James King v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES E. KING, DOCKET NUMBER
Appellant, AT-0752-21-0271-I-1
v.
DEPARTMENT OF THE ARMY, DATE: June 28, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael I. Sheeter and Morgan Smith, Esquire, Dallas, Texas, for the
appellant.
Mary Rae Dudley, Fort Gordon, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which sustained his removal. On petition for review, the appellant argues that the
administrative judge erred in sustaining the three charges of misconduct, erred in
finding that he did not establish his affirmative defenses of harmful error, equal
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
employment opportunity (EEO) retaliation, and disability discrimination, and
erred in finding that the penalty of removal was within the bounds of
reasonableness. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case;
the administrative 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. 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, 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. Except as expressly MODIFIED to
address the appellant’s disparate penalty claim, we AFFIRM the initial decision. 2
2
To the extent that the appellant alleges that the agency committed harmful procedural
error because it failed to provide him with due process rights, i.e. notice and
an opportunity to respond, regarding its decision to decertify him from the Individual
Responsibility Program (IRP), Petition for Review File, Tab 4 at 17, due process rights
are not extended to an agency’s discretionary decision to revoke a previously granted
privilege. See Holton v. Department of the Navy, 123 M.S.P.R. 688, ¶ 29 (2016)
(finding that the agency was entitled to revoke the appellant’s privilege to report to
duty, although he remained in a pay status, after a failed drug test without affording him
due process), aff’d, 884 F.3d 1142 (Fed. Cir. 2018); see, e.g., Department of the Navy v.
Egan, 484 U.S. 518, 528-29 (1988) (observing that an employee does not have a right to
a security clearance because granting of such a clearance is a discretionary act);
Gargiulo v. Department of Homeland Security, 727 F.3d 1181, 1184-85 (Fed. Cir. 2013)
(finding that, because an employee does not have a property interest in a security
clearance, its revocation does not implicate due process) . Because granting the IRP
certification is a discretionary act by the agency, the agency has a right to revoke it
without extending due process rights. The appellant did receive all appropriate due
process rights regarding his removal from the Federal service, which was based, in part,
on his failure to a maintain a condition of employment, namely the IRP certification.
3
¶2 The appellant has alleged below and on review that his first-line supervisor
is a comparator and that the agency treated him more leniently for purposes of the
penalty determination in this case. Initial Appeal File (IAF), Tab 24 at 11,
Tab 25 at 4; Petition for Review File, Tab 4 at 15-16. Although not addressed in
the initial decision, we find that the appellant has not proven this claim.
¶3 To establish disparate penalties, the appellant must show that the charges
and the circumstances surrounding the charged behavior are substanti ally similar
to those in the comparator’s case. Archuleta v. Department of the Air Force,
16 M.S.P.R. 404, 4007 (1983); see Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305 (1981) (calling for a comparison with penalties “imposed
upon other employees for the same or similar offenses”). As explained by the
administrative judge in his analysis of the appellant’s clam of retaliation for EEO
activity, IAF, Tab 29, Initial Decision (ID) at 16-18, the circumstances
surrounding the appellant’s first-line supervisor’s conduct are significantly
different from the charges in this appeal. Moreover, the proper inquiry is whether
the agency knowingly treated employees differently “in a way not justified by the
facts, and intentionally for reasons other than the efficiency of the service.”
Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988). The
appellant has not shown such treatment here. Thus, he has not shown that his
first-line supervisor is a proper comparator.
¶4 In any event, the consistency of the penalty with those imposed upon other
employees for the same or similar offenses is simply one of a nonexhaustive list
of 12 factors that are relevant for consideration in determining the
appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305-06. The deciding
official and the administrative judge otherwise properly weighed those factors in
finding the penalty of removal reasonable in this case. ID at 21-23.
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NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of yo ur case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your c ase, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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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. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.