Juan M. Medina, Jr. v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUAN M. MEDINA, JR., DOCKET NUMBER
Appellant, DA-0752-13-0393-I-1
v.
DEPARTMENT OF HOMELAND DATE: October 17, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lorenzo W. Tijerina, Esquire, San Antonio, Texas, for the appellant.
Pamela B. Peck, San Antonio, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the charged misconduct and affirmed the agency’s action removing the
appellant. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the 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. See
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, and based on the
following points and authorities, 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 appellant appealed the agency’s action removing him from the position
of Supervisory Immigration Enforcement Agent. Initial Appeal File (IAF), Tab 1.
The agency based the action on the charge of conduct unbecoming, citing four
specifications stating that the appellant had filed federal tax returns with the
Internal Revenue Service (IRS) falsely claiming charitable contributions that he
and his wife had not made. IAF, Tab 8, Vol. 2 at 53 of 115, 227 of 385.
Specifically, the appellant and his wife claimed deductions for very large
charitable contributions on their jointly-filed federal income-tax returns for 2007,
2008, 2010, and 2011, i.e., $20,000 in 2007, $30,000 in 2008, $12,255 in 2010,
and $13,454 in 2011, respectively. IAF, Tab 8, Vol. 3 at 282, 296, 342, and 357
of 385. However, the appellant and his wife, in fact, did not make such
contributions. Rather, their annual charitable contributions amounted to at most
about $2,000. Id. at 251-55, 268, Tab 25 at 59-60, 65-66, 102, 143, 164-66,
172-73. In 2012, the agency’s Office of Professional Responsibility conducted an
internal investigation after receiving a tip that the appellant may have falsified his
tax returns. IAF, Tab 8, Vol. 3 at 235 of 385. During the investigatory interview,
the appellant claimed that his wife handled all of the family finances and that he
3
had not reviewed the returns carefully before signing them. See, e.g., IAF,
Tab 26 at 15, 35, 74, 120, 169, and 181 of 402. However, after the interview, the
appellant signed an affidavit prepared by the investigators in which he admitted
that he had committed fraud and perjury regarding his tax returns for the 4 years
in question. IAF, Tab 8, Vol. 3 at 252-56, and 269 of 385. The appellant
subsequently filed amended tax returns for 2010 and 2011, but did not amend the
larger false claims in the 2007 or 2008 returns. IAF, Tab 8, Exhibits 9, 10
at 61-68 of 385.
¶3 After holding a hearing, the administrative judge found it undisputed that
the appellant’s tax returns claimed far greater charitable contributions than he and
his wife had actually made and that the agency proved the essence of the charged
misconduct. IAF, Tab 30, Initial Decision (ID) at 5. The administrative judge
also found that the appellant filed the tax returns with the intent to defraud or
mislead the IRS and that the record included direct evidence of intent, i.e., the
appellant signed an affidavit admitting that he committed fraud and filed falsified
tax returns for all 4 years at issue. ID at 5. The administrative judge found
further that, even if he were to discount the appellant’s admissions in his
affidavit, there was ample circumstantial evidence of intent to defraud or mislead,
including evidence that the appellant consciously tried to avoid learning the truth
or at least acted with reckless disregard for the truth about the charitable
deductions. ID at 6-7. Thus, the administrative judge sustained the charge,
finding that the appellant’s deliberate efforts to avoid learning the truth and
reckless disregard for the truth allowed him to infer that the appellant knowingly
filed false returns with the intent to deceive the IRS. 2 ID at 6-7.
2
While the appellant does not challenge these findings on review, we note that the
administrative judge also found no merit to the appellant’s harmful procedure error
arguments, and that the appellant offered no persuasive evidence to support his claims
of discrimination based on race, national origin, gender, and age. ID at 6-7.
4
¶4 On review, the appellant argues that the administrative judge erred in
sustaining the charge and affirming the removal penalty. Petition for Review
(PFR) File, Tab 1. We have considered the appellant’s arguments on review but
discern no reason to reweigh the evidence or substitute our assessment of the
record evidence for that of the administrative judge. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when the administrative judge considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
357, 359 (1987) (same). In this case, the administrative judge thoroughly
addressed the record evidence, as well as the appellant’s claims that his
admissions in his affidavit should be discounted, and correctly found that the
agency proved the charge and that the appellant failed to establish his affirmative
defenses of harmful error and discrimination.
¶5 For example, the appellant argues that the administrative judge erred when
he stated in the initial decision that “the appellant and his wife did not in fact
make any such contributions” because the facts show that they indeed did make
some charitable contributions. PFR File, Tab 1 at 5 of 23. However, the
appellant fails to include the administrative judge’s complete sentence, which
actually states “[t]he appellant and his wife did not in fact make any such
contributions; their annual charitable contributions amounted to at most about
$2,000.” ID at 2. Thus, there is no merit to this argument.
¶6 The appellant also argues that the administrative judge erred by failing to
consider the transcript from his prehearing deposition, and he contends that his
statements in his prehearing deposition shows that the agency’s allegations are
“misplaced and without merit.” PFR File, Tab 1. We disagree. The
administrative judge’s December 18, 2013 Summary of the Prehearing
Conference explicitly advised the parties that the prehearing depositions
would not be allowed into the record except for impeachment purposes. IAF,
5
Tab 28 at 5. The parties were provided the opportunity to object to the
administrative judge’s ruling in this regard, but there were no objections. Id. In
addition, prior to the start of the hearing the administrative judge verified that he
had not received any corrections or objections from the parties to his Summary of
the Prehearing Conference. IAF, Tab 29, Hearing CD. Nevertheless, even after
being placed on notice that the depositions would only be used for impeachment
purposes, the appellant chose not to testify on his own behalf, and, thus, his
deposition is not in the evidentiary record. The appellant cannot now argue on
review that the result would have been different if the administrative judge had
considered the statements he made during his deposition. Accordingly, because
the appellant’s deposition is not in the evidentiary record, the administrative
judge properly did not consider it while deciding this case. See Pedersen v.
Department of Transportation, Federal Aviation Administration, 9 M.S.P.R. 195,
199 (1981) (finding that one of the principal purposes of taking a witness’s
deposition is to pin down the witness under oath concerning all relevant matters,
thereby providing a basis for impeaching that witness’s credibility should the
witness at the hearing depart from the testimony given at the deposition).
¶7 The appellant also challenges the validity of his affidavits and he reasserts
on review that he was “coerced” during the investigative interview into making
statements and signing an affidavit he did not agree with. PFR File, Tab 1 at 18,
20, 23. The appellant offered no evidence below, however, to show that the
agency’s report of investigation was erroneous, that his affidavits were obtained
under duress, or that the investigators engaged in misconduct. For example, the
appellant could have called the agency investigators, the individuals who
interviewed him and assisted with the preparation of his affidavit and who were
approved as witnesses, to testify regarding the investigation and what transpired
when he signed the affidavit admitting guilt. While the appellant argued that he
was coerced into signing the affidavit, he chose not to call witnesses, and he
did not testify on his own behalf, to support these arguments. Thus, there is no
6
sworn testimony to contradict the appellant’s affidavits admitting culpability.
Further, because the appellant chose to rest his case without calling any
witnesses, he is unable to rely on the depositions of approved witnesses who
did not testify. Thus, the appellant has shown no error by the administrative
judge in relying upon his affidavits as direct evidence that he committed the
charged misconduct.
¶8 Moreover, the appellant argues that, because the agency’s only witness was
the deciding official and he did not provide “any direct or indirect testimony as to
fraud, falsification of a tax return or perjury,” the agency failed to present
evidence and testimony that addressed his defenses. The appellant’s argument
fails to recognize that the evidentiary record also includes direct evidence against
him, i.e., his signed affidavits in which he admitted to fraud and perjury
concerning his filing falsified tax returns for all 4 years at issue. IAF, Tab 8,
Exhibit 2 at 250-57 of 385, Exhibit 3 at 267-71 of 385.
¶9 Finally, as the administrative judge correctly found, notwithstanding the
appellant’s admissions in his affidavit, the record includes ample circumstantial
evidence contained in the appellant’s affidavit, as well as the transcript and
recording from the investigative interview, demonstrating the appellant’s intent to
defraud or mislead, including evidence that he consciously tried to avoid learning
the truth or at least acted with reckless disregard for the truth. See ID at 6-7;
IAF, Tab 27, Track 4, Tab 26 at 12, Tab 26, Exhibits 1-3, 7-9. Accordingly,
while the appellant disagrees with the administrative judge’s findings and
determinations, he has provided no evidence or argument that would warrant
disturbing the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
7
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
8
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.