Sean P. O'Hara v. Department of Homeland Security ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN P. O’HARA, DOCKET NUMBER
Appellant, SF-0752-13-4800-I-1
v.
DEPARTMENT OF HOMELAND DATE: October 10, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas E. Tierney, Esquire, Norwalk, California, for the appellant.
Jennifer R. Hong, Esquire, Los Angeles, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
found that the agency proved the charges of unauthorized use of a government
computer and lack of candor, concluded that there was a nexus between the
sustained misconduct and the efficiency of the service, and affirmed the removal
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
penalty. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. We MODIFY the initial decision to
clarify and supplement the administrative judge’s disparate penalties analysis, but
we agree with the administrative judge that the appellant’s disparate penalties
claim lacks merit. Except as expressly modified by this Final Order, we AFFIRM
the initial decision.
BACKGROUND
¶2 Effective August 23, 2013, the agency removed the appellant from his
GS-13 Supervisory Detention and Deportation Officer position based on the
following two charges: (1) unauthorized use of a government computer; and
(2) lack of candor. Initial Appeal File (IAF), Tab 1 at 15-21. The appellant
appealed his removal to the Board and requested a hearing. Id. at 1-6. He
admitted to the unauthorized use of a government computer charge but disputed
the lack of candor charge. IAF, Tab 19 at 4-5. He also argued that the penalty of
removal was unreasonable given certain mitigating factors and that the agency
treated him disparately compared to employees who engaged in similar
misconduct. Id. at 5-7.
3
¶3 After holding the requested hearing, the administrative judge issued an
initial decision affirming the removal action. IAF, Tab 24, Initial Decision (ID)
at 1, 17. The administrative judge sustained both charges, found a nexus between
the sustained misconduct and the efficiency of the service, and determined that
the penalty was within the bounds of reasonableness. ID at 4-17. The
administrative judge additionally found that the appellant’s disparate penalties
claim was without merit. ID at 11-16.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1 at 4-11. On review, the appellant primarily challenges the
administrative judge’s findings regarding the lack of candor charge and the
reasonableness of the removal penalty, including his claim of disparate penalties.
Id. The agency has responded in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the two charges of misconduct and
found the existence of a nexus between the misconduct and the efficiency of the
service.
¶5 The appellant admitted to the unauthorized use of a government computer
charge to the agency’s fact finder, the deciding official, and the administrative
judge, and does not contest on review the administrative judge’s finding that the
agency proved this charge. IAF, Tab 9, Subtab 4e at 5-6, Subtab 4g at 447,
Tab 19 at 4; PFR File, Tab 1 at 52; see ID at 4; see also PFR File, Tab 1 at 4-11.
The appellant does contest, however, the administrative judge’s finding that the
agency proved its lack of candor charge. PFR File, Tab 1 at 4-5; see ID at 4-8.
Our reviewing court has held that an agency may prove a lack of candor charge
by showing that the appellant failed “to disclose something that, in the
circumstances, should have been disclosed in order to make the given statement
accurate and complete.” Ludlum v. Department of Justice, 278 F.3d 1280, 1284
(Fed. Cir. 2002). Although lack of candor “necessarily involves an element of
deception,” it does not require proof of intent to deceive. Id. at 1284-85.
4
¶6 The appellant’s lack of candor charge was based on statements he made
under oath during an interview with the agency’s fact finder investigating
allegations of misconduct against him. IAF, Tab 1 at 7-8. In the notice of
proposed removal, the agency’s first specification of the lack of candor charge
states that the appellant was “less than truthful when [he] denied having
intentionally/deliberately viewed pornographic images on [his] government
computer.” Id. at 7. The second specification of the lack of candor charge
indicated that the appellant was “less than truthful when [he] stated that [he] did
not think it was a violation for [him] to access the sexually explicit images which
were found on [his] computers because those images were not blocked.” Id. at 8.
On review, the appellant reiterates his contention that he was “extremely nervous
and under stress” at the interview, which resulted in his “initially” giving answers
that “look less than accurate.” PFR File, Tab 1 at 4. He also argues that he
“lacked any intent” to deceive the fact finder. Id. The administrative judge
considered these arguments below and the appellant’s testimony at the hearing,
but she did not find his explanations to be credible. ID at 6-7; see PFR File,
Tab 1 at 51-52. The appellant has not provided “sufficiently sound” reasons on
review to overturn the administrative judge’s credibility determination because he
merely restates that he felt nervous and stressed during the interview. See Haebe
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (t he Board must
give deference to an administrative judge’s credibility determinations when they
are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so). Additionally, lack of
candor does not require proof of an intent to deceive. Ludlum, 278 F.3d
at 1284-85. Thus, we find that the administrative judge properly found that the
agency proved both charges of unauthorized use of a government computer and
lack of candor.
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¶7 The nexus requirement, for purposes of determining whether an agency has
shown that its action promotes the efficiency of the service, means there must be
a clear and direct relationship between the articulated grounds for an adverse
action and either the employee’s ability to accomplish his duties satisfactorily or
some other legitimate government interest. Scheffler v. Department of the Army,
117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). The
Board has found that there is a sufficient nexus between an employee’s
misconduct and the efficiency of the service where the sustained misconduct:
(1) concerned an employee’s lack of candor during an administrative inquiry,
Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000), aff’d, 278 F.3d
1280 (Fed. Cir. 2002); or (2) involved misuse of government property, Els v.
Department of the Army, 82 M.S.P.R. 27, ¶ 11 (1999); see Baldwin v. Department
of Veterans Affairs, 109 M.S.P.R. 392, ¶¶ 2, 14 (2008). Therefore, we find that
the administrative judge properly held that the agency established a nexus
between the appellant’s misconduct and the efficiency of the service.
The administrative judge appropriately held that the agency properly considered
the relevant Douglas factors and that the penalty of removal was within the
tolerable limits of reasonableness.
¶8 In his petition for review, the appellant argues that the deciding official
misapplied the Douglas factors, 2 the penalty of removal is excessive under the
circumstances, and the maximum reasonable penalty should be a one-grade
demotion to a nonsupervisory Deportation Officer position. PFR File, Tab 1
at 5-6, 9-11, Tab 4 at 7. Where, as here, all of the agency’s charges have been
sustained, the Board will review the agency-imposed penalty only to determine if
the agency considered all of the relevant Douglas factors and exercised
management discretion within tolerable limits of reasonableness. See Woebcke v.
Department of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010). The
2
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of twelve factors that are relevant in assessing the
penalty to be imposed for an act of misconduct.
6
administrative judge found that the deciding official properly considered the
relevant Douglas factors and that the penalty of removal did not exceed the
bounds of reasonableness. ID at 9-11, 16-17. She noted that the deciding official
considered several mitigating factors, including the appellant’s 24 years of
service, but appropriately found that they did not outweigh the seriousness of the
offense and the nature of the appellant’s position as a supervisor and a law
enforcement officer. ID at 10-11; see IAF, Tab 1 at 16-17.
¶9 The record shows that the deciding official explained his Douglas factors
analysis on the Douglas Factors Review Form, IAF Tab 9, Subtab 4b, and in the
decision letter, IAF, Tab 1 at 15-21. He also testified in detail about his
decision-making process at the hearing, PFR File, Tab 1 at 22-45. In the decision
letter, the deciding official stated that he lost confidence in the appellant’s ability
to perform his duties, citing Giglio concerns, 3 and doubted his rehabilitative
potential. IAF, Tab 1 at 17-18. He also considered the appellant’s previous
7-day suspension for the unauthorized use of a government-issued travel card as
an aggravating factor. Id. at 17. The deciding official considered alternative
sanctions but found they would be ineffective in deterring future misconduct of
other employees. Id. at 17-18. The deciding official also found that the removal
penalty was consistent with the agency’s Table of Offenses and Penalties. 4 IAF,
Tab 9, Subtab 4b at 3; see IAF, Tab 1 at 15, Tab 9, Subtab 4d.
¶10 The appellant contends that the deciding official improperly weighed the
Douglas factors because he considered the appellant’s prior 7-day suspension as
3
The deciding official was concerned that, if the appellant were called to testify as a
witness in a criminal trial, his discipline for lack of candor would be subject to
disclosure under Giglio v. United States, 405 U.S. 150, 153-54 (1972) (nondisclosure of
material evidence affecting a witness’s credibility justifies a new criminal trial).
4
The lack of candor charge falls under paragraph F(1) and allows a penalty ranging
from a 14-day suspension to removal for a second offense. IAF, Tab 9, Subtab 4l at 12.
The unauthorized use of a government computer charge falls under paragraph K(5) and
allows a penalty ranging from a 15-day suspension to removal for a second offense. Id.
at 25.
7
an aggravating factor despite the appellant’s 24 years of service, and he “failed to
consider other possible comparator employees on an Agency-wide basis.” PFR
File, Tab 1 at 5-6, 9-11. The employee’s past disciplinary record is one of the
relevant Douglas factors that an agency should consider in determining the
appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305. The agency gave
notice in the proposal letter that it intended to rely on the appellant’s prior 7-day
suspension as an aggravating factor, IAF, Tab 1 at 10; see Douglas, 5 M.S.P.R.
at 304, and he did not seek review of the prior suspension and has not argued that
it was erroneously imposed, see Bolling v. Department of the Air Force,
9 M.S.P.R. 335, 340 (1981) (the Board’s review of prior discipline is limited to
determining whether the employee was informed of the prior action in writing,
the action was a matter of record, and the employee was permitted to dispute the
charges before a higher level of authority than the one that imposed the
discipline). Additionally, the decision letter for the prior suspension advised the
appellant that “any future misconduct may result in more severe disciplinary
action,” including removal. IAF, Tab 9, Subtab 4h at 1. We agree with the
administrative judge’s assessment that this somewhat recent discipline for a
serious offense was an aggravating factor and not a neutral or mitigating factor,
as argued by the appellant. ID at 9-10; see PFR File, Tab 1 at 6, 11.
¶11 The agency’s statement on the Douglas Factors Review Form that “a good
faith effort has been made to search the Agency’s database for cases and there
does not appear to be any substantially similar cases,” IAF, Tab 9, Subtab 4b at 3,
and the deciding official’s testimony on not finding similarly-situated
comparators, PFR File, Tab 1 at 30-31, 42, contradicts the appellant’s assertion
that the deciding official failed to search for and consider similarly-situated
comparators, id. at 5-6, 9-11. Although the deciding official may not have
personally performed a search for comparators, he properly relied on the
employee and labor relations specialist’s search that did not result in finding any
similarly-situated comparators. Id. at 31, 42; see IAF, Tab 9, Subtab 4b at 3. As
8
explained later in this final order, we agree that there were no substantially
similar cases.
¶12 Under the circumstances of this case, we find that the administrative judge
properly considered whether the deciding official evaluated the relevant Douglas
factors and she correctly determined that the penalty of removal did not exceed
the tolerable limits of reasonableness.
The administrative judge properly found that the appellant’s proffered
comparators were not similarly situated and that his disparate penalties claim
lacks merit.
¶13 The appellant further argues on review that the administrative judge erred in
her interpretation and application of the Board’s law regarding disparate penalties
and improperly concluded that the appellant’s proffered comparators were not
similarly situated to the appellant. PFR File, Tab 1 at 5-9, 11, Tab 4 at 4-7; see
ID at 11-16. To establish disparate penalties, the appellant must show that there
is “enough similarity between both the nature of the misconduct and the other
factors to lead a reasonable person to conclude that the agency treated
similarly-situated employees differently, but the Board will not have any hard and
fast rules regarding the ‘outcome determinative’ nature of these factors.”
Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012) (quoting Lewis v.
Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010)). An appellant’s
initial showing of disparate penalties triggers an agency’s burden to prove a
legitimate reason for the difference in treatment between the appellant and other
employees. Id., ¶ 24.
¶14 The appellant contends that the administrative judge violated Lewis and
subsequent Board law by improperly limiting the comparator employees to
supervisory employees rather than focusing on the underlying conduct. PFR File,
Tab 1 at 6-7. We disagree and believe that the appellant’s supervisor status was a
distinguishable factor the administrative judge appropriately considered as part of
her disparate penalties analysis. Although we ultimately agree with the
9
administrative judge’s conclusion that the appellant’s proffered comparators were
not similarly situated to the appellant, ID at 12-16, we are modifying and
supplementing the administrative judge’s analysis to focus on the underlying
circumstances surrounding the misconduct of the nonsupervisory comparators,
see ID at 12-13.
¶15 The appellant submitted evidence of 36 alleged comparators. IAF,
Tabs 17-21. However, eleven of the alleged comparators are not valid because
their penalties were reduced as part of a settlement agreement, most commonly a
last chance settlement agreement (LCSA). IAF, Tab 17 at 15-28 (LCSA), Tab 18
at 4-13 (LCSA), 14-22 (abeyance agreement), 48-58 (LCSA), Tab 19 at 9-15
(LCSA, same case as Tab 21 at 46-56), 16-36 (LCSA), 37-51 (LCSA), 63-76
(LCSA), 86-96 (settlement agreement), Tab 21 at 23-32 (LCSA), 44-45 (LCSA),
46-56 (LCSA, same case as Tab 19 at 9-15); see Portner v. Department of Justice,
119 M.S.P.R. 365, ¶ 20 n.4 (2013) (holding that, where another employee
receives a lesser penalty, despite apparent similarities in circumstances, as a
result of a settlement agreement, the agency will not be required to explain the
difference in treatment). Additionally, the evidence for six cases of alleged
comparators is missing information on what charges were sustained and what
penalty was imposed, so the comparators are likewise invalid. 5 IAF, Tab 18
5
The administrative judge eliminated a potential comparator because the appellant
failed to submit the decision letter in that case. ID at 16; see IAF, Tab 18 at 70-78.
Although the appellant contends on review that the agency “failed to turn [the decision
letter] over to the Appellant during the discovery process,” PFR File, Tab 1 at 8, he
does not present evidence that he filed a motion to compel discovery, 5 C.F.R.
§ 1201.73(c)(1). He also alleges that the lack of a decision letter should be irrelevant
for comparator analysis purposes because the proposed penalty was less than a removal.
PFR File, Tab 1 at 8-9, Tab 4 at 6-7. Even so, in comparing the circumstances
surrounding the employee’s misconduct to the appellant’s circumstances, we do not
believe they were similarly situated. The appellant’s misconduct of using a government
computer to view sexually explicit images was of a different nature from the
employee’s misconduct of using a government cell phone to make personal calls. See
IAF, Tab 18 at 72-74. Additionally, the deciding official in the employee’s case did not
state that he was considering any prior discipline in making his decision, see id.10
at 38-47, 59-78, Tab 21 at 11-22. Finally, twelve comparators are invalid because
the sustained misconduct in those cases was only similar as to one of the
appellant’s charges, instead of both. IAF, Tab 17 at 4-14, Tab 18 at 23-37,
Tab 20 at 4-41, Tab 21 at 4-10, 41-43; see Reid v. Department of the Navy,
118 M.S.P.R. 396, ¶¶ 22-23 (2012) (proffered comparators were not similarly
situated for purposes of establishing a disparate penalties claim where the
administrative judge sustained three charges against the appellant and the
appellant alleged only that the comparators’ misconduct was similar with respect
to one charge).
¶16 A reasoned comparison of the totality of the circumstances surrounding the
misconduct engaged in by the remaining seven alleged comparators, as contrasted
to the totality of the circumstances surrounding the appellant’s misconduct, does
not show that the misconduct engaged in by the comparator employees was as
serious as, or more serious than, the misconduct engaged in by the appellant. See
Portner, 119 M.S.P.R. 365, ¶ 21. In the first case, a Deportation Officer was
suspended for 45 days for the two charges of unauthorized queries of individuals
on an official government computer database and unauthorized disclosure of
treasury enforcement communications. IAF, Tab 17 at 29-41. Although the
misconduct in this case was similar to the appellant’s unauthorized use of a
government computer charge, the agency did not sustain a lack of candor charge
against the alleged comparator. Id. at 38-39. In contrast, the agency sustained
two specifications of lack of candor against the appellant. IAF, Tab 1 at 15-16.
The deciding official in the appellant’s removal action testified that he considered
lack of candor to be the more serious charge and he would not have removed the
appellant for unauthorized use of a government computer alone. PFR File, Tab 1
at 26-27. The appellant also had a prior suspension, while this employee had no
at 70-78, whereas the deciding official in the appellant’s case explicitly relied on the
appellant’s prior 7-day suspension, IAF, Tab 1 at 10, 17.
11
prior disciplinary record. IAF, Tab 1 at 10, 17, Tab 17 at 39. Accordingly, we
find that the employee was not similarly situated.
¶17 In the second case, an Immigration Enforcement Agent (IEA) was
suspended for 3 days for the two charges of conduct unbecoming and lack of
candor. IAF, Tab 17 at 42-53. The specification for the conduct unbecoming
charge was that the employee improperly called for his cousin, who was housed
in a criminal justice center, to meet with him. Id. at 42. In contrast, here, the
agency sustained 17 sustained specifications of unauthorized use of a government
computer against the appellant. IAF, Tab 1 at 8-10, 16. Although the IEA’s
conduct unbecoming charge arose from a single incident, the appellant’s
misconduct occurred over the course of 4 months, during which he repeatedly
accessed and viewed over 500 sexually explicit or sexually oriented images,
websites, and links. Id. at 8-10, 15-16. Additionally, the employee in this case
had only one sustained specification of lack of candor, IAF, Tab 17 at 49, while
the appellant had two, IAF, Tab 1 at 15-16. Finally, the employee did not have a
disciplinary record. IAF, Tab 17 at 50. Thus, the employee in this case was not
similarly situated to the appellant.
¶18 In the third case, a Deportation Officer was suspended for 30 days for the
two charges of misuse of a government-owned vehicle and lack of candor. IAF,
Tab 19 at 52-62. The misuse of a government-owned vehicle charge was based
on one specification of using the government-owned vehicle for unauthorized
purposes, specifically for transporting his girlfriend and her niece. Id. at 52. In
contrast, the appellant’s unauthorized use of a government computer charge was
based on 17 specifications. IAF, Tab 1 at 8-10, 16. The alleged comparator’s
lack of candor charge was based on two specifications. IAF, Tab 19 at 52-53.
Although this employee’s lack of candor charge may be similar to the appellant’s
lack of candor charge, the appellant’s repeated and excessive misuse of his
government computer was more serious than this employee’s single instance of
unauthorized use of a government-owned vehicle. The employee also had no
12
prior discipline. Id. at 59. Therefore, this employee was not similarly situated to
the appellant.
¶19 In the fourth case, an Assistant Field Officer Director was demoted for the
four charges of operating a government-owned vehicle after consuming alcohol,
damage to government property, poor judgment, and failure to report, each
containing one specification. IAF, Tab 19 at 77-85. The deciding official in this
case did not sustain the lack of candor charge. Id. at 83. Additionally, the
misconduct in this case arose from a single incident, whereas the appellant’s
unauthorized use of a government computer occurred frequently and over several
months. IAF, Tab 1 at 8-10. Also, the deciding official here did not rely on any
prior discipline against the employee. IAF, Tab 19 at 83. For these reasons, the
alleged comparator was not similarly situated to the appellant.
¶20 In the fifth case, an IEA received a letter of reprimand for the two charges
of unauthorized use of a government computer and failure to report misconduct.
IAF, Tab 20 at 42-45. The first charge was based on two instances where the
employee accessed his personal email and opened an attachment that contained a
sexually explicit image. Id. at 42. The second charge was based on his failure to
inform his supervisor that he viewed sexually explicit images on a government
computer. Id. He also admitted that he knew it was against agency policy to
access sexually explicit images on a government computer and that he had the
responsibility to notify his supervisor if he viewed such images. Id. In contrast,
the agency sustained 17 specifications of unauthorized use of a government
computer against the appellant, the appellant denied knowing that his misconduct
was against the agency’s policy, and the appellant had a prior 7-day suspension.
IAF, Tab 1 at 8-10, 16-17. Thus, this alleged comparator was not similarly
situated to the appellant.
¶21 In the sixth case, an IEA received a letter of reprimand for the two charges
of unauthorized use of a government computer and failure to report misconduct.
IAF, Tab 20 at 46-49. The first charge was based on one instance where the
13
employee opened an attachment to an email that contained sexually explicit
images. Id. at 46. The employee also admitted to performing internet searches
for sexually explicit images on a government computer. Id. The second charge
was based on the employee’s failure to inform his supervisor of viewing such
images on his government computer when he knew that his misconduct was
against agency policy and that he had the responsibility to notify his supervisor.
Id. The appellant, in contrast, engaged in repeated and excessive unauthorized
use of his government computer and denied knowing that his misconduct was
against agency policy. IAF, Tab 1 at 8-10, 16-17. The appellant also had a
previous suspension, id. at 10, 17, whereas this employee had no prior
disciplinary actions, IAF, Tab 20 at 46. Therefore, the IEA was not similarly
situated to the appellant.
¶22 In the seventh case, an IEA was suspended for 2 days for the two charges of
inappropriate use of his position during nongovernment email communications
and misuse of a government computer. IAF, Tab 21 at 33-40. The first charge
was based on the employee’s use of his government position on an online chat
website. Id. at 33. The second charge was based on two specifications of the
employee using the government computer during working hours to conduct
communications on the chat website. Id. The agency did not charge the
employee with lack of candor. Id. at 33-34. In contrast, the agency sustained
17 specifications of unauthorized use of a government computer and two
specifications of lack of candor against the appellant. IAF, Tab 1 at 15-16. Also,
the employee here, unlike the appellant, had no prior disciplinary action. IAF,
Tab 1 at 10, 17, Tab 21 at 38. Thus, the IEA here was not similarly situated to
the appellant.
¶23 For all these reasons, we conclude that the administrative judge properly
found that the appellant’s 36 proffered comparators were not similarly situated to
the appellant and the appellant failed to prove his disparate penalties claim.
14
The administrative judge properly considered the appellant’s argument regarding
Portner v. Department of Justice.
¶24 Finally, the appellant argues that the administrative judge failed to consider
the part of his closing argument at the hearing that discussed Portner v.
Department of Justice, 119 M.S.P.R. 365, ¶¶ 1, 22, in which the Board mitigated
the employee’s removal to a 45-day suspension. See PFR File, Tab 1 at 10-11,
75. In Portner, the Board found that the deciding official failed to properly
weigh the relevant Douglas factors. 119 M.S.P.R. 365, ¶¶ 11, 15. Consequently,
upon its own analysis of the Douglas factors, the Board determined that a 45-day
suspension was the maximum reasonable penalty under the circumstances. Id.,
¶ 22. Here, the administrative judge accurately concluded that the deciding
official properly weighed the Douglas factors. ID at 9. Because the agency
considered all of the relevant Douglas factors, unlike in Portner, the Board must
defer to the agency’s penalty determination if it is within the bounds of
reasonableness. See Woebcke, 114 M.S.P.R. 100, ¶ 7. Accordingly, as the
administrative judge properly found, the penalty of removal was within the
tolerable limits of reasonableness under the circumstances, ID at 9-17, and
Portner does not compel a different result.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
15
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.