Jeffery Collins v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFERY COLLINS, DOCKET NUMBER
Appellant, DC-0752-18-0015-I-1
v.
DEPARTMENT OF DEFENSE, DATE: March 19, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Supraja Murali , Washington, D.C., for the agency.
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his reduction in grade and pay. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
The following facts are undisputed. The appellant was an AD-09
Supervisory Police Officer for the agency’s Pentagon Force Protection Agency
(PFPA). Initial Appeal File (IAF), Tab 3 at 34. On March 21, 2017, the agency
proposed the appellant’s removal based on one charge of conduct unbecoming,
supported by five specifications. Id. at 61-64. The essence of the charge was that
the appellant refused to follow orders from two of his superiors to provide
coverage for another officer during that officer’s break. Id. at 62. The agency
alleged that the appellant responded to the repeated orders with repeated
profanity, and with a final refusal, hung up the telephone on his superiors. Id.After the appellant responded to the notice, the deciding official issued a
decision sustaining the charge but mitigating the proposed penalty to a reduction
in grade and pay and reassignment to a non-supervisory position. Id. at 35-39,
44-50, 52-53. The appellant filed a Board appeal under 5 U.S.C. § 7513(d),
contesting the merits of the agency’s action, including the charge and the penalty.
IAF, Tab 11, Tab 12 at 2. The appellant waived his right to a hearing. IAF,
Tab 12 at 2. After the close of the record conference, in his closing brief, the
appellant for the first time raised an affirmative defense alleging a violation of
due process. IAF, Tab 16 at 5, 9-13. He argued that the deciding official
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violated his due process rights by considering two penalty factors not mentioned
in the notice of proposed removal. Id.After the close of the record, the administrative judge issued an initial
decision affirming the reduction in pay and grade. IAF, Tab 17, Initial Decision
(ID). She found that the agency proved its charge and all of the underlying
specifications and that the chosen penalty was reasonable. ID at 6-9, 11-12.
Regarding the appellant’s due process claim, the administrative judge found that
it was untimely raised and would therefore not be considered. ID at 9-10. She
noted, however, that even if she were to consider the due process claim, she
would find no due process violation. ID at 10 n.3.
The appellant has filed a petition for review, challenging only the
administrative judge’s due process analysis. Petition for Review (PFR) File,
Tab 3. The agency has filed a response. PFR File, Tab 5.
ANALYSIS
Under 5 C.F.R. § 1201.24(b), an appellant may raise a claim or defense at
any time before the end of the conference held to define the issues in the case, but
may not raise a new claim or defense after that time, except for good cause
shown. In this appeal, that conference occurred on August 21, 2018, but the
appellant did not raise his due process claim until September 10, 2018. IAF,
Tabs 12, 16. We therefore agree with the administrative judge that the
appellant’s claim was untimely raised under the regulations. ID at 9-10; see
Nugent v. U.S. Postal Service, 59 M.S.P.R. 444, 447-48 (1993) (declining to
consider an affirmative defense and claimed mitigating penalty factors raised
outside the time limit prescribed in 5 C.F.R. § 1201.24(b)).
On petition for review, the appellant argues that the Board may consider an
untimely due process claim or raise the issue sua sponte. PFR File, Tab 3 at 7.
However, this authority is discretionary, not mandatory, and will normally be
exercised only to prevent a manifest injustice. See Holton v. Department of the
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Navy, 123 M.S.P.R. 688, ¶ 28 (2016); Powers v. Department of the Treasury,
86 M.S.P.R. 256, ¶ 10 n.3 (2000). Considering that the appellant’s due process
claim was untimely under the Board’s regulations, the appellant did not raise a
timely objection to the prehearing conference summary, and the appellant was
represented by an attorney throughout these proceedings, we find that the
administrative judge did not abuse her discretion in declining to consider it. ID
at 9-10; IAF, Tab 12 at 1-2; 5 C.F.R. § 1201.24(b); see 5 C.F.R. § 1201.115(c).
We also agree with the administrative judge’s alternative finding that the
appellant has not demonstrated a due process violation. ID at 10 n.3. On petition
for review, the appellant reiterates that the deciding official considered penalty
factors not mentioned in the notice of proposed removal, namely his alleged
dereliction of supervisory authority and his alleged violation of PFPA General
Order 1000.03. PFR File, Tab 3 at 7-8. He argues that this information was new,
he had no chance to respond to it, and it placed undue pressure on the deciding
official, thereby constituting a due process violation under the standard set forth
in Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011) and
Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir.
1999). Id. at 8-11.
However, based on the record evidence, we find that the deciding official
considered these matters merely in assessing the appellant’s arguments in
response to the proposed removal. Specifically, the appellant argued in his
response that the reason he refused to relieve the subordinate officer in question
was that he had an 8:00 a.m. appointment that morning, which he had previously
been ordered not to miss, and that the subordinate officer had declined to take his
break until 7:50 a.m. IAF, Tab 3 at 46, 48. In response to this argument, the
deciding official noted that the appellant could have exercised his supervisory
authority and ordered the subordinate officer to take his break earlier, or he could
have followed the directives in PFPA General Order 1000.03 for dealing with
conflicting orders, but he failed to do either. Id. at 37. We agree with the
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administrative judge that the deciding official’s statements address information
that the appellant himself presented in his response to the notice of proposed
removal. ID at 10 n.3. A deciding official does not violate an employee’s due
process rights when he considers and rejects the arguments that the employee
raises in response to a proposed adverse action. Grimes v. Department of Justice,
122 M.S.P.R. 36, ¶ 13 (2014); Wilson v. Department of Homeland Security,
120 M.S.P.R. 686, ¶¶ 10-11 (2014).
NOTICE OF APPEAL RIGHTS 2
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
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.
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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
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
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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
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
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(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
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.
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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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.