Howard v. Air Force , 680 F. App'x 961 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHERMAN HOWARD,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2016-1364
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-13-0290-I-3.
______________________
Decided: February 27, 2017
______________________
SHERMAN HOWARD, Schertz, TX, pro se.
MARK E. PORADA, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., FRANKLIN E. WHITE,
JR.
______________________
Before PROST, Chief Judge, DYK and STOLL, Circuit
Judges.
2 HOWARD v. AIR FORCE
PER CURIAM.
Mr. Sherman Howard appeals the decision of the Mer-
it Systems Protection Board sustaining the Air Force’s
removal action against him. The Board affirmed
Mr. Howard’s removal based on four charges and also
found that Mr. Howard’s “extraordinary lack of productiv-
ity” over a period of several years was an aggravating
factor. We affirm the Board’s decision.
BACKGROUND
The Air Force employed Mr. Howard as an auditor at
the Randolph Air Force Base. The Air Force sent
Mr. Howard a Notice of Proposed Removal (“NPR”) on
September 29, 2008, listing reasons for removal that
included: 1) misuse of government resources for personal
gain; 2) conducting outside employment during paid duty
hours; 3) threatening to inflict bodily harm on others; and
4) failure to disclose all outside employment. On Novem-
ber 20, 2008, the Air Force removed Mr. Howard from his
position. In reaching this decision, the deciding official
relied on Mr. Howard’s “extremely low production”—a
ground that was not listed in the NPR—as an aggravating
factor. J.A. 50. An administrative judge (“AJ”) affirmed
on appeal, finding that the removal action fell within the
bounds of reasonableness and also citing Mr. Howard’s
poor performance as a factor in her decision.
Mr. Howard petitioned for review of the initial deci-
sion, arguing that the AJ erred by considering Mr. How-
ard’s poor performance as an aggravating factor. The
Board agreed that the Air Force and the AJ improperly
relied on Mr. Howard’s performance because the NPR did
not list it as a reason for removal. In an attempt to
remedy the error, the Board performed a new reasonable-
ness analysis that ignored Mr. Howard’s poor perfor-
mance. Howard v. Dep’t of Air Force, 114 M.S.P.R. 482,
484–85 (2010). Under this new analysis, the Board still
concluded that the removal penalty fell within the bounds
HOWARD v. AIR FORCE 3
of reasonableness and affirmed the AJ’s decision. Id. at
485–86.
While Mr. Howard’s appeal of the Board’s decision
was pending before us, we issued our decision in Ward v.
U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011). The
NPR for the employee in that case, Mr. Ward, listed only
a single charge of improper conduct. Yet the deciding
official admitted that his decision to remove Mr. Ward
was based, in part, on information obtained through ex
parte communications about past incidents involving Mr.
Ward. Id. at 1276. We remanded for the Board to ad-
dress two issues. First, we required the Board to consider
whether Mr. Ward’s due process rights were violated by
the deciding official’s reliance on ex parte communications
that introduced new information not included in the NPR.
If a violation occurred, we explained that it may not be
excused as harmless error and Mr. Ward must be afforded
a “constitutionally correct removal procedure.” Id. at
1280 (quoting Stone v. FDIC, 179 F.3d 1368, 1377 (Fed.
Cir. 1999)). Second, even if the ex parte communications
did not rise to the level of a due process violation, the
Board was required to perform a harmless error analysis
to determine whether the procedural error—i.e., the
agency’s reliance on evidence not contained in the NPR—
necessitated a reversal. Id. at 1281. Although the Board
believed it could remedy the error by independently
determining whether the removal penalty was within the
bounds of reasonableness, we found instead that a harm-
less error analysis was required on remand. Id.
The Air Force moved to remand this case in light of
our Ward decision. We agreed that the Board impermis-
sibly “performed its own reasonableness analysis instead
of a harmless error analysis to determine if the agency
would have still removed Howard absent consideration of
his poor performance.” Howard v. Dep’t of Air Force, 452
Fed. App’x 965, 966 (Fed. Cir. 2011) (“Remand Order”).
Accordingly, we granted the Air Force’s motion and “re-
4 HOWARD v. AIR FORCE
manded to the Board for further proceedings in light of
Ward,” including the performance of a harmless error
analysis. Id.
On remand, the Board determined that the Air Force
violated Mr. Howard’s due process rights. Although it
was undisputed that the NPR did not list Mr. Howard’s
lack of production as an aggravating factor, the deciding
official admitted that this information influenced his
decision. Howard v. Dep’t of Air Force, 118 M.S.P.R. 106,
109–10 (2012) (“Opinion on Remand”); see also J.A. 1337.
This left Mr. Howard unaware of, and unable to respond
to, the aggravating factor before the deciding official
issued his decision. The Board found the due process
violation “cannot be excused as harmless, and [Mr. How-
ard]’s removal must be cancelled.” Opinion on Remand,
118 M.S.P.R. at 110. Consequently, the Board ordered
cancellation of Mr. Howard’s removal proceeding, rein-
statement of Mr. Howard effective as of the date of his
removal, and an award of back pay, interest on the back
pay, and other benefits. Id.
Several months later, on October 29, 2012, the Air
Force notified Mr. Howard in a new NPR that it was
again seeking his removal. This NPR listed the same four
charges as the first NPR but also included “lack of work
production over several years” as an additional factor
justifying his removal. J.A. 39. The Air Force removed
Mr. Howard on March 20, 2013. An AJ affirmed the Air
Force’s removal action on September 28, 2015, finding
that the Air Force had proven the merits of its case by a
preponderance of the evidence.
When Mr. Howard elected not to seek review by the
full Board, the AJ’s initial decision became the final
decision of the Board. Mr. Howard’s appeal to this court
timely followed. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
HOWARD v. AIR FORCE 5
DISCUSSION
The scope of our review in an appeal from the Board is
limited by statute. 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 required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see also Briggs
v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003).
Mr. Howard’s arguments on appeal allege violations
of the law of the case doctrine and judicial estoppel, a lack
of substantial evidence to support various findings made
by the Board, laches, a failure to establish a nexus be-
tween Mr. Howard’s misconduct and the efficiency of the
service, protected status as a whistleblower, and retalia-
tion based on his filing of an Inspector General Com-
plaint. We do not find any of these arguments
meritorious.
I.
Mr. Howard contends that on remand the Board vio-
lated the mandate rule, which is a subset of the law of the
case doctrine, by conducting a due process analysis even
though our opinion remanding the case instructed the
Board to “perform a harmless error analysis as detailed in
Ward.” Remand Order, 452 Fed. App’x at 966.
The law of the case doctrine requires a lower court to
adhere to an appellate court’s ruling. The doctrine, which
was created to promote judicial efficiency, provides that
“when a court decides upon a rule of law, that decision
should continue to govern the same issues in subsequent
stages in the same case.” Banks v. United States, 741
F.3d 1268, 1276 (Fed. Cir. 2014) (quoting Christianson v.
Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)).
Under the mandate rule, a lower court “has no power or
6 HOWARD v. AIR FORCE
authority to deviate from the mandate issued by an
appellate court,” Briggs v. Pennsylvania Railroad, 334
U.S. 304, 306 (1948), and the rule is limited to issues
“‘actually decided, either explicitly or by necessary impli-
cation’ in the previous litigation,” Banks, 741 F.3d at 1276
(quoting Toro Co. v. White Consol. Indus., Inc., 383 F.3d
1326, 1335 (Fed. Cir. 2004)). 1
As an initial matter, we note that our one-page opin-
ion remanding the case to the Board never “actually
decided, either explicitly or by necessary implication,” id.(quoting Toro, 383 F.3d at 1335), whether there was
harmless error, a due process violation, or both. We
remanded for the Board to address these questions in the
first instance. Although Mr. Howard is correct that we
gave the Board directions to perform a harmless error
analysis, the order itself was broader: “The [Air Force’s
remand] motion is granted and the appeal is remanded to
the Board for further proceedings in light of Ward.”
Remand Order, 452 Fed. App’x at 966. The Board fol-
lowed our instructions and concluded that, “because the
[Air Force] violated the appellant’s due process guarantee
to notice, the [Air Force]’s error cannot be excused as
harmless, and the appellant’s removal must be cancelled.”
Opinion on Remand, 118 M.S.P.R. at 110 (emphasis
added). Indeed, our opinion in Ward explicitly discussed
both harmless error and due process analyses and re-
minded the Board that it “may not excuse [a] constitu-
tional [due process] violation as harmless error.” Ward,
634 F.3d at 1280. We agree with the Air Force that the
Board did not run afoul of the mandate rule by reaching
1 Courts have recognized three “exceptional circum-
stances” under which a lower court need not follow an
appellate ruling in a prior appeal, but none of them apply
here. See Banks, 741 F.3d at 1276.
HOWARD v. AIR FORCE 7
the due process issue as part of its Ward/harmless error
analysis on remand.
II.
Next, Mr. Howard urges us to invoke judicial estoppel
to bar the Air Force’s second removal action against him.
The main thrust of his argument appears to be that the
agency’s action in seeking a remand in light of Ward is
inconsistent with its position in the second removal
action. Specifically, Mr. Howard claims it is inconsistent
for the Air Force to initiate a second removal proceeding
on the same charges that the Board previously deemed
insufficient to justify removal. Appellant Br. 29–30.
This argument is not compelling. Judicial estoppel
“prevents a party from prevailing in one phase of a case
on an argument and then relying on a contradictory
argument to prevail in another phase.” Pegram v. Her-
drich, 530 U.S. 211, 227 n.8 (2000). Although the circum-
stances for invoking judicial estoppel cannot be “reduc[ed]
to any general formulation of principle,” New Hampshire
v. Maine, 532 U.S. 742, 750 (2001) (quoting Allen v.
Zurich Ins., 667 F.2d 1162, 1166 (4th Cir. 1982)), the
Supreme Court has articulated several factors to guide us
in determining whether to apply it in a particular case:
First, a party’s later position must be “clearly in-
consistent” with its earlier position. Second,
courts regularly inquire whether the party has
succeeded in persuading a court to accept that
party’s earlier position, so that judicial acceptance
of an inconsistent position in a later proceeding
would create “the perception that either the first
or the second court was misled[.]” . . . A third con-
sideration is whether the party seeking to assert
an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the
opposing party if not estopped.
8 HOWARD v. AIR FORCE
Id. at 750–51 (internal citations omitted).
Under the first factor, it is not clear how the Air
Force’s position in the first removal proceeding—that a
remand was warranted in light of Ward—is inconsistent
with the Air Force’s second, constitutionally correct
removal proceeding. The Air Force pursued the same four
charges and aggravating factor in both proceedings, with
the proper constitutional procedure serving as the only
pertinent difference between them. In addition, contrary
to Mr. Howard’s contention, the Air Force never stated or
implicitly admitted that it would not have removed
Mr. Howard in the first proceeding absent consideration
of his poor performance. With respect to the second
factor, our court never addressed whether removal was
appropriate in the first removal proceeding. Accordingly,
the Air Force did not “succeed[] in persuading” this court
to accept its position on the merits. Id. at 750.
Finally, under the third factor, Mr. Howard contends
that the Air Force derived an unfair advantage from its
inconsistent positions because it was permitted to initiate
a second removal proceeding. Initiating a new removal
proceeding to remedy a procedural error does not confer
on the Air Force an “unfair advantage.” Nor does it
impose on Mr. Howard an “unfair detriment.” Indeed, our
decision in Ward—the case that precipitated the remand
in the first removal proceeding—explicitly envisions that
an agency would follow the very steps taken by the Air
Force here: “If the Board finds that [there was a] violation
of Ward’s due process rights, Ward must be afforded a
‘constitutionally correct removal procedure.’” Ward, 634
F.3d at 1280 (quoting Stone, 179 F.3d at 1377). Following
our directive in Ward and remedying the constitutional
violation did not provide the Air Force with an unfair
advantage. In sum, Mr. Howard has failed to convince us
that judicial estoppel applies in this case.
HOWARD v. AIR FORCE 9
III.
Mr. Howard also alleges that there is not substantial
evidence to support: 1) the misuse of government re-
sources charge; 2) the threatening bodily harm charge;
3) the failure to report outside employment charge; and
4) the aggravating factor of poor performance. “Substan-
tial evidence” is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Dickey v. Office of Pers. Mgmt., 419 F.3d 1336, 1339 (Fed.
Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Contrary to Mr. Howard’s contention,
each of these charges is supported by substantial evi-
dence, as discussed below.
A.
With respect to the misuse of government resources
charge, the AJ primarily relied on the Commander Di-
rected Investigation (“CDI”) into Mr. Howard’s use of
government resources for personal gain. As part of the
CDI, the Office of Special Investigations performed a
forensic analysis of Mr. Howard’s work laptop. Between
the years 2000 and 2007, the forensic analysis discovered
377 non-duplicative files, emails, and internet searches
relating to Mr. Howard’s outside employment as an
instructor at the San Antonio Community College.
J.A. l032. The analysis showed that Mr. Howard’s usage
of his laptop for outside purposes increased over time—
312 of the 377 files were created or accessed between mid-
2004 and 2007—and 58% of the instances took place
during regular duty hours. J.A. 1032. The CDI also
detailed Mr. Howard’s admissions that he had conversa-
tions with his students at the community college during
normal duty hours, used the office printer for his teaching
position, and periodically used the office to support his
teaching position. J.A. 480–82.
Mr. Howard does not deny that he used government
resources for his teaching job, but claims his use was
10 HOWARD v. AIR FORCE
limited, condoned by his supervisors, and did not adverse-
ly affect the efficiency of the service. The Air Force does
have a limited-use policy that permits employees to use
the internet and office equipment for unofficial purposes,
provided that it does not interfere with official business
and involved minimal additional expense to the govern-
ment. The AJ, however, concluded that Mr. Howard’s use
of government resources “went far beyond ‘limited use.’”
J.A. 12. The AJ also determined that, although Mr.
Howard’s supervisors were generally aware of his position
as a teacher at the community college, Mr. Howard failed
to show that these supervisors condoned his extensive use
of government equipment in furtherance of that position.
Indeed, one of Mr. Howard’s supervisors testified that he
was “concerned” after he found the teaching-related files
on Mr. Howard’s government laptop. J.A. 1993. This is
substantial evidence to support the Board’s conclusion
that Mr. Howard’s use of government resources went far
beyond limited use.
B.
The threatening bodily harm charge stemmed from an
argument between Mr. Howard and another employee
during a team meeting. A third employee, Melanie
Schneider, intervened and suggested that Mr. Howard’s
decision to park his car in the incorrect spot caused the
argument. Mr. Howard’s Team Chief, Ms. Lampman,
then chided him for parking in the wrong spot. After the
meeting, Mr. Howard approached Ms. Schneider in the
hallway and told her “you’d better watch yourself.”
J.A. 1928. He repeated this warning later that same day
while standing in the doorway to the copier room, adding
“you’d just better watch your back.” Id. Ms. Schneider
testified that these remarks were not made in a friendly
manner, caused her to be somewhat fearful of Mr. How-
ard, and bothered her enough that she discussed the
incident with her husband and Ms. Lampman because she
did not know what Mr. Howard meant or how he would
HOWARD v. AIR FORCE 11
react to her. The AJ also found Ms. Schneider’s testimony
more credible than Mr. Howard’s testimony: the AJ
described Ms. Schneider’s memory of the events as “clear,”
“detailed,” and consistent with testimony from previous
hearings, whereas the AJ found Mr. Howard’s testimony
internally inconsistent. J.A. 18.
On appeal, Mr. Howard relies on a portion of Ms.
Schneider’s testimony in the first proceeding in which she
stated that Mr. Howard did not threaten to inflict bodily
harm on her. J.A. 1441. But Ms. Schneider clarified
during the second removal proceeding that she answered
the question narrowly based on the way it was phrased:
THE COURT: And when you said he didn’t
threaten you with bodily harm, you’re saying he
didn’t specifically say, I’m going to break your leg,
I’m going to do whatever.
MS. SCHNEIDER: Correct. Correct.
THE COURT: So there was no specific men-
tion of what he was going to do. But your fear
was that he was going to do something physically
to you.
MS. SCHNEIDER: Yes. Yes, ma’am.
J.A. 1934. She also stated that Mr. Howard’s comments
made her afraid and that she did feel that Mr. Howard
threatened her.
Mr. Howard also urges us to reweigh the evidence un-
derlying the threat-of-bodily-harm charge. He lists a
series of ten facts that allegedly undermine the AJ’s
decision. 2 For example, Mr. Howard notes that
2 In addition, Mr. Howard contends that the threat-
ening to inflict bodily harm charge should be barred by
laches because the threat took place in 2005 and the Air
12 HOWARD v. AIR FORCE
Ms. Schneider was the only person who heard the com-
ments in question, Ms. Schneider did not report her
concern to any agency official besides Ms. Lampman, and
Ms. Schneider did not accuse Mr. Howard of threatening
bodily harm during her CDI interview. Our task as an
appellate court, however, is to evaluate whether substan-
tial evidence supports the AJ’s conclusion, not to deter-
mine whether other competing facts exist that might
support a contrary conclusion. Based on the evidence
relied on by the Board in its decision, we are convinced
that substantial evidence supports the Board’s conclusion
that Mr. Howard threatened Ms. Schneider with bodily
harm.
C.
With respect to the failure to report outside employ-
ment charge, the record reflects that Mr. Howard failed to
Force did not propose his removal until 2008—a three-
year delay. “The imposition of laches requires both un-
reasonable delay by the petitioner, and prejudice to the
respondent because of the delay.” Hoover v. Dep’t of Navy,
957 F.2d 861, 863 (Fed. Cir. 1992). We review the Board’s
application of the laches doctrine on appeal for an abuse
of discretion. Gray v. Merit Sys. Prot. Bd., No. 2016-1223,
2016 WL 3645106, at *2 (Fed. Cir. July 8, 2016). The AJ
disagreed that the delay barred the charge, noting that
the Air Force initiated removal proceedings promptly
after upper management became aware of Ms. Schnei-
der’s allegations, and also found that Mr. Howard was not
prejudiced by the delay. We have previously held that a
delay of more than three years between the conduct in
question and the removal complaint was not unreasona-
ble. Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1327 (Fed.
Cir. 1999). We detect no abuse of discretion in the
Board’s conclusion that a three-year delay here was
unreasonable or prejudicial.
HOWARD v. AIR FORCE 13
disclose several of his outside positions. Air Force Audit
Agency Supplement paragraph 5.7.2 requires agency
personnel to seek approval prior to acceptance of any
outside employment or activity, with or without compen-
sation. J.A. 409. Mr. Howard admitted that he was
associated with the National Lending Corporation
(“NLC”). In this role, Mr. Howard attempted to help
another government employee obtain credit so she could
purchase a house, J.A. 977–79, and he did not report this
position to management. J.A. 947. Mr. Howard also
admitted to being the Head of Operations for his nephew’s
company called Power Play Sports, even though it never
got off the ground, and he was involved with his niece in
creating a clothing store called H&S Fashion Apparel.
Neither position was officially reported to the Air Force,
although several of Mr. Howard’s supervisors were aware
of his involvement in Power Play Sports.
On appeal, Mr. Howard contends that his minimal in-
volvement with these outside organizations does not
constitute substantial evidence that he failed to report
outside employment. We disagree. Mr. Howard admits
that he participated in these outside businesses and that
he did not report them to the Air Force. This is substan-
tial evidence to support the Board’s conclusion.
D.
Finally, Mr. Howard asserts that substantial evidence
does not support the aggravating factor of poor perfor-
mance. The AJ relied on testimony given at the second
removal proceeding to support the aggravating factor of
low production. Mr. Atkinson, the proposing official,
reviewed Mr. Howard’s productivity and testified that it
was “woefully short.” J.A. 1826–27. He noted that Mr.
Howard produced two “product equivalents” between 2005
and 2008, far fewer than the normal 12-13 product equiv-
alents the Air Force would expect for that time period.
J.A. 1824. The deciding official, Mr. Peterson, testified
14 HOWARD v. AIR FORCE
that Mr. Howard’s production was 83% below agency
standards for fiscal years 2005 and 2006. J.A. 1868–69.
Mr. Peterson also testified that, after adjusting for the
time Mr. Howard spent out of the office due to a work-
place injury and his reduced work schedule, Mr. Howard
was 50% below the production expectation for fiscal years
2007 and 2008. J.A. 1869–70. In addition, one of
Mr. Howard’s acting team chiefs testified that during a
ten-month period Mr. Howard only completed a single
product equivalent, even though he was told to increase
his production. J.A. 1925–26.
Mr. Howard also argues on appeal that it was im-
proper to rely on testimony from the first removal pro-
ceeding, that his reduced hours due to a work-place injury
were not factored into the Air Force’s analysis of his
performance, and that he received positive performance
evaluations during the time period in question. The
above-cited evidence, which was relied on by the AJ in
reaching her decision, came from testimony during the
second removal proceeding, not the first proceeding.
Moreover, Mr. Peterson testified that he adjusted his
production expectations to account for Mr. Howard’s
injury. Accordingly, we find that substantial evidence
supports the Board’s conclusion.
IV.
Mr. Howard also alleges that the charges against him
are not related to his job responsibilities such that his
removal would promote the “efficiency of the service,” as
required by 5 U.S.C. § 7513(a). To satisfy this require-
ment, the Air Force must show by preponderant evidence
“that the employee’s misconduct is likely to have an
adverse impact on the agency’s performance of its func-
tions.” Brown v. Dep’t of Navy, 229 F.3d 1356, 1358 (Fed.
Cir. 2000) (citing Mings v. Dep’t of Justice, 813 F.2d 384,
389–90 (Fed. Cir. 1987)). “We give wide berth to agency
decisions as to what type of adverse action is necessary to
HOWARD v. AIR FORCE 15
‘promote the efficiency of the service,’ provided that the
agency’s decision bears some nexus to the reason for the
adverse action.” Einboden v. Dep’t of Navy, 802 F.3d
1321, 1325–26 (Fed. Cir. 2015) (citing Doe v. Dep’t of
Justice, 565 F.3d 1375, 1379 (Fed. Cir. 2009)). So long as
the Board’s finding of nexus is supported by substantial
evidence, we will uphold it. Brown, 229 F.3d at 1358–59. 3
The Board here noted that the nexus is established
when “the grounds for the action relate to either the
employee’s ability to accomplish his duties satisfactorily
or to some other legitimate government interest.” J.A. 28.
Based on the nature of the charges against Mr. Howard,
the Board concluded that this requirement was satisfied.
In its second NPR, the Air Force also explained that
Mr. Howard’s conduct had a “negative impact . . . on the
work environment and overall production,” and it “com-
promised the independence of the [Air Force Audit Agen-
cy].” J.A. 40. This evidence, together with Mr. Howard’s
lack of production during the relevant time period, pro-
vides substantial evidence to support the Board’s conclu-
sion that removing Mr. Howard would promote the
efficiency of the service.
CONCLUSION
We have carefully considered Mr. Howard’s remaining
arguments but find them unpersuasive. Accordingly, we
affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
3 If the Board legally erred in selecting the proper
test for analyzing the nexus requirement, that would also
require reversal. Brown, 229 F.3d at 1358–59.
Mr. Howard has not shown a legal error here.