Eustolio C. Garcia v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EUSTOLIO C. GARCIA, DOCKET NUMBER
Appellant, DA-0752-15-0297-I-1
v.
DEPARTMENT OF HOMELAND DATE: August 24, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Mark Conrad, Esquire, Huffman, Texas, for the appellant.
Darryl M. McCranie and Mary E. Garza, Esquire, Edinburg, Texas, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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erroneous application of the law to the facts of the case; the administrative
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, 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 and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 Effective March 5, 2015, the agency removed the appellant from his GS-12
Border Patrol Agent position based on a charge of Failure to Provide Information
During a Background Investigation Personal Interview. Initial Appeal File (IAF),
Tab 8 at 4-7, 15-21. The appellant appealed his removal and alleged that the
agency committed harmful error and due process violations. IAF, Tab 1, Tab 21
at 2. After holding the requested hearing, the administrative judge affirmed the
removal upon finding that the agency proved its charge, the appellant failed to
prove his affirmative defenses, and the agency proved that removal promoted the
efficiency of the service and the penalty was reasonable. IAF, Tab 23, Initial
Decision.
¶3 The appellant raises three arguments in his petition for review. First, he
contends that the agency should have called as a witness the investigator who
conducted his background investigation interview to authenticate the affidavit she
generated for the appellant’s signature at the completion of the interview.
Petition for Review (PFR) File, Tab 1 at 2. The appellant questions whether the
investigator actually asked the question at issue and alleges that he does not
remember the question coming up during the interview. Id. He asserts that the
“question and answer form [was] later initialed by the [appellant] as if he had
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read each page.” Id. The appellant’s sworn statement contains an admission that
he knew his sister had been arrested for drug smuggling when he completed his
preemployment documents. His suggestion on review that the statements in his
sworn statement should not be binding because he did not actually read the
statement before signing it is unpersuasive.
¶4 More importantly, the appellant is essentially invoking the best evidence
rule, which does not apply in Board proceedings. See Howard v. Office of
Personnel Management, 31 M.S.P.R. 617, 620 (1986). The record already
contains evidence that is sufficient to sustain the charge, in particular, the
appellant’s stipulations. IAF, Tab 18 at 6-7, ¶¶ 9-14, Tab 21 at 1. A stipulation
satisfies a party’s burden of proving the fact alleged. Anderson v. Tennessee
Valley Authority, 77 M.S.P.R. 271, 275 (1998); 5 C.F.R. § 1201.63. Thus, the
testimony of the investigator would have been duplicative and unnecessary, and
the administrative judge would have been within his discretion to deny the
witness if either party had attempted to call her.
¶5 Second, the appellant asserts that, by including the phrase “propensity to be
untruthful” in the notice of proposed removal, the agency implied that he made
more than one untruthful statement. PFR File, Tab 1 at 2-3; IAF, Tab 8 at 5.
According to the appellant, the suggestion that he had more than one instance of
dishonesty reflects bias and unfairness in the agency’s process. The Board is
required to review the agency’s decision on an adverse action solely on the
grounds invoked by the agency, see, e.g., Gottlieb v. Veterans
Administration, 39 M.S.P.R. 606, 609 (1989), but not every word contained in a
notice of proposed removal is a charge that has to be proven. What is relevant
here is that the objectionable statement was in the notice of proposed removal,
thereby giving the appellant notice that it was a potential consideration and an
opportunity for him to respond to it. The “propensity to be untruthful” statement
does not appear in the removal notice, nor does any other statement that implies
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that the appellant has any other instances of dishonest behavior or misconduct of
any kind.
¶6 Furthermore, the appellant takes the phrase out of context. The phrase is
used in the context of explaining that the appellant’s misconduct compromises his
credibility should he ever be called to provide testimony in court. As used in this
manner, the phrase does not appear to imply that he has an inherent tendency to
be untruthful now, but that he could be viewed that way in the future if the agency
sustained the charge.
¶7 Third, the appellant alleges that the agency violated a provision of the
collective bargaining agreement requiring adverse actions to be brought “at the
earliest practicable date.” PFR File, Tab 1 at 3; IAF, Tab 16 at 7-8. The
appellant characterizes this as a denial of due process, but constitutional due
process requires only notice and a meaningful opportunity to respond. See, e.g.,
Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 680 (1991). Thus, his
claim is more accurately characterized as a harmful error claim.
¶8 Harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an
agency error is harmful only when the record shows that the procedural error was
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. Stephen, 47 M.S.P.R.
at 681, 685. The appellant has not claimed that the agency’s alleged violation of
the collective bargaining agreement likely caused the agency to reach a result
different than it would have reached had it issued the notice of proposed removal
earlier. The appellant’s only claim of harm is the personal suffering he endured
while being under investigation for 11 months. PFR File, Tab 1 at 3. However,
he has not explained how the personal harm he suffered would have affected the
agency’s decision to remove him.
¶9 Accordingly, we affirm the initial decision.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. 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
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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.