
DC-0752-20-0126-I-1, 2020 MSPB LEXIS 456 (Feb. 6,
2020) (“Final Decision”). Because we find no violation of
Hairston’s due process rights and no harmful procedural
error, we affirm.
BACKGROUND
Hairston was employed as a Medical Records Techni-
cian at the Walter Reed National Military Medical Center,
a medical treatment facility under the authority of the De-
partment of Defense, in Bethesda, Maryland. Final Deci-
sion, 2020 MSPB LEXIS 456, at *1. On or around February
8, 2019, a routine audit and cybersecurity service-provider
monitoring process determined that Hairston used his gov-
ernment computer to access his personal social media ac-
count and converse with individuals about purchasing and
using illegal drugs, engage in sexually explicit conversa-
tions, and view inappropriate pictures of others. S.A. 23. 1
On September 12, 2019, the agency issued Hairston a
notice of proposed removal on two charges, “Misuse of Gov-
ernment Property (For Other Than Official Purposes)” and
“Conduct Unbecoming a Federal Employee (Immoral, In-
decent or Disgraceful Conduct).” Id. The notice described
Hairston’s right to make an oral reply. S.A. 24. It also
explained his right to obtain a representative or attorney
to assist him with the reply and accompany him to the
hearing at which he gave his reply. Id. The notice specified
that “[a]ny representative designation should be in writing
1 “S.A.” refers to Respondent’s Supplemental Appen-
dix, available at Dkt. No. 15.
Case: 20-1607 Document: 27 Page: 3 Filed: 11/10/2020
HAIRSTON v. DEFENSE 3
and submitted to the Designated Deciding Official (DDO).”
Id.
The notice also described Hairston and his representa-
tive’s right to review the material on which the removal ac-
tion was based, including setting the location for review
and providing contact information for the contact person,
Richard Simonton, a Human Resources Specialist at Wal-
ter Reed. Id. Hairston had three phone conversations with
Simonton, during which Simonton explained that the evi-
dence could not be sent electronically. S.A. 44. Simonton
also scheduled an in-person meeting just before Hairston’s
oral reply, during which Hairston would be able to review
the evidence. S.A. 41, 44.
On September 27, 2019, the day of Hairston’s oral re-
ply, Edward Baker, a union representative, met with Si-
monton to review the evidence and Hairston’s case file.
S.A. 41, 43. When Hairston arrived, he met with Baker,
but Simonton asserts that Hairston did not request to see
the evidence. Final Decision, 2020 MSPB LEXIS 456, at
*11; see also S.A. 40, 42. Baker and Hairston then spoke
privately for 15 to 20 minutes before being informed that
the DDO had arrived. S.A. 41–42. “[U]pon Mr. Hairston’s
request,” the two proceeded to meet with the DDO for the
oral reply. S.A. 42. Simonton attests that neither Hairston
nor Baker asked Simonton to review the evidence again.
S.A. 41.
At the oral reply, Hairston explained that he had a
death in the family and struggled with depression and an-
ger management. S.A. 29. He also stated that he had been
struggling with an addiction to pornography, and that he
occasionally used illicit drugs to combat his depression. Id.
Hairston did not deny either of the removal charges. Id.
On October 4, 2019, the agency sustained both charges
against Hairston. Final Decision, 2020 MSPB LEXIS 456,
at *2. He was removed effective October 15, 2019. Id.
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4 HAIRSTON v. DEFENSE
On November 7, 2019, Hairston appealed the removal
decision to the Board. In his appeal, Hairston asserted that
his due process rights had been violated because the deci-
sion was based on evidence that “was not disclosed or pre-
sented to [him].” S.A. 40. He indicated that he told
Simonton several times that he had not seen the evidence
against him. Id. He also explained, “I was introduced to
my Union Representative, whom I had tried to contact on
several occasions prior to our meeting that day to discuss
my case. We had very little time to speak before we met
with” agency staff. Id.
On January 22, 2020, the administrative judge (“AJ”)
held a prehearing conference to review Board procedures
and the pertinent law; to identify, narrow, and define the
issues; and to obtain stipulations. S.A. 51. Hairston indi-
cated during this conference that he did not dispute the
agency’s charges. 2 S.A. 52–53. Hairston asserted that
Baker failed to provide proper representation, which the
AJ interpreted to mean there was no dispute that Hairston
designated Baker to serve as his representative. S.A. 52,
52 n.3.
On February 6, 2020, the AJ issued an initial decision
affirming the agency’s action removing Hairston from fed-
eral employment. Final Decision, 2020 MSPB LEXIS 456,
at *1. First, the AJ found that the agency had proven both
charges by preponderant evidence. Id. at *3–9. At oral re-
ply before the agency and the prehearing conference before
the AJ, Hairston did not deny the misconduct on which
both charges were based. Id. at *5–6. He, in fact, admitted
at oral reply to occasionally using illicit drugs to combat his
depression. Id. at *6. And the AJ reviewed Hairston’s case
2 Before the AJ, Hairston asserted that the agency’s
penalty was disparate and that the agency engaged in dis-
ability discrimination. See Final Decision, 2020 MSPB
LEXIS 456, at *2. Those issues are not raised on appeal.
Case: 20-1607 Document: 27 Page: 5 Filed: 11/10/2020
HAIRSTON v. DEFENSE 5
file and found there were sexually explicit photos on his
government computer. Id. at *8–9.
Second, the AJ found no violation of Hairston’s due pro-
cess rights and no harmful procedural error. Id. at *9. The
notice of proposed removal informed Hairston of the
charges, his right to representation, and his right to re-
spond. Id. at *10. Hairston had an opportunity to review
the evidence after he spoke to Simonton and scheduled a
meeting the day of his reply to review the evidence. Id. at
*10–12. The AJ also found that Baker was Hairston’s rep-
resentative and that he had the opportunity to review the
evidence, too. Id. at *12–13. Baker had identified himself
as “a union representative,” met privately with Hairston
prior to the oral reply, and accompanied Hairston to the
reply. Id. at *14–15. Hairston never made it known to the
agency that Baker was not his representative. Id. at *12.
And the AJ found that Hairston’s claim that Baker
breached his “duty of fair representation” was a concession
that Baker, whatever his failings, was Hairston’s repre-
sentative. Id. at *13. Finally, the AJ found that the failure
to designate in writing was only a procedural error. Id. at
*12 n.4.
Hairston did not petition the Board to review the AJ’s
initial decision, and it became the final decision of the
Board. Hairston timely appealed to this court. We have
jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
Our jurisdiction to review Board decisions is limited.
By statute, we must affirm the Board’s decision unless it
is: “(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise 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).
Case: 20-1607 Document: 27 Page: 6 Filed: 11/10/2020
6 HAIRSTON v. DEFENSE
“In general, public employees possess a constitution-
ally protected property right in their employment and are
entitled to due process at each stage of their removal pro-
ceedings.” Ramirez v. Dep’t of Homeland Sec.,
975 F.3d
1342, 1349 (Fed. Cir. 2020). “Due process requires that the
employee be afforded notice ‘both of the charges and of the
employer’s evidence’ and an ‘opportunity to respond’ before
being removed from employment.” Ward v. U.S. Postal
Serv.,
634 F.3d 1274, 1279 (Fed. Cir. 2011) (quoting Stone
v. FDIC,
179 F.3d 1368, 1375–76 (Fed. Cir. 1999)).
Public employees are also “entitled to . . . other proce-
dural protections . . . afforded them by statute, regulation,
or agency procedure.” Id. at 1281. For instance, Office of
Personnel Management regulations require an agency to
provide the employee with an opportunity to review any
materials on which it relied to support its charges. 5 C.F.R.
752.404(b)(1). Errors in the application of these procedures
are reversed only if they are harmful. See Ward,
634 F.3d
at 1281. To prove harmful error, the employee must show
that the error is likely to have caused the agency to reach
a conclusion different from the one it would have reached
in the absence or cure of the error. See
id. at 1281–82;
5 C.F.R. 1201.4(r).
Hairston’s primary argument on appeal is that his due
process rights were violated because he did not have an op-
portunity to review the evidence on which the agency relied
before his termination. Hairston undoubtedly had the op-
portunity to review the evidence against him. The notice of
proposed removal provided the location at which Hairston
could review the evidence, as well as Simonton’s name and
contact information. S.A. 24. Hairston’s phone records in-
dicate that he spoke with Simonton on three occasions
about reviewing the evidence. S.A. 44. And Simonton sub-
mitted a sworn statement that Hairston was scheduled to
review all of the evidence at Simonton’s office the day of
Hairston’s oral reply. S.A. 41. That Hairston did not actu-
ally avail himself of the opportunity to review the evidence
Case: 20-1607 Document: 27 Page: 7 Filed: 11/10/2020
HAIRSTON v. DEFENSE 7
against him personally does not imply that he had no op-
portunity to review the evidence.
There is no dispute, moreover, that Baker reviewed the
evidence against Hairston as Hairston’s representative.
On appeal, Hairston asserts that Baker did not claim to be
his union representative, but only a union representative.
Baker’s own sworn statement does say that he introduced
himself to Hairston as “a Union Representative.” S.A. 43
(emphasis added). But we find strong support in the record
to support the conclusion that Baker was Hairston’s repre-
sentative.
First, Hairston himself referred to Baker as his repre-
sentative. See S.A. 40 (describing Baker as “my Union Rep-
resentative” in Hairston’s appeal to the Board); Final
Decision, 2020 MSPB LEXIS 456, at *13 (asserting that
Baker breached “a duty of fair representation”). Second,
Hairston’s conduct confirms that Baker was his repre-
sentative. Hairston and Baker met privately prior to Hair-
ston’s oral reply, during which, according to Hairston
himself, they discussed the agency’s evidence. Final Deci-
sion, 2020 MSPB LEXIS 456, at *14; see also S.A. 41, 42.
Baker then accompanied Hairston to the meeting with the
DDO. S.A. 40–43. And third, others at the oral reply
viewed Baker as Hairston’s representative. S.A. 29 (DDO
summary memorandum of oral reply, stating “Mr. Hair-
ston was represented by Mr. Ed Baker, of the Union”); S.A.
41 (Simonton’s sworn statement, that he met Baker “in re-
gards [sic] to Mr. Hairston’s verbal reply”); S.A. 42 (sworn
statement of Chief, Labor Management Employee Rela-
tions, that “Mr. Hairston met with his elected Union repre-
sentative Mr. Ed Baker”). At no time did Hairston make
known to the agency that Baker was not his representative.
Final Decision, 2020 MSPB LEXIS 456, at *15.
Admittedly, it was procedural error for the agency to
treat Baker as Hairston’s representative without a written
designation. See S.A. 24 (“Any representative designation
Case: 20-1607 Document: 27 Page: 8 Filed: 11/10/2020
8 HAIRSTON v. DEFENSE
should be in writing and submitted to the [DDO].”) Indeed,
the agency concedes on appeal that this was a procedural
error. But Hairston fails to show that the error is likely to
have caused the agency to reach a conclusion different from
the one it would have reached in the absence or cure of the
error. Had the error been cured by the submission of a
writing designating Baker as Hairston’s representative, it
is unclear how the agency would have reached a different
result. Even with a different representative at the pre-
hearing conference before the AJ, Hairston continued to
say that he did not contest the charged misconduct. Final
Decision, 2020 MSPB LEXIS 456, at *4–5, 8. We find the
agency’s procedural error harmless.
The same is true with respect to Hairston’s claim that
Baker’s representation was inadequate. Putting aside the
question of whether there is a substantive right to ade-
quate representation in this context, Hairston has never
disputed—and does not now dispute—the charges against
him. That fact alone supports dismissal, and no repre-
sentative, no matter how talented, could dispute that fact.
Finally, because Hairston did not contest the merits of
his charges before the Board, he may not assert any argu-
ments on the merits before us.
CONCLUSION
We have considered Hairston’s arguments and find
them to be without merit. We therefore affirm the Board’s
final decision.
AFFIRMED
COSTS
No costs.
