Kevin Brown v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN BROWN, DOCKET NUMBER
Appellant, NY-0752-17-0108-I-1
v.
DEPARTMENT OF VETERANS DATE: April 21, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin Brown, Bronx, New York, pro se.
Christopher P. Richins, Esquire, Brooklyn, New York, 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 indefinite suspension. On petition for review, the appellant argues
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
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that the administrative judge improperly imposed sanctions that dismissed his
affirmative defenses as abandoned. He also argues that the administrative judge
erred in finding that the agency established that it had reasonable cause to believe
that he had committed a crime for which a term of imprisonment could be
imposed. 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
clarify the reasonable cause analysis, we AFFIRM the initial decision.
¶2 The appellant challenges the imposition of sanctions, claiming that he failed
to comply with the administrative judge’s orders due to technica l difficulties with
e-Appeal Online. Even if the appellant experienced the technical difficulties he
describes, however, he has not explained how these alleged difficulties prevented
him from complying with her orders. Significantly, the appellant succes sfully
uploaded a pleading in response to the show cause orders on May 9, 2017, and the
administrative judge considered this pleading prior to dismissing his affirmative
defenses. Initial Appeal File (IAF), Tabs 9-10. The appellant has not explained
how his alleged technical difficulties with e-Appeal Online prevented him in any
way from substantively responding to the administrative judge’s show cause
orders in his successfully uploaded pleading, and he did not mention these alleged
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difficulties at the time he filed the pleading. Moreover, the administrative
judge’s first show cause order contained an explicit warning that a failure to
substantively respond to her order with the requested information could result in
the dismissal of his affirmative defenses as abandoned. IAF, Tab 7. Under these
circumstances, we find no abuse of discretion. See Heckman v. Department of the
Interior, 106 M.S.P.R. 210, ¶ 16 (2007) (finding that the administrative judge did
not abuse her discretion by dismissing the appellant’s aff irmative defenses for
failure to prosecute when the appellant did not comply with multiple orders over
a period of 2 1/2 months).
¶3 As to the appellant’s challenge to the administrative judge’s finding that the
agency established that it had reasonable cause to believe that he had committed a
crime for which a term of imprisonment could be imposed, we modify the initial
decision as follows, still concluding that the agency met its burden. In the initial
decision, the administrative judge based her conclusion that the agency
established reasonable cause largely on the fact that the appellant was arrested
and arraigned on several criminal charges, one of which was punishable by
imprisonment up to 7 years. IAF, Tab 24, Initial Decision at 6-7. However,
relying on an arrest and arraignment alone is insufficient to establish reasonable
cause in the context of an indefinite suspension. See Barresi v. U.S. Postal
Service, 65 M.S.P.R. 656, 662-63, 666 (1994). Rather, the agency must take
some affirmative action on its own to satisfy itself that there was reasonable
cause to believe that a crime was committed for which imprisonment could be
imposed. Id. at 666 (citing Dunnington v. Department of Justice, 956 F.2d 1151(Fed. Cir. 1992)).
¶4 Here, the record demonstrates that the agency conducted its own
investigation of the appellant’s conduct that led to his arrest and arraignment and
that it considered this evidence in proposing and sustaining the appellant’s
indefinite suspension. In reaching his decision to sustain the indefinite
suspension, the deciding official considered the materials contained in the
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evidence file. IAF, Tab 6, Subtab 4c at 1. In addition to evidence related to the
appellant’s arrest and arraignment, the materials included a sworn statement from
the agency’s own Criminal Investigator summarizing his investigation of the
appellant’s alleged conduct, including statements from several witnesses, a
confession from the appellant’s alleged coconspirator that implicated the
appellant, and a description of video footage that subs tantiated the confession.
IAF, Tab 6, Subtab 4e. At the hearing, the deciding official testified that he read
the Criminal Investigator’s report and the witness statements included in the
report. Hearing Recording (testimony of the deciding official). He further
testified that he believed that the statements from the witnesses interviewed by
the Criminal Investigator were reliable, including the confession from the
appellant’s alleged coconspirator. Id. He concluded, based on all the evidence
presented to him, that there was reasonable cause to believe that the appellant had
committed the crimes for which he was arrested and arraigned and for which a
term of imprisonment could be imposed. Id. Under these circumstances, we find
that the agency’s consideration of the appellant’s arrest and arraignment, in
conjunction with the results of its own investigation, is sufficient to establish
reasonable cause. See Dunnington, 956 F.2d at 1156-58 (finding the reasonable
cause standard met when, in addition to four arrest warrants, the agency
considered factual material culled from four criminal complaints and statements
from complaining witnesses supporting the criminal complaints ). Accordingly,
we deny the petition for review.
NOTICE OF APPEAL RIGHTS 3
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
3
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.
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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 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.
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
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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 war rants 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.
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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
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
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competent jurisdiction. 4 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:
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.
4
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.
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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.