Camaj v. Department of Homeland Security

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE CAMAJ,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
______________________
2013-3060
______________________
Petition for review of the Merit Systems Protection
Board in No. NY0752110048-I-1.
______________________
Decided: October 16, 2013
______________________
THOMAS G. ROTH, Law Offices of Thomas G. Roth, of
Belle Meade, New Jersey, for petitioner. With him on the
brief was JOEL J. KIRKPATRICK, Kirkpatrick Law Offices,
P.C., of Plymouth, Michigan.
L. MISHA PREHEIM, Senior Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director.
______________________
2 CAMAJ v. DHS
Before RADER, Chief Judge, LOURIE and MOORE,
Circuit Judges.
PER CURIAM.
George Camaj (“Camaj”) appeals from the final order
of the Merit Systems Protection Board (the “Board”)
affirming the decision by the Department of Homeland
Security (“DHS”) to remove him from his position as a
Deportation Officer. See Camaj v. Dep’t of Homeland Sec.,
No. NY-0752-11-0048-I-1 (M.S.P.B. May 18, 2011) (“Ini-
tial Decision”); (M.S.P.B. Dec. 21, 2012) (“Final Order”).
Because the Board’s decision is in accordance with law
and was supported by substantial evidence, we affirm.
BACKGROUND
Camaj was employed as a Deportation Officer at the
U.S. Immigration and Customs Enforcement in DHS. As
a law enforcement officer, Camaj had access to and re-
ceived training on the proper use of the Treasury En-
forcement Communication System (“TECS”), an official
government computerized information system comprised
of “enforcement, inspection and intelligence records
relevant to the law enforcement mission of the U.S.
Customs Service and other federal agencies which it
supports.” Initial Decision at 3–4. Access to TECS is
carefully controlled and strictly limited to official use.
On February 4, 2009, a criminal complaint was filed
by DHS charging Camaj with intentionally accessing
TECS without authorization. Id. at 4. Camaj entered
into an agreement with the U.S. Attorney’s Office for
Pretrial Diversion (“PTD”) and the criminal charge was
later dismissed. Id. at 4–5. As part of the PTD agree-
ment, Camaj admitted to having conducted 314 queries
while knowing that those queries were unauthorized. Id.
at 5. Many queries were directed to himself, his spouse,
relatives, and friends, including family members with
CAMAJ v. DHS 3
criminal backgrounds or those who were being criminally
charged or investigated. Id.
In addition to the 314 queries listed in the PTD
agreement, Camaj conducted another 133 unauthorized
queries from 2002 to 2008. In May 2010, Camaj was
served with a notice of proposed removal in a letter from
DHS. Id. at 6. Camaj provided a written reply and an
oral reply. He acknowledged running queries on family
members and explained that he conducted the queries out
of curiosity and for personal safety so that he could dis-
tance himself from people with criminal backgrounds.
On November 16, 2010, a deciding official at DHS is-
sued a decision sustaining charges of conduct unbecoming
a law enforcement officer and misuse of an official gov-
ernment computer database. Id. After analyzing all
twelve factors delineated in Douglas v. Veterans Admin-
istration, 5 M.S.P.R. 280, 306 (1981), the deciding official
concluded that removal was the appropriate penalty.
Camaj appealed the decision to the Board. On Janu-
ary 31, 2011, the deciding official was deposed by Camaj’s
counsel. In response to a question about whether he had
spoken to Camaj’s supervisors when deciding on removal,
the deciding official stated that he did not recall and that
there was a “very good possibility” that he had. J.A. 85.
At a subsequent hearing before the Administrative Judge
(“AJ”), the deciding official testified that he did not speak
to Camaj’s supervisors when deciding on removal. Initial
Decision at 11. When he was cross-examined by Camaj’s
counsel, the deciding official explained that he could not
recall with certainty during his deposition whether or not
he had spoken to Camaj’s supervisors.
The AJ issued an initial decision sustaining the
charges and affirming that removal was the appropriate
remedy. Id. at 2. The AJ found that the deciding official
did not have any improper ex parte communication with
4 CAMAJ v. DHS
Camaj’s supervisors about the penalty of removal. Id. at
10, 13. The AJ also reasoned that “if the deciding official
had discussions with the appellant’s supervisors at the
time that he was indefinitely suspended, such infor-
mation, without more, does not constitute ‘new and mate-
rial’ information.” Id. at 12.
On review, the Board issued a final order affirming
the AJ’s initial decision and adopting it as the Board’s
final decision. Final Order at 2. The Board specifically
noted that Camaj did not prove that the deciding official
had spoken with his supervisor, and that even assuming
such communication occurred, no new information was
introduced and the penalty was not enhanced as a result.
Id. at 3.
Camaj appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(1) arbitrary, capricious, an abuse of
discretion, 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); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Moreover, we are limited to review of the administrative
record. Rockwell v. Dep’t of Transp., 789 F.2d 908, 913
(Fed. Cir. 1986). The Board’s decision is supported by
substantial evidence “if it is supported by such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Brewer v. U.S. Postal Serv., 647
F.2d 1093, 1096 (Ct. Cl. 1981) (internal quotation marks
omitted).
CAMAJ v. DHS 5
Camaj raises two issues on appeal. First, Camaj as-
serts that his due process rights were violated because the
deciding official engaged in ex parte communication with
his supervisors regarding the penalty to be imposed on
him. Second, he asserts that the deciding official misap-
plied the Douglas factors and that as a result, the penalty
of removal should be mitigated to a period of suspension.
We address those arguments in turn.
I.
Camaj argues that his due process rights were violat-
ed because the deciding official testified that he may have
contacted Camaj’s supervisors to discuss whether the
supervisors could continue to trust Camaj. Camaj asserts
that he did not have notice of this ex parte discussion,
which affected the deciding official’s analysis of multiple
Douglas factors and contributed to the decision to remove
him.
The government responds that Camaj’s argument
should be rejected because he did not establish that any
ex parte communication had occurred. The government
also argues that, even if the alleged communication had
occurred, Camaj failed to demonstrate that new and
material information was introduced to the deciding
official or that the penalty imposed on Camaj was en-
hanced as a result.
We agree with the government. The federal statutory
employment scheme creates a property interest in contin-
ued employment of a civil service employee. Stone v.
FDIC, 179 F.3d 1368, 1375 (Fed. Cir. 1999). Before being
deprived of this property interest, a public employee is
entitled to notice and an opportunity to respond. Cleve-
land Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
Not every ex parte communication in a removal proceed-
ing is a procedural defect that violates due process, how-
ever; only ex parte communications that introduce “new
6 CAMAJ v. DHS
and material information” to the deciding official violate
the due process guarantee and entitle the claimant to an
entirely new administrative proceeding. Stone, 179 F.3d
at 1376–77. In deciding whether new and material in-
formation was introduced by means of ex parte contacts,
the ultimate inquiry is “whether the ex parte communica-
tion [was] so substantial and so likely to cause prejudice
that no employee can fairly be required to be subjected to
a deprivation of property under such circumstances.” Id.
at 1377.
Camaj’s assertion of due process violations is prem-
ised on the assumption that an ex parte communication
had actually occurred. However, the Board found to the
contrary. Final Order at 3. After reviewing the record
and observing live testimony at the oral hearing, the AJ
concluded that the deciding official did not have any
improper ex parte communication with Camaj’s supervi-
sors about the penalty to be imposed. Initial Decision at
13. We have held that “an evaluation of witness credibil-
ity is within the discretion of the Board and that, in
general, such evaluations are ‘virtually unreviewable’ on
appeal.” Kahn v. Dep’t of Justice, 618 F.3d 1306, 1313
(Fed. Cir. 2010) (quoting Clark v. Dep’t of Army, 997 F.2d
1466, 1473 (Fed. Cir. 1993)). The Board thus did not
abuse its discretion and substantial evidence supports the
Board’s finding that Camaj has failed to establish any due
process violation.
II.
Camaj argues that the deciding official misapplied the
Douglas factors. Camaj alleges that the deciding official:
(1) enhanced the penalty on the false premise that Camaj
engaged in the unauthorized access for an improper
purpose and improperly considered the fact that Camaj
was criminally charged when evaluating the seriousness
of the offense; (2) based his belief that Camaj lacked
CAMAJ v. DHS 7
rehabilitative potential on the false premise that he failed
to display contrition; (3) misapplied and distorted the
consistency considerations; (4) improperly used deterrence
to other employees as a justification to remove Camaj;
and (5) speculated that the dismissed criminal charge
against Camaj might someday cause notoriety and em-
barrass the agency.
The government argues that Camaj failed to demon-
strate that the penalty determination was issued without
consideration of the relevant Douglas factors or was
grossly disproportionate to the offense.
We agree with the government. The Board reviews
the penalty imposed by the agency only to determine if
the agency considered all of the relevant factors and
exercised management discretion within tolerable limits
of reasonableness. Douglas, 5 M.S.P.R. at 306. Choice of
penalty is within the sound discretion of the employing
agency and will not be overturned unless the penalty is
“wholly unwarranted in light of all the relevant factors”
as set forth in Douglas. Guise v. Dep’t of Justice, 330 F.3d
1376, 1382 (Fed. Cir. 2003); Douglas, 5 M.S.P.R. at 305–
06.
We have reviewed the administrative record and the
Board’s decision, and conclude that substantial evidence
supports the Board’s affirmance of the penalty imposed by
DHS to remove Camaj. When reaching the removal
decision, DHS weighed all relevant Douglas factors and
the penalty does not exceed the limits of reasonableness
and is within the sound discretion of the agency. Sub-
stantial evidence thus supports the Board’s decision.
We have considered Camaj’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the Board is affirmed.
AFFIRMED
8 CAMAJ v. DHS
COSTS
No costs.