Luis Ruiz v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS RUIZ, DOCKET NUMBER
Appellant, DA-0752-20-0059-I-1
v.
DEPARTMENT OF HOMELAND DATE: August 2, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alan V. Edmunds , Esquire, and Brittany D. Honeycutt , Esquire, Ponte
Vedra Beach, Florida, for the appellant.
Maria G. DeFord , Edinburg, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal based on charges of conduct unbecoming and lack of
candor. On petition for review, the appellant argues that his wife falsely accused
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
him of assaulting her and notes that she later recanted the statements identified in
the police report, resulting in the criminal charges against him subsequently being
dropped, and so the administrative judge erred in concluding that the agency met
its burden of proving the conduct unbecoming charge. He also argues that the
agency acknowledged that he had not engaged in the alleged misconduct, and so
the administrative judge erred by concluding that the agency met its burden of
proving the lack of candor charge. 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
In concluding that the agency met its burden of proving the conduct
unbecoming charge, the administrative judge summarized the testimony provided
by the appellant and his wife at the hearing denying that the appellant physically
assaulted his wife, and instead asserting that she was the aggressor during the
incident in question. Initial Appeal File (IAF), Tab 34, Initial Decision (ID)
at 10-11, 12-13. She also summarized the hearing testimony of the responding
police officer who interviewed the appellant’s wife on the day of the incident and
took her statement. ID at 11-12. After considering the relevant testimony and
corresponding record evidence, including the police report and signed statement
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by the appellant’s wife taken on the day of the incident, photographs of the scene
at the appellant’s house and the appellant’s wife’s injuries, and other relevant
testimonial and record evidence, the administrative judge concluded that the
version of events described by the appellant and his wife at the hearing was not
credible, and the version of events reflected on the police report was the most
plausible and credible version of the events that occurred that day. 2 ID at 13-16
(citing Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987);
Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981)).
Consequently, the administrative judge concluded that the agency met its burden
of proving the charge. ID at 16.
On review, the appellant merely restates his argument that he was falsely
accused of the assault and cites the fact that his wife later recanted her allegations
and that the criminal charges were dropped as evidence in support of his claim.
Petition for Review (PFR) File, Tab 2 at 4-5. The Board generally must give
deference to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing, and may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant’s arguments on review
2
Although the administrative judge identified the wife’s later July 17, 2019 written
statement denying the assault as a “sworn” statement, a review of the record reflects
that the statement was signed by the appellant’s wife and witnessed by a notary public,
but does not reflect that the statement was sworn or attested to. IAF, Tab 8 at 41; ID
at 8. Because we ultimately find no error in the administrative judge’s credibility
findings and her conclusion that the written statement is not credible, any error in this
misstatement was harmless and did not affect the outcome of the decision. ID at 13; see
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error that was not prejudicial to a party’s substantive rights provided no
basis for reversing an initial decision); see also Adamsen v. Department of Agriculture,
116 M.S.P.R. 331, ¶¶ 15-17 (2011) (noting that unsworn, unsupported statements have
little probative value); Scott v. Department of Justice, 69 M.S.P.R. 211, 228 (1995)
(holding that, while an unsworn statement is admissible evidence, the fact that it is
unsworn may detract from its probative value), aff’d, 99 F.3d 1160 (Fed. Cir. 1996)
(Table).
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constitute mere disagreement with the administrative judge’s well-reasoned
findings and do not establish that she erred in sustaining the conduct unbecoming
charge. See Yang v. U.S. Postal Service, 115 M.S.P.R. 112, ¶ 12 (2010) (stating
that arguments that constitute mere disagreement with the initial decision do not
provide a basis to grant the petition for review); see also Broughton v.
Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (finding
no reason to disturb the administrative judge’s conclusions when the initial
decision reflected that the administrative judge considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions).
Accordingly, we find no error in the administrative judge’s finding that the
agency met its burden of proving the conduct unbecoming charge and see no
reason to disturb this finding on review.
With regard to the lack of candor charge, the administrative judge
concluded that, because the agency met its burden of proving that the appellant
had, in fact, assaulted his wife on August 31, 2017, thus proving the misconduct
described in the conduct unbecoming charge, the agency also proved that the
appellant lacked candor when he explicitly denied hitting or striking his wife in
his interview with the Office of Professional Responsibility (OPR). IAF, Tab 8
at 403-04; ID at 17. On review, the appellant restates his claim that his wife’s
allegations were false and that he gave a truthful account to OPR investigators
during his interview. PFR File, Tab 2 at 4-5. The appellant also alleges that the
agency itself “admitted that [it] believed the [a]ppellant that the charges that were
against him were unfair and that he did not make any false statements about the
events.” Id. at 4.
Although the appellant does not directly identify the source for his bare
assertion that the agency “admitted” that it believed the appellant, it appears that
this is a reference to an exchange between the appellant and OPR investigators
during which the investigators and the appellant discussed the appellant’s claim
that his wife was lying about the assault. IAF, Tab 8 at 367-74. If so, the
5
appellant mischaracterizes this exchange. During this exchange, the investigators
presumed, for the sake of argument, that the appellant’s claim that his wife “is a
liar” was true, and observed that, given that she had purportedly already lied
about one assault, there would be nothing to stop her from doing so again. See id.
at 367 (“So, what you’re saying is your wife then is a perpetual liar? A fabricator
of a whole entire story that got you arrested, charged, suspended without pay.”);
id. at 368 (“What are they supposed to say when you’re married to somebody who
has lied to the police, has made up a story like you said . . . .”); id. at 372 (“So,
when we asked you if she’s a liar, I mean we can’t sugar coat this for you because
at the end of the day my question to you is, how are we going to make sure this
doesn’t happen again? She’s lied ten times.”); id. (“How are you going to
guarantee to us, that she’s not going to lie again and that you’re not going to get
arrested again? That at the end of the day, that’s why we’re here.”).
When viewed in the proper context, it is clear that nothing in this exchange
indicates that the OPR investigators were suggesting that they actually agreed
with the appellant’s assertion that his wife had lied about the assault, and instead
were questioning the appellant about the implications of the fact that his wife had
gone to the police and reported an assault, resulting in the appellant’s arrest, and
the effect that fact had on the appellant’s position as a Customs and Border
Protection (CBP) Officer. See id. at 370 (“We’re here to protect the
government.”); id. (“Okay and you understand CBP employees cannot, should
not, ever get arrested.”). Accordingly, there is also no merit to the appellant’s
claim that agency officials acknowledged that he did not lack candor in his
statements to OPR officials and that the administrative judge erred in sustaining
the lack of candor charge. Based on the foregoing, the agency proved that the
appellant engaged in the conduct described in the conduct unbecoming charge,
and that the appellant lacked candor when he falsely denied assaulting his wife to
OPR investigators. Consequently, we also agree with the administrative judge
that the agency proved the charge of lack of candor. ID at 17; see Crosby v. U.S.
6
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 reached well-reasoned conclusions).
NOTICE OF APPEAL RIGHTS 3
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 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).
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.
7
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
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. 420 (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
8
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
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
9
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. 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
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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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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.