Opinion

Aaron L Jones v. Government Publishing Office

Court: Merit Systems Protection Board
Filed: Sep 4, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

finding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge

How later courts described this case

finding that, when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

AARON L. JONES, DOCKET NUMBER

Appellant, DC-0752-21-0345-I-1

GOVERNMENT PUBLISHING DATE: September 4, 2024

OFFICE,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.

Sandi Boyd , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The agency has filed a petition for review of the initial decision, which

reversed the agency’s demotion action on the charges of failure to follow

applicable rules, laws, regulations, or policies and careless or negligent

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

performance of duties. For the reasons discussed below, we GRANT the

agency’s petition for review and REVERSE the administrative judge’s finding

that the agency failed to prove the charge of careless or negligent performance of

duties. The appellant’s demotion is SUSTAINED.

BACKGROUND

The appellant was a PQ-0083-07 Supervisory Police Officer for the U.S.

Government Publishing Office (GPO) Uniformed Police Branch, Security

Services Division in Washington, D.C. Initial Appeal File (IAF), Tab 1 at 1, 7.

On August 11, 2020, a GPO employee (hereinafter GPO Employee) entered a

security checkpoint building in the rear of the GPO parking lot and placed his

lunch bag in the X-ray machine for screening. IAF, Tab 19 at 92. The Special

Police Officer on duty identified what appeared to be a firearm and notified the

GPO Police Control Center. Id. A GPO Police Officer responded to the scene

shortly thereafter and verified that the outer pocket of the GPO Employee’s bag

contained a loaded Glock Model 33 semi-automatic firearm. Id. The GPO

Employee told the responding GPO Officer that he had forgotten he had left his

pistol in his lunch bag and produced permits to carry the firearm from Utah,

Florida, Maryland, and Pennsylvania. IAF, Tab 7 at 11. At some point it became

known that the GPO Employee was not licensed to carry a firearm in the District

of Columbia (D.C.) and that he did not have a firearm registered in D.C. See

IAF, Tab 7 at 9, Tab 8 at 18-19, Tab 9 at 4.

The responding GPO Officer contacted the appellant, his supervisor, and

when the appellant arrived on the scene, the appellant removed the firearm from

the outer pocket and placed it inside the lunch bag. IAF, Tab 19 at 92. The

appellant then allowed the responding GPO Officer and a second GPO Police

Officer to escort the GPO Employee to his truck in the GPO lot and allowed the

responding GPO Officer to place the GPO Employee’s bag containing the loaded

firearm into the rear of the GPO Employee’s truck. Id. The appellant then

instructed another officer to inform the responding GPO Officer to conduct a

wants and warrants check on the GPO Employee, which came back clear. Id.; see

also IAF, Tab 7 at 9, 11. Shortly afterward, the appellant allowed the GPO

Employee to drive his vehicle with the loaded gun off GPO property and back to

his residence in Maryland. IAF, Tab 19 at 92.

By letter dated November 17, 2020, the agency proposed demoting the

appellant based on one charge of failure to follow applicable rules, laws,

regulations, or policies and one charge of careless or negligent performance of

duties as a result of the August 2020 incident when the appellant failed to

confiscate the GPO Employee’s firearm and place him under arrest for the illegal

possession of a firearm. Id. at 91-95. On March 9, 2021, the agency sustained

the charges and the decision to demote the appellant. IAF, Tab 1 at 7-9. The

appellant was demoted from a PQ-0083-07 Supervisory Police Officer to a

PQ-0083-05 non-lead Police Officer effective March 14, 2021. Id. at 7.

The appellant filed the instant Board appeal on April 13, 2021. IAF, Tab 1.

After holding the requested hearing, the administrative judge reversed the

agency’s demotion action. IAF, Tab 39, Initial Decision (ID) at 1. The

administrative judge concluded that the agency failed to prove by a

preponderance of the evidence the charge of failure to follow applicable rules,

laws, regulations, or policies; specifically, the administrative judge found that the

agency failed to prove that the appellant had violated GPO Directive 825.38B,

GPO Directive 630.5A, D.C. Code § 22-4504, 2 D.C. Code § 7-2506.01, and

18 U.S.C. § 930. 3 ID at 4-10; IAF, Tab 19 at 92-94. He also concluded that the

In the proposal letter, the agency alleges that the appellant violated D.C. Code

§ 22-5504 and cites the language of that provision. IAF, Tab 19 at 93. However, the

language cited comes from D.C. Code § 22-4504. The administrative judge did not

identify this error in the initial decision. See ID at 7.

GPO Directive 825.38B provides that, with the exception of law enforcement

personnel, no person entering or on GPO property will carry or possess a firearm; GPO

Directive 630.5A provides that possession of a weapon on GPO property will not be

tolerated and may result in corrective action; D.C. Code § 22-4504 prohibits persons in

D.C. from carrying a pistol without a D.C. license; D.C. Code § 7-2506.01 states that no

agency failed to show that the appellant’s actions—returning the GPO

Employee’s loaded firearm to him on Federal property and failing to arrest him—

were negligent. ID at 10-11. Because the administrative judge reversed the

demotion action, he ordered the agency to return the appellant to his supervisory

position with back pay plus interest. ID at 11-12. The initial decision did not

address the issue of interim relief.

The agency has filed a petition for review. Petition for Review (PFR) File,

Tab 1. The appellant has filed a response. PFR File, Tab 3. The agency has filed

a reply. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency’s failure to provide interim relief does not warrant dismissal of its

petition for review.

The Board expects that an initial decision in which the appellant is the

prevailing party will contain a statement as to whether interim relief is provided

effective upon the date of the decision, pending the outcome of any petition for

review. Stewart v. Department of Transportation, 2023 MSPB 18, ¶ 11; see

5 C.F.R. § 1201.111(b)(4). However, when an appellant is the prevailing party in

an initial decision issued under 5 U.S.C. § 7701(b), but the initial decision is

silent on the issue of interim relief, the agency is required to provide interim

relief by operation of statute. Stewart, 2023 MSPB 18, ¶ 10. Thus, there is no

need for the Board to order interim relief at this stage, as the appellant requests.

The appellant’s request regarding interim relief is akin to a petition to

enforce an interim relief order while a petition for review is pending; the Board

treats such petitions as motions to dismiss the agency’s petition for review. See

Johnson v. Department of Veterans Affairs, 2023 MSPB 9, ¶ 7. Although it is

undisputed that the agency did not make any efforts to provide interim relief

while its petition for review was pending, we do not exercise our discretion to

person shall possess ammunition in D.C.; and 18 U.S.C. § 930 concerns persons

knowingly possessing or causing to be present a firearm in a Federal facility. IAF,

Tab 19 at 92-94.

dismiss the petition for review on that basis. See Thome v. Department of

Homeland Security, 122 M.S.P.R. 315, ¶ 16 (2015) (the Board’s authority to

dismiss an agency petition under 5 C.F.R. § 1201.116(e) is discretionary, not

mandatory). The agency did not have the benefit of the Board’s decision in

Stewart, and therefore, it did not have clear notice that it was required to provide

interim relief if the initial decision was silent on that issue. 4

The administrative judge considered the correct standard of review.

The agency argues on review that the appellant’s position as a police

officer and supervisor required a different standard of review than that of an

ordinary employee and that the administrative judge thus erred by failing to

analyze its decision to hold the appellant to a higher standard of conduct because

of his position as a law enforcement officer and supervisor. PFR File, Tab 1

at 14-16. The agency appears to erroneously conflate separate issues here. There

is no separate standard of review in adverse action cases for law enforcement

officers or supervisors. Although the Board has held that an agency is entitled to

hold law enforcement officers and supervisors to a higher standard of conduct in

the context of evaluating the reasonableness of the agency’s chosen penalty, the

reasonableness of the agency’s penalty was not at issue in the initial decision

because the administrative judge did not sustain the agency’s charges. See, e.g.,

Neuman v. U.S. Postal Service, 108 M.S.P.R. 200, ¶ 23 (2008); Brown v. U.S.

Postal Service, 64 M.S.P.R. 425, 433-34 (1994); see also Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-07 (1981). Thus, the agency’s argument is

without merit.

Although we are not granting the appellant any relief for the agency’s failure to

provide interim relief at this time, he may still have the opportunity to obtain such

relief. Pursuant to 5 C.F.R. § 1201.116(g), if the initial decision granted the appellant

interim relief, but the appellant is not the prevailing party in the final Board order

disposing of a petition for review, and the appellant believes that the agency has not

provided full interim relief, the appellant may seek to file an enforcement petition with

the regional office under 5 C.F.R. § 1201.182. Upon our issuance of this Board final

order, the appellant may file a motion with the regional office pursuant to 5 C.F.R.

§ 1201.116(g) regarding the agency’s apparent failure to provide interim relief.

The agency similarly claims that the administrative judge failed to apply

the proper and heightened standard for police officers and supervisors in

analyzing whether the appellant was careless or negligent in the performance of

his duties. PFR File, Tab 1 at 18. We also find this argument unavailing. The

administrative judge cited the correct standard for negligence in the performance

of official duties. ID at 10 (citing Mendez v. Department of the Treasury,

88 M.S.P.R. 596, ¶ 26 (2001) (stating that “[c]ulpable negligence in the

performance of official duties is a failure to exercise the degree of care required

under the particular circumstances, which a person of ordinary prudence in the

same situation and with equal experience would not omit”)); see also Thomas v.

Department of Transportation, 110 M.S.P.R. 176, ¶ 9 (2008), aff’d per curiam,

330 F. App’x 920 (Fed. Cir. 2009). To the extent that the agency is arguing that

the administrative judge applied that standard incorrectly, we are unpersuaded

because the administrative judge specifically found that “the appellant exercised

the degree of care required of a law enforcement officer with more than 25 years

of experience” in concluding that the agency failed to show that the appellant was

negligent. ID at 11. Notwithstanding this finding and the outcome of the

negligence charge, which is addressed further below, the administrative judge’s

conclusion shows that he considered the correct standard.

The administrative judge erred in analyzing the charge of careless or negligent

performance of duties.

The agency argues that the administrative judge both abused his discretion

and made an error of law affecting the outcome of the case when he found that

D.C. Code § 22-4504.02 allowed the GPO Employee to transport his firearm

through D.C. to his home in Maryland. PFR File, Tab 1 at 19-22. D.C. Code

§ 22-4504.02 provides that an individual “not otherwise prohibited by the law

from transporting, shipping, or receiving a firearm shall be permitted to transport

a firearm for any lawful purpose from any place where he may lawfully possess

and carry the firearm to any other place where he may lawfully possess and carry

the firearm” if the firearm is transported in accordance with the rest of that

section. IAF, Tab 19 at 95. In the proposal, the agency referenced D.C. Code

§ 22-4504.02 in Charge 2 in alleging that the appellant was careless and/or

negligent in the performance of his duties because he returned the loaded firearm

to the GPO Employee, even though the GPO Employee was not legally allowed to

possess and carry a firearm on Federal property, and because he then allowed the

GPO Employee to drive into D.C. with the firearm. Id. In the initial decision, the

administrative judge concluded that the agency failed to prove the appellant’s

decision to return the GPO Employee’s loaded firearm was negligent or careless

in part because D.C. Code § 22-4504.02 allows an individual to transport a

firearm to a place where he may lawfully possess and carry the firearm, and the

appellant directed the GPO Employee to transport his gun to Maryland where it

was registered. ID at 11. The administrative judge also mentioned D.C. Code

§ 22-4504.02 in his discussion of Charge 1. ID at 8-9.

We agree with the agency that the administrative judge erroneously applied

D.C. Code § 22-4504.02 to the facts at issue here and that the error affected the

outcome of the case as to Charge 2. See 5 C.F.R. § 1201.115. As the agency

points out, the administrative judge ignored the fact that D.C. Code § 22-4504.02

explicitly provides that an individual shall be permitted to transport a firearm

only if he is first traveling from a “place where he may lawfully possess and carry

the firearm.” See PFR File, Tab 1 at 20-21; see also Pirkkala v. Department of

Justice, 123 M.S.P.R. 288, ¶ 7 (2016) (finding that the starting point for every

case involving statutory construction is the language of the statute itself and that,

when statutory language is clear, it must control absent clearly expressed

legislative intent to the contrary). The GPO Employee was not licensed to carry a

firearm in D.C. and did not have a firearm registered in D.C., and the appellant

was aware of that fact. See IAF, Tab 7 at 9, Tab 8 at 18-19, Tab 9 at 4, Tab 28

at 10. We find that this was a significant legal error in the administrative judge’s

conclusion that the appellant was not negligent or careless in returning the GPO

Employee’s loaded firearm. See ID at 11.

With respect to the agency’s concurrent argument that the administrative

judge’s application of D.C. Code § 22-4504.02 constituted an abuse of discretion,

we disagree. See PFR File, Tab 1 at 21. The abuse of discretion standard is a

very high standard that allows for great deference, and here, the administrative

judge was not abusing his discretion as he was only analyzing—albeit incorrectly

—whether the appellant complied with a provision of the D.C. Code that the

agency cited in its proposal letter. See ID at 8, 11; IAF, Tab 19 at 95; see also

Lipscomb v. Department of Defense, 69 M.S.P.R. 484, 487 (1996).

The agency also argues on review that the initial decision contains an

erroneous finding of material fact with respect to the appellant’s decision to allow

the GPO Employee to take his loaded firearm back home to Maryland. PFR File,

Tab 1 at 11. The Board will grant a petition for review when the petitioner makes

a showing that the initial decision contains erroneous findings of material fact.

5 C.F.R. § 1201.115(a). To be material, an alleged factual error must be of

sufficient weight to warrant an outcome different from that of the initial decision,

and the petitioner must explain why the challenged factual determination is

incorrect and identify specific evidence in the record that demonstrates the error.

Id.

In the initial decision, the administrative judge suggests that the appellant’s

decision to allow the GPO Employee to take his loaded gun back home was

reasonable, and not negligent or careless, in part because the appellant testified

that there was no facility nearby to properly store or clear the loaded firearm and

the appellant was worried about the gun misfiring. ID at 5, 7-8, 11. On review,

the agency argues that the administrative judge’s conclusion that there was no

facility nearby to clear a loaded firearm was an erroneous finding of material fact

because it is contradicted by the appellant’s own testimony that there was in fact

a nearby location where the GPO Employee’s gun could have been safely

unloaded. PFR File, Tab 1 at 11. It argues that “an analysis using the corrected

factual information will lead to a different result.” Id. at 12.

We agree that the administrative judge made a material factual error here.

The appellant’s own hearing testimony establishes that there is a “clearing barrel”

inside the GPO building where all officers are able to safely handle their weapons

and ammunition at the beginning of each shift. See IAF, Tab 37-4, Hearing

Recording (HR) (Jones 4) at 17:00-18:45. The GPO building is adjacent to the

security checkpoint building and GPO parking lot where the events at issue took

place. See ID at 2; IAF, Tab 19 at 92. Thus, contrary to the administrative

judge’s finding, there was indeed a facility nearby that the appellant was familiar

with where the appellant could have safely unloaded the GPO Employee’s

unregistered and unlicensed firearm instead of giving it back as he found it.

Furthermore, we find, given the proper reading of D.C. Code § 22-4504.02 and

the presence of the clearing barrel, that the appellant was careless or negligent by

failing to remove the ammunition from the GPO Employee’s firearm to make it

safe and by allowing the GPO Employee to drive through D.C. back to Maryland

with the loaded firearm.

The administrative judge failed to consider all the relevant evidence regarding the

charge of careless or negligent performance of duties.

The agency also argues on review that the administrative judge erred by

ignoring important witness testimony on a disputed issue and by failing to explain

the basis for his credibility determinations regarding the agency’s policy on

making arrests during August 2020. PFR File, Tab 1 at 16-18. As the Board has

consistently stated, an initial decision must summarize the evidence and resolve

issues of credibility. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458

(1987); Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589

(1980). To resolve credibility issues, an administrative judge must identify the

factual questions in dispute, summarize the evidence on each disputed question,

state which version he believes, and explain in detail why he found the chosen

version more credible, considering such factors as: (1) the witness’s opportunity

and capacity to observe the event or act in question; (2) the witness’s character;

(3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of

bias; (5) the contradiction of the witness’s version of events by other evidence or

its consistency with other evidence; (6) the inherent improbability of the

witness’s version of events; and (7) the witness’s demeanor. Hillen, 35 M.S.P.R.

at 458. The Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so. Haebe

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). When an

administrative judge’s findings are not based on the observation of witnesses’

demeanor, the Board is free to reweigh the evidence and substitute its own

judgment on credibility issues. Id. at 1302. Moreover, the Board may overturn

an administrative judge’s credibility determinations when they are incomplete,

inconsistent with the weight of the evidence, and do not reflect the record as a

whole. Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004).

In the initial decision, the administrative judge summarily concluded that

the agency did not prove that the appellant acted negligently in failing to arrest

the GPO Employee because the appellant’s witness, K.A., a personal friend and

former GPO police officer and subordinate, testified that the agency had

instructed GPO Police officers not to make arrests in August 2020 unless there

was an imminent threat to life. ID at 10; see also IAF, Tab 37-5, HR (Jones 5)

at 5:50, 8:50. The administrative judge concluded, therefore, that the appellant

“appeared to be following the office protocol and GPO policy” by not arresting

the GPO Employee. ID at 10. However, not only did the administrative judge

fail to explain in detail why he found K.A. credible, he failed to identify and

discuss testimony from the agency’s witness, the Chief Security Officer and

deciding official, that no such policy existed. See Spithaler, 1 M.S.P.R. at 589

(an initial decision must identify all material issues of fact and law, summarize

the evidence, and explain how any issues of credibility were resolved and why).

At the hearing, K.A. testified that he heard officers talking about an

instruction not to make arrests unless there was an imminent threat to life and that

he then heard that instruction himself in roll call around August 2020, though he

did not remember the exact details. IAF, Tab 37-5, HR (Jones 5) at 5:35, 10:00.

The deciding official testified, to the contrary, that he was not aware of any such

instruction and that the agency’s policy during August 2020 was to overlook

misdemeanors and to continue making arrests on all felonies, which was relayed

in roll call and the police activity reports for approximately 2 years. IAF,

Tab 37-1, HR (Jones 1) at 27:20, 29:35. To this end, the administrative judge

failed to identify and discuss that the deciding official testified that the appellant

understood this policy because the appellant put it in his own activity reports, and

that the deciding official testified that all police officers receive training on how

to handle felonies, such as an individual trying to enter the building with a

firearm without a concealed weapon permit in D.C., and to make an arrest in that

situation. Id. at 29:15 to 31:30.

We note that, on review, the agency also argues that the administrative

judge erroneously failed to address various arrest records showing that an arrest

has been made each time an individual attempted to enter the GPO building with

an unpermitted loaded firearm, including a similar incident that took place only

weeks before the incident at issue here. PFR File, Tab 1 at 18-19; IAF, Tab 28

at 18-47. In this vein, the administrative judge also failed to identify and discuss

K.A.’s testimony that he recalled a similar firearm incident in June 2020 where an

arrest was made and that, in his 20-plus year career at GPO, he could not recall a

time when someone who was not a police officer attempted to bring a firearm into

the building and was not arrested. IAF, Tab 37-5, HR (Jones 5) at 13:05-19:00.

Thus, the administrative judge failed to discuss significant evidence relevant to a

Hillen determination in this case.

We find the deciding official a more credible witness and reject the

administrative judge’s credibility findings on this arrest policy issue because they

are incomplete and inconsistent with the weight of the evidence. See Faucher,

96 M.S.P.R. 203, ¶ 18; see also Wallace v. Department of Commerce,

106 M.S.P.R. 23, ¶¶ 14–16 (2007) (rejecting an administrative judge’s credibility

determinations for failure to consider conflicting evidence). Furthermore, given

all of the above, we find that the agency proved that the appellant was negligent

under the applicable standard of care for returning the GPO Employee’s loaded

firearm to him, which was unregistered and unlicensed in D.C., and for failing to

arrest the GPO Employee for the illegal possession of a firearm in D.C., contrary

to GPO policy. See Mendez, 88 M.S.P.R. 596, ¶ 26. We therefore sustain the

charge of careless or negligent performance of duties. See Burroughs v.

Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that, when

more than one event or factual specification supports a single charge, proof of

one or more, but not all, of the supporting specifications is sufficient to sustain

the charge); see also Hickman v. Department of Justice, 11 M.S.P.R. 153, 155

(1982) (finding that although the agency cited to a criminal statute in its proposal

notice, the agency charged the employee with particular conduct and not a

violation of the criminal statute, and sustaining the charge upon proof of that

particular conduct). 5

The agency proved a connection between the appellant’s misconduct and the

efficiency of the service.

Because the administrative judge found that the agency failed to prove the

charges and reversed the appellant’s demotion, he did not make findings as to

whether there is a sufficient nexus between the appellant’s misconduct and the

efficiency of the service, nor did he determine whether demotion is a reasonable

In light of our decision to sustain the charge of negligent performance of duties, we

need not address the agency’s arguments on review regarding the charge of failure to

follow applicable rules, laws, regulations, or policies. As explained below, the penalty

of demotion can be sustained on the negligence charge alone.

penalty. We address those issues here. It is well settled that there is a sufficient

nexus between an employee’s misconduct and the efficiency of the service when,

as in this case, the conduct occurred at work. Parker v. U.S. Postal Service,

819 F.2d 1113, 1116 (Fed. Cir. 1987); Miles v. Department of the Navy,

102 M.S.P.R. 316, ¶ 11 (2006). Therefore, we find that disciplining the appellant

for his misconduct promotes the efficiency of the service.

The agency’s penalty is appropriate.

The Board will review an agency-imposed penalty only to determine if the

agency considered all the relevant factors and exercised management discretion

within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 305–06 (listing

twelve factors relevant to the reasonableness of an agency’s chosen penalty). The

Board will give due weight to the agency’s primary discretion in matters of

employee discipline and efficiency, recognizing that the Board’s function is not

to displace management responsibility but to assure that managerial judgment has

been properly exercised. Id. at 302. When the Board sustains fewer than all of

the agency’s charges, 6 and the agency either indicates that it would have imposed

the same penalty based on the sustained charges, or does not indicate to the

contrary, the Board’s role is not to independently determine the penalty, but to

decide whether the agency’s choice of penalty is appropriate. Negron v.

Department of Justice, 95 M.S.P.R. 561, ¶ 32 (2004) (citing Lachance v. Devall,

178 F.3d 1246, 1258-59 (Fed. Cir. 1999)); see Blank v. Department of the Army,

85 M.S.P.R. 443, ¶ 9 (2000) (explaining that when not all of the agency’s charges

are sustained and the agency has not indicated it desires a lesser penalty under

this eventuality, the Board may presume that the agency desires the maximum

reasonable penalty and must examine whether the agency-imposed penalty is

within the maximum limits of reasonableness), aff’d, 247 F.3d 1225 (Fed. Cir.

As noted above, we are assuming for purposes of our penalty analysis that the agency

proved only the charge of careless or negligent performance of duties. See supra n. 6.

Therefore, we are applying the legal standard for cases is which the Board sustains

fewer than all of the agency’s charges.

2001). Our review of the record reveals no indication that the agency desires a

lesser penalty if not all of the charges are sustained. We must therefore

determine whether the penalty of demotion is within the maximum limits of

reasonableness.

The seriousness of the appellant’s offense is always one of the most

important factors considered by the Board in assessing the reasonableness of an

agency’s penalty determination. Rosenberg v. Department of Transportation,

105 M.S.P.R. 130, ¶ 30 (2007). Here, as discussed in the decision letter and the

Douglas factors memorandum, the appellant’s failure to arrest the GPO Employee

for the possession of a loaded firearm unlicensed in D.C., and his decision to give

that loaded firearm back, created a potentially very dangerous situation for GPO

employees and the public. IAF, Tab 1 at 7-8, Tab 18 at 63-66. His failure to

make an arrest was contrary to the agency’s policy in August 2020 to make an

arrest for all felonies—a policy which the deciding official testified was well

known to the appellant—and contrary to training all GPO officers receive on how

to handle such situations. IAF, Tab 37-1, HR (Jones 1) at 29:15-31:30. Further,

the appellant’s decision to return the GPO Employee’s loaded firearm is

confounding given that he testified there was a location in the GPO facility where

officers are able to safely handle weapons and ammunition. IAF, Tab 37-4, HR

(Jones 4) at 17:00-18:45.

In assessing whether a two-step demotion is a reasonable penalty for the

sustained charge, we have also considered the appellant’s past disciplinary

record, his past work record, his length of service, and the agency’s table of

penalties. As mitigating factors, we acknowledge that the appellant has a good

performance record and has not been subject to any prior disciplinary action apart

from a verbal warning in February 2020 for failure to follow supervisory

instructions. IAF, Tab 1 at 8, Tab 18 at 64, Tab 17 at 17. However, the

appellant’s negligence here in failing to arrest the GPO Employee and in

returning the loaded firearm was unmistakably connected to his duties as a law

enforcement officer and supervisor. As mentioned above, agencies are entitled to

hold both law enforcement officers and supervisors to a higher standard of

conduct. See, e.g., Cantu v. Department of the Treasury, 88 M.S.P.R. 253, ¶ 8

(2001) (finding that a very high standard of conduct and degree of trust were

required of an appellant who held a supervisory position with law enforcement

duties). The deciding official testified that he lost confidence in the appellant and

how he would act when confronted with a similar situation in the future, and that

he believed that a two-step demotion was appropriate because he also lost

confidence in the appellant’s ability to correctly train other officers. IAF,

Tab 37-2, HR (Jones 2) at 30:30, 32:55. The Board has held that loss of trust is a

significant aggravating factor. See, e.g., Hernandez v. Department of Agriculture,

83 M.S.P.R. 371, ¶ 9 (1999).

Based on the specific facts of this case, we find that the agency’s chosen

penalty is within the parameters of reasonableness.

NOTICE OF APPEAL RIGHTS 7

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

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.

within the applicable time limit may result in the dismissal of your 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 case, 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).

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. 420 (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 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

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. 8 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).

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.

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