Opinion

Daniel Williams v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jan 30, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 38.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANIEL WILLIAMS, DOCKET NUMBER

Appellant, DC-0752-24-0279-I-1

DEPARTMENT OF HOMELAND DATE: January 30, 2026

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joel J. Kirkpatrick , Esquire, and Amanda Mullen , Canton, Michigan,

for the appellant.

William Abbs , Esquire, Philadelphia, Pennsylvania, for the agency.

Melanie L. Glickson , Esquire, Springfield, Virginia, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

sustained his demotion based on a charge of inappropriate conduct. Generally,

we grant petitions such as this one only in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

based on an erroneous interpretation of statute or regulation or the erroneous

application of the law to the facts of the case; the administrative judge’s rulings

during either the course of the appeal or the initial decision were not consistent

with required procedures or involved an abuse of discretion, and the resulting

error affected the outcome of the case; or new and material evidence or legal

argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the petitioner has not established any basis under section

1201.115 for granting the petition for review. Therefore, we DENY the petition

for review and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

On review, the appellant challenges the administrative judge’s demeanor-

based credibility findings in determining that the agency proved the charge of

inappropriate conduct. Specifically, the administrative judge credited the

testimony of the Regional Desk Officer (RDO) that the appellant slapped her on

the buttocks with his hand and told her to order him a drink, over the appellant’s

testimony that he did not engage in the misconduct. Initial Appeal File (IAF),

Tab 19, Initial Decision (ID) at 14-21. The appellant argues on review that the

administrative judge ignored or overlooked evidence establishing that the RDO’s

account of the incident was not credible, including for example that no other

agency employee witnessed the alleged misconduct, the Transportation Security

Agency Representative’s (TSAR) contemporaneous note around the time of the

incident makes no mention of the RDO being slapped on the buttocks, and that

the witnesses’ statements about his alleged contact shifted from “slapping” to

“touching” to “forcibly striking.” Petition for Review (PFR) File, Tab 3 at 11-18,

21, 26-27. He also claims that other than the RDO no other agency employee

testified during the hearing that he was intoxicated or “drinking significantly”

prior to 5:30 p.m. and that the RDO’s testimony that she observed him drinking in

the mid to late afternoon is contradicted by the TSAR’s testimony. Id. at 11-14.

However, the administrative judge considered and rejected all these arguments,

crediting the testimony of the RDO and the agency witnesses and finding, among

other things, that minor distinctions between the witnesses’ descriptions did not

detract from the RDO’s credibility or otherwise indicate that the appellant did not

commit the charged misconduct. ID at 17-19. 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, and

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). While the appellant may disagree with the administrative judge’s

findings, such disagreement does not constitute a sufficiently sound reason for

overturning the administrative judge’s sound demeanor-based credibility findings.

The appellant’s remaining arguments, including for example that the

penalty of a demotion was unreasonable and that the administrative judge

improperly considered his intoxicated state in assessing his credibility, do not

warrant a different outcome. PFR File, Tab 3 at 5, 8, 20, 28; see Booker v.

Department of Veterans Affairs, 110 M.S.P.R. 72, ¶¶ 2, 20-24 (2008) (finding

removal for kissing a co-worker without her consent was reasonable and that, as

relevant here, the seriousness of the offense, its impact on the workplace, and that

the appellant’s position of trust and responsibility as a supervisor outweighed his

17 years of service and lack of prior discipline); Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458-59 (1987) (explaining that, among other factors, the

witness’s capacity to observe the event or act in question, i.e., understand what

was seen and intelligently narrate it, must be considered in making a credibility

determination).

Thus, we deny the petition for review and affirm the initial decision.

NOTICE OF APPEAL RIGHTS 2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of 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:

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.

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. 3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following