Winters v. Department of the Navy

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3106
SCOTT WINTERS,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
Scott Winters, of Paoli, Indiana, pro se.
Sean B. McNamara, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Martin F. Hockey, Jr., Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3106
SCOTT WINTERS,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
DECIDED: July 11, 2007
__________________________
Before LINN, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST, Circuit
Judge.
PER CURIAM.
Scott Winters appeals a December 7, 2006 decision by the Merit Systems
Protection Board (“MSPB” or “Board”) sustaining his removal from federal service by the
Department of the Navy (“Navy”). Winters v. Dep’t of the Navy, No. CH0752060237-I-1
(M.S.P.B. Dec. 7, 2006). Because the Board’s decision sustaining Mr. Winter’s removal
was in accordance with law and was not arbitrary, capricious, an abuse of discretion, or
unsupported by substantial evidence, we affirm.
I. BACKGROUND
Mr. Winters was employed by the Navy as a GS-11 Electronics Specialist at the
Naval Surface Warfare Center (“NSWC”) in Crane, Indiana. On August 29, 2005, in
response to a Freedom of Information Act (“FOIA”) request, the Navy copied the hard
drive of Mr. Winters’s NSWC computer. Upon examining the contents of the hard drive,
the agency’s computer specialists noticed an “unusual” document and alerted their
supervisor. Technicians then performed a more thorough analysis of Mr. Winters’s
computer usage and discovered that Mr. Winters had created and maintained a website
containing over 250 pages of material using his NSWC computer. Documents on the
website identified Mr. Winters as a NSWC employee, detailed various duties he
performed, and demonstrated his general discontent with his job.
Determining this to be a violation of the Internet policy at NSWC, which instructs
users to “refrain from usage which reflects adversely on the Department of the Navy,”
and “limit personal communications and Internet searches to personal time,” Mr.
Winters’s supervisor removed him for (1) using poor judgment, (2) wasting an excessive
amount of government time, (3) misusing government equipment, and (4) making an
indirect physical threat to a supervisor (based on a statement made on his website).
The MSPB sustained Mr. Winters’s removal. Mr. Winters appeals to this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
Our review of the Board’s decision is limited by statute. See 5 U.S.C. § 7703(c).
We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
2007-3106 2
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” Id. The petitioner bears the burden of establishing error in the
Board’s decision. See, e.g., Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140
(Fed. Cir. 1986).
On appeal, Mr. Winters contends that the evidence against him was obtained in
violation of FOIA and the NSWC’s contract with its computer contractor. However, the
contract between the NSWC and its computer contractor is not in the record for us to
evaluate its supposed violation. Moreover, even if the contract were in evidence, its
violation would likely have no bearing on the agency’s removal of Mr. Winters since Mr.
Winters was not a party to the contract. Similarly, the FOIA standards cited by Mr.
Winters are discretionary, and are in place to protect the agency from having to take
unreasonable measures to respond to a request. They do not protect agency
employees from the agency gathering information in response to a FOIA request.
Mr. Winters also contends that various evidence presented against him was not
based on first-hand knowledge and that certain statements made by the agency’s
declarants were inadmissible because those statements concerned technical
information that could be opined upon only by an expert witness. However, the NSWC
employees that submitted witness statements did, in fact, have personal knowledge
regarding Mr. Winter’s attendance at computer training sessions, the content of those
sessions, the voluminous amount of non-work-related material discovered on Mr.
Winters’s computer, and the log file compiled by the agency’s technical staff (who also
submitted witness statements) indicating that Mr. Winters accessed his website “at all
hours of the day on many occasions.” Similarly, the matters upon which these
2007-3106 3
employees offered testimony did not require any sort of specialized knowledge.
Accordingly, the individuals were free to provide testimony on those subjects.
Mr. Winters also claims the Board erred when it allowed the agency to submit an
excerpt from his deposition that was not “self-authenticating” or accompanied by a
sworn statement and denied Mr. Winters’s motion to compel the agency to submit the
entire deposition to the Board. Mr. Winters also argues that the full Board erred when it
declined to grant his petition for review based upon the complete transcripts. These
evidentiary rulings, however, fall within an administrative judge’s discretion. Davis v.
Office of Pers. Mgmt., 470 F.3d 1059, 1061 (Fed. Cir. 2006). This court does not
overturn the Board on such matters “unless an abuse of discretion is clear and is
harmful.” Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). Here,
Mr. Winters failed to demonstrate how the Board abused its discretion.
Mr. Winters also claims the Board erred by “allowing into the record for
consideration issues regarding the security clearance of the appellant over which the
MSPB has no jurisdictional authority.” However, the Board’s opinion merely notes that
Mr. Winters had a security clearance and should have known that his conduct was
inappropriate. The fact that the Board lacks jurisdictional authority over security
clearances does not render this observation inappropriate nor does it render the
evidence of his security clearance inadmissible.
Mr. Winters also asserts that he was not on notice for “adherence and
accountability under the agency’s computer and internet usage policies until after July
26, 2005 when he signed and accepted responsibility for his conduct in compliance with
the agency’s Intranet Users Agreement.” However, the record contains substantial
2007-3106 4
evidence demonstrating that Mr. Winters knew of the agency’s computer policy,
including an email reminder regarding the policy that was sent to Mr. Winters and
evidence of his attendance at four computer training sessions where the agency’s
computer policy was presented.
Lastly, Mr. Winters contends that the Board erred in concluding that his potential
for rehabilitation was questionable. However, Mr. Winters’s conduct was serious and
prolonged, and the material posted on his website demonstrated a deep-seated
antipathy toward his colleagues and supervisors. Although Mr. Winters apologized for
the trouble he had caused, the record contains no evidence that Mr. Winters “fully
acknowledged his wrongdoing” or the “gravity of his misconduct.” Accordingly, the
Board’s conclusion that his potential for rehabilitation was “questionable” was supported
by substantial evidence.
III. CONCLUSION
Because the Board’s decision was not arbitrary, capricious, an abuse of
discretion, not in accordance with law, or unsupported by substantial evidence, we
affirm.
COSTS
No costs.
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