Travis Jackson v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRAVIS JACKSON, DOCKET NUMBER
Appellant, PH-0752-22-0084-I-2
v.
DEPARTMENT OF DEFENSE, DATE: August 19, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Adam K. Hobaugh , Esquire, Wexford, Pennsylvania, for the appellant.
Allen Brooks , Esquire, and Candice Bang , Esquire, Quantico, Virginia, 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.
REMAND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal for a due process violation. For the reasons
discussed below, we GRANT the agency’s petition for review, VACATE the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 At the time relevant to this appeal, the appellant held the position of
Program Analyst for the Department of Defense, Defense Counterintelligence and
Security Agency. Jackson v. Department of Defense, MSPB Docket No.
PH-0752-22-0084-I-1, Initial Appeal File, Tab 7 at 320. In March 2019, the
agency suspended him for several charges that included a failure to work reported
hours. Id. at 342. Then, in May 2020, the agency proposed his removal for a
single charge of failure to work reported hours, with 73 underlying specifications.
Id. at 320-340. Broadly speaking, the agency alleged that there were 73 days
between March and September 2019 where the appellant did not work his entire
8-hour shift, amounting to a total of approximately 50 hours claimed but
unworked. Id. at 336.
¶3 The appellant submitted oral and written responses. Id. at 24-319.
Subsequently, the deciding official sustained the charge and removal based on 71
of the 73 underlying specifications. Id. at 16-23.
¶4 The appellant filed the instant appeal to challenge his removal. IAF, Tab 1.
The administrative judge developed the record and held the requested hearing.
Jackson v. Department of Defense, MSPB Docket No. PH-0752-22-0084-I-2,
Refiled Appeal File (AF-2), Tab 27, Hearing Transcript, Day 1, Tab 29, Hearing
Transcript, Day 2 (HT2). He then issued an initial decision, reversing the
appellant’s removal on due process grounds. AF-2, Tab 35, Initial Decision (ID).
The administrative judge concluded that the deciding official violated the
appellant’s right to due process by determining that the appellant’s misconduct
was intentional without prior notice that he would do so. ID at 2-6.
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¶5 The agency filed a petition for review. Jackson v. Department of Defense,
MSPB Docket No. PH-0752-22-0084-I-2, Petition for Review (PFR) File, Tab 1. 2
The appellant filed a response, and the agency replied. PFR File, Tabs 3-4.
¶6 The fundamental rights of due process require that a tenured public
employee receive oral or written notice of the charges against him, an explanation
of the agency’s evidence, and an opportunity to respond, either in person or in
writing. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39,
546-48 (1985). An agency’s failure to provide these rights deprives a tenured
employee of his property right in his employment. Id. at 546.
¶7 Under Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir.
2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
rights when he relies upon new and material ex parte information as a basis for
his decisions on the merits of a proposed charge or the penalty to be imposed.
Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 34. Ward, Stone, and their
progeny recognize, however, that not all ex parte communications rise to the level
of a due process violation. Id.¶8 In Stone, the U.S. Court of Appeals for the Federal Circuit identified the
following factors to be used to determine if ex parte information is new and
material: (1) whether the ex parte information introduced cumulative, as opposed
to new, information; (2) whether the employee knew of the information and had
an opportunity to respond; and (3) whether the communication was “of the type
likely to result in undue pressure on the deciding official to rule in a particular
manner.” Stone, 179 F.3d at 1377. Ultimately, we must determine “whether the
ex parte communication is so substantial and so likely to cause prejudice that no
2
Although the initial decision did not include language ordering the agency to do so,
the agency’s petition for review includes certification that it provided the appellant with
interim relief. Compare ID at 7-15, with PFR File, Tab 1 at 26-29; see Stewart v.
Department of Transportation, 2023 MSPB 18, ¶¶ 7-14 (discussing an agency’s
statutory obligation to provide interim relief, even if an administrative judge mistakenly
omits interim relief orders in an initial decision).
4
employee can fairly be required to be subjected to a deprivation of property under
such circumstances.” Id.¶9 The administrative judge identified the potential Ward/Stone due process
issue in this case as one stemming from the deciding official’s testimony that she
considered the appellant’s conduct intentional for purposes of her penalty
analysis, despite the proposal to remove the appellant including no such
allegation. ID at 2-3. The administrative judge found that the deciding official’s
determination about the appellant’s intent was “new and material,” and that it
“was so likely to cause prejudice that no employee can fairly be required to be
subjected to a deprivation of property under such circumstances.” ID at 4-6
(quoting Stone, 179 F.3d at 1377). Notably, though, the administrative judge’s
due process analysis relies on the proposal letter, in isolation. It contains no
discussion of whether the appellant’s intent was raised in materials attached to
the proposal or the appellant’s response to the proposal. ID at 2-6. See Alvarado
v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 15 (2004) (holding that due
process is satisfied when the proposal notice and any attachments to it, taken
together, provide the employee with specific notice of the charges against him so
that he can make an informed and meaningful reply).
¶10 On review, the agency argues that the appellant was not denied due process.
PFR File, Tab 1 at 9-23. We agree. The case at hand is similar to other cases
where the Board found no due process violation.
¶11 The agency’s charge and underlying specifications did not allege that the
appellant’s misconduct was intentional—it was altogether silent about whether
the misconduct was intentional or inadvertent. IAF, Tab 7 at 320-35. However,
the proposal letter did include some references to the appellant’s state of mind at
the time of the charged misconduct. For example, the proposal described how the
appellant had admitted that he would oftentimes cut his workday short if he was
outside on a break and did not want to walk back to the office, and how the
appellant rationalized that this was offset by his answering of emails when he was
5
off the clock. Id. at 336. The proposal further described how, when confronted
by investigators from the Office of Inspector General (OIG) about shortcomings
in his time and attendance, the appellant stated that he was surprised and thought
he was doing a better job of tracking his time. Id. at 337-38.
¶12 The OIG report of investigation underlying the proposed removal contains
additional references to the appellant’s intent. 3 According to that report, the
appellant “stated he has never intentionally submitted an inaccurate time report,”
and “stated he has never intentionally submitted a time report without reflecting
approved leave due to low leave balance or for any other reason.” Id. at 394. He
also “stated he was not intentionally shorting his hours each day and felt he was
working all of his reported hours.” Id. at 396-97. Attached to the investigatory
report is the appellant’s own handwritten affidavit that states, “[f]irst and
foremost there was no intention of defrauding or theft of time.” Id. at 496.
¶13 Moreover, in response to the proposed removal, the appellant addressed his
state of mind again. Among other things, he indicated that he “never
intentionally attempted to cheat [his] hours or time working.” Id. at 318. The
appellant added that he was “not attempting in any way to avoid responsibility if
[he had] unintentionally miscalculated his time,” and that he has “not ever
intentionally attempted to get paid for work that [he] did not perform.” Id. In
another instance, his response included the assertion that he was “never trying to
cheat the agency out of time or money.” Id. at 121. From this evidence, it is
plain that the appellant knew of the ex parte information at issue here, that is, the
question of whether his charged conduct was intentional, and had an opportunity
to respond, as, indeed, he actually did respond to it. Stone, 179 F.3d at 1377.
3
The proposal to remove the appellant repeatedly referenced the OIG report of
investigation and it ends with a notation that materials relied on for the proposal were
attached. IAF, Tab 7 at 341. Plus, we found no suggestion that the appellant was
deprived of the OIG report during the response period. To the contrary, the appellant’s
response to his proposed removal repeatedly references the “ROI,” which appears to be
the appellant’s shorthand for the OIG report of investigation. E.g., id. at 33, 317.
Thus, we find it more likely than not that the OIG report was given to the appellant
alongside his proposed removal.
6
¶14 During the hearing, the deciding official testified about the Douglas factors
that illuminated her decision about the appropriate penalty. HT2 at 164
(testimony of the deciding official); see Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of factors that may
be relevant for consideration in determining the appropriateness of a penalty). In
reference to the first Douglas factor, i.e., the nature and seriousness of the
offense, including whether the offense was intentional or inadvertent, the
deciding official stated that “this was a strong factor for the basis of determining,
you know, what was the offense, and examining that, as well as any intention
behind that offense, which would determine any possibility of rehabilitation.”
HT2 at 164 (testimony of the deciding official). During cross examination, the
deciding official was asked about this factor again. She testified, “so the
intention of this—it was a repeated offense, you know, inadvertent would have
been once, twice. You know, this was over a period of time repeated behavior of
not working the times that were reported.” Id. at 185-86. The appellant’s
representative asked what that meant to the deciding official, who responded as
follows: “this was now a more intentional of working whatever schedule [the
appellant] determined was appropriate for that day.” Id. at 186. Later, the
deciding official responded, “yes,” when asked if she “believed that the actions of
[the appellant] were intentional and that’s what—that’s what [the first Douglas
factor] reflects.” Id. at 200.
¶15 As detailed above, the proposal to remove the appellant did not charge him
with intentional misconduct, but the rest of the proposal letter and its supporting
materials reference the appellant’s explanations, including his repeated claims
that the alleged misconduct was either justified or unintentional. Moreover, the
appellant’s response to the proposed removal is filled with the appellant’s
assertions about the same. The deciding official’s testimony indicates that she
rejected these explanations when weighing the Douglas factors. In so doing, the
deciding official did not violate the appellant’s right to due process. See, e.g.,
7
Mathis v. Department of State, 122 M.S.P.R. 507, ¶¶ 9-16 (2015); Grimes v.
Department of Justice, 122 M.S.P.R. 36, ¶¶ 12-13 (2014); Wilson v. Department
of Homeland Security, 120 M.S.P.R. 686, ¶¶ 10-12 (2014), aff’d, 595 F. App’x
995 (Fed. Cir. 2015). A deciding official does not violate an employee’s right to
due process when they consider issues raised by an employee in a response to the
proposed adverse action and then reject those arguments in reaching a decision.
E.g., Mathis, 122 M.S.P.R. 507, ¶ 9. An employee is not entitled to know the
particular weight the deciding official will attach to arguments raised in response
to the proposed adverse action in advance of the final decision. Id.¶16 In conclusion, we find that the deciding official did not violate the
appellant’s right to due process by considering and rejecting the appellant’s
explanations for the alleged misconduct, which were described in the proposal
letter, the materials in support of the proposal, and the appellant’s response to the
proposal. On remand, the administrative judge must adjudicate the merits of the
appellant’s removal, along with any other affirmative defenses the appellant has
raised. 4
4
Though unmentioned in the initial decision, we note that a prehearing conference
summary indicated that the appellant intended to pursue claims of disability
discrimination, harmful error, and unnamed violations of law. IAF, Tab 13 at 1. The
administrative judge should ensure that the remand initial decision addresses whether
the appellant has continued to pursue these claims and, if necessary, address them on
the merits. See generally Hess v. U.S. Postal Service, 124 M.S.P.R. 40, ¶ 8 (2016
(recognizing that if an appellant raises an affirmative defense that could result in
compensatory damages, that issue remains live even if the underlying appealable action
is not).
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ORDER
¶17 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.