Dallas Poole v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DALLAS C. POOLE, SR., DOCKET NUMBER
Appellant, DC-0752-18-0514-I-1
v.
DEPARTMENT OF THE NAVY, DATE: April 15, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dallas C. Poole, Sr. , Havelock, North Carolina, pro se.
Denise Gillis , Esquire, and Evan Gordon , Quantico, Virginia, for the
agency.
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 the agency’s 20-day suspension action. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 clarify and supplement the administrative judge’s analysis of the
charge of failure to follow gift acceptance rules, we AFFIRM the initial decision.
On petition for review, the appellant challenges the administrative judge’s
findings regarding the agency’s charges of misconduct, the existence of nexus,
and the reasonableness of the imposed penalty. Petition for Review (PFR) File,
Tab 3. Further, he argues that the agency and the administrative judge
erroneously mixed up his case with that of the Command Advisor and that the
former Command Judge Advocate (CJA) Captain (Capt.) S.A. should not have
been allowed to testify as a witness. Id. at 6, 11.
After considering the appellant’s arguments on the merits of the appeal, we
find that they fail to provide a reason to disturb the initial decision. Initial
Appeal File (IAF), Tab 24, Initial Decision (ID) at 3-32. Specifically, we find
that the appellant has not provided a sufficiently sound reason to overturn the
administrative judge’s demeanor-based credibility determinations because they
are consistent with the record. ID at 11-12; see Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that 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) .
3
We modify the initial decision, however, to clarify and supplement the
administrative judge’s analysis of the charge of failure to follow gift acceptance
rules, as follows. The administrative judge found that the agency proved the
overall charge without specifying which specifications she was sustaining. ID
at 13. Based on her analysis and factual findings, we interpret the initial decision
as implicitly finding that the agency proved specifications 1-2. ID at 4-13.
Further, the administrative judge did not address whether the appellant violated
gift acceptance rules by instructing donors to make checks out to a Marine Corps
Community Services (MCCS) account, as alleged in part of specification 1. IAF,
Tab 6, Subtab 4d at 1. SECNAV Instruction 4001.2J provides that donors should
make checks payable to the “Department of the Navy.” IAF, Tab 5 at 22. This
directive was communicated in a January 23, 2015 ethics training by the former
CJA Major (Maj.) M.E. IAF, Tab 6, Subtab 4e, Enclosure (Encl.) 16 at 1, 17. In
a December 13, 2016 signed statement, the appellant asserted that “supporters
desiring to send donations to the battalion are instructed to make donations to
[MCCS]” and that “[a]ll other donations that are not properly written to MCCS
will be returned to donor.” Id., Encl. 45 at 1. Therefore, we find that the agency
proved by preponderant evidence that the appellant instructed donors to make
checks out to “MCCS.” Because we agree with the administrative judge’s finding
that the agency proved the remaining allegations of specification 1, we find that
she properly sustained specification 1. ID at 13; IAF, Tab 6, Subtab 4d at 1.
Further, we find that the appellant’s allegations of errors involving the
Command Advisor and his objection to Capt. S.A. as a witness do not provide a
basis for review. Specifically, the appellant asserts the following errors: the
agency uploaded the Agency File for the Command Advisor’s appeal in his
appeal; the deciding official stated in his Douglas factors 2 worksheet that
specification 2 of charge 1 is proved because the Command Advisor facilitated
2
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of twelve factors that are relevant in assessing the
appropriateness of an agency-imposed penalty for an employee’s misconduct.
4
the acceptance of checks over $1,500; the initial decision described part of his
position title as “Command Advisor”; and the initial decision discussed
Maj. M.E.’s reference to the Command Advisor in a written statement. PFR File,
Tab 3 at 6; ID at 1-2, 8; IAF, Tab 6, Subtab 4e, Encl. 59 at 1-2, Tab 7, Tab 13
at 9, Tab 14 at 16. The appellant does not allege, and the record does not
indicate, that these alleged errors have harmed his substantive rights or affected
the outcome of the case. See Panter v. Department of the Air Force, 22 M.S.P.R.
281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis for reversal of an initial decision). In
particular, the record shows that the agency filed a corrected Agency File 1 month
after he filed the initial appeal. IAF, Tabs 1, 5-6. Moreover, we find that the
administrative judge did not abuse her discretion in approving Capt. S.A. as a
witness whose testimony would be relevant, material, and nonrepetitious. IAF,
Tab 20 at 3; see Fritz v. Department of Health and Human Services, 87 M.S.P.R.
287, ¶ 15 (2000) (observing that administrative judges have broad discretion in
regulating the proceedings before them); see also 5 C.F.R. § 1201.41(b)(8), (10).
Accordingly, we affirm the 20-day suspension action.
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s 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
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.
5
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).
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
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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.
(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
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
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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
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
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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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
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.