William Livingston v. Federal Reserve System ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM N. LIVINGSTON, DOCKET NUMBER
Appellant, DC-0752-17-0142-I-1
v.
FEDERAL RESERVE SYSTEM, DATE: April 10, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David H. Shapiro, Esquire, and J. Cathryne Watson, Esquire, Washington,
D.C., for the appellant.
Anglee Agarwal, Esquire, and Linda Ajawara, Esquire, Washington D.C.,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency’s decision suspending him for 30 days. Generally, we grant
petitions such as this one only in the following circumstances: 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 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. 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. Except as
expressly MODIFIED herein to incorporate the correct standard of proof for a
lack of candor charge, we AFFIRM the initial decision.
BACKGROUND
¶2 After a conversation with an acquaintance from his neighborhood, the
appellant forwarded the acquaintance’s daughter’s résumé and cover letter to his
subordinate responsible for overseeing the intern hiring process for his division,
and instructed the subordinate to add the acquaintance’s daughter’s name to the
candidate roster list for consideration for a paid intern position within his division
for the summer of 2016. Initial Appeal File (IAF), Tab 4 at 22; Tab 5 at 23;
Tab 16 at 3. The position was eventually offered to the acquaintance’s daughter,
who accepted the position. IAF, Tab 14 at 17. By letter dated July 25, 2016, the
agency proposed suspending the appellant without pay for 30 calendar days based
on the charges of conduct unbecoming a supervisor and lack of candor related to
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the hiring of the appellant’s acquaintance’s daughter for the paid internship . IAF,
Tab 5 at 8-12. By letter dated October 3, 2016, the deciding official upheld both
charges and all specifications, and sustained the 30-day suspension. IAF, Tab 4
at 5-8.
¶3 The appellant filed a timely appeal with the Board challenging his
suspension. IAF, Tab 1. Following the appellant’s requested hearing, the
administrative judge issued an initial decision sustaining both charges and all
specifications, finding that the agency proved both charges by a preponderance of
the evidence. IAF, Tab 20, Initial Decision (ID) at 1 -17. The administrative
judge also determined that the agency established a nexus between the charged
misconduct and the efficiency of the service and that the penalty of a 30-day
suspension was reasonable, and consequently affirmed the 30-day suspension. ID
at 17-19. The appellant has filed a petition for review and the agency has filed a
response in opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 On petition for review, the appellant argues that he did not knowingly
misrepresent or conceal any information, and asserts that the agency failed to
meet its burden of proving both specifications of the charge. PFR File, Tab 1
at 12-13. The conduct unbecoming a supervisor charge contained two
specifications. IAF, Tab 12 at 8. The first specification stated that the appellant
granted the acquaintance’s daughter an unauthorized preference over another
candidate for the 2016 summer intern position. Id. The second specification
stated that the appellant induced his subordinate to place the acquaintance’s
daughter at the top of the intern candidate roster, resulting in her selection for the
position. Id. The first specification of the lack of candor charge stated that the
appellant contacted the Deputy Chief Administrative Officer (“Deputy Chief”) —
one of the employees responsible for coordinating the paid intern hiring
process—regarding the acquaintance’s daughter’s application status, but withheld
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information concerning his relationship and prior communications with her father.
Id. The second lack of candor specification charged that the appellant
inaccurately informed the Deputy Chief that he had been contacted by the
acquaintance’s daughter regarding the intern position even though she had never
contacted the appellant and the appellant had only communicated with her father.
Id. at 8-9.
¶5 As the administrative judge correctly noted, a charge of lack of candor is a
flexible charge, and unlike a charge of falsification, it does not requi re proof of
intent to deceive. ID at 14; see Ludlum v. Department of Justice, 278 F.3d 1280,
1283-84 (2002). In Fargnoli v. Department of Commerce, 123 M.S.P.R. 330(2016), the Board clarified the correct legal standard for a lack of candor charge.
Relying on U.S. Court of Appeals for the Federal Circuit and Board precedent,
the Board held that lack of candor requires proof of the following elements:
(1) that the employee gave incorrect or incomplete information; and (2) that he
did so knowingly. 3 Id., ¶ 17. The administrative judge did not apply Fargnoli in
assessing this charge, relying instead on the standard described by the Federal
Circuit in Ludlum. ID at 14, 16. We turn now to review the administrative
judge’s findings in light of the Board decision in Fargnoli.
¶6 In concluding that the agency proved the first specification of the lack of
candor charge, the administrative judge cited the testimony of the D eputy Chief,
who testified that he informed the appellant that it was not part of the normal
recruiting process for a supervisor to request a potential candidate’s email,
especially when that candidate had not expressed interest in applying to that
supervisor’s division/branch. IAF, Tab 17, Hearing Compact Disc (HCD)
3
In Parkinson v. Department of Justice, 815 F.3d 757 (Fed. Cir. 2016), the Federal
Circuit’s decision relied upon the Board’s decision in Fargnoli. The case was
subsequently vacated in part and remanded on en banc review, but the portion of the
panel decision identifying the correct legal standard for a lack of candor charge was left
undisturbed. Parkinson v. Department of Justice, 874 F.3d 710, 712 (2017); see
Ludlum, 278 F.3d at 1285-86.
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(testimony of the Deputy Chief); ID at 15. Even after being placed on notice of
the Deputy Chief’s concerns about the appellant’s level of involvement in the
intern hiring process on the candidate’s behalf, the appellant still failed to inform
the Deputy Chief that the candidate’s father lived in his neighborhood and had
approached him about a job for his daughter. HCD (testimony of the Deputy
Chief). Additionally, although the administrative judge concluded that the
Deputy Chief never specifically elicited information from the appellant
concerning his relationship and interactions with the candidate’s father, the
Deputy Chief testified that the appellant should have known that this informati on
would have been germane and relevant to him, and the administrative judge
credited this testimony in reaching her conclusion that the appellant’s statements
to the Deputy Chief were not fully forthcoming and candid. Id.; ID at 15-16.
¶7 Although the appellant has argued on petition for review that he did not
consider his conversations with the applicant’s father to be “material,” Fargnoli
requires only that the appellant provided incomplete information, and that he did
so knowingly. Fargnoli, 123 M.S.P.R. 330, ¶17. As previously noted, unlike a
charge of falsification, a lack of candor charge does not require a showing of
intent to deceive or mislead. See Ludlum, 278 F.3d at 1284-85 (noting that lack
of candor need not involve an affirmative misrepresentation, but instead “may
involve a failure to disclose something that, in the circumstances, should have
been disclosed to make the statement accurate and complete,” and that an intent
to deceive is not a separate element of a lack of candor charge ); cf. Boo v.
Department of Homeland Security, 122 M.S.P.R. 100, ¶ 14 (2014) (distinguishing
a lack of candor charge from charges of falsification, misrepresentation, or lying).
Although the appellant argues that he could not have known that information
concerning his relationship with the applicant’s father was material, the record
and common sense belies that assertion. As the Deputy Chief noted in his
testimony, the information concerning the appellant’s relationship with the
applicant’s father would have been relevant and germane to him, and the
6
appellant’s disclosure of the preexisting relationship would have spurred
additional questions from the Deputy Chief about why the appellant was pursuing
a candidate who had not even applied to the appellant’ s division. HCD
(testimony of the Deputy Chief). Additionally, on cross examination, the
deciding official flatly rejected the notion that the appellant could have believed
that his preexisting relationship with the applicant’s father would not have been
material information that he needed to share with the Deputy Chief or his
supervisor. HCD (testimony of the deciding official). Finally, in the proposal
letter, the proposing official noted that the appellant received training in 2013
concerning prohibited personnel practices, such as the granting of unauthorized
preferences, and so the appellant was on notice that such behavior was prohibited.
IAF, Tab 5 at 10. The omission of such relevant and material information in this
case constitutes a “failure to be forthright” sufficient to constitute a “knowing”
omission, and to meet the standard for misconduct discussed in Fargnoli.
Fargnoli, 123 M.S.P.R. 330, ¶ 17 (quoting Parkinson, 815 F.3d at 766-67).
Accordingly, we see no reason to disturb the administrative judge’s findings
concerning the first specification of the lack of candor charge.
¶8 Regarding the second specification, the administrative judge pointed to the
email sent by the appellant to the Deputy Chief stating “we were contacted by
[the applicant]” concerning interest in the 2016 summer intern program, which
the appellant knew to be untrue because he had been contacted by the applicant’s
father, not the applicant, during the relevant times. ID at 15-17; IAF, Tab 5 at 32;
HCD (testimony of the Deputy Chief). The administrative judge also cited the
testimony of the Deputy Chief stating that if he had known that the app ellant had
only been in contact with the applicant’s father and not the applicant herself, he
would have responded differently to the appellant’s requests to consider the
applicant for the appellant’s division even though she had not expressed interest
in it. ID at 8-9, 16. Consequently, the administrative judge concluded that the
appellant’s mischaracterization of these facts established that he was untruthful in
7
his statements and unforthcoming in his interactions with the Deputy Chief. ID
at 16; cf. Erwin v. Department of the Army, 123 M.S.P.R. 565, ¶ 6 (2016)
(separate opinion of Chairman Grundmann) (concluding that the agency failed to
prove a charge of lack of candor when it provided no evidence that the appellant
knowingly gave incorrect or incomplete information, withheld information, and
the appellant’s statement was not a misrepresentation).
¶9 The administrative judge made comprehensive credibility determinations
and factual findings in reaching her conclusion that the appellant withheld
information from the Deputy Chief regarding his relationship with the applicant’s
father, and incorrectly informed the Deputy Chief that he had been contacted by
the applicant herself. ID at 14-16; cf. Fargnoli, 123 M.S.P.R. 330, ¶ 18
(remanding for further analysis on the lack of candor charge when the
administrative judge made no findings as to whether the appellant knowingly
gave incorrect or incomplete information). Accordingly, we find no basis for
disturbing the administrative judge’s findings concerning either specification of
the lack of candor charge. We therefore modify the initial decision to incorporate
the proper legal standard under Fargnoli for analyzing a lack of candor charge,
and affirm the initial decision as modified by this Final Order.
NOTICE OF APPEAL RIGHTS 4
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
9
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
10
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Cir cuit or any court
of appeals of competent jurisdiction. 5 The court of appeals must receive your
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.