affirming summary judgment on a claim because the plaintiff “abandoned 1 th[e] claim by failing to raise it in opposition to the [defendant’s] motion for complete summary 2 judgment”
How later courts described this case
- affirming summary judgment on a claim because the plaintiff “abandoned 1 th[e] claim by failing to raise it in opposition to the [defendant’s] motion for complete summary 2 judgment”
- “Having failed to show that in some way [that the 24 absence of the procedural error] would have possibly affected the agency’s decision, petitioner is 25 not entitled to prevail.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 CATHERINE NAHMENS, No. 2:22-cv-01039-TLN-JDP
12 Plaintiff,
13 v. ORDER
14 BROOKE ROLLINS, Secretary of the
United States Department of Agriculture,
15
Defendant.
16
17
18 This matter is before the Court on Cross-Motions for Summary Judgment filed by
19 Plaintiff Catherine Nahmens (“Plaintiff”) and Defendant Brooke Rollins in her official capacity
20 as the Secretary of the United States Department of Agriculture1 (“USDA” or “Defendant”).
21 (ECF Nos. 56, 62.) Both motions are fully briefed. (ECF Nos. 65, 66.) For the reasons set forth
22 below, the Court DENIES Plaintiff’s motion and GRANTS Defendant’s motion.
23 ///
24 ///
25
1 Pursuant to Federal Rule of Civil Procedure (“Rule”) 25(d), “[t]he officer’s successor is
26
automatically substituted as a party” when a public officer “ceases to hold office while the action
27 is pending.” Fed. R. Civ. P. 25(d). Accordingly, Brooke Rollins is automatically substituted as a
party for Thomas Vilsack, the former Secretary of the USDA. The Clerk of the Court is directed
28 to update the docket as necessary.
1 I. FACTUAL AND PROCEDURAL BACKGROUND
2 Plaintiff is a former Farm Loan Officer (“FLO”) who worked at the Stockton Service
3 Center for the USDA’s Farm Service Agency (“FSA”). (Administrative Record (“AR”) at 3020.)
4 Plaintiff started working in November 2016 as a FLO trainee and was eventually promoted to a
5 GS-11 FLO position, which is the full performance level for the position. (Id.) The description
6 for the GS-11 FLO position is as follows:
7 The incumbent assists the Farm Loan Manager in administering farm
loan programs in a USDA Service Center serving one or more
8 Counties. Major responsibilities include making, servicing, and
supervising loans and providing technical advice, guidance, and
9 credit counseling to loan applicants and borrowers. The incumbent
has delegated loan approval authority to approve loans within a
10 specific limit. The position requires knowledge of agency farm loan
programs and eligibility requirements, the technicalities of farm
11 financing and credit, financial management concepts and practices,
farm operations, land use and value, production and marketing of
12 various crops and livestock, and prices and markets in the serviced
farming.
13
14 (Id.)
15 On February 14, 2022, Plaintiff’s supervisor, Ehab El Liessy (“El Liessey”), issued
16 Plaintiff a Notice of Proposed Removal based on two charges: (1) Failure to Follow Procedure,
17 which was supported by 29 specifications describing Plaintiff’s acts and the procedures violated;
18 and (2) Failure to Follow Supervisor Instruction, which was supported by 12 specifications
19 describing Plaintiff’s acts and the instructions violated. (Id. at 1065–1076.) State Executive
20 Director Blong Xiong (“Xiong”) issued a Decision on Proposed Removal in March 2022, in
21 which he sustained both charges and all specifications. (Id. at 1041–1044.) Xiong also concurred
22 with El Liessy’s penalty analysis and decided to remove Plaintiff effective March 18, 2022. (Id.
23 at 1042.)
24 Plaintiff appealed to the Merit Systems Protection Board (“MSPB”) on March 23, 2022.
25 (Id. at 5–10.) In addition to challenging her removal on the merits, Plaintiff asserted she was
26 terminated due to sex discrimination, disability discrimination, and/or retaliation. (Id.) On behalf
27 of the MSPB, an Administrative Law Judge (“ALJ”) heard testimony, and the record closed on
28 November 28, 2022. (Id. at 3030.) The ALJ sustained 15 of the 29 specifications for Charge One
1 and 8 of the 12 specifications for Charge Two. (Id. at 3034–1083.) The ALJ also found there
2 was a nexus between the misconduct and the efficiency of services. (Id. at 3098–3099.) Lastly,
3 the ALJ affirmed the decision to remove Plaintiff from employment. (Id. at 3099–3108.)
4 Plaintiff filed the instant action on June 14, 2022. (ECF No. 1.) Plaintiff filed the
5 operative Third Amended Complaint (“TAC”) on October 10, 2024, alleging discrimination and
6 retaliation claims and seeking review of the MSPB decision. (ECF No. 50.) Plaintiff filed a
7 motion for summary judgment — only as to her appeal of the MSPB decision — on October 28,
8 2024. (ECF No. 56.) Defendant filed a cross-motion for summary judgment on the same issue
9 on December 6, 2024. (ECF No. 62.)
10 II. STANDARD OF LAW
11 The Civil Service Reform Act permits “mixed cases” where “an employee complains of a
12 personnel action serious enough to appeal to the MSPB and alleges that the action was based on
13 discrimination.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012); 5 U.S.C. § 7703(b)(2). On the
14 discrimination portion of the case, the plaintiff is entitled to trial de novo by the Court. 5 U.S.C. §
15 7703(c). The non-discrimination portion is reviewed on the administrative record and may be set
16 aside only if found to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in
17 accordance with law; (2) obtained without procedures required by law, rule, or regulation having
18 been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. §§ 7703(c)(1)–(3). “The
19 petitioner bears the burden of establishing reversible error in the [MSPB’s] final decision.” Sistek
20 v. Dep’t of Veterans Affs., 955 F.3d 948, 953 (Fed. Cir. 2020). An agency seeking to withstand a
21 challenge to an adverse action taken against an employee must: (1) establish by a preponderance
22 of the evidence that the charged conduct occurred; (2) show a nexus between that conduct and the
23 efficiency of the service; and (3) demonstrate that the penalty imposed was reasonable. Pope v.
24 USPS, 114 F.3d 1144, 1147 (Fed. Cir. 1997).
25 III. ANALYSIS
26 In Plaintiff’s motion for summary judgment, she argues: Defendant accused Plaintiff of
27 violating nonexistent policies; Defendant failed to attach the nonexistent policies to the notices
28 sent to Plaintiff; Defendant improperly used Plaintiff’s prior two-day suspension against her;
1 Defendant did not establish the sustained charges by a preponderance of the evidence; and the
2 ALJ acting on behalf of the MSPB erred when he did not reduce the penalty of removal after he
3 found many of the allegations against Plaintiff had no merit. (ECF No. 56 at 9–20.)
4 In Defendant’s cross-motion for summary judgment, Defendant argues: it proved the
5 sustained charges by a preponderance of the evidence; the Court should dismiss Plaintiff’s claims
6 to the extent they are based on due process; Plaintiff’s claims are not supported by the
7 Administrative Record; and the Court should uphold the MSPB’s decision because it was
8 supported by substantial evidence, the nexus requirement was established, and the penalty
9 imposed was reasonable. (ECF No. 62-1 at 18–30.)
10 The Court gleans four main issues from the parties’ briefing: (1) whether Defendant
11 violated Plaintiff’s due process rights; (2) whether Defendant proved the charges by a
12 preponderance of the evidence; (3) whether there is a nexus between Plaintiff’s conduct and the
13 efficiency of service; and (4) whether the penalty of removal is reasonable. The Court will
14 address each issue in turn.
15 A. Whether Defendant Violated Due Process
16 Plaintiff argues Defendant violated her due process rights in three ways: (1) Defendant
17 cited to various nonexistent policies and failed to attach those nonexistent policies to the Notice
18 of Proposed Removal or Termination Notice; (2) Defendant claimed Plaintiff violated all 700
19 pages of a policy but did not provide a copy of the policy; and (3) Defendant used prior, unrelated
20 discipline against Plaintiff that was not cited in the Notice of Proposed Removal. (ECF No. 56 at
21 9–12.)
22 In response, Defendant argues the Court previously dismissed Plaintiff’s due process
23 claims without leave to amend.2 (ECF No. 62-1 at 19.) Defendant further argues the MSPB did
24 not sustain specifications that were based on vague or nonexistent policies. (Id. at 22.) As to
25
2 The Court previously dismissed Plaintiff’s Fourteenth Amendment due process claim
26
without leave to amend. (ECF No. 33 at 8–9.) While Plaintiff’s challenge to her removal
27 decision includes due process arguments, it is not a standalone constitutional claim. However,
because the Court concludes Defendant prevails on other grounds, the Court need not and does
28 not address this argument.
1 Plaintiff’s prior discipline, Defendant argues it properly considered the prior discipline when
2 analyzing the Douglas factors for determining the penalty. (Id. at 23.)
3 “Where a public employee has a property interest in continued employment, the Due
4 Process Clause of the Fifth Amendment requires that the employee be afforded notice ‘both of the
5 charges and of the employer’s evidence’ and an ‘opportunity to respond’ before being removed
6 from employment.” Ward v. USPS, 634 F.3d 1274, 1279 (Fed. Cir. 2011) (quoting Stone v.
7 FDIC, 179 F.3d 1368, 1374–76 (Fed. Cir. 1999)).
8 Plaintiff fails to cite any authority to support its arguments that Defendant’s citation to
9 nonexistent policies or failure to attach those nonexistent policies constitutes a due process
10 violation that warrants reversal of the MSPB’s decision. It appears Plaintiff had sufficient notice
11 of the charges and an opportunity to respond. Indeed, as Defendant points out, the ALJ discussed
12 Plaintiff’s due process argument and did not sustain specifications that were based on vague or
13 nonexistent policies. (AR at 3084–3087.) Plaintiff vaguely argues Defendant “likely would have
14 come to a different conclusion regarding its decision to terminate [ ] Plaintiff if these allegations
15 were not included in the Notice.” (ECF No. 56 at 10.) However, Plaintiff cites no evidence or
16 authority to support this assertion, and such an argument ignores that Xiong testified that if the
17 second charge alone were at issue, and even just Specifications 1–7 of that charge, he still would
18 have decided on removal. (Id. at 3101.) For these reasons, Plaintiff’s conclusory arguments on
19 this issue are unpersuasive. See Diaz v. Dep’t of Air Force, 63 F.3d 1107, 1109 (Fed. Cir. 1995)
20 (“[Petitioner] did not argue or submit any evidence that showed that the agency’s procedural
21 violation affected the outcome of the agency’s decision or was in any way harmful. Therefore,
22 the Board properly declined to reverse the agency’s decision to remove [Petitioner].”); Handy v.
23 USPS, 754 F.2d 335, 338 (Fed. Cir. 1985) (“Having failed to show that in some way [that the
24 absence of the procedural error] would have possibly affected the agency’s decision, petitioner is
25 not entitled to prevail.”).
26 As to Plaintiff’s argument about the use of her prior discipline, Plaintiff relies on Ward.
27 (ECF No. 56 at 12.) In Ward, a U.S. Postal Service employee’s Notice of Proposed Removal
28 proposed his removal based on an incident in which the employee shouted at his supervisor. 634
1 F.3d at 1276–78. The deciding official subsequently had ex parte communications with three
2 supervisors and one manager from the U.S. Postal Service and learned of several alleged past
3 instances of misconduct by the employee. Id. at 1278. The employee was unaware that the past
4 instances of misconduct would be considered as grounds for removal because these prior
5 incidents were not referenced in the Notice of Proposed Removal. Id. The deciding official later
6 admitted in his testimony before an administrative law judge that the past instances of misconduct
7 influenced his decision that removal was warranted. Id. The Federal Circuit remanded the action
8 to the MSPB, finding the MSPB erred in failing to consider whether this was a due process
9 violation and alternatively finding the Postal Service committed a procedural error that required a
10 harmful error analysis. Id. at 1279–1283.
11 The instant case is distinguishable from Ward for two reasons. First, Plaintiff does not
12 allege El Leissey, Xiong, or the ALJ based their decisions on ex parte communications. Second,
13 the Notice of Proposed Removal in the instant case did reference the prior discipline. (AR at 83–
14 96.) The Notice states El Leissey “relied on the penalty selection factors as described in the
15 attached Douglas Factor Worksheet.” (Id. at 94.) The Douglas Factor Worksheet identified the
16 prior two-day suspension as a factor. (Id. at 84–85.) This notice appears to be sufficient, and
17 Plaintiff fails to cite authority to the contrary. See Alvarado v. Dep’t of Air Force, No. DE-0752-
18 03-0048-I-1, 2004 WL 2248747 (M.S.P.B. Sept. 28, 2004) (“[T]here is no requirement that a
19 proposal be in all cases a self-contained document . . . the Board has held that the notice
20 requirement is satisfied when the proposal and any attachments to it, taken together, provide the
21 employee with specific notice of the charges against him so that he can make an informed and
22 meaningful reply.”).
23 For these reasons, Plaintiff’s due process arguments fail.
24 ///
25 ///
26 ///
27 ///
28 ///
1 B. Whether Defendant Proved the Charges
2 Plaintiff next argues Defendant failed to prove the charges by a preponderance of the
3 evidence. (ECF No. 56 at 13–16.) The Court will address Charges One and Two separately.
4 i. Charge One
5 The ALJ sustained Charge One — Failure to Follow Procedure — based on the following
6 specifications:
7 • Specification 1 – On November 20, 2020, Plaintiff authorized the release of
8 $2,500 to borrower JB. $1,770.50 of the funds were used by JB to pay property
9 taxes and fund a 2001 Chevy Tahoe vehicle. The ALJ found Plaintiff disregarded
10 the FSA-2150 Development Plan3 and violated 3 FLP 1314. (AR at 3034–3038.)
11 • Specification 2 – On November 30, 2020, Plaintiff authorized the release of
12 $5,000 to JB. $2,500 of the funds were used to purchase hay and feed supplement.
13 The ALJ found Plaintiff disregarded the FSA-2150 Development Plan and violated
14 3 FLP 131. (Id. at 3038–3039.)
15 • Specification 5 – On January 4, 2021, Plaintiff initiated a transaction to disburse
16 $4,095 to JB for a shipping container. The ALJ found Plaintiff disregarded the
17 FSA-2150 Development Plan. (Id. at 3043–3045.)
18 • Specification 7 – On January 25, 2021, Plaintiff initiated a disbursement to JB of
19 $5,245. JB paid $500 of that amount to LA for fence repair. The ALJ found
20 Plaintiff disregarded the FSA-2150 Development Plan. (Id. at 3046–3047.)
21 • Specification 8 – JB paid $375 of the $5,245 disbursement to TC for fence repair.
22 The ALJ found Plaintiff disregarded the FSA-2150 Development Plan. (Id. at
23
3 As will be discussed in more detail below, an FSA-2150 Development Plan is a form
24 completed by a farm loan applicant that provides information on the planned development. (See,
e.g., AR at 986.)
25
4 3 FLP 131 provides for the authorized use of Farm Ownership Loans. (AR at 3036.)
26
Under subsection A, funds may only be used for the purposes in subsections B through F, which
27 are as follows: (B) Farm Purchases; (C) Capital Improvements; (D) Soil and Water Conservation
and Protection; (E) Loan Closing Costs; and (F) Refinance Bridge Loans. (Id. at 1052–1055,
28 3036.)
1 3048–3049.)
2 • Specification 10 – JB paid $1,200 of the $5,245 disbursement to TG for brush
3 clearing. The ALJ found Plaintiff disregarded the FSA-2150 Development Plan
4 and violated 3 FLP 131. (Id. at 3050–3054.)
5 • Specification 12 – JB paid $600 of the $5,245 disbursement for new trailer pad
6 construction (not for the modular home which was financed). The ALJ found
7 Plaintiff disregarded the FSA-2150 Development Plan. (Id. at 3053–3055.)
8 • Specification 13 – JB paid $375 of the $5,245 disbursement for trailer pad gravel
9 and delivery. The ALJ found Plaintiff disregarded the FSA-2150 Development
10 Plan. (Id. at 3055–3056.)
11 • Specification 14 – On January 29, 2021, Plaintiff authorized release of $2,000 for
12 Storm Damage Cost Repair to JB, which included fixing shelters, fencing, and
13 water valves. The ALJ found Plaintiff disregarded the FSA-2150 Development
14 Plan. (Id. at 3056–3057.)
15 • Specification 16 – On February 4, 2021, Plaintiff initiated a $7,825 disbursement
16 to JB, which was for labor and material for a fence. The ALJ found Plaintiff
17 disregarded the FSA-2150 Development Plan. (Id. at 3059–3060.)
18 • Specification 17 – On May 12, 2021, Plaintiff authorized release of $1,500 to JB.
19 The appellant believed this money was for tree work after a dead tree had fallen on
20 some goats. The ALJ found Plaintiff disregarded the FSA-2150 Development
21 Plan and violated 3 FLP 131. (Id. at 3060–3062.)
22 • Specification 20 – On July 6, 2021, Plaintiff authorized release of $2,361 to JB.
23 $642.49 was used to purchase hay and $1,718 for feed supplement. The ALJ
24 found Plaintiff disregarded the FSA-2150 Development Plan and violated 3 FLP
25 131. (Id. at 3064–3065.)
26 • Specification 21 – On August 2, 2021, Plaintiff authorized release of $2,875 to
27 JB. $2,300 was used for tree trimming and tree cutting. The ALJ found Plaintiff
28 disregarded the FSA-2150 Development Plan and violated 3 FLP 131. (Id. at
1 3065–3066.)
2 • Specification 22 – On August 11, 2021, Plaintiff authorized the release of $2,250
3 for tree work to JB. The ALJ found Plaintiff disregarded the FSA-2150
4 Development Plan and violated 3 FLP 131. (Id. at 3066–3067.)
5 • Specification 26 – On July 29, 2021, Plaintiff authorized the use of $15,916.58 to
6 borrower WJ to purchase a utility vehicle. The ALJ found Plaintiff violated 3 FLP
7 131. (Id. at 3072–3074.)
8 Plaintiff argues there is no evidence she violated the FSA-2150 disbursement
9 requirements. (ECF No. 56 at 13.) Plaintiff cites CDs from the MSPB hearing to argue that El
10 Liessy only “assumed” Plaintiff had violated the Development Plan, which Plaintiff argues is
11 insufficient. (Id.) In response, Defendant argues Plaintiff’s arguments are based entirely on un-
12 transcribed testimony that is not part of the Administrative Record. (ECF No. 62-1 at 20.)
13 Defendant argues even if the Court considered Plaintiff’s arguments, those arguments are
14 insufficient to sustain a challenge of the ALJ’s credibility determinations and Plaintiff fails to
15 dispute or cite any material evidence that would undermine the reasoning, evidence, and
16 testimony the ALJ relied on in his findings. (Id. at 20–21.)
17 The Court agrees with Defendant that the ALJ’s decision was supported by substantial
18 evidence and was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
19 with the law. Most of the sustained specifications in Charge One relate to funds Plaintiff
20 authorized to borrower “JB.” JB submitted an FSA-2150 Development Plan for a modular home
21 on July 23, 2020. (AR at 986.) The Development Plan requested total costs of $286,271, to be
22 used for: “land/dirt work/pad prep/rock” in the amount of $5,000; “septic” in the amount of
23 $30,000; “house” in the amount of $128,500; “electric/water” in the amount of $19,000;
24 “property permits — well, septic, fire, school, etc.” in the amount of $23,271; and “house
25 delivery, set-up, and foundation/pad” in the total amount of $81,500. (Id.) The FSA approved
26 the loan request on August 7, 2020. (Id. at 991.)
27 The ALJ found that certain payments to JB were outside of the Development Plan. (See,
28 e.g., AR 3034.) For example, evidence in the record showed JB used the funds to pay for a
1 vehicle, fencing, and feed supplement, which the ALJ found did not fall within the categories
2 delineated in the Development Plan. (Id. at 3034–74.) The ALJ also rejected Plaintiff’s
3 argument that 1 FLP 125 permitted her to change the Development Plan. (Id.) Plaintiff’s only
4 challenge to Charge One in the instant motion is based on purported testimony from an un-
5 transcribed CD that was not part of the Administrative Record. (ECF No. 56 at 13.) Plaintiff
6 fails to cite any authority to persuade the Court it can properly consider such evidence and the
7 Court declines to do so.5 Based on the Administrative Record, the Court concludes Defendant
8 established by a preponderance of the evidence that Plaintiff disregarded the FSA-2150
9 Development Plan as there was evidence about the parameters of the Development Plan and
10 evidence that Plaintiff authorized funds for costs that did not fall within the Development Plan.
11 Therefore, the Court AFFIRMS the MSPB’s decision as to Charge One.
12 ii. Charge Two
13 The ALJ sustained Charge Two — Failure to Follow Supervisor Instructions — based on
14 the following specifications:
15 • Specifications 1 through 7 involve different instances of the same alleged failure
16 to follow instructions. The relevant office policy required the office’s PT/Analyst
17 to process all loan advances unless the PT/Analyst was absent, in which case the
18 loan officer was to process the draw and then email the PT/Analyst to let them
19 know what was done. (Id. at 3076–3079.) The ALJ found Plaintiff failed to
20 follow those instructions on seven different dates by independently processing
21 draw requests for JB when the PT/Analyst was not absent and failing to email the
22 PT/Analyst after processing the draws. (Id.)
23 • Specification 11 – On October 5, 2021, Plaintiff accessed JB’s loan record
24 without authorization for more than 18 hours. On August 13, 2021, Plaintiff had
25 been instructed she was no longer servicing JB’s loan and any future
26 correspondence about the loan was to be directed to a different FLO, Joshua
27
5 On November 12, 2024, the Court denied Plaintiff’s Motion to Augment the
28 Administrative Record. (ECF No. 59.)
1 Azevedo. The relevant office policy issued on April 13, 2021, states, “If the
2 application is assigned to a different loan officer, any questions the applicant may
3 have should be directed to the assignee. It is never appropriate to comment or
4 advise on a file that is not in your possession and for which you do not have
5 current information.” (Id. at 3079–3083.)
6 As to Specifications 1 through 7, Plaintiff argues the evidence shows she only made draws
7 when the PT/Analyst was absent, which does not violate the policy. (ECF No. 56 at 14.) As with
8 her arguments about Charge One, Plaintiff supports this argument with citations to testimony
9 from un-transcribed CDs and does not cite evidence from the Administrative Record. (Id.) In
10 response, Defendant argues the ALJ’s decision was based on substantial evidence and Plaintiff
11 fails to present material evidence showing the ALJ erred. (ECF No. 62-1 at 24–27.)
12 The Court agrees with Defendant. The ALJ considered evidence in the record, such as the
13 PT/Analyst’s timecards and testimony, to conclude the PT/Analyst was at work on the dates in
14 question. (AR at 2077–78.) The ALJ rejected Plaintiff’s argument that “absent” could mean the
15 PT/Analyst was on a break, out to lunch, or otherwise not in the office when the draw was
16 processed. (Id. at 3078.) Lastly, the ALJ concluded that even if Plaintiff’s characterization of
17 “absent” was correct, the instruction required the loan officer to send an email to the PT/Analyst
18 after initiating the transactions, and it was undisputed that Plaintiff had not done so. (Id. at 3079.)
19 Plaintiff does not meaningfully dispute the ALJ’s findings, nor does she rely on any evidence in
20 the Administrative Record.
21 As to Specification 11, Plaintiff argues there is no evidence that she spoke to JB after the
22 case was transferred to another FLO. (Id. at 15.) Plaintiff again cites un-transcribed CDs and
23 argues Plaintiff went into JB’s file and spoke to JB only after the file was closed. (Id.) Plaintiff
24 asserts Defendant did not provide evidence to refute Plaintiff’s testimony. (Id.) In response,
25 Defendant argues the ALJ found Plaintiff’s testimony not to be credible and the Court should not
26 disturb the ALJ’s credibility determination. (ECF No. 62-1 at 27.)
27 The Court again agrees with Defendant. In finding Plaintiff violated the instruction not to
28 comment or advise on another loan officer’s file, the ALJ relied on the following evidence in the
1 record: (1) El Leissy reassigned JB’s loan from Plaintiff to a different loan officer on August 19,
2 2021; (2) Plaintiff accessed JB’s files starting at 2:09 p.m. on October 5, 2021, and was connected
3 to the file until 9:19 a.m. on October 6, 2021; and (3) Plaintiff acknowledged that she accessed
4 JB’s file in response to a phone call from JB about a rejected loan request, explained to JB the
5 process for reconsideration or appeal, and gave JB options such as seeking a loan from an
6 independent bank. (AR at 3081–3083.) The ALJ also rejected the same argument Plaintiff raises
7 in the instant motion that the file was closed and there was no loan officer. (Id. at 3083.) Again,
8 Plaintiff does not meaningfully dispute the ALJ’s findings, nor does she cite to any evidence from
9 the Administrative Record.
10 For all these reasons, the Court concludes Defendant established by a preponderance of
11 the evidence that Plaintiff failed to follow instructions as set forth in Specifications 1–7, and 11 of
12 Charge Two. Therefore, the Court AFFIRMS the MSPB’s decision as to Charge Two.
13 C. Nexus
14 Defendant argues the Court should affirm the ALJ’s ruling that there is a nexus between
15 the charged conduct and efficiency of service. (ECF No. 62-1 at 28.) Defendant also correctly
16 points out that Plaintiff has not challenged the nexus aspect of the ALJ’s decision. (Id. at 27–28.)
17 To sustain Defendant’s removal decision, Defendant must show, by a preponderance of
18 the evidence, that Plaintiff’s conduct was “related to [her] job-related responsibilities so that [ ]
19 removal promotes the efficiency of service.” Allred v. Dep’t of Health and Human Services, 786
20 F.2d 1128, 1130 (Fed. Cir. 1986). To satisfy this requirement, Defendant must establish a nexus
21 between Plaintiff’s misconduct and Defendant’s performance of its functions. See, e.g., Brown v.
22 Dep’t of the Navy, 229 F.3d 1356, 1358 (Fed. Cir. 2000).
23 The ALJ found Defendant satisfied the nexus requirement because the misconduct
24 occurred at work and involved Plaintiff not following procedures and instructions in the
25 performance of her duties. (AR at 3098.) Notably, Plaintiff does not address the nexus
26 requirement in her briefing. Failure to raise an issue in opposition to a motion for summary
27 judgment constitutes abandonment of that claim. Est. of Shapiro v. United States, 634 F.3d 1055,
28 1060 (9th Cir. 2011) (affirming summary judgment on a claim because the plaintiff “abandoned
1 th[e] claim by failing to raise it in opposition to the [defendant’s] motion for complete summary
2 judgment”); see also Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (quoting Jenkins v.
3 Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005)).
4 Based on Plaintiff’s failure to address the nexus requirement and the clear connection
5 between the misconduct and Defendant’s performance of its functions, the Court AFFIRMS the
6 MSPB’s decision as to the nexus requirement.
7 D. Whether Removal is a Reasonable Penalty
8 Lastly, Plaintiff argues the ALJ erred when he did not reduce the penalty of removal after
9 finding that many of the allegations against Plaintiff had no merit. (ECF No. 56 at 16–18.)
10 Plaintiff also argues the Douglas factors weigh against removal. (Id.) In response, Defendant
11 argues the ALJ properly applied the Douglas factors in determining that removal was an
12 appropriate penalty. (ECF No. 62-1 at 28–30.)
13 “In Douglas the [MSPB] articulated twelve factors that may be considered in determining
14 the appropriate sanction for a particular offense.” McClaskey v. U.S. Dep’t of Energy, 720 F.2d
15 583, 587–88 (9th Cir. 1983) (citing Douglas v. Veterans Admin., 5 M.S.P.B. 313, 322 (1981)).
16 Those factors are as follows:
17 1. The nature and seriousness of the offense, and its relation to the employee’s duties,
18 position, and responsibilities, including whether the offense was intentional or
19 technical or inadvertent, or was committed maliciously or for gain, or was
20 frequently repeated;
21 2. the employee’s job level and type of employment, including supervisory or
22 fiduciary role, contacts with the public, and prominence of the position;
23 3. the employee’s past disciplinary record;
24 4. the employee’s past work record, including length of service, performance on the
25 job, ability to get along with fellow workers, and dependability;
26 5. the effect of the offense upon the employee’s ability to perform at a satisfactory
27 level and its effect upon supervisors’ confidence in the employee's ability to
28 perform assigned duties;
1 6. consistency of the penalty with those imposed upon other employees for the same
2 or similar offenses;
3 7. consistency of the penalty with any applicable agency table of penalties;
4 8. the notoriety of the offense or its impact upon the reputation of the agency;
5 9. the clarity with which the employee was on notice of any rules that where violated
6 in committing the offense, or had been warned about the conduct in question;
7 10. potential for the employee’s rehabilitation;
8 11. mitigating circumstances surrounding the offense such as unusual job tensions,
9 personality problems, mental impairment, harassment, or bad faith, malice or
10 provocation on the part of others involved in the matter; and
11 12. the adequacy and effectiveness of alternative sanctions to deter such conduct in the
12 future by the employee or other
13 Douglas, 5 M.S.P.B. at 332. “The [MSPB] is not required to consider all twelve factors in every
14 case; it need only consider those relevant to the individual case.” Id.
15 Under 5 U.S.C. § 7703(c), judicial review of the MSPB’s choice of sanctions is
16 “extremely limited.” McClaskey, 720 F.2d at 586. Courts “defer to the [MSPB’s] judgment
17 unless the penalty is so harsh or disproportionate to the offense as to constitute an abuse of
18 discretion.” Id. Further, courts “have found the penalty of dismissal to be excessively harsh only
19 when the offense committed was extremely minor.” See id. at 585–89 (affirming the MSPB’s
20 removal of an agency electrician with fourteen years of service and no disciplinary record who
21 had purchased replacement wire valued at $418 to “cover-up” a theft committed by his co-
22 workers).
23 In the instant case, the ALJ found Xiong did not appropriately consider the relevant
24 Douglas factors. (AR at 3103.) As such, the ALJ did not defer to Xiong’s penalty determination
25 and instead independently applied the relevant Douglas factors. (Id.) The ALJ noted that
26 Defendant did not establish many of the alleged procedural violations but found the sustained
27 misconduct in Charge One remained quite serious. (Id. at 3104.) More specifically, the ALJ
28 explained that the farm loan program created by Congress “limits the use of funds for particular
1 purposes” and Plaintiff “effectively eliminated the constraint on use of funds and undermined the
2 purpose of requiring a development plan by allowing customers free use of loan amounts subject
3 only to her own views on what was reasonable.” (Id. at 3104–05.) The ALJ found such conduct
4 was serious and directly related to Plaintiff’s fiduciary duties as an FLO. (Id. at 3105.) The ALJ
5 acknowledged Defendant failed to establish the misconduct was intentional or done with an
6 improper purpose, Plaintiff was not in a supervisory position, she had a positive work history
7 between 2016 and 2022, and the consideration of Plaintiff’s prior two-day suspension was
8 erroneous. (Id.) The ALJ further stated that although there were some job tensions between
9 Plaintiff and EL Liessey, Plaintiff did not show a connection between those tensions and the
10 misconduct at issue. (Id. at 3105–06.) As to Plaintiff’s rehabilitation potential, the ALJ found
11 that Plaintiff rationalized her misconduct and showed a lack of remorse and that Defendant
12 reasonably lost trust in Plaintiff based on the seriousness of the errors, their centrality to the
13 program and her position, and her attitude and responses to discipline. (Id. at 3107–08.) After
14 weighing all these considerations, the ALJ affirmed the removal penalty. (Id. at 3108.)
15 The Court agrees with Defendant that the penalty imposed was reasonable. The ALJ
16 thoroughly analyzed the Douglas factors, including most if not all the considerations Plaintiff
17 raises in the instant motion. (See ECF No. 56 at 17–18.) Plaintiff fails to cite any authority or
18 evidence from the Administrative Record to establish any reversible error in the ALJ’s analysis.
19 In her reply, Plaintiff argues for the first time that the ALJ’s acknowledgment that Xiong did not
20 appropriately consider the Douglas factors should have triggered a harmful error analysis under
21 Ward. (ECF No. 65 at 9.) However, Plaintiff fails to meaningfully develop this argument, and as
22 the Court already discussed, Ward is distinguishable from the instant case. Accordingly, the
23 Court concludes the penalty imposed by the MSPB was not so disproportionate to the offense as
24 to amount to an abuse of discretion.
25 ///
26 ///
27 ///
28 ///
1 IV. CONCLUSION
2 For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Summary Judgment
3 (ECF No. 56) and GRANTS Defendant’s Motion for Summary Judgment (ECF No. 62). This
4 case will proceed on Plaintiff’s remaining claims, and the parties shall follow the revised schedule
5 set forth in ECF No. 52.
6 IT IS SO ORDERED.
7 Date: June 10, 2025
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