Sohail Khan v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOHAIL KHAN, DOCKET NUMBER
Appellant, SF-0752-15-0830-I-1
v.
DEPARTMENT OF HOMELAND DATE: November 21, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas E. Tierney, Esquire, Norwalk, Connecticut, for the appellant.
Meredith A. Johnson, Long Beach, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. 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 interpretation of statute
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The agency appointed the appellant to a Customs and Border Patrol Officer
position in January 2005. Initial Appeal File (IAF), Tab 7 at 94. In April 2015,
the agency proposed his removal based upon a single charge of falsification. Id.
at 85-91. In short, the 15 specifications underlying the charge alleged that the
appellant provided false information on a number of occasions concerning his
background information and true identity. Id. at 85-89. After the appellant
responded, id. at 71-84, the deciding official sustained the removal, id. at 54-59.
The deciding official concluded that the evidence supported each sp ecification,
but also indicated any one of the specifications would have presented a sufficient
basis for removal. Id. at 55-56.
¶3 The appellant appealed his removal to the Board. IAF, Tab 1. He
stipulated to specifications 12‑14 of the falsification charge, each concerning
representations made during his periodic background reinvestigation with the
agency. IAF, Tab 7 at 88, Tab 18 at 1. Specification 12 alleged that the appellant
falsely claimed that he rented a townhouse owned by another individual named
Sohail Mohammad. IAF, Tab 7 at 88. Specification 13 alleged that the appellant
falsely denied owning any real property. Id. Specification 14 alleged that the
appellant provided a fabricated rental agreement and had a friend falsely pose as
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his landlord, both with the intent to deceive the agency’s background investigator
into thinking that the listed owner of the property, Sohail Mohammad, was
someone other than the appellant. Id.¶4 Although the appellant conceded the aforementioned specificati ons as well
as the nexus requirement, he presented arguments concerning an alleged due
process violation and the reasonableness of the penalty. IAF, Tab 18 at 2. The
administrative judge sustained the appellant’s removal based upon the
specifications he stipulated to, without substantively addressing the others. IAF,
Tab 22, Initial Decision (ID). The appellant has filed a petition for review.
Petition for Review (PFR) File, Tab 1. The agency has filed a response and the
appellant has replied. PFR File, Tabs 3‑4.
The administrative judge properly denied the appellant’s due process claim.
¶5 In his petition for review, the appellant reasserts his due process claim.
PFR File, Tab 1 at 4-10. According to the appellant, the agency charged him with
using two identities, but the deciding official improperly treated the matter as if
he were an imposter, for whom the agency could not confirm the true identity. Id.at 5‑10. We find no merit to the appellant’s claim.
¶6 Fundamental due process requires that notice of the charges must be
sufficiently detailed to provide a meaningful opportunity to be heard. Mason v.
Department of the Navy, 70 M.S.P.R. 584, 586-87 (1996). In analyzing a claim of
denial of due process, the Board will examine, among other things, whether lack
of specificity in the notice affected the appellant detrimentally or caused him any
surprise. Id. at 587. When an appellant comes forward and refutes a char ge made
against him, the Board cannot find that he was not given notice of the charge.
Yinat v. Department of the Army, 101 M.S.P.R. 328, ¶ 15 (2005). Here, to the
extent that the appellant argues that he did not receive proper notice of the
charge, his argument is unpersuasive. The record shows that the appellant was
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fully notified of the allegations regarding his conduct and that he was provided
with a full and fair opportunity to defend himself against them.
¶7 Furthermore, pursuant to the U.S. Court of Appeals for the Federal Circuit’s
decisions in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir.
2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
rights when she relies upon new and material ex parte information as a basis for
her decisions on the merits of a proposed charge or the penalty to be imposed.
Ward, Stone, and their progeny recognize, however, that not all ex parte
communications rise to the level of due process violations; rather, only ex parte
communications that introduce new and material information to the deciding
official are constitutionally infirm. Solis v. Department of Justice, 117 M.S.P.R.
458, ¶ 8 (2012).
¶8 The following factors are used to determine if ex parte information is new
and material: (1) whether the ex parte information introduced cumulative, as
opposed to new, information; (2) whether the employee knew of the information
and had an opportunity to respond; and (3) whether the communication was of the
type likely to result in undue pressure on the deciding off icial to rule in a
particular manner. Stone, 179 F.3d at 1377. Ultimately, we must determine
“whether the ex parte communication is 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.¶9 Although the proposal letter did not explicitly state that the agency cannot
confirm the appellant’s true identity, the decision letter did. IAF, Tab 7 at 54.
The deciding official, during her hearing testimony, similarly indicated that she
could not confirm the appellant’s identity with certainty. IAF, Tab 21, Hearing
Compact Disc (HCD) (testimony of A.M.). Nevertheless, applying the
aforementioned factors, the administrative judge found that doubt concernin g the
appellant’s true identity was inherent in the charge and accompanying
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specifications because they detailed his having at least two identities. ID at 17.
She further found that the appellant was on notice of this because the proposal
letter began with the phrase, “You claim you were born in Pakistan as a Pakistani
citizen on July 3, 1969 with the name Sohail Sultan Muhammad Khan.” Id.(referencing IAF, Tab 7 at 85). The administrative judge also found that the
information was not of the type to result in undue pressure under the
circumstances. Id. We agree.
¶10 The proposal letter described the circumstances underlying the falsification
charge in detail. IAF, Tab 7 at 85-89. It described how the appellant used the
altered passport of someone else to gain entry into the United States, then
repeatedly continued to use both the name on that passport as well as the one he
claimed as his own, over more than 20 years, with the help of others. Id. It
detailed how the appellant used these differing identities or provided false
information about his prior use of those identities for purposes such as obtaining
a Social Security number, a driver’s license, and employment with the agency.
Id. Given the nature of the allegations, we are not persuaded that it was new and
material for the deciding official to characterize the appellant’s misconduct as
calling into question his true identity. The facts of this case differ from those in
which an employee is on notice of one charge, but a deciding official treats the
charge as something altogether different in determining the appropriate penalty.
Cf. Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶¶ 9, 12
(2012) (finding a Ward/Stone violation when the deciding official relied on
portions of a table of penalties concerning a charge other than the one brought
against the employee and referenced in the notice of proposed removal); Culley v.
Defense Logistics Agency, 60 M.S.P.R. 204, 214-15 (1993) (finding that the
deciding official erred by treating an “unauthorized possession of government
property” charge as theft in determining an appropriate penalty); Dubiel v. U.S.
Postal Service, 54 M.S.P.R. 428, 431-32 (1992) (finding that the deciding official
erred by treating a specific charge of improperly addre ssing a subordinate as if it
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were a charge of sexual harassment while assessing the appropriate penalty).
Accordingly, we find that the appellant’s due process claim fails.
The administrative judge properly sustained the penalty of removal.
¶11 The appellant next alleges that the agency conducted an improper Douglas
penalty analysis. PFR File, Tab 1 at 10-12 (referencing Douglas v. Veterans
Administration, 5 M.S.P.R. 280 (1981)). He asserts that the Board should
conduct an independent penalty analysis, without deferring to the agency’s
chosen penalty. Id. We disagree and find that the administrative judge properly
sustained the removal.
¶12 The Board has long held that, in a case like this, when all of the charges are
sustained, even when some of the specifications are not, the agency’s penalty
determination is entitled to deference and should be reviewed only to determine if
the agency considered all of the relevant factors and exercised its discretion
within the tolerable limits of reasonableness. Brough v. Department of
Commerce, 119 M.S.P.R. 118, ¶ 9 (2013); Penland v. Department of the Interior,
115 M.S.P.R. 474, ¶¶ 7, 12 (2010). In doing so, the Board must give due weight
to the agency’s primary discretion in maintaining employee discipline and
efficiency, recognizing that the Board’s function is not to displace management’s
responsibility but to ensure that managerial judgment has been properly
exercised. Penland, 115 M.S.P.R. 474, ¶ 7.
¶13 The Board has articulated a number of factors to be considered in
determining the propriety of a penalty. Douglas, 5 M.S.P.R. at 305. Among
others, they include (1) the effect of the offense upon the employee’s ability to
perform at a satisfactory level and its effect upon supervisors’ confidence in the
employee’s ability to perform assigned duties, as well as (2) the notoriety of the
offense or its impact upon the agency’s reputation. Id. The appellant alleges that
the deciding official’s consideration of those two factors was improper. PFR
File, Tab 1 at 11.
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¶14 Concerning the first of the aforementioned factors, the appellant alleges that
the deciding official improperly assumed that his supervisors lost trust in him,
without actually seeking their opinion on the matter. Id. However, the penalty
judgment belongs to the agency, not to an appellant’s supervisor. See, e.g.,
Batara v. Department of the Navy, 123 M.S.P.R. 278, ¶¶ 6-7 (2016) (finding that
an agency’s choice of removal was entitled to deference, even though the
appellant’s immediate chain of command urged that he be given a second chance).
Under the circumstances presented by the appellant’s misconduct, we find it
inconsequential that the deciding official addressed the Douglas factor
concerning confidence and trust without direct input from the appellant’s
immediate supervisors. IAF, Tab 7 at 55.
¶15 Concerning the second of the aforementioned factors, the appellant alleges
that his misconduct did not garner any notoriety among members of the public or
bad publicity. 2 PFR File, Tab 1 at 11; HCD (cross-examination of the A.M.). He
argues that the deciding official improperly considered potential, rather than
actual, notoriety. PFR File, Tab 1 at 11; HCD (cross-examination of the A.M.).
We disagree.
¶16 It is apparent that the appellant’s misconduct, falsifying information
concerning his identity, had at least the potential to seriously harm the reputation
of the agency, whose mission includes detecting unlawful activity and facil itating
lawful border crossings. See, e.g., IAF, Tab 7 at 112. Therefore, even if we were
to accept the appellant’s contention that the Douglas factor concerning notoriety
2
Although the appellant’s misconduct may not have garnered any publicity, knowledge
of the underlying facts was not limited to the confines of the agency. The
corresponding investigation began after a woman claiming to be the appellant’s former
sister-in-law provided a tip to the Canadian Border Services Agency. IAF, Tab 8 at 6,
30-32. In addition, the investigation ultimately involved a n umber of other individuals
and entities, including additional Federal agencies, the Los Angeles County District
Attorney, and the California Department of Motor Vehicles. See, e.g., IAF, Tab 7 at 56,
85-88, Tab 8 at 5-26. Moreover, the appellant has admitted that his misconduct
involved having a friend pose as his landlord to conceal his true background
information. IAF, Tab 7 at 88, Tab 18 at 1.
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implicates actual but not potential bad publicity, the potential notoriety and har m
is still relevant under other factors, such as the nature and seriousness of the
offense. See, e.g., Boo v. Department of Homeland Security, 122 M.S.P.R. 100,
¶ 18 (2014) (recognizing that the nature and seriousness of the offense is the most
important Douglas factor); Chandler v. Social Security Administration,
80 M.S.P.R. 542, ¶ 12 (1999) (recognizing the “potential for harm to the agency's
basic mission” as aggravating in a penalty analysis). Accordingly, we find that
the deciding official did not err in considering the potential for notoriety as an
aggravating factor, and the administrative judge properly deferred to the agency’s
chosen penalty of removal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law and other sections of the United States
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Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information 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, 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.