Scott J. Alguire v. Department of Agriculture ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT J. ALGUIRE, DOCKET NUMBER
Appellant, SF-0752-14-0343-I-2
v.
DEPARTMENT OF AGRICULTURE, DATE: November 20, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Lori Zaremba, Santa Maria, California, for the appellant.
Meagan E. Garland and Suzanne K. Roten, Esquire, San Diego, California,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s indefinite suspension of the appellant. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See 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, and based on the following
points and authorities, 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 and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant was indefinitely suspended effective January 24, 2014,
pending completion of criminal proceedings relative to his indictment on three
felony counts. MSPB Docket No. SF-0752-14-0343-I-1, Initial Appeal File,
Tab 6 at 23. On May 8, 2014, a jury found the appellant not guilty on all of the
criminal charges. MSPB Docket No. SF-0752-14-0343-I-2, Initial Appeal File
(IAF-2), Tab 1 at 4-5. The appellant was returned to duty with back pay
retroactive to the day after the not guilty verdict was rendered. IAF-2, Tab 5
at 11. The appellant appealed his indefinite suspension to the Board, and a
hearing was held on July 18, 2014. IAF-2, Tab 7, Initial Decision (ID) at 1. The
administrative judge issued an initial decision on July 24, 2014, affirming the
agency’s decision to indefinitely suspend the appellant. ID at 1. The appellant
filed a timely petition for review of the initial decision. Petition for Review
(PFR) File, Tab 1. The agency filed a response in opposition to the appellant’s
petition. PFR File, Tab 3.
¶3 On review the appellant has presented alleged new evidence, which he
states became available after the hearing: an order issued by the U.S. District
Court for the Central District of California, on July 17, 2014, dismissing with
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prejudice the first superseding indictment as well as the underlying indictment in
the criminal case against the appellant. PFR File, Tab 1 at 4-5. The Board will
not grant a petition for review based on new evidence absent a showing that it is
of sufficient weight to warrant an outcome different from that of the initial
decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). Even
assuming that the court order the appellant has submitted is new, it is not of
sufficient weight to warrant a different outcome.
¶4 The fact that the indictments against the appellant were eventually
dismissed is irrelevant in determining whether the agency had reasonable cause to
believe, at the time that it indefinitely suspended him, that the appellant
committed a crime for which a sentence of imprisonment could be imposed. See
Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, ¶ 17 (2010) (the
resolution of the criminal proceedings that are the grounds for an indefinite
suspension triggers the end of the indefinite suspension), aff’d, 451 F. App’x 947
(Fed. Cir. 2011). The indictments were sufficient reasonable cause for the agency
to indefinitely suspend the appellant, even though they were eventually
dismissed. See Hernandez v. Department of the Navy, 120 M.S.P.R. 14, ¶ 7
(2013) (the Board has held that “reasonable cause” in the context of an indefinite
suspension based on possible criminal misconduct is virtually synonymous with
“probable cause,” which is necessary to support an indictment). The new
evidence the appellant has submitted on review, which shows the indictments
against him were dismissed after a jury found him not guilty several months after
the agency’s decision to indefinitely suspend him, does not warrant disturbing the
administrative judge’s findings in the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
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The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
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respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.