Valentine Ukandu v. Department of the Air Force ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALENTINE UKANDU, DOCKET NUMBER
Appellant, AT-0752-21-0261-B-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: August 5, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Matthew Fogg , Washington, D.C., for the appellant.
Jennie C. Patschull , Joint Base Andrews, Maryland, for the agency.
William W. Cunningham , Columbus, Mississippi, 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
¶1 The appellant has filed a petition for review of the remand initial decision,
which sustained his removal. On petition for review, the appellant argues that he
had ineffective assistance of counsel. Ukandu v. Department of the Air Force,
MSPB Docket No. AT-0752-21-0261-B-1, Remand Petition for Review File,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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Tab 1 at 4. He also argues that additional discovery may have aided his case. Id.
at 4-5. Next, the appellant challenges the agency’s charges of failure to maintain
a condition of employment and lack of candor, providing several explanations or
rationales concerning the certification he was missing and his representations
about the same. Id. at 4-10. Finally, the appellant asserts that his removal was
unreasonable and that it was the product of discrimination or reprisal. Id. at 4-9.
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
correct the penalty analysis, we AFFIRM the initial decision.
¶2 Though not specifically raised by the parties, or recognized in the remand
initial decision, we uncovered an error on the part of the agency regarding its
penalty determination. If the Board sustains an agency’s charges, as occurred
here, the Board will review an agency-imposed penalty only to determine if the
agency considered all of the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Chin v. Department of Defense,
2022 MSPB 34, ¶ 24; Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306
(1981). In Douglas, 5 M.S.P.R. at 305-06, the Board listed 12 nonexhaustive
factors that are relevant in assessing the penalty to be imposed for an act of
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misconduct, including: the nature and seriousness of the offense, and its relation
to the appellant’s duties, position, and responsibilities; the appellant’s job level
and type of employment; his past disciplinary record; and his past work record,
including his length of service and performance history. In determining whether
the selected penalty is reasonable, the Board gives due weight to the agency’s
discretion in exercising its managerial function of maintaining employee
discipline and efficiency. Chin, 2022 MSPB 34, ¶ 20. The Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id. However, if the deciding official failed to appropriately
consider the relevant factors, the Board need not defer to the agency’s penalty
determination. Id.¶3 In this case, the agency conducted its penalty analysis on a form that is
mostly unremarkable. However, the one exception is the following language
about an employee’s past performance: “Lengthy service, generally over 8 years,
can only be a mitigating, not an aggravating factor. But lengthy service may
mean employee should have known better.” Ukandu v. Department of the Air
Force, MSPB Docket No. AT-0752-21-0261-I-1, Initial Appeal File, Tab 1 at 22.
On that form, the agency described the appellant as having 21 years of Federal
service, including 12 with the agency. Id. It further described this as an
aggravating factor because the appellant “should know better than to provide
invalid certifications.” Id. The Board has specifically rejected this approach,
noting that such a scheme yields the illogical result that the longer an individual
works for an agency, the more likely that a single misstep would be fatal to his
career. Shelly v. Department of the Treasury, 75 M.S.P.R. 677, 684 (1997).
Nonetheless, we independently find the penalty of removal to be reasonable. As
the administrative judge correctly recognized, the Board has routinely sustained
removals in similar situations involving an employee’s failure to maintain a
condition of employment. E.g., Dieter v. Department of Veterans Affairs,
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2022 MSPB 32, ¶ 6 n.2 (affirming the penalty of removal for an employee’s
failure to maintain a condition of employment—his ecclesiastical endorsement);
Penland v. Department of the Interior , 115 M.S.P.R. 474, ¶ 11 (2010)
(overturning an administrative judge’s decision to mitigate the penalty from
removal to demotion when the action was based on an employee’s loss of pilot
authorization, even though the appellant had 25 years of service with otherwise
good performance). Here, the appellant failed to maintain a condition of
employment and he also exhibited a lack of candor about the same. Mitigating
factors, such as the appellant’s length of service and good performance, do not
warrant a lesser penalty.
NOTICE OF APPEAL RIGHTS 2
The initial decision, as supplemented by this Final Order, constitutes the
Boards 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 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
2
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
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
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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
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
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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. 3 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
3
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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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.
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.