Cash Lindsay v. Department of Homeland Security ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CASH LINDSAY, DOCKET NUMBER
Appellant, AT-0752-16-0429-I-1
v.
DEPARTMENT OF HOMELAND DATE: April 6, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jonathan R. Bell, Esquire, and Susan Tylar, Esquire, Garden City, New
York, for the appellant.
Carley D. Bell, Arlington, Virginia, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 jud ges 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
affirmed his removal. 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 by
this Final Order to find that the appellant failed to establish that his due process
rights were violated because the deciding official lacked, or believed that he
lacked, the authority to take or recommend action other than removal in this case,
we AFFIRM the initial decision.
¶2 The appellant was removed from his position as a Transportation Security
Inspector–Explosives Detection Canine Handler with the Transportation Security
Administration (TSA) after he allegedly failed to provide an adequate breath
sample for an alcohol test. Initial Appeal File (IAF), Tab 5 at 36-42. He argues
that his due process rights were violated because the deciding official lacked the
authority, or believed that he lacked the authority, to mitigate the proposed
removal regardless of any argument or evidence that the appellant presented in
3
reply to the proposal notice. 3 Petition for Review (PFR) File, Tabs 1, 10. The
appellant has the burden of proving his affirmative defense by preponderant
evidence. 4 5 C.F.R. § 1201.56(b)(2)(i)(C).
¶3 We find that the appellant’s argument fails for two reasons. First, the
provisions of Management Directive 1100.75-3 and the accompanying Handbook,
rather than chapter 75 of Title 5 of the U.S. Code, govern disciplinary actions
against TSA employees. Buelna v. Department of Homeland Security,
121 M.S.P.R. 262, ¶ 5 n.2 (2014); see 49 U.S.C. §§ 114(n), 40122(g)(2). The
Handbook provides that the agency generally will take the Douglas factors 5 into
account when issuing disciplinary action. IAF, Tab 5 at 366; see Buelna,
121 M.S.P.R. 262, ¶ 33. However, the Handbook provides that the Douglas
factors do not apply to certain offenses for which removal is required, including
the “[r]efusal to submit to TSA-ordered drug or alcohol testing.” IAF, Tab 5
at 366, 373. Accordingly, we find that if the deciding official had declined to
consider any mitigating factors in this case, he did so in accordance with the law. 6
¶4 Second, we find that the deciding official’s testimony indicates he
understood that if he had concluded that the appellant should not have been
removed due to some exculpatory or mitigating reason, he would have sent such
3
The appellant raised this issue before the administrative judge. IAF, Tab 48 at 4-7.
The administrative judge addressed the issue as an error in the weighing of the
appropriate penalty rather than as a due process issue. IAF, Tab 49, Initial Decision
at 10, 13-15. We modify the initial decision to address the argument as one regarding
the appellant’s due process rights.
4
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5
See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981) (setting forth the
factors appropriate to consider in determining the reasonableness of an agency-imposed
penalty in an action covered by 5 U.S.C. chapter 75).
6
The Handbook provides for an exception to the mandatory removal policy. IAF, Tab 5
at 373 n.1. The deciding official testified to his awareness of the exception. Hearing
Transcript 2 at 4, 10 (testimony of the deciding official).
4
information to his supervisors to make a determination on what to do. H earing
Transcript 2 (HT-2) at 66, 75 (testimony of the deciding official). We find that
his testimony is consistent with the scope of his authority under the agency’s
rules for a mandatory removal offense, such as refusal to submit to alcohol
testing, and that the appellant received a meaningful opportunity to invoke all of
the discretion afforded by agency rules. IAF, Tab 5 at 366, 373 & n.1. Although
due process requires that “a deciding official must possess authority to take or
recommend action, due process does not require ‘unfettered discretion to take any
action he or she believes is appropriate’ or require ‘consider[a tion of] alternatives
that are prohibited, impracticable, or outside of management’s purview.’”
Calhoun v. Department of the Army, 845 F.3d 1176, 1179 (Fed. Cir. 2017)
(quoting Rodgers v. Department of the Navy, 122 M.S.P.R. 559, ¶ 6 (2015)).
¶5 At the hearing, the deciding official confirmed that he took into
consideration the appellant’s reply to the proposal notice, that the appellant had
been employed with the agency since 2005, and that he had previously been
employed with the U.S. Air Force. HT-2 at 9-10, 16 (testimony of the deciding
official). The decision notice additionally reflects that the deciding official
considered the appellant’s prior satisfactory performance ratings. 7 IAF, Tab 5
at 40-42. Had the deciding official believed that he had no discretion in the
matter, there would have been little reason for him to have even considered such
mitigating circumstances. Accordingly, we find that the appellant failed to prove
that the deciding official lacked, or believed that he lacked, the authority to ta ke
or recommend any action other than removal in his case. See Davis v. U.S. Postal
Service, 120 M.S.P.R. 457, ¶ 16 n.4 (2013) (upholding an appellant’s removal for
conduct violating an agency’s “zero tolerance” policy when the deciding official
gave bona fide consideration to the relevant Douglas factors).
7
On review, the appellant has not alleged that the deciding official failed to consider
any other mitigating factors. PFR File, Tabs 1, 10.
5
¶6 The appellant does not otherwise challenge the administrative judge’s
findings, PFR File, Tabs 1, 10, and we find no material error with the initial
decision. 8 Accordingly, we affirm the appellant’s removal from the Federal
service.
NOTICE OF APPEAL RIGHTS 9
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
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
8
In his reply to the agency’s response to the petition for review, the appellant notes that
he still disputes the factual basis for his removal but omits such arguments from his
reply, without conceding them, because they would be out of place. PFR File, Tab 10
at 7 n.1. Because the appellant has not identified any specific error with the initial
decision in this regard, he has failed to establish a basis for the Board’s review of the
administrative judge’s factual determinations. 5 C.F.R. § 1201.115(a)(2).
9
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.
6
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
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
7
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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
8
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 chal lenge 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. 10 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).
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:
10
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.
9
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 wa rrants 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.