Juan Castro v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUAN CASTRO, DOCKET NUMBER
Appellant, SF-0714-18-0130-I-1
v.
DEPARTMENT OF VETERANS DATE: March 26, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Ronald P. Ackerman , Esquire, Los Angeles, California, for the appellant.
Eric Lazare , Esquire, San Diego, California, for the agency.
Thomas Davis , Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal under 38 U.S.C. § 714. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. However, for the reasons
discussed below, we VACATE the initial decision and REMAND the case to the
regional office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant, formerly a Police Officer with the agency’s Long Beach
Healthcare System in Long Beach, California, appealed the agency’s decision to
remove him pursuant to 38 U.S.C. § 714 for the negligent performance of duties
in his use of excessive force against a patient and the patient’s relative. Initial
Appeal File (IAF), Tab 6 at 17-18, 86-92. The agency’s removal action rested on
a single charge in which the agency alleged that the appellant had kicked the
patient multiple times while he was sitting on the floor and punched the patient’s
relative, which violated agency policies regarding the use of force and the role of
an agency Police Officer. Id. at 17. After holding the appellant’s requested
hearing, the administrative judge issued an initial decision sustaining the
removal. IAF, Tab 24, Initial Decision (ID). Specifically, the administrative
judge found that, although the evidence showed that the appellant had not
delivered strikes as forceful as alleged in the agency’s charge, the record
supported a finding that the appellant had delivered three forceful thrusts to the
patient’s knee and pushed the patient’s relative, and that the appellant’s actions
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amounted to excessive force, in violation of agency policy. ID at 3-16. The
administrative judge found that the appellant had failed to use the degree of care
required under the circumstances, and he sustained the charge. ID at 16. The
administrative judge also found that 38 U.S.C. § 714 does not require that the
agency’s action promote the efficiency of the service but nevertheless concluded
that the agency’s action promoted the efficiency of the service. ID at 16-17.
Finally, the administrative judge found that, pursuant to 38 U.S.C. § 714, because
the agency’s decision was supported by substantial evidence, he was not
permitted to mitigate the penalty, and he sustained the removal. ID at 17. The
appellant has timely filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 3, 5.
ANALYSIS
On petition for review, the appellant argues that the administrative judge
incorrectly relied on inconsistent witness testimony, erroneous findings of fact,
and hearsay to find that the agency proved by substantial evidence that the
appellant kicked a patient. PFR File, Tab 3 at 6-12. The Board 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. Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002). Although the Board may decline to defer to an administrative
judge’s credibility findings that are abbreviated, based on improper
considerations, or unsupported by the record, Redschlag v. Department of the
Army, 89 M.S.P.R. 589, ¶ 13 (2001), it may not overturn an administrative
judge’s demeanor-based credibility findings merely because it disagrees with
those findings, Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1372
(Fed. Cir. 2016). Our review of the record reflects that the administrative judge
made detailed, well-reasoned findings regarding the credibility and consistency of
witness testimony that are supported by the record. Additionally, hearsay is
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admissible in Board proceedings, and the administrative judge did not abuse his
discretion in considering hearsay in assessing the consistency of witness
testimony. ID at 12; see Shannon v. Department of Veterans Affairs ,
121 M.S.P.R. 221, ¶ 15 (2014). We find no basis to disturb the administrative
judge’s findings of fact or his reasoned assessment of the facts in concluding that
the agency proved its charge by substantial evidence. ID at 3-16; see Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to
disturb the administrative judge’s findings where she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions on the issue
of credibility); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
Nevertheless, in light of developments in the case law after the initial
decision was issued, we remand this appeal for further adjudication on two issues.
First, the record shows that the deciding official sustained the charge under a
substantial evidence standard of proof. IAF, Tab 1 at 10; Hearing Transcript
at 49 (testimony of the deciding official). This was error. Although the Board
reviews a section 714 action by substantial evidence, the agency’s deciding
official may only sustain the charge if he finds it proven by preponderant
evidence. Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290, 1298-1300
(Fed. Cir. 2021). We therefore remand this case for adjudication of whether the
agency’s application of the substantial evidence standard of proof was harmful
error. See Semenov v. Department of Veterans Affairs , 2023 MSPB 16,
¶¶ 21-25 & n.5.
Second, because the Board is prohibited from mitigating the agency’s
chosen penalty in a section 714 appeal, the administrative judge declined to
review the penalty. ID at 16-17. However, after the initial decision was issued,
the U.S. Court of Appeals for the Federal Circuit held that, notwithstanding its
lack of mitigation authority, the Board is nevertheless required to review the
agency’s penalty determination as part of its review of the agency’s decision as a
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whole. Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1323-27 (Fed.
Cir. 2021); Brenner v. Department of Veterans Affairs, 990 F.3d 1313, 1322-27
(Fed. Cir. 2021); Sayers v. Department of Veterans Affairs, 954 F.3d at 1375-79
(Fed. Cir. 2020). Therefore, on remand, the administrative judge should also
review the agency’s penalty determination according to the standard set forth in
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). See Semenov,
2023 MSPB 16, ¶¶ 44-50.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. On remand, the
administrative judge shall allow the parties to supplement the record with
additional evidence and argument on the issues of penalty and harmful error. He
shall then issue a new initial decision that addresses these issues. As to whether
the agency presented substantial evidence to prove its charge before the Board,
the administrative judge may adopt the findings from his previous initial decision,
as appropriate.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.