Holdsworth v. United States Postal Service , 469 F. App'x 871 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT W. HOLDSWORTH, JR.,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2011-3214
__________________________
Petition for review of the Merit Systems Protection
Board in case no. PH0752100295-I-1.
__________________________
Decided: February 9, 2012
__________________________
ROBERT W. HOLDSWORTH, JR., of Philadelphia, Penn-
sylvania, pro se.
DEVIN A. WOLAK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and FRANKLIN E. WHITE,
JR., Assistant Director.
__________________________
2 HOLDSWORTH v. USPS
Before RADER, Chief Judge, LINN and DYK, Circuit
Judges.
PER CURIAM.
Robert W. Holdsworth (“Holdsworth”) appeals from a
final decision of the Merit Systems Protection Board
(“Board”), affirming a decision of the United States Postal
Service (“USPS” or “Agency”) to remove Holdsworth from
his position as a letter carrier. Because substantial
evidence supports the Board’s decision, because the
Administrative Judge (“AJ”) did not abuse his discretion
in not admitting certain evidence, and because the AJ
also did not abuse his discretion in assessing the Douglas
factors in determining the penalty of removal, this court
affirms.
I. BACKGROUND
Holdsworth served as a letter carrier for the USPS for
twenty-two years. In August or September 2008, Inspec-
tor Teresa Ryan (“Inspector Ryan”) from the U.S. Postal
Inspection Service (“USPIS”) advised Holdsworth that
USPIS would be conducting a “mail cover” in connection
with a criminal mail fraud investigation. A “mail cover”
is “the process by which a nonconsensual record is made
of any data appearing on the outside cover of any sealed
or unsealed class of mail matter . . . to obtain information
for [inter alia]: . . . [o]btaining evidence of commission or
attempted commission of a crime.” USPS Intranet,
Administrative Support Manual, 213 Mail Covers. On
December 17, 2008, the USPIS, the Federal Bureau of
Investigation, and the Department of Health and Human
Services (“the inspectors”) executed search warrants on
the targets of the mail cover. Contrary to the inspectors’
expectations, the targets were not surprised by the in-
spection, but rather were already on notice of the investi-
gation because, they said, their letter carrier had
informed them that the authorities were watching their
HOLDSWORTH v. USPS 3
mail. After conducting an investigation, on October 1,
2009, the Agency issued a notice of Holdsworth’s proposed
removal based on the stated charge of “improper con-
duct/providing confidential information to a postal cus-
tomer of a government matter/interference in a criminal
investigation.”
Four days following notice of his proposed removal, on
October 5, 2009, Holdsworth engaged in activity forming
the basis for a second charge against him in an amended
removal notice: “charge #2 – improper conduct - inappro-
priate conduct towards a postal customer.” This charge
stems from Holdsworth’s alleged use of profanity to
several members of a family on his route, following what
Holdsworth believed was one of the family member’s
improper handling of mail addressed to others. In a
notice dated October 8, 2009, the Agency informed
Holdsworth that he was being placed on emergency off-
duty status. On October 13, 2009, the Agency issued the
amended removal notice, adding the second charge de-
scribed above.
On December 3, 2009, the Agency’s deciding official,
Steven Ulrich (“Ulrich”), issued a letter of decision con-
cluding—based on the factors listed in Douglas v. Veter-
ans Administration, 5 M.S.P.R. 280 (1981) (“Douglas
factors”)—that the penalty of removal was warranted. On
February 5, 2010, an arbitrator conducted a hearing in
accordance with the National Association of Letter Carri-
ers’ (“Union”) agreement, to investigate whether there
was just cause for the Agency’s notices of October 1, 8,
and 13. The Arbitrator considered the Union’s arguments
and concluded that the Agency’s emergency off-duty
placement and removal of Holdsworth were justified.
U.S. Postal Serv. v. Nat’l Assoc. of Letter Carriers, AFL-
CIO, No. C06N-4C-D 10008189 157-128-1000-20009 at 12
(Mar. 7, 2010) (Brown, Arb.) (“Arbitration Decision”).
On March 18, 2010, Holdsworth appealed the
Agency’s removal decision to the Board. The AJ affirmed
4 HOLDSWORTH v. USPS
the Agency’s decision. Holdsworth v. U.S. Postal Serv.,
PH-0752-10-02950I-1 (Nov. 16, 2010) (“Initial Decision”).
On June 28, 2010, the full Board denied Holdworth’s
petition for review and adopted the AJ’s initial decision as
final. Holdsworth appealed, and this court has jurisdic-
tion pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C.
§ 1295(a)(9).
II. DISCUSSION
A. Standard of Review
This court’s review of a Board decision is limited by
5 U.S.C. § 7703(c). See, e.g., Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003). Accordingly, this
court affirms a decision of the Board unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
B. Analysis
i.
Holdsworth argues that the AJ committed prejudicial
error by (1) not permitting him to call allegedly relevant
witnesses, specifically the targets of the mail cover and
his supervisor Lashonda Colter (“Colter”); and (2) conclud-
ing that he “knowingly violated any policy of the postal
service.” The Agency counters that (1) the Board properly
disapproved Holdsworth’s witnesses because Holdsworth
presented no explanation of the substance of their ex-
pected testimony and the AJ has the authority “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); and (2) “the [AJ] acted well
within his discretion in discrediting [] Holdsworth’s
technical excuse and finding that [] Holdsworth did, in
HOLDSWORTH v. USPS 5
fact, know that he was not to disclose the USPIS investi-
gation to the subjects of that investigation.”
Holdsworth’s argument with respect to the disap-
proved witnesses lacks merit. Holdsworth never listed
the targets as witnesses, and he failed to explain to the
AJ the substance of Colter’s testimony. In his witness
statement, Holdsworth wrote, “Coulter [sic] – floor sup. at
Rox station.” The AJ explained that “[a]fter extensive
discussion, [Holdsworth] was unable to verbally explain
how any of the witnesses [other than the four he ap-
proved] would be able to provide relevant testimony.”
Summary of Telephonic Prehearing Conference, PH-0752-
10-0295-I-1, at 3 (Oct. 13, 2010). Accordingly, this court
has no reason to conclude that the AJ abused his discre-
tion in disapproving Colter as a witness. Moreover,
Holdsworth failed to object to the AJ’s disapproval of any
of his witnesses within the ten-day period that the AJ
gave him to do so, and thus did not preserve this issue for
appeal. Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668
(Fed. Cir. 1998) (“A party in an MSPB proceeding must
raise an issue before the [AJ] if the issue is to be pre-
served for review in this court.”)
This court further agrees with the Agency that sub-
stantial evidence supports the conclusion that Holdsworth
knew that it was improper to disclose a mail cover to the
subjects of the investigation. The AJ’s credibility-based
fact finding is “virtually unreviewable on appeal.” Bieber
v. Dep’t of Army, 187 F.3d 1358, 1364 (Fed. Cir. 2002).
Here, the AJ found that Holdworth’s testimony lacked
credibility, specifically in light of Holdsworth’s admission
“that he figured the inspectors must have been interested
in the [targets] because they were engaged in wrongdo-
ing,” yet nevertheless informed the targets of the USPIS’s
investigation. Initial Decision at 6. The AJ concluded
that “[Holdsworth] knew or should have known that he
was required to refrain from informing customers of an
investigation into matters involving their mail by the
6 HOLDSWORTH v. USPS
[USPIS], which is an investigatory arm of his employer.”
The AJ’s conclusion is consistent with the arbitrator’s
finding that Holdsworth “may not hide behind blanket
statements of ignorance of basic matters he should have
learned in the ordinary course of performing his job.”
Arbitration Decision at 11. Specific knowledge is not a
requirement of a charge of improper conduct. See Rogers
v. Dep’t of Justice, 60 M.S.P.R. 377, 388-89 (1994) (holding
that an employee’s lack of notice that his conduct was
wrong does not disprove a charge and should only “be
considered in assessing the reasonableness of the penalty
imposed”). The AJ’s conclusion that Holdsworth knew not
to disclose the mail cover to the subjects of his employer’s
investigation is supported by substantial evidence.
ii.
Holdsworth also argues that the Board erred in af-
firming the Agency’s determination of the penalty of
removal under the Douglas factors because the AJ “re-
fused to acknowledge that the Postal Service refused to
assess relevant mitigating circumstances.” Holdsworth
asserts that the deciding official, Ulrich, was familiar
with his personnel file, yet “[Ulrich] did not consider
relevant, material and substantial mitigating factors in
[his] personnel file” and thus “failed to properly assess the
disciplinary action for the alleged wrongdoings.” The
Agency counters that Ulrich was not required to consider
these mitigating factors because Holdsworth never in-
formed the Agency of these circumstances.
Holdsworth’s argument that the deciding official
should have recognized mitigating factors not raised by
Holdsworth at that time lacks merit. See Yeschick v.
Dep’t of Transp., 801 F.2d 383, 385 (Fed. Cir. 1986). “The
agency is not prescient, and neither is the board—and
while both have a statutory duty to respond to significant
mitigating circumstances raised for consideration, neither
can be held to account for failing to consider factors
initially deemed so insignificant by petitioner as to war-
HOLDSWORTH v. USPS 7
rant his silence about them.” Id. (citation omitted). Thus,
the failure to consider alleged mitigating circumstances
not raised by Holdsworth is not an abuse of discretion.
See Nagel v. Dep’t of Health & Human Servs., 707 F.2d
1384, 1386 (Fed. Cir. 1983) (“[N]either statute nor regula-
tion requires an agency to demonstrate that it considered
all mitigating factors.” (emphasis in original)). Here, the
penalty of removal is fully supported by substantial
evidence based upon the relevant Douglas factors brought
up for consideration by the Agency.
This court has thoroughly considered Holdsworth’s
remaining arguments and concludes that they lack merit.
III. CONCLUSION
For the foregoing reasons, this court affirms the
Board’s final decision.
AFFIRMED
COSTS
Each party shall bear its own costs.