John Doe v. Department of the Air Force ( 2023 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    JOHN DOE,                                       DOCKET NUMBER
    Appellant,                  DA-0752-16-0100-I-2
    v.
    DEPARTMENT OF THE AIR FORCE,                    DATE: March 28, 2023
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    John Doe, Enid, Oklahoma, pro se.
    Jeremiah Crowley, Esquire, Joint Base Andrews, Maryland, for the agency.
    BEFORE
    Cathy A. Harris, Vice Chairman
    Raymond A. Limon, Member
    Tristan L. Leavitt, Member 2
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    affirmed his removal based on one charge of conduct unbecoming. On petition
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    for review, the appellant argues that the administrative judge erred in finding the
    following: that he was less credible than the individual who accused him of the
    conduct for which he was removed; that the agency proved the charge, nexus, and
    the reasonableness of the penalty; and that he waived or failed to establish his due
    process affirmative defense.    He further argues that the administrative judge
    failed to consider his argument that his removal resulted from unlawful command
    influence. 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 to
    address the probative value of certain hearsay evidence, we AFFIRM the initial
    decision.
    ¶2         We MODIFY the initial decision to find that the police department’s
    December 8, 2014 supplemental narrative report is hearsay evidence that does not
    have a high probative value and that the statements attributed to the appellant in
    the report do not lessen his relative credibility. See Borninkhof v. Department of
    Justice, 
    5 M.S.P.R. 77
    , 87 (1981) (setting forth the factors that may affect the
    probative value of hearsay evidence). Notwithstanding this slight modification to
    the administrative judge’s credibility analysis, the appellant has not provided
    sufficiently sound reasons to overturn the administrative judge’s other credibility
    3
    determinations,   including    his   demeanor-based     findings,    or   his   ultimate
    determination that the appellant was less credible than the individual who stated
    that he engaged in the conduct for which he was removed.                  See Haebe v.
    Department of Justice, 
    288 F.3d 1288
    , 1301 (Fed. Cir. 2002) (providing that the
    Board must defer to an administrative judge’s findings regarding credibility when
    those findings are based on the demeanor of the testifying witnesses and may
    overturn demeanor-based credibility findings only if the Board has sufficiently
    sound reasons for doing so).      Therefore, we do not disturb the administrative
    judge’s determination that the agency proved the charge of conduct unbecoming. 3
    ¶3         Although the appellant argues on review that the administrative judge failed
    to consider his unlawful command influence defense, it does not appear that he
    raised it below. Therefore, we need not consider it for the first time on review.
    Banks v. Department of the Air Force, 
    4 M.S.P.R. 268
    , 271 (1980). Even if he
    did raise it below, he waived or abandoned it by, among other things, failing to
    object to the administrative judge’s order and summary of the issues, which did
    not identify this defense as one that would be adjudicated. See Thurman v. U.S.
    Postal Service, 
    2022 MSPB 21
    , ¶¶ 18-25 (setting forth the factors to be
    considered in determining whether an appellant has waived or abandoned an
    affirmative defense). In any event, the appellant’s unlawful command influence
    defense, which is derived from Article 37 of the Uniform Code of Military
    Justice, is misplaced in this Board proceeding.        See 
    10 U.S.C. § 837
    ; United
    States v. Biagase, 
    50 M.J. 143
    , 149-51 (C.A.A.F. 1999).             The administrative
    3
    The administrative judge characterized the agency’s charge as involving “a he said,
    she said, scenario,” citing Faucher v. Department of the Air Force, 
    96 M.S.P.R. 203
    ,
    ¶ 7 (2004) and Vicente v. Department of the Army, 
    87 M.S.P.R. 80
    , ¶ 7 (2000). ID
    at 5-6. We agree that the resolution of the case depends on an assessment of the
    relative credibility of two individuals. However, we note that this requires no special
    credibility assessment and such cases are no different than any other case involving
    conflicting testimony. See, e.g., Hillen v. Department of the Army, 
    35 M.S.P.R. 453
    ,
    458 (1987). We see no reason to label such matters as “he said, she said,” as that may
    suggest that a different standard applies in the assessment of credibility.
    4
    judge considered the appellant’s argument that the deciding official was biased
    and acted in an improper manner in carrying out his duties as a deciding official
    but found no merit to these conditions.        We discern no basis to disturb this
    finding.
    ¶4         We have considered the appellant’s other arguments on review but conclude
    that they provide no basis to disturb the initial decision.         See Crosby v. U.S.
    Postal Service, 
    74 M.S.P.R. 98
    , 105-06 (1997) (finding no reason to disturb the
    administrative judge’s findings when she considered the evidence as a whole,
    drew appropriate inferences, and made reasoned conclusions on the issue of
    credibility);   Broughton   v.   Department     of   Health   and    Human    Services,
    
    33 M.S.P.R. 357
    , 359 (1987) (same).
    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 appro priate
    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
    provide legal advice on which option is most appropriate for your situation and
    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.
    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.
    5
    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
    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
    6
    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,
    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:
    7
    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 Circuit or any court of appeals of
    competent jurisdiction. 5   The court of appeals must receive your petition for
    review within 60 days of the date of issuance of this decision.               
    5 U.S.C. § 7703
    (b)(1)(B).
    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.
    The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
    
    132 Stat. 1510
    .
    8
    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 a t 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.uscour ts.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.
    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.
    

Document Info

Docket Number: DA-0752-16-0100-I-2

Filed Date: 3/28/2023

Precedential Status: Non-Precedential

Modified Date: 3/29/2023