MERIT SYSTEMS PROTECTION BOARD
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Case
Report for January 22, 2010 |
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BOARD DECISIONS
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Appellant: John Doe Agency: Department of Justice Decision
Number: 2010
MSPB 16 Docket
Number: CH-0752-04-0620-M-1 Issuance
Date: January 15, 2010 Appeal
Type: Adverse Action by Agency Action
Type: Removal Nexus This
case was before the Board on remand from the decision of the U.S. Court of
Appeals for the Federal Circuit, 565 F.3d 1375
(Fed. Cir. 2009), which vacated and remanded the Board’s decision, 107
M.S.P.R. 397 (2007). The
Board had held that there was a nexus between the off-duty activity of the
appellant (an FBI Special Agent) – videotaping sexual encounters with 3
women, 2 of whom worked as support staff in the appellant’s division, without
their consent – and the efficiency of the service, and that the removal
penalty was within the bounds of reasonableness. In vacating the Board’s decision, the court held that the
Board failed to articulate a meaningful standard as to when private
dishonesty rises to the level of misconduct that adversely affects the
“efficiency of the service.” The
court stated that the articulation of a meaningful standard was particularly
necessary in light of the apparent conflict between the FBI’s policy on
investigating personal relationships and its policies requiring their agents
to act with integrity and honesty.
The court also found that the Board failed to address the fact that
the agency’s decisions to sustain the charge of misconduct and to impose the
removal penalty were influenced in part by the assumed criminality of the
appellant’s conduct. (Both the administrative judge and the Board found that
the agency failed to establish a criminal violation.) The court held that in the absence of
a violation of criminal law, the agency was permitted to discipline an
employee for off-duty personal conduct only if the conduct impacted the
agency’s ability to perform its responsibilities or if the conduct
constituted a violation of an internal regulation. The court remanded the case to the Board to consider
“whether the agency (1) rendered its decision based on a determination
that Doe’s conduct satisfied either of those two prongs; and thereafter
(2) would have imposed the penalty of removal as an appropriate
disciplinary measure, independent of any determination that a violation of
criminal law had occurred.” Holdings: 1. The agency had the authority to
investigate and discipline the appellant for the conduct at issue. a. Under the agency’s “Personal Relationships Policy,” the
private life of an FBI employee like the appellant is subject to inquiry when
his conduct “may” negatively impact upon the ability of the FBI to perform
its responsibilities, violate the law, or violate an internal
regulation. The term “may” is
construed according to it ordinary, common meaning, referring to a
“reasonable possibility.” b. Here, even assuming that there was no reasonable
possibility that the appellant’s conduct violated a law, there was at least a
reasonable possibility that the appellant’s actions of videotaping his sexual
encounters with 3 women without their consent, 2 of whom worked for the
agency, negatively impacted the agency’s ability to perform its
responsibilities and violated an internal regulation. c. Because the appellant’s conduct “may” have negatively
impacted the ability of the FBI to perform its responsibilities and violated
an internal regulation, the agency was not prohibited under the Personal
Relationships Policy from investigating and disciplining the appellant for
the unprofessional conduct set forth in the agency’s charge. 2. The case must be remanded for further
development of the record with respect to the issue of whether the agency
would have disciplined the appellant, and would have decided on the penalty
of removal if it decided to discipline him, absent the “legal error” of
assuming that his conduct was criminal. 3. The agency has shown by preponderant
evidence (more likely true than not) that the appellant’s unprofessional
conduct of videotaping his sexual encounters with 2 FBI employees adversely
affected the job performance of those employees, as well as the job
performance of other employees and the efficiency of the office as a whole. a. The “nexus” doctrine relates to the requirement of 5 U.S.C.
§ 7513(a) that an agency may take an adverse action against an
employee “only for such cause as will promote the efficiency of the service.” b. Under Kruger v.
Department of Justice, 32
M.S.P.R. 71 (1987), an agency may show a nexus between off-duty
misconduct and the efficiency of the service by any of 3 means: (1) a rebuttable presumption in
certain egregious circumstances; (2) preponderant evidence that the
misconduct adversely affects the appellant’s or coworkers’ job performance or
the agency’s trust and confidence in the appellant’s job performance; or
(3) preponderant evidence that the misconduct interfered with or
adversely affected the agency’s mission. Here, neither the first or third of these criteria is
applicable. c.
The agency adduced a great
deal of evidence that the appellant’s conduct adversely affected the 2 agency
employees who were videotaped without their consent. The record also reflects that dealing
with the consequences of the appellant’s actions occupied a great deal of
time and attention on the part of the agency’s managers, and adversely
affected other employees’ job performance and the efficiency of the office as
a whole. Appellant: James Argabright Agency: Department of Defense Decision
Number: 2010
MSPB 17 Docket
Number: AT-4324-09-0507-I-1;
AT-4324-09-0508-I-1 Issuance
Date: January 21, 2010 Appeal
Type: Uniformed Services
Employment and Reemployment Rights Act (USERRA) Board
Procedures/Authorities The
agency petitioned for review of an initial decision that dismissed these
USERRA appeals without prejudice.
During a 30-day period during which the appeals were suspended to
allow the parties time to pursue additional discovery and settlement, the
appellant’s attorney filed a motion to dismiss the appeals without prejudice,
the sole basis for which was the attorney’s assertion that the appellant “is
suffering from a medical condition that renders him unable to proceed with
the case at this time.” The
administrative judge granted the motion the next day, issuing an initial
decision that dismissed the appeals without prejudice without specifying a
deadline for refiling. In its
petition for review, the agency argues that the administrative judge abused
his discretion in dismissing the appeals without prejudice and requests that
the Board sanction the appellant by dismissing the appeals with prejudice,
or, in the alternative, remand the appeals for further adjudication under
specified conditions. Holdings: The Board granted the agency’s
petition for review, vacated the initial decision, and remanded the appeals
for further adjudication: 1. An administrative judge has wide
discretion to control the proceedings before him and the dismissal without
prejudice to refiling is a procedural option committed to his sound
discretion. 2. The administrative judge abused his
discretion here by failing to ascertain the nature of the medical condition
or how long the condition might be expected to persist, and without offering
the agency an adequate opportunity to respond to the appellant’s motion
before ruling on it. In
addition, the administrative judge abused his discretion in dismissing the
appeals without setting a refiling date. 3. The Board denied the agency’s request
to dismiss the appeal with prejudice, which would be tantamount to a
dismissal for failure to prosecute, the most severe sanction available to the
Board, which is reserved for limited circumstances not present here. 4. The Board also denied the agency’s
request that the appeals be reassigned to a different administrative judge on
remand. Although the dismissal
without prejudice constituted an abuse of discretion, this case-related
ruling is insufficient to overcome the presumption of honesty and integrity
that accompanies the administrative judge. COURT
DECISIONS The
U.S. Court of Appeals for the Federal Circuit issued nonprecedential
decisions in the following cases: Alford v. Office of Personnel Management, No. 2009-3269
(Jan. 11, 2010) (MSPB Docket No.
PH-844E-08-0616-I-1) (affirming the Board’s decision, 111
M.S.P.R. 536 (2009), which affirmed OPM’s denial of an application for
disability retirement benefits) Miller v. Merit Systems Protection Board, No. 2009-3216
(Jan. 11, 2010) (MSPB Docket No. DC-0752-08-0714-I-1) (affirming the
Board’s decision, 111
M.S.P.R. 325 (2009), which dismissed the appeal for lack of jurisdiction) Mitchell v. Merit Systems Protection Board, No. 2009-3221
(Jan. 11, 2010) (MSPB Docket No. AT-0752-08-0769-I-1) (affirming the Board’s
decision, 111
M.S.P.R. 346 (2009), which dismissed a petition for review as untimely
filed without good cause shown) Zelenka v. Office of Personnel Management, No. 2009-3065
(Jan. 13, 2010) (MSPB Docket No. PH-831M-07-0316-B-1) (reversing the
Board’s decision, 110
M.S.P.R. 205 (2008), which concluded that the petitioner was not entitled
to a waiver of her debt to the government arising out of overpayment of
disability retirement benefits) Anthony v. Office of Personnel Management, No. 2009-3257
(Jan. 14, 2010) (MSPB Docket No. DA-844E-09-0064-I-1) (affirming the
Board’s decision, which affirmed OPM’s denial of an application for
disability retirement) Fabisiak v. Almaden v. Office of Personnel Management, No. 2009-3300
(Jan. 15, 2010) (MSPB Docket No. SF-0843-09-0468-I-1) (affirming the
Board’s decision, which affirmed OPM’s denial of survivor annuity benefits) [ REFORMATTED BY PERMERICA.COM ] |