Robert T Tate v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT TATE, DOCKET NUMBER
Appellant, SF-0752-19-0692-I-1
v.
DEPARTMENT OF DEFENSE, DATE: October 3. 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Claire Cooke , Esquire, and Tyler J. Sroufe , Esquire, Dallas, Texas, for the
appellant.
Richard Saviet , Fort Belvoir, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his 60-day suspension. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
On review, the appellant argues that he was entitled to be represented by an
attorney during the Office of Inspector General (OIG) investigation into the
allegations of time and attendance abuse. Petition for Review (PFR) File, Tab 1
at 3. However, the Board has held that the right to counsel is limited to criminal
proceedings, and a Federal employee has no right to counsel in an administrative
investigation by his employer unless the investigation could result in criminal
prosecution and the interrogation took place while the employee was in custody.
Chisolm v. U.S. Postal Service, 7 M.S.P.R. 116, 120 (1981); Ashford v.
Department of Justice, 6 M.S.P.R. 458, 392 (1981); see Torain v. Smithsonian
Institution, 465 F. App’x 945, 948 (Fed. Cir. 2012) (finding that a Federal
employee involved in an employment dispute is not entitled to counsel when the
employee is not implicated in any crime or subject to a criminal investigation). 2
Here, a form signed by the appellant prior to his OIG investigative interview
specifically stated that the appellant’s answers could be used “in the course of
civil or administrative proceedings” and that the appellant’s answers could not be
used in a criminal proceeding unless he knowingly provided false information.
2
The Board may follow a nonprecedential decision of the United States Court of
Appeals for the Federal Circuit when it finds its reasoning persuasive. Morris v.
Department of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
3
Initial Appeal File (IAF), Tab 5 at 17. Nor is there any suggestion in the record
that the appellant was in custody at the time of the interview. Thus, the appellant
was not entitled to counsel during the OIG interview.
The appellant cites a provision of the Administrative Procedure Act (APA)
in support of his claim that he was entitled to counsel. PFR File, Tab 1 at 3. The
provision he cites, 5 U.S.C. § 555(b), provides, in pertinent part, that a person
compelled to appear before an agency or a representative of an agency is entitled
to be accompanied and represented by counsel and that “[a] party is entitled to
appear in person or by or with counsel or other duly qualified representative in an
agency proceeding.” An “agency proceeding” is defined exclusively as
rule - making, adjudication, and licensing. 5 U.S.C. § 551(12).
The appellant has not shown that he was compelled to appear before the
OIG Special Agent. That he could have faced an agency disciplinary action for
refusing to cooperate with the investigation does not alter that fact. See Weston v.
Department of Housing & Urban Development, 724 F.2d 943, 947-48
(Fed. Cir. 1983) (finding that an employee can be removed for refusing to
cooperate in an agency investigation if, among other things, the employee is
informed that information obtained from the employee will not be used in a
criminal proceeding against him). Moreover, an agency investigation into
possible employee misconduct does not constitute an “agency proceeding” as that
term is defined in the APA. 5 U.S.C. § 551(12). Nor has the appellant cited to an
agency regulation or policy or an applicable collective bargaining agreement
provision setting forth a right to counsel in an OIG investigative interview. Thus,
we find that the appellant has not shown that he was improperly denied the right
to representation by counsel during the OIG investigation.
Additionally, the appellant reiterates the request he made below for an
audio recording or a transcript of his interview with the OIG Special Agent.
PFR File, Tab 1 at 3-5. According to the appellant, the recording or transcript
would corroborate his argument concerning his request for an attorney, show that
4
the agency misinterpreted his statement about the amount of time he worked, and
show that the OIG investigator lied. Id. An administrative judge has wide
discretion to exclude evidence and witnesses when it has not been shown that
such evidence and testimony would be relevant, material, and nonrepetitious.
Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 42 (2014); see 5 C.F.R.
§ 1201.41(b)(10). Furthermore, to obtain reversal of an initial decision on the
ground that the administrative judge abused her discretion in excluding evidence,
the petitioning party must show on review that relevant evidence, which could
have affected the outcome, was disallowed. Sanders v. Social Security
Administration, 114 M.S.P.R. 487, ¶ 10 (2010). The appellant has not shown that
the evidence he sought would affect the outcome of this appeal. 3
As stated above, the appellant has not provided any legal basis for his
claim that he was entitled to counsel during an administrative investigation.
Thus, whether he requested counsel and that request was denied or he never
requested counsel is immaterial. In addition, regardless of the appellant’s claims
about his hours worked, it is clear that he claimed many more hours worked than
he actually did, and such behavior would constitute conduct unbecoming a
Federal employee. Finally, the administrative judge considered the appellant’s
testimony that the OIG Special Agent erred in his summary of the investigative
interview and found the assertion not credible. IAF, Tab 34, Initial Decision (ID)
at 7. Thus, we find that the administrative judge has not abused her discretion.
In sum, we discern no basis to disturb the administrative judge’s
determination that the agency’s penalty of a 60-day suspension promoted the
efficiency of the service and was reasonable. 4 ID at 18-20.
3
In addition, it is not clear how the transcript the appellant seeks would be materially
different from the sworn statement he signed, which appears to be a transcript of the
investigative interview. IAF, Tab 5 at 18-22.
4
Regarding the appellant’s disability discrimination claim, the administrative judge
cited the mixed-motive standard as set forth in Southerland v. Department of Defense,
119 M.S.P.R. 566, ¶ 23 (2013). ID at 16-17. After issuance of the initial decision in
this appeal, the Board addressed the proper analytical framework in status-based
5
NOTICE OF APPEAL RIGHTS 5
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
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
discrimination claims in Pridgen v. Office of Management and Budget, 2022 MSPB 31,
¶¶ 21-22. Because Pridgen sets forth the proper analytical framework after an
employee has shown that unlawful discrimination was a motivating factor in the agency
action, and here the administrative judge found that the appellant failed to show that his
disability was a motivating factor in the agency action, Pridgen has no effect on this
appeal. Id.; see ID at 17.
5
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.
6
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
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
7
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
(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
8
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. 6 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.
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
6
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.
9
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.