Crane v. Department of Air Force , 240 F. App'x 415 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3238
DONALD L. CRANE,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
Kristina S. Holman, of Las Vegas, Nevada, argued for petitioner.
Captain Amina Q. Diehl, Attorney, General Litigation Division, Air Force Legal
Operations Agency, of Arlington, Virginia, argued for respondent. Of counsel was Major
Carey A. Merrill. Also of counsel were William F. Ryan, Assistant Director, and Kent G.
Huntington, Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3238
DONALD L. CRANE,
Plaintiff-Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Defendant-Appellee.
__________________________
DECIDED: July 6, 2007
__________________________
Before NEWMAN, Circuit Judge, LOURIE, Circuit Judge, and PROST, Circuit Judge.
Opinion for the court filed by Circuit Judge, NEWMAN. Dissenting opinion filed by Circuit
Judge PROST.
NEWMAN, Circuit Judge.
Mr. Donald Crane appeals the decision of the Merit Systems Protection Board,
Docket No. SF0752050105-I-1, affirming his removal from employment as a mason at
Nellis Air Force Base, Utah. For the reasons set forth, we reverse the removal action and
remand to the Board for determination of any appropriate disciplinary action.
BACKGROUND
Mr. Crane began employment with the 99th Civil Engineering Squadron at Nellis Air
Force Base in 1990, in the position of Masonry Worker, WG-9. He had previously been
employed as a mason at another Air Force base until its closure, and had served in the
Marine Corps. During his employment at Nellis Air Force Base, Mr. Crane performed
private masonry activities as a side business. This side business was conducted with the
knowledge of his Air Force supervisors.
The events leading to Mr. Crane's removal began in 2003 when a representative of
the Las Vegas Motor Speedway, Mr. David Stetzer, met with Air Force officials to discuss a
welcome-home celebration for returning troops. Mr. Stetzer observed the concrete barriers
on the base, and inquired of Master Sergeant Richard Huibregtse as to whether he could
obtain similar barriers for use at the Speedway. MSgt Huibregtse, Mr. Crane's direct
supervisor, asked Mr. Crane to contact Mr. Stetzer. MSgt Huibregtse testified that he
understood that Mr. Crane would make this contact in his personal capacity in connection
with his side business.
Mr. Crane contacted Mr. Stetzer, and on June 23, 2003 sent him a written proposal
with photographs of a prototype of a proposed concrete barrier with "LVMS" stamped on
the barrier. The Air Force stated, and repeats on this appeal, that the construction of this
prototype, which used a less expensive pouring process, was approved by MSgt
Huibregtse. MSgt Huibregtse testified that he informed his "wing leadership" of this
development, and that they responded that they probably would not change the existing
concrete barriers but that "they could pour one and 'see what they say.'" Air Force Br. at 7.
2006-3238 2
The prototype was built by Mr. Crane on Air Force premises using surplus government
material. No orders were placed with Mr. Crane as a result of the Speedway proposal.
In September 2003 the Air Force initiated investigation of Mr. Crane based on
reports of "unauthorized work." Apparently nothing further ensued until Lt. Col. Anthony
Foti became the Commander of the 99th Civil Engineering Squadron in June 2004. On
July 12, 2004 Col. Foti issued a Notice of Proposed Removal of Mr. Crane. Mr. Crane
responded in writing on July 19 and 20, 2004. The Air Force states that Mr. Crane was not
given the Report of the investigation until he was given a redacted copy on July 23, 2004.
Gov't Br. at 13. Removal occurred in September 2004, on the charge of misuse of
government property. Mr. Crane appealed to the MSPB.
At the hearing the testimony of the issue of unauthorized work related solely to the
prototype barrier and its marking "LVMS." MSgt Huibregtse testified that he knew that Mr.
Crane "has a business on the outside" and that he told Mr. Crane about the Speedway
inquiry concerning concrete barriers, knew of and approved the construction by Mr. Crane
of the prototype barrier, and told Air Force officials about the new process developed by Mr.
Crane. Mr. Crane had designed the barriers then in use, which were known as "DC
barriers."
There was also testimony concerning Mr. Crane's several awards and
commendations, and that Mr. Crane consistently received highly favorable performance
ratings. For example, a Civilian Rating of Record includes the following in connection with
a monetary performance award:
Led 7-man crew in the design and construction of 500 concrete, rebar,
and cinder block traffic barriers.
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Increased base force protection measures; being sought as
benchmark by DoD . . . barriers are in demand at bases nationwide.
Assisted VOTECH block team in the layout/construction of 600 feet of
block wall at cryogenics compound; secured assets.
Hand-picked to assist Horizontal section in forming/pouring 150 feet of
sidewalk at Red Flag facility; improved accessibility.
Mr. Crane is the masonry systems "go-to-guy" for advice; always
sought by shop leadership . . . skill knowledge has aided immensely.
Displayed stellar skills while led 7 federal inmates in construction of
800 ft. block wall -- Child Development Center.
Led construction of 480 feet of block wall/personnel gate at 415 AGE
compound; secured assets and improved base appearance.
Don displayed his talents assisting VOTECH; laid first course of block
at F-22 project . . . stayed one step ahead of block crew.
Dedication to duty and teamwork are a few of his finest attributes;
excelled at all assigned taskings . . . major asset to section.
Rating Record with three (illegible) signatures in April and May 2004.
The Administrative Judge found that Mr. Crane "used government concrete to build
a barrier that was marked with the initials 'LVMS' to solicit personal, private business from
the Speedway," and sustained the removal, stating that "though the penalty of removal may
seem harsh at first glance, the agency-imposed penalty is within the bounds of
reasonableness." The full Board affirmed without review, and this appeal followed.
DISCUSSION
Mr. Crane states that the Air Force had always known of his private masonry
business, and had allowed and even encouraged this private business. Government
counsel conceded, at the argument of this appeal, that the record shows that there was no
objection by the Air Force to Mr. Crane's outside masonry business, and that the Air Force
had not warned Mr. Crane concerning disapproval of these activities including the
Speedway proposal:
Court: "Was there a warning?"
2006-3238 4
Gov't counsel: "No, there is no warning, no, Ma'am."
****
Court: But you do know that he was never disciplined or removed or told to
cut it out?
Gov't counsel: There is no evidence in the record as to that, Ma'am. So I
don't know, but there is no evidence in the record, so yes. . . . He was fired,
in this case, he was fired for, specifically, placing the initials, pouring
government concrete.
Mr. Crane stresses that the Air Force was aware of his side business and did not warn him
that any aspect of what he was doing was deemed improper activity that could lead to
termination of his employment. It was conceded at oral argument that there is no evidence
of any objection to or criticism of this activity. The government stated that it does not know
"based on the facts in this record, whether [Mr. Crane's side business] was a business that
he conducted on Nellis Air Force Base itself or whether it was in his garage."
The government acknowledged that Mr. Crane's supervisor authorized the prototype
barrier that led to Mr. Crane's removal. The record shows that the preparation of the barrier
using a new process was known to Mr. Crane's supervisor and the "wing leadership." It
was undisputed that the submission to the Speedway was enabled by supervisor MSgt
Huibregtse, who also testified that he was not aware of the "LVMS" stamp on the barrier.
The government stresses that Mr. Crane destroyed the prototype after he learned of the
investigation. Colonel Foti testified that the removal was based on the construction of the
prototype and that the placement of the LVMS stamp "led me to believe that there was an
ulterior motive to use government property for some other financial gain." Transcript, App.
at 115.
2006-3238 5
The government argues that Mr. Crane's removal is supported because the
placement of "LVMS" on the prototype barrier shows his intention to use the prototype to
solicit business from Speedway. Whether or not this activity was appropriate, it came to
Mr. Crane through persons at the Air Force. The lengthy period of condonation of the
outside business, and the conceded lack of warning that it was disapproved, leave the
penalty of "firing" without support by substantial evidence. Precedent generally requires
notice to an employee when previously condoned activity is no longer condoned, giving the
employee the opportunity to conform to any new rules. For example, in VanFossen v. Dep't
of Housing & Urban Dev., 748 F.2d 1579 (Fed. Cir. 1984) the agency removed Mr.
VanFossen for engaging in outside employment without authorization; this court vacated
the removal because Mr. VanFossen had received authorization from his area manager
and had not been warned about the possible invalidity of the authorization or told to
discontinue the conduct; this court stated: "In determining an appropriate penalty . . . failure
to consider a significant mitigating circumstance constitutes an abuse of discretion." Id. at
1581. There is MSPB precedent as to military employees, see, e.g., Davis v. Dep't of the
Army, 33 M.S.P.R. 223, 230 (1987) (on charges including unauthorized possession and
misuse of government property, the Board found that "the use of government property for
which he was charged was initially authorized by his supervisor" and therefore that the
maximum reasonable penalty was a demotion and a sixty-day suspension); Tallis v. Dep't
of Navy, 20 M.S.P.R. 108, 111 (1984) (factors such as the express permission from the
employee's supervisor for the charged misuse of government computer facilities and the
2006-3238 6
employee's twenty-five years of satisfactory service mitigate the penalty to a two-day
suspension).
In determining a penalty, all relevant factors must be weighed in the context of the
infraction, as explained in Douglas v. Veterans Admin., 5 M.S.P.R. 280, 303 (1981)
("Before it can properly be concluded that a particular penalty will promote the efficiency of
the service, it must appear that the penalty takes reasonable account of the factors relevant
to promotion of service efficiency in the individual case."). Of particular relevance to the
reasonableness of the agency penalty here imposed is "[t]he clarity with which the
employee was on notice of any rules that were violated in committing the offense, or had
been warned about the conduct in question." Douglas, 5 M.S.P.R. at 305.
Mr. Crane directs attention to other Douglas factors that also weigh in his favor,
including his commendations and awards and lengthy government service, and that the AJ
found that "Mr. Crane had no documented disciplinary actions." On the record before us,
where Mr. Crane's supervisors knew of and authorized the charged conduct (except for the
placement of the initials), and Mr. Crane was not instructed or warned that he had violated
various rules, the penalty of separation from service was not reasonably within the Douglas
parameters. Douglas states that "the Board's review of an agency-imposed penalty is
essentially to assure that the agency did conscientiously consider the relevant factors and
did strike a responsible balance within tolerable limits of reasonableness." In determining
Mr. Crane's penalty, the agency as well as the Board failed to consider the relevant factor
of Mr. Crane's supervisor's involvement in informing Mr. Crane of the LVMS business
opportunity and approving the prototype. Thus, the agency did not give meaningful
2006-3238 7
consideration to a key relevant factor. The removal is reversed; we remand to the Board
for reinstatement of Mr. Crane to his position, and determination of any appropriate
disciplinary action upon consideration of all of the Douglas factors.
2006-3238 8
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3238
DONALD L. CRANE,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
PROST, Circuit Judge, dissenting.
According to the majority, “[t]he lengthy period of condonation of [Mr. Crane’s]
outside business, and the conceded lack of warning that it was disapproved, leave the
penalty of ‘firing’ without support by substantial evidence.” Maj. Op. at 6. Mr. Crane,
however, was not terminated for operating an outside business; Mr. Crane was
terminated for misusing government resources. As such, the fact that the Air Force
condoned Mr. Crane’s outside business is irrelevant to this appeal. What is relevant is
that the record is devoid of any evidence the Air Force ever condoned Mr. Crane’s use
of government resources in his outside business. Accordingly, I respectfully dissent.
What the record does show is that Mr. Crane constructed a prototype concrete
barrier using government equipment and materials and that he used the prototype in a
proposal to the Las Vegas Motor Speedway. To the extent Mr. Crane’s supervisor
approved the construction of the prototype, it was to see if the “wing leadership” would
“buy off” on the new design. However, Mr. Crane failed to submit the appropriate
documentation to the Air Force. Instead, he went ahead and constructed his prototype
using government equipment and materials, stamped it with the letters “LVMS,” used it
in a proposal to the Las Vegas Motor Speedway (which just so happens to have the
initials “LVMS”), never submitted the completed prototype to the anyone in his chain-of-
command, and then had it destroyed once he learned the Air Force was investigating
him for misusing government property. Under these circumstances, a warning that this
type of activity was inappropriate is not necessary. Mr. Crane should have known
better. Moreover, his unauthorized destruction of the barrier, initial refusal to explain the
meaning of the initials “LVMS” to his superior, and dubious subsequent explanation of
their meaning demonstrate that Mr. Crane did know better. This court reviews an
agency’s decision as to the appropriateness of a penalty with great deference, deferring
to the agency unless the penalty amounts to an abuse of discretion. Brook v. Corrado,
999 F.2d 523, 528 (Fed. Cir. 1993). The circumstances of this case clearly do not
warrant withholding that deference. Simply put, the conclusion that Mr. Crane misused
government equipment, materials, and premises was supported by substantial
evidence, and his termination was not an abuse of discretion. Accordingly, the decision
of the Merit Systems Protection Board should be affirmed in its entirety.
06-3238 2