Jerry M Sprouse v. Department of Veterans Affairs , 2024 MSPB 12 ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 12Docket No. PH-0714-20-0258-I-1
Jerry Michael Sprouse,
Appellant,
v.
Department of Veterans Affairs,
Agency.
October 25, 2024
Elchonon Reizes , Houston, Texas, for the appellant.
Christine Beam , Esquire, and Marcus S. Graham , Esquire, Pittsburgh,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal, taken under the authority of 38 U.S.C. § 714.
For the reasons set forth below, we GRANT the agency’s petition, VACATE the
initial decision, and REMAND this appeal to the Northeastern Regional Office for
further adjudication in accordance with this Opinion and Order.
BACKGROUND
¶2 Prior to his removal, the appellant was employed by the agency’s Veterans
Health Administration as a GS-11 Supervisory Inventory Management Specialist
2
at the Butler Health Care Center (HCC) in Butler, Pennsylvania. Initial Appeal
File (IAF), Tab 5 at 8, 200. In this position, he was authorized to certify the
agency’s inventories of certain controlled substances and narcotics. Id. at 39. In
August 2019, the appellant’s wife, who was also an agency employee and was
separated from the appellant, contacted agency police and informed them of her
suspicion that the appellant was engaging in illicit drug transactions and
consuming alcohol on agency property. IAF, Tab 5 at 21, Tab 12 at 11-12,
Tab 13 at 22-25. She explained that she had read text messages between the
appellant and another agency employee, which she believed concerned drug
transactions. IAF, Tab 13 at 22-25. Based on her statements, agency police
commenced an investigation into possible criminal activity on agency property.
IAF, Tab 13 at 19-20, 30-31, Tab 18 at 4.
¶3 On November 17, 2019, agency police installed a hidden video camera in
the appellant’s office. IAF, Tab 13 at 28, Tab 18 at 5. Although the appellant
was the only individual assigned to the office and regularly kept his door shut,
there was a community printer in the office, and other employees would
occasionally enter to retrieve printouts or make copies. IAF, Tab 18 at 5. Before
installing the hidden camera, agency police obtained the approval of the Director
of the facility. IAF, Tab 12 at 17, Tab 18 at 5. However, agency police did not
obtain a search warrant or notify the appellant that the camera had been installed.
IAF, Tab 18 at 5.
¶4 On December 11, 2019, the appellant was captured on video crushing and
snorting pills and consuming alcohol in his office. Id. On December 13, 2019,
the appellant’s manager and another agency official confronted him with this
information. IAF, Tab 5 at 21, Tab 18 at 5. At that point, the appellant admitted
to consuming alcohol and pills in the office, and to purchasing pills from another
employee (employee A) on agency property. IAF, Tab 5 at 19, 21, Tab 18 at 5-6.
¶5 After a brief break, during which the appellant’s manager alerted an agency
police officer that the appellant was in possession of alcohol, the officer joined
3
the meeting. IAF, Tab 5 at 22, 28. The appellant agreed to the officer’s request
for permission to open the appellant’s personal backpack, which contained a
bottle of alcohol, and to submit to a breathalyzer test, which showed a result of
0.062. Id. at 19, 23, 28. The police officer gave the appellant a verbal warning
that day for bringing “beverages or narcotics” to agency property. Id. at 27.
¶6 The appellant agreed to the police officer’s request to help with the
investigation of employee A. IAF, Tab 5 at 24, Tab 13 at 38. The agency opened
a criminal investigation into employee A. IAF, Tab 22 at 12. On December 17,
2019, and again on January 14, 2020, the appellant provided voluntary witness
statements concerning his transactions with employee A to agency police. IAF,
Tab 5 at 29-32. In the latter statement, he acknowledged that video recordings
taken at other locations in the facility on October 24 and December 12, 2019,
showed him meeting with employee A to purchase oxycodone. Id. at 19-20,
29-30.
¶7 The agency removed the appellant effective March 28, 2020, based on the
following three charges: (1) conduct unbecoming a Federal employee, with four
underlying specifications; (2) possession of alcohol; and (3) use of alcohol. Id.
at 8-13, 15-18. In the first three specifications under charge 1, the agency alleged
that the appellant purchased employee A’s prescribed oxycodone pills on HCC
premises twice on October 24, 2019, and once on December 12, 2019. Id.
at 15-16. The agency explained in the proposed removal that the evidence
underlying these specifications was the appellant’s January 14, 2020 admission,
obtained when shown recordings of him and employee A meeting on HCC
premises on the dates in question, that employee A was selling him drugs. Id.
at 15-16, 29-31. The agency alleged under specification 4 of charge 1 that,
during the December 13, 2019 discussion with his manager, the appellant
acknowledged that he had crushed and snorted either oxycontin or oxycodone
pills while in his office on agency property. Id. at 15-16. Under charges 2 and 3,
the agency stated that, on December 13, 2019, the appellant admitted to
4
possession of alcohol and produced a bottle of alcohol from his backpack. Id.
at 16. Further, he consented to a breathalyzer test, which showed a blood alcohol
level of 0.062. Id.
¶8 This appeal followed. IAF, Tab 1. The appellant did not dispute the
substance of the charges, but he argued that the penalty was unreasonable and that
the agency had violated his Fourth Amendment rights and discriminated against
him on the basis of sex. IAF, Tab 5 at 14, Tab 13 at 8-9, Tab 14 at 1, Tab 18
at 5-6. The appellant elected to waive his right to a hearing. IAF, Tab 14 at 1.
¶9 The administrative judge reversed the removal action, finding that agency
police violated the appellant’s Fourth Amendment rights by placing a hidden
camera in his office for the purpose of conducting a criminal investigation
without obtaining a warrant. IAF, Tab 29, Initial Decision (ID) at 1, 8-10. In
determining that the appellant’s Fourth Amendment rights were implicated by the
agency police’s actions, the administrative judge found that the appellant had a
reasonable expectation of privacy in his office from police searches, and the HCC
Director’s consent to the placement of the camera did not excuse the police from
the requirement of obtaining a warrant. ID at 8-10. The administrative judge
further concluded that the exclusionary rule applied to Board proceedings and
that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) had
overruled the Board’s prior decision to the contrary, Delk v. Department of the
Interior, 57 M.S.P.R. 528 (1993). ID at 6 & n.1. He found that the appellant
failed to establish his discrimination claim. ID at 10-11. Because the
administrative judge reversed the action on Fourth Amendment grounds, he did
not address the appropriateness of the penalty. ID at 10.
¶10 The agency has filed a petition for review in which it contests the
administrative judge’s findings on the Fourth Amendment claim. Petition for
Review (PFR) File, Tab 1. The appellant has filed a response, to which the
agency has replied. PFR File, Tabs 3, 5.
5
ANALYSIS
The Board’s decision in Delk that the exclusionary rule does not apply to Board
proceedings remains good law.
The Federal Circuit has not overruled the Board’s prohibition on
applying the exclusionary rule.
¶11 As set forth above, the administrative judge determined in the initial
decision that the exclusionary rule applied to Board proceedings and that the
Board’s prior decision to the contrary, Delk, 57 M.S.P.R. at 530-32, had since
been overruled by the Federal Circuit in Wiley v. Department of Justice, 328 F.3d
1346 (Fed. Cir. 2003). ID at 6 & n.1. On review, the agency argues that the
administrative judge’s reliance on Wiley was misplaced because the court did not
address the exclusionary rule in Wiley. PFR File, Tab 1 at 12. We agree.
¶12 In criminal proceedings, the exclusionary rule prohibits using evidence
obtained in violation of the Fourth Amendment against the subject of the
violating search and seizure. United States v. Calandra, 414 U.S. 338, 347
(1974). It “is a judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect, rather than a personal
constitutional right.” Id. at 348. In Wiley, 328 F.3d at 1347-49, 1353-57, the
Federal Circuit concluded that the Board improperly sustained the removal of a
Federal employee that was based on his refusal to submit to a search of his car
because the search, if conducted, would have violated the Fourth Amendment.
However, the court reached this conclusion without addressing the application of
the exclusionary rule to Board proceedings. Id. at 1357. Therefore, the
administrative judge erred in finding that the Federal Circuit overruled Delk. 1
1
In an unpublished decision issued 17 years later, the Federal Circuit observed that the
Board has held that the exclusionary rule does not apply in Board proceedings. Martin
v. Department of Homeland Security, 810 F. App’x 867, 870-71 & n.1 (Fed. Cir. 2020)
(per curiam). However, the court did not address the propriety of this holding. Id.6
We affirm the longstanding rule that the exclusionary rule does not
apply in Board proceedings.
¶13 In Delk, 57 M.S.P.R. 528, the Board grappled with the very issue presented
here—whether to expand the scope of the exclusionary rule to include Board
proceedings. Specifically, at issue in Delk was the admissibility of evidence
obtained by the U.S. Park Police (USPP) that the National Park Service (NPS)
relied on in suspending Mr. Delk, namely, the discovery of NPS property during a
search of Mr. Delk’s home after obtaining a search warrant. Id. at 529-30.
Although the Board administrative judge found that the USPP violated Mr. Delk’s
Fourth Amendment rights because it exceeded the scope of the search warrant, he
nonetheless concluded, and the Board affirmed, that the evidence was admissible
because the exclusionary rule does not apply to Board proceedings. Id. at 529-32
& n.1. In reaching this conclusion, the Board observed that, as stated by the
Supreme Court, “[i]n the complex and turbulent history of the [exclusionary] rule,
the Court never has applied it to exclude evidence from a civil proceeding,
[F]ederal or state.” Id. at 531 (quoting United States v. Janis, 428 U.S. 433, 447
(1976)). This statement remains as true today as it was when the Delk decision
was issued 30 years ago. In fact, the Supreme Court has, to date, consistently
declined to apply the exclusionary rule outside of criminal trials—even when the
proceedings are tangential to a criminal trial. Pennsylvania Board of Probation
and Parole v. Scott, 524 U.S. 357, 364-69 & n.4 (1998) (declining to apply the
rule to parole revocation hearings); Immigration and Naturalization Service v.
Lopez-Mendoza, 468 U.S. 1032, 1041-50 (1984) (declining to apply the rule to
civil alien deportation proceedings); Janis, 428 U.S. at 447-60 (declining to apply
the rule to Federal civil tax proceedings); see Calandra, 414 U.S. at 349-55
(declining to apply the rule to grand jury proceedings).
¶14 Furthermore, the Board reasoned that application of the exclusionary rule
would not have a deterrent effect on the NPS officials who initiated the adverse
action, because they played no role in the unlawful search, or on future unlawful
7
police conduct, since the “zone of primary interest” for agency police was
criminal investigation and prosecution, not investigating employee misconduct.
Delk, 57 M.S.P.R. at 531-32; see Scott, 524 U.S. at 368 (concluding that the
application of the exclusionary rule to parole revocation proceedings would have
a minimal deterrent effect on police officers, whose zone of primary interest was
“obtaining convictions of those who commit crimes”) (citation omitted). The
Board also concluded that any marginal deterrent value on police behavior by
suppressing illegally seized evidence in administrative proceedings was
outweighed by the societal cost of retaining Government employees who engage
in improper conduct. Delk, 57 M.S.P.R. at 532.
¶15 On review, the appellant argues that the deterrent effects of the exclusionary
rule are served here. PFR File, Tab 3 at 8-11. Citing to what he identifies as an
agency standard operating procedure (SOP), the appellant argues that, unlike the
USPP who conducted the search at issue in Delk, the “zone of primary interest” of
agency police located at his former duty station included employee activities.
PFR File, Tab 3 at 8. However, the appellant has not suggested that the agency
police’s primary interest extends beyond criminal matters. Id. Further, there is
no evidence that agency police are primarily tasked with investigating employee
misconduct for the purposes of taking an administrative action. In fact, the SOP
does not refer to employee misconduct. IAF, Tab 12 at 19-22. Instead, the SOP
states that the focus of agency police investigations is alleged crimes occurring
on agency property, and investigations are authorized “to the extent necessary to
determine whether a crime has been committed and to collect and preserve basic
information and evidence relative to the incident.” Id. at 19. Therefore, like the
USPP police in Delk, agency police focus on crimes occurring on agency
property, rather than employee misconduct. Delk, 57 M.S.P.R. at 531.
¶16 In sum, we reaffirm our longstanding holding that the exclusionary rule
does not apply in Board proceedings. Therefore, regardless of whether the
agency’s installation of the camera in the appellant’s office violated the Fourth
8
Amendment, the evidence on which the appellant’s removal was premised will be
considered in determining the propriety of that action. 2
We must remand this appeal for further development of the evidence.
¶17 As indicated above, the appellant elected not to proceed to a hearing. IAF,
Tab 14 at 1. The parties stipulated to many of the facts underlying the agency’s
charges. IAF, Tab 5 at 15-16, Tab 18. Nonetheless, we decline to resolve
whether the agency proved those charges. At the direction of the administrative
judge, the parties primarily focused on the Fourth Amendment issue in their
closing submissions. IAF, Tab 14 at 1, Tabs 19-22. Therefore, they should be
provided with an opportunity to more thoroughly address the charges and penalty
on remand.
¶18 In addition, since the administrative judge issued the initial decision, the
Federal Circuit held that it is error for a deciding official to sustain an action
taken under 38 U.S.C. § 714 by substantial, instead of preponderant, evidence.
Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290, 1298-1301 (Fed. Cir.
2021). Here, the decision letter reflects the deciding official’s conclusion that the
charges “were supported by substantial evidence.” IAF, Tab 5 at 8. The
administrative judge and the parties did not have the benefit of the Rodriguez
decision below. Therefore, we must remand this issue to the administrative judge
for a determination of whether the deciding official’s use of the substantial
evidence standard was harmful. See Semenov v. Department of Veterans Affairs ,
2023 MSPB 16, ¶¶ 21-23. On remand, the administrative judge should provide
the parties with an opportunity to present evidence and argument addressing
whether the agency’s use of the substantial evidence standard in the removal
decision constituted harmful error. Id., ¶ 24. The administrative judge should
then address this affirmative defense in his remand initial decision. Id.
2
Accordingly, because the exclusionary rule does not apply to Board proceedings, we
need not resolve in this case whether the appellant had a reasonable expectation of
privacy in his office or other issues related to the Fourth Amendment.
9
¶19 On review, the parties have not challenged the administrative judge’s
finding that the appellant did not prove his claim of disparate treatment based on
sex. ID at 6-8, 10-11. Although the appellant has not identified any reversible
error in the administrative judge’s analysis, we find that further adjudication of
this claim is warranted. Specifically, the administrative judge adjudicated the
appellant’s defense under the standards set forth in Savage v. Department of the
Army, 122 M.S.P.R. 612 (2015), but during the pendency of the petition for
review, the Board overruled, in part, and clarified, in part, the Savage decision.
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25. The
Board further clarified the burdens of proof in Title VII disparate treatment
discrimination claims in Wilson v. Small Business Administration, 2024 MSPB 3,
¶ 11. On remand, the administrative judge shall reassess the appellant’s
affirmative defense of sex discrimination in accordance with Pridgen,
2022 MSPB 31, ¶¶ 21-24, and Wilson, 2024 MSPB 3, ¶¶ 11-19. The
administrative judge should advise the parties of their burden and afford them an
additional opportunity to submit relevant evidence and argument on this issue, but
he may incorporate his previous findings of fact to the extent appropriate.
Semenov, 2023 MSPB 16, ¶ 32.
¶20 Finally, because he reversed the agency’s action based on his determination
that it violated the appellant’s Fourth Amendment rights, the administrative judge
did not reach the issue of whether removal was an appropriate penalty. ID at 10.
If the administrative judge reaches this issue on remand, he should determine
whether the agency proved by substantial evidence that it properly applied the
relevant Douglas factors and whether the agency’s penalty was reasonable and, if
not, remand the appellant’s removal to the agency for a new decision. Semenov,
2023 MSPB 16, ¶ 50; see Douglas v. Veterans Administration, 5 M.S.P.R. 280,
10
305-06 (1981) (providing a nonexhaustive list of factors relevant to penalty
determinations). 3
ORDER
¶21 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3
If remanded to the agency, the agency should be mindful of its obligations to provide
the appellant with the necessary due process. See Brenner v. Department of Veterans
Affairs, 990 F.3d 1313, 1324 (Fed. Cir. 2021) (observing that the Department of
Veterans Affairs Accountability and Whistleblower Protection Act of 2017 maintains
due process protections for employees); Ward v. U.S. Postal Service, 634 F.3d 1274,
1279-80 (Fed. Cir. 2011); Stone v. Federal Deposit Insurance Corporation , 179 F.3d
1368, 1375-77 (Fed. Cir. 1999).