Bland v. Department of Health & Human Services

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH D. BLAND,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2016-1569
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-13-0078-I-1.
______________________
Decided: June 14, 2016
______________________
KENNETH D. BLAND, Kansas City, MO, pro se.
JOSHUA SCHNELL, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., REGINALD
T. BLADES, JR.; HARRY B. MALLIN, Office of the General
Counsel, United States Department of Health and Human
Services, Kansas City, MO.
______________________
2 BLAND v. HHS
Before LOURIE, DYK, and STOLL, Circuit Judges.
PER CURIAM.
Kenneth D. Bland (“Bland”) appeals from the final de-
cision of the Merit Systems Protection Board (the “Board”)
affirming his removal from employment. See Bland v.
Dep’t of Health & Human Servs., No. CH-0752-13-0078-I-
1 (M.S.P.B. Feb. 7, 2014) (“Final Order”); Bland v. Dep’t of
Health & Human Servs., No. CH-0752-13-0078-I-1
(M.S.P.B. Feb. 1, 2013) (“Initial Decision”). Because the
Board did not err in denying the petition for review and in
affirming the initial decision, we affirm.
BACKGROUND
Bland was employed beginning in 2002 as a chemist
by the Kansas City District Laboratory of the Department
of Health and Human Services, Food and Drug Admin-
istration (“FDA” or “the agency”). Pet’r’s Informal Br. 1.
In 2005, the agency imposed a five-day suspension on
Bland for misconduct unrelated to the current appeal, but
that involved misrepresentation and providing inaccurate
information. Resp’t’s App. (“R.A.”) 47.
Bland was later prescribed narcotic medication for an
injury, and he became addicted to prescription drugs.
Pet’r’s Informal Br. 1. In July 2009, Bland presented an
altered prescription for a prescription-only drug at a
pharmacy. He was subsequently arrested at work in
November 2009, and convicted of “unlawfully obtaining
and distributing a prescription-only drug,” a misdemeanor
under Kansas state law, on September 7, 2010. Initial
Decision at 2; R.A. 40.
On September 22, 2010, the agency issued a notice of
proposed removal detailing two charges: conduct prejudi-
cial to the best interest of the service, and lack of candor
relating to that conduct. R.A. 18. The notice contained
background facts, the specifications supporting the charg-
BLAND v. HHS 3
es, and an analysis of factors considered in proposing the
penalty. R.A. 18–21. The notice also stated that the
conviction would result in the removal of his security
clearance, an aggravating factor affecting his inability to
perform his assigned duties. R.A. 20–21. Ostensibly, the
security clearance was not a requirement for Bland’s
position as a chemist generally, but it was a requirement
for his access to certain chemicals in a certain laboratory
group.
After Bland’s response, the agency issued a removal
notice on November 10, 2010, based on the charge of
conduct prejudicial to the best interest of the service.
R.A. 39. The deciding official found that Bland’s conduct
not only violated a federal regulation requiring FDA
employees to be “persons of integrity and observe the
highest standards of conduct,” but also “directly detracted
from the Agency’s image and reputation.” R.A. 40. The
official noted that his misdemeanor conviction resulted in
the removal of his security clearance, which prevented
him from performing his assigned job duties. R.A. 42.
Moreover, other aspects of Bland’s position required
credibility, leadership, and integrity allowing independ-
ence from constant oversight. R.A. 42–43. Because the
misconduct involved misrepresentation and willfully
tendering a falsified document, the official found a nexus
between the misconduct and his ability to perform his
position. See R.A. 42, 43, 45, 47. The official specifically
found that the offense related to his “reliability, veracity,
trustworthiness, and ethical conduct.” R.A. 47. The
official analyzed the Douglas factors at length and deter-
mined that removal was the appropriate penalty for
Bland’s second incident of misconduct involving misrepre-
sentation. R.A. 42–47; see Douglas v. Veterans Admin., 5
M.S.P.B. 313 (1981). The removal became effective on
November 20, 2010.
Bland appealed the removal to the Board. An admin-
istrative judge (“AJ”) issued an initial decision on Febru-
4 BLAND v. HHS
ary 1, 2013, finding that the agency did not abuse its
discretion in removing Bland, thus affirming the removal
action. The AJ found that the misdemeanor conviction
supported the charge that Bland engaged in conduct
“prejudicial to the best interest of the service.” Initial
Decision at 2. The AJ also found a nexus between the
charge and the efficiency of the service because the con-
viction impaired Bland’s ability to perform his job duties
and resulted in the loss of the agency’s trust and confi-
dence in his ability to perform his duties. Id. at 3.
Bland’s petition for review to the full Board was de-
nied. The full Board found that, rather than improperly
implying that Bland was convicted of a drug-related
offense, the AJ correctly cited the title of the statute
under which Bland was convicted as “unlawfully obtain-
ing and distributing a prescription-only drug.” Final
Decision at 3. The Board then considered the AJ’s finding
of nexus between Bland’s off-duty conduct and the effi-
ciency of the service. The Board noted that the miscon-
duct affected Bland’s job performance because it
(1) “impaired his ability to testify as a credible witness,”
(2) resulted in the termination of his security clearance,
(3) “was potentially damaging to the agency’s reputation
because it was publicly known,” and (4) “caused the
agency to lose trust and confidence in allowing him con-
tinued access to toxic chemicals.” Id. at 3–4. The Board
also rejected Bland’s argument that his 2005 suspension
was improperly considered, because the 2010 proposed
removal notice stated that it would be considered and
there was no evidence that the prior disciplinary action
was clearly erroneous. Id. at 4. Noting the deference
afforded to an agency in imposing penalties, the Board
found that the agency weighed the relevant factors and
that the penalty of removal was within the bounds of
reasonableness for the particular misconduct. Id. at 5. In
a footnote, the Board noted Bland’s assertion that the
proper procedures for terminating his security clearance
BLAND v. HHS 5
were not followed, but declined to consider the argument
raised for the first time on appeal. Id. at 5 n.3. The full
Board thus affirmed the AJ’s initial decision affirming the
agency’s removal action.
Bland appealed from the Board’s final decision to the
United States District Court for the Western District of
Missouri, which determined that it lacked subject matter
jurisdiction over the claim and transferred it to this court.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the decision of the Board unless we
find it to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). “The choice of penalty is
committed to the sound discretion of the employing agen-
cy and will not be overturned unless the agency’s choice of
penalty is wholly unwarranted in light of all the relevant
factors.” Guise v. Dep’t of Justice, 330 F.3d 1376, 1382
(Fed. Cir. 2003) (citing Lachance v. Devall, 178 F.3d 1246,
1251 (Fed. Cir. 1999); Douglas v. Veterans Admin., 5
M.S.P.B. 313 (1981) (setting forth generally recognized
relevant factors)).
Bland argues that his removal was based on incorrect
and misleading allegations by the agency. Bland claims
that his special security clearance was not revoked as a
consequence of his conviction by the issuing agencies, the
Department of Justice and the Centers for Disease Con-
trol, but rather that his clearance was removed at his
FDA supervisor’s request. Bland also faults the agency
for not providing him with an opportunity to appeal the
revocation of his clearance. Moreover, Bland asserts that
he was not provided with the opportunity for a last chance
agreement, despite an Instruction regarding corrective
actions in the Human Resources Manual stating that the
6 BLAND v. HHS
agency would not initiate disciplinary action in response
to an admission of drug use, and the fact that Bland
voluntarily entered a counseling and rehabilitation pro-
gram. Bland insists that his conviction was for a non-
drug offense, possession of an altered prescription, and
therefore that the agency’s reliance on his “conviction of a
drug charge” was flawed.
The government responds that Bland appears to chal-
lenge only procedural aspects of the removal penalty, not
the Board’s holdings on nexus and prior misconduct.
Because Bland’s arguments challenging the propriety of
the removal procedures were not raised before the AJ, the
government contends that those arguments have been
waived. Even if the arguments were not waived, the
government counters that the Board could not review the
merits of a security clearance revocation in the context of
considering a removal decision. The government also
argues that the Instruction provided non-binding guide-
lines and thus that the deciding official had discretion to
deviate from the table of suggested penalties. The gov-
ernment further asserts that the Board correctly conclud-
ed that the removal decision accurately described Bland’s
conviction; although Bland asserts that he was neither
charged nor convicted of a drug offense, the government
maintains that he was convicted of a “prescription-drug
offense” involving a controlled substance.
We agree with the government that the Board did not
err in affirming the agency’s removal action. Although
removal is a harsh penalty, agencies are given deference
in their penalty determinations if based on a considera-
tion of the relevant factors and within the tolerable limits
of reasonableness. See Douglas, 5 M.S.P.B. at 329. The
evidence in the record before us provides sufficient sup-
port for the Board’s affirmance of the agency’s removal
action.
BLAND v. HHS 7
We agree with the government that Bland has waived
his challenge to the security clearance revocation. And we
do not accept Bland’s characterization of his conviction as
of a “non-drug” nature; the Kansas State Legislature
categorizes the offense as a crime involving controlled
substances. See Kan. Stat. Ann. § 21-36a08 (2010) (trans-
ferred to Kan. Stat. Ann. § 21-5708 (2012)). Regardless,
Bland was convicted of a crime not only involving a con-
trolled substance, but also implicating misrepresentation
and willful tendering of falsified documents. The agency’s
rationale for the removal penalty emphasizes the loss of
credibility and trustworthiness that stemmed from the
misconduct, not from the mere fact that his actions in
some way dealt with a controlled substance. That being
said, the fact that the crime Bland was convicted of in-
volved a controlled substance is no minor detail; his
position as a chemist in a laboratory requiring special
security clearance provided “unfettered access to chemi-
cals,” which the agency found to be problematic in light of
the drug charge.
Moreover, to the extent that Bland is arguing the dis-
proportionality or unreasonableness of the removal penal-
ty with respect to his misconduct, the agency initiated
disciplinary action as the result of a criminal conviction
that involved misrepresentation, not as the result of
simple identification of Bland’s drug use problem. Be-
cause this was his second disciplinary action involving
misrepresentation, the evidence supports the conclusion
that removal was not an excessive penalty. We also note
that the agency’s Instruction regarding corrective action
plainly does not mandate a last chance agreement in
every case of removal. Accordingly, Bland failed to show
that the agency’s removal action was not supported by
substantial evidence or that the Board committed reversi-
ble error.
8 BLAND v. HHS
CONCLUSION
We have considered Bland’s remaining arguments
and find them unpersuasive. For the foregoing reasons,
the decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.