Thos. S. Wilson v. Dept. Of Homeland Security

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
2006-3276
THOMAS S. WILSON,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
__________________________
DECIDED: November 15, 2006
__________________________
Before DYK and PROST, Circuit Judges, and MCKINNEY, Chief District Judge.∗
PER CURIAM.
Petitioner Thomas S. Wilson petitions for review of the final order of the Merit
Systems Protection Board (“board”), sustaining the decision of the Department of
Homeland Security (“agency”) to remove Mr. Wilson from service. We affirm.
∗
Honorable Larry J. McKinney, Chief District Judge, United States District
Court for the Southern District of Indiana, sitting by designation.
BACKGROUND
Mr. Wilson served as a Customs and Border Protection Officer in the Passenger
Processing Branch of the Bureau of Customs and Border Protection at the Area Port in
Dallas/Fort Worth, Texas. On September 12, 2004, he met Rosanna Silveira when she
arrived on a flight from Brazil. Mr. Wilson and Ms. Silveira1 were at his home on
December 23, 2004 when Ms. Silveira called the police to report a domestic
disturbance. Upon arrival at Mr. Wilson’s home, police officers found controlled
substances on the coffee table, and in his freezer and closet. At that time, Mr. Wilson
gave a written statement which said:
I, Thomas Wilson, was trying to help find marijuana for Josanna Silveira
for her HIV. I went to Dallas to contact a friend to acquire marijuana for
Josanna. The marijuana was purchased for $140 for Josanna on Tuesday
the 12/21/04.
The agency removed Mr. Wilson from his position based on a charge of
possession of illegal drugs or controlled substances. Mr. Wilson appealed his removal
to the board. During his hearing before the administrative judge, Mr. Wilson sought to
explain the presence of the substances in his home. He testified that the substances
were purchased by and belonged to Ms. Silveira. Wilson v. Dep’t of Homeland Sec.,
No. DA0752050472-I-2, slip op. at 11-12 (M.S.P.B. Feb. 16, 2006). Mr. Wilson also
testified that the use of the term “marijuana” in his statement referred to the marijuana
pills he believed Ms. Silveira had acquired as a prescription medication. Id., slip op. at
11. The administrative judge sustained the charge against Mr. Wilson finding that “it is
undisputed that marijuana, a controlled substance, was found in his home and his
1
Mr. Wilson also referred to Ms. Silveira in his statements and testimony as
“Jossana” or “Josanna”.
2006-3276 2
statement, voluntarily provided to the police officers, states that he acquired the
marijuana for Silveira.” Id., slip op. at 15. In making this finding, the board also
determined that Mr. Wilson’s denial that he purchased the marijuana was not credible.
Id., slip op. at 13-15.
Mr. Wilson’s subsequent petition of the administrative judge’s decision to the
board was denied. Wilson v. Dep’t of Homeland Sec., No. DA0752050472-I-2, slip op.
at 2 (M.S.P.B. May 22, 2006). Thereafter, the administrative judge’s initial decision
became the final decision of the board. 5 C.F.R. § 1201.113 (2005). Mr. Wilson timely
petitioned this court for review of the board’s final decision.
DISCUSSION
This court has jurisdiction to review a final order or decision of the board under 5
U.S.C. § 7703(b)(1). In reviewing the board’s decision, this court
shall review the record and hold unlawful and set aside any agency action,
findings, or conclusions found to be (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) (2000).
Mr. Wilson appears to argue that the administrative judge committed procedural
error by excluding three witnesses who could have provided exculpatory testimony. An
administrative judge “is authorized to rule on witness lists, i.e., to exclude witnesses
whose testimony is considered irrelevant, immaterial, or repetitious.” Tiffany v. Dep’t of
Navy, 795 F.2d 67, 70 (Fed. Cir. 1986). This court reviews procedural decisions under
an abuse of decision standard. See Curtin v. Office of Pers. Mgmt., 846 F.2d 1373,
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1378 (Fed. Cir. 1988). We will not overturn such a decision unless the abuse of
discretion is clear and harmful. Id.Two of Mr. Wilson’s witnesses were excluded because they were not designated
in a timely manner and that a third witness was excluded because the administrative
judge did not find the witness’s testimony to be relevant or material. However, affidavits
from all three witnesses were accepted into the record. Mr. Wilson does not provide
any reason why this court should find that these procedural decisions constituted an
abuse of discretion or that they resulted in harm to his case. The board is certainly
permitted to set and enforce deadlines throughout the appeal process. Further, in this
case, the affidavits of all three witnesses were admitted into the record. Therefore, their
testimony was not only before the administrative judge, it was subject to no cross
examination by the agency. Given these facts, Mr. Wilson has not established that the
administrative judge committed procedural error in excluding the live testimony of three
of his witnesses.
Mr. Wilson also argues that the board failed to consider that he was not
convicted of any crime for the events which led to his removal. In particular, Mr. Wilson
notes that criminal charges against him were dropped so that he was not ultimately
found guilty of any crime and that he “did nothing illegal by helping Ms. Silveira get her
prescription filled.” However, the lack of a criminal conviction does not require reversal
of Mr. Wilson’s removal. It is not necessary for Mr. Wilson to be convicted of a criminal
offense for the agency’s removal to be sustained. Smith v. U.S. Postal Serv., 789 F.2d
1540, 1541 n.1 (Fed. Cir. 1986) (stating that dismissal of criminal charges does not
weaken an agency’s case of removal); see Serrano v. United States, 612 F.2d 525,
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530, (Ct. Cl. 1979) (noting that an acquittal of charges at court martial did not preclude
agency from independently determining whether an employee acted improperly).
Further, the agency is in no way estopped from imposing an adverse employment
action solely because the criminal proceedings resulted in no conviction. The elements
of a criminal violation are different from the elements of misconduct that must be proved
to the board. The standard of proof is also higher in a criminal case (beyond a
reasonable doubt) than in a proceeding before the board (preponderance of the
evidence). See Rodriguez-Ortiz v. Dep’t of the Army, 46 M.S.P.R. 546, 548 (1991) (“A
determination by a court that the government had insufficient evidence to prove its
criminal case beyond a reasonable doubt will not preclude an agency from attempting to
prove the same set of facts by a preponderance of the evidence in a related
administrative action.”). Therefore, the lack of a criminal conviction does not preclude
the agency from removing Mr. Wilson based on a charge of possession of illegal drugs
or controlled substances.
Here, the board considered the testimony of the arresting officers and Mr.
Wilson’s statement during arrest, did not find Mr. Wilson’s explanations credible, and
accordingly found that the agency had proved its charge by a preponderance of the
evidence. We find no error in the board’s decision. We therefore affirm.
No costs.
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