Tyler v. Department of Army , 466 F. App'x 869 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EDMOND TYLER, II,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
2011-3098
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC0752100401-I-1.
__________________________
Decided: January 17, 2012
___________________________
EDMOND TYLER, II, of Washington, DC, pro se.
CHRISTOPHER A. BOWEN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and MARTIN F.
HOCKEY, JR., Assistant Director.
__________________________
TYLER v. ARMY 2
Before RADER, Chief Judge, and O’MALLEY and REYNA,
Circuit Judges.
REYNA, Circuit Judge.
Edmond Tyler, II appeals the final decision of the
Merit Systems Protection Board (“MSPB”) affirming his
removal from his position as a police officer based on
various charges relating to conduct unbecoming of a police
officer. Because we find the MSPB’s decision to be sup-
ported by substantial evidence and in accordance with the
law, we affirm.
I. BACKGROUND
Mr. Tyler was employed as a police officer on Fort
Detrick, Maryland at the Walter Reed Army Medical
Center. On January 25, 2010, Mr. Tyler was informed of
his proposed removal from that position based on three
charges: (1) falsifying information on a government em-
ployment form; (2) conduct unbecoming of a police officer;
and (3) failure to maintain a requirement of his position,
namely, the ability to operate a motor vehicle.
As to the first charge of falsification, on July 23, 2008
when he was applying for his police officer position, Mr.
Tyler answered “No” to a question on employment form
OF-306 that asked whether he had been convicted, im-
prisoned, put on probation, or been on parole for any
felonies, misdemeanors, or other offenses in the last 10
years. The form instructions stated that that traffic
violations resulting in fines of $300 or less could be omit-
ted. Despite his answering “No”, Mr. Tyler had in fact
been convicted on December 19, 2002 in Willingboro, New
Jersey of driving while intoxicated and had his license
revoked for a two year period, in addition to being sen-
tenced to 30 days of community service and charged $855
in fines and court fees. Mr. Tyler reaffirmed his answers
3 TYLER v. ARMY
by signing the same form OF-306 again on August 18,
2008 after his appointment to the police officer position.
It was not until January 19, 2009, on a form SF-86 com-
pleted by Mr. Tyler at that time, that he answered “Yes”
to the question of whether he had been arrested or con-
victed in the last 7 years. At that point, Mr. Tyler listed
two prior convictions, though he ostensibly supplied the
wrong date of June 2001 for his December 19, 2002 con-
viction in Willingboro, and mischaracterized the extent of
the penalties imposed as only a license suspension.
As to the second charge of conduct unbecoming of a
police officer, Mr. Tyler was arrested on August 21, 2009
for driving while intoxicated in Washington, DC. He had
struck a truck, causing some minor damage, and was
described by the arresting officer as “incoherent,” unable
to recite the alphabet beyond the letter “c,” and unable to
count using his fingers past the number one. His blood
alcohol content was 0.31, more than three times the legal
limit. Mr. Tyler was again arrested for driving under the
influence of alcohol in Hyattsville, MD on October 21,
2009, after being pulled over for erratic driving and
failing a number of field sobriety tests. A preliminary
breathalyzer test revealed that Mr. Tyler had a blood
alcohol content of 0.263. While being transported to the
police station, Mr. Tyler threatened the arresting officer
with physical violence and had to be restrained. He also
refused to complete additional breath alcohol content
testing. Mr. Tyler later failed to appear for a court hear-
ing regarding the Maryland incident, and a warrant was
issued for his arrest.
As to the third charge of failure to maintain a condi-
tion of his employment, on November 9, 2009 Colonel
Judith Robinson suspended and ultimately revoked Mr.
Tyler’s base driving privileges. This revocation was due
to Mr. Tyler’s Maryland arrest, his admissions of drunk
TYLER v. ARMY 4
driving, and his refusal to submit to having his blood
alcohol content measured by the Maryland Police De-
partment.
After Mr. Tyler was given notice of the decision to re-
move him from his position, he was given an opportunity
to respond. Raymond Wharton, Director of Emergency
Services at Fort Detrick, rejected all of Mr. Tyler’s at-
tempts to explain away the charges and made Mr. Tyler’s
removal effective March 27, 2010. Mr. Tyler’s allegation
that he misunderstood the form OF-306’s instructions was
found not credible since the form very clearly required
disclosure of the December 19, 2002 conviction. While
Mr. Tyler disagreed with portions of the arresting officer’s
account of the events in Hyattsville, MD, he did admit to
drinking and driving. Mr. Wharton also rejected Mr.
Tyler’s excuse for missing his court date—that the notice
to appear was sent to the wrong address—stating that
Mr. Tyler had an obligation to stay on top of such schedul-
ing to ensure he appeared as required. That an unrelated
medical disability previously limited Mr. Tyler’s ability to
operate a motor vehicle, and that he had not operated a
government vehicle since January 2009, was deemed
irrelevant to the fact that his revocation of driving privi-
leges makes him unable to meet a condition of his em-
ployment. Overall, Mr. Tyler’s conduct was found more
than sufficient to demonstrate that he was unfit to con-
tinue as a police officer in a position of such paramount
public trust and responsibility.
After his removal became effective on March 27, 2010,
Mr. Tyler appealed to the MSPB, where he was repre-
sented by counsel until May 18, 2010. At a pre-hearing
status conference on June 14, 2010, the Army proposed to
call Colonel Robinson, Mr. Wharton, and Mr. Tyler as
witnesses. Mr. Tyler later called the administrative judge
(“AJ”) and asked if he could offer his first-line supervisor
5 TYLER v. ARMY
Chief Sherieka as a witness. The AJ told Mr. Tyler that
his request was untimely, and so Mr. Tyler indicated that
he would rather not have a hearing and would prefer that
the case be decided on the written record. The AJ asked
Mr. Tyler to formally withdraw his request for a hearing,
but instead Mr. Tyler submitted a motion to delay the
hearing and offer five witnesses of his own. Mr. Tyler’s
motion was denied as untimely and the hearing proceeded
on June 18, 2010 without Mr. Tyler’s witnesses.
The AJ’s initial decision affirmed Mr. Tyler’s removal.
While Mr. Tyler contended that he believed his 2002
conviction was a mere traffic violation, not a criminal
violation requiring disclosure, and that a background
investigator told him to just sign the form, the AJ rejected
these contentions as not credible, or at a minimum show-
ing a reckless disregard for the truth. The AJ also re-
jected Mr. Tyler’s contention that he should not be held
accountable for the Hyattsville, MD arrest because the
charge was ultimately dismissed by the court. As the AJ
explained, the issue is whether the underlying act of
driving while intoxicated—to which Mr. Tyler admitted—
was recklessly unsafe conduct unbecoming of a police
officer, not whether Mr. Tyler was convicted for his ac-
tions. As to Mr. Tyler’s failure to appear for his court
hearing in connection with the Hyattsville charges, the AJ
found that Mr. Tyler could not be held responsible for the
arresting officer’s mistake in entering the wrong address
for Mr. Tyler, particularly since Mr. Tyler made every
effort to appear before the court once the error became
known to him. Lastly, the AJ noted that Mr. Tyler did
not deny his inability to drive a motor vehicle on base
once his privilege had been revoked, or that his ability to
drive was a requirement of his position. The AJ therefore
concluded that Mr. Tyler’s conduct and circumstances
seriously undermined his ability to continue serving as a
TYLER v. ARMY 6
police officer, particularly given the high standards of
integrity and professionalism expected of police officers.
The AJ noted that any of the three charges alone would be
sufficient to justify Mr. Tyler’s termination, and that all
directly impacted his ability to continue to serve in his
then current position.
Upon petition for review, the MSPB affirmed. One
new argument made by Mr. Tyler to the MSPB was that
the AJ erred by denying his request to present witnesses
at the hearing. He argued that the untimeliness of his
request should be excused because he was in a transient
living situation due to an apartment fire. The MSPB
rejected this argument, finding that the AJ has consider-
able discretion to control the manner of proceedings, and
that even if Mr. Tyler’s excuse constituted good cause, he
failed to explain the substance of the intended testimony
to show that it would have been material to the outcome
of the appeal. A2-3 (citing 5 C.F.R. § 1201.41(b) and
Sanders v. SSA, 2010 M.S.P.B. 155, P10 (M.S.P.B. 2010)
(“[A]n administrative judge has wide discretion to control
the proceedings, including the authority to exclude testi-
mony she believes would be irrelevant, immaterial, or
unduly repetitious.”)). Mr. Tyler also argued that he is an
alcoholic, but did not request special accommodation other
than to be reinstated. The MSPB rejected this argument
because, even if it were presented as an affirmative
defense in the form of a disability, the existence of such a
condition does not excuse one from having to meet the
qualifications and standards for employment or job per-
formance, even if the failure to qualify or perform is
related to the alcoholism. 42 U.S.C. § 12114(c)(4) (2006).
Finding these arguments without merit, and that the
underlying charges and determinations were fully sup-
ported by the record, the MSPB made the decision of the
AJ final. This appeal followed.
7 TYLER v. ARMY
II. DISCUSSION
Our review of decisions of the MSPB is limited by
statute. We may only set aside agency actions, findings,
or conclusions if we find them to be “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accor-
dance 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) (2006).
On appeal, Mr. Tyler continues to seek reinstatement
to his position as a police officer by challenging the merits
of the charges against him. He also reiterates his argu-
ment that the MSPB should have allowed him to present
witnesses at his hearing despite his untimeliness in
offering the witnesses. He attributes at least some of the
blame for his untimeliness to the fact that he was no
longer represented by counsel as of a month before the
hearing, leaving him to proceed pro se. Mr. Tyler believes
that he received an unfair trial because he was forced to
represent himself.
First, as to the merits of Mr. Tyler’s termination, sub-
stantial evidence supports the MSPB’s findings that Mr.
Tyler falsely completed his form OF-306 by intentionally
omitting his prior driving while intoxicated conviction, or
at least completed the form with reckless disregard for
the truthfulness of his response. The form’s instructions
were clear that the December 2002 conviction should have
been disclosed, and we cannot second guess the prior
determinations made as to the credibility of Mr. Tyler’s
belief that he need not disclose the conviction. Gibson v.
Department of Veterans Affairs, 160 F.3d 722, 725 (Fed.
Cir. 1998) (explaining that credibility determinations are
“virtually unreviewable” on appeal). Substantial evidence
also supports the MSPB’s finding that Mr. Tyler did
TYLER v. ARMY 8
indeed conduct himself in a manner unbecoming of a
police officer via his multiple incidents of driving while
intoxicated, and that revocation of Mr. Tyler’s base driv-
ing privileges left him unable to perform all of his re-
quired job duties. As the MSPB concluded, any of these
three charges is sufficient to justify Mr. Tyler’s termina-
tion, especially in light of the high degree of public trust
and responsibility given to police officers.
Second, regarding Mr. Tyler’s argument that he
should have been permitted to present his belatedly
offered witnesses, we agree with the MSPB that the AJ’s
exclusion of those witnesses was not an abuse of discre-
tion. Not only was Mr. Tyler’s offer untimely, but we see
nothing in the record as to the expected content of the
witnesses’ testimony to indicate that the testimony could
have had a material impact on the proceedings. Absent
such evidence, even if Mr. Tyler had good cause for the
delay, we cannot conclude that the exclusion of the wit-
nesses’ testimony was harmful error. See Nichols v. U.S.
Postal Service, 80 M.S.P.R. 229, ¶7 (1998) (refusing to
disturb AJ’s decision to exclude witnesses because the
appellant did not explain how he was prejudiced by their
exclusion).
Lastly, as to Mr. Tyler’s argument that he did not re-
ceive a fair trial because he was proceeding pro se at the
time of the hearing, we note that Mr. Tyler was repre-
sented by counsel until a month before the hearing, and
that during this time he did not indicate an intention to
offer witnesses. The record does not, moreover, reflect
that Mr. Tyler requested a continuance for the purpose of
seeking new counsel. In any event, civil litigants are not
entitled to representation, and the absence of counsel does
not make proceedings inherently unfair. Lariscey v.
United States, 861 F.2d 1267, 1270 (Fed. Cir. 1988) (“The
[Supreme] Court [has] stated the strong presumption that
9 TYLER v. ARMY
a right to appointed counsel exists only when the indigent
may lose his/her personal freedom if the action is lost . . . .
Beyond this narrow framework, the Supreme Court has
not recognized a constitutional right to appointed counsel
in civil matters.”). We are aware of no authority by which
the MSPB was obligated to provide counsel to Mr. Tyler.
III. Conclusion
Because this appeal presents no basis for this court to
disturb the decision of the MSPB, its judgment is hereby
AFFIRMED
COSTS
No costs.