The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TANUVASA J. MOE, DOCKET NUMBER
Appellant, SF-0752-15-0285-I-1
v.
DEPARTMENT OF THE NAVY, DATE: October 21, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carson Peapealalo, Honolulu, Hawaii, for the appellant.
Jason Zhao, Pearl Harbor, Hawaii, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the administrative
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. See Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, and based on the following points and
authorities, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed an appeal of the agency’s action removing him from his
rigger apprentice position for illegal drug activity and failure to cooperate during
an official investigation. Initial Appeal File (IAF), Tab 1. The agency based its
action on a single narrative charge, which the administrative judge found to
involve two distinct factual specifications: (1) the appellant engaged in illegal
drug activity in 2009 or 2010; and (2) he refused to answer questions about the
drug activity during the administrative investigation. IAF, Tab 13 at 92-93,
Tab 20 at 15, Tab 33, Initial Decision (ID) at 4-5.
¶3 Based on the parties written submissions, the administrative judge sustained
specification 1, finding that the agency’s hearsay evidence and the appellant’s
admissions are sufficient to prove that he used and transacted in cocaine off duty
in 2009 or 2010 while he was an agency employee. 2 ID at 6. However, because
the appellant ultimately answered the investigators’ questions, the administrative
judge did not sustain specification 2. ID at 7. Nevertheless, because the agency
proved part of the narrative charge, the administrative judge sustained the
charged misconduct. Id. In addition, the administrative judge addressed the
2
The record reflects that, during a conference call with the administrative judge, the
appellant confirmed that he waived his right to a hearing. IAF, Tab 11.
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appellant’s three arguments of due process and harmful procedural error and
found that the appellant was not deprived of due process or his procedural rights.
Thus, he found no reversible error. ID at 7-9. The administrative judge found
further that, while the sustained misconduct occurred off duty, the agency
established a nexus with the efficiency of the service by proving that the
appellant’s illegal off-duty drug activity adversely affected the agency’s trust and
confidence in his job performance. ID at 9-10. Upon reviewing the penalty, the
administrative judge considered the relevant factors and determined that removal
was within the tolerable limits of reasonableness.
¶4 The appellant has filed a petition for review, and a reply to the agency’s
response. Petition for Review (PFR) File, Tabs 6, 10. The agency filed a
response to the appellant’s petition for review. PFR File, Tab 9.
¶5 On review, the appellant appears to challenge the administrative judge’s
determination that the agency proved that he was involved in off-duty illegal drug
activity. Specifically, the appellant reasserts that the agency could not discipline
him because he voluntarily disclosed his prior illegal drug use to the agency
before his interview and he contends that he was not advised until later that
others had reported his drug use to agency officials. 3 PFR File, Tab 10 at 5; ID
at 6. However, as the administrative judge correctly found, the appellant cited no
law or policy immunizing his disclosure. ID at 6. Furthermore, the
administrative judge correctly found that, to the extent the appellant may be
arguing that he was not subject to discipline under Executive Order 12564, which
allows for employees to avoid discipline when they voluntarily identify
themselves as drug users before being identified through other means, the
appellant is not protected under this provision because he already had been
3
The appellant also appears to argue that the initial decision should be reversed because
he was not “receiving proper communication and return communication” from his union
and other agency officials. However, the appellant’s argument is vague and unclear and
it fails to identify any error by the administrative judge that would warrant disturbing
the initial decision. PFR File, Tab 10 at 4.
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identified by his coworkers. See Savage v. Department of the Air Force,
49 M.S.P.R. 77, 80-81 (1991).
¶6 The appellant also reasserts that, during his voluntary investigative
interview, he never stated that he used cocaine while employed with the agency.
PFR File, Tab 10 at 5. However, the administrative judge specifically addressed
this argument and found that the report of investigation stated otherwise and that
the investigator who prepared the report of the interview attested under penalty of
perjury that it was accurate. ID at 6. The administrative judge found, moreover,
that the appellant, who provided an unsworn “perfunctory denial,” failed to
address the specifics in the investigator’s report or offer an alternative transcript.
Id. Further, in support of the appellant’s prior drug activity, the agency submitted
hearsay statements from coworkers to support the charge. The administrative
judge found that the appellant’s own admissions during his investigative
interview corroborated his coworkers’ statements and that the appellant offered
no evidence to rebut the statements or even deny any of the specific allegations
made by his coworkers. ID at 5-7. While the appellant continues to deny making
the statement that he used cocaine while employed with the agency and he
disagrees with the administrative judge’s findings otherwise, he has submitted no
evidence or argument on review that would warrant disturbing the initial decision.
¶7 In addition, the appellant contends that the penalty of removal is too harsh
and he asserts that the “[m]itigating factors completely outweigh any negative
accusations.” In this connection, the appellant argues that the administrative
judge erred by finding that his misconduct was “extremely serious,” and that
there is “little to no sustainable evidence provided to prove such an accusation.”
PFR File, Tab 10 at 4. The appellant further asserts that he has never failed a
drug test and that he was previously an athlete in the local university. Id. at 5.
¶8 However, the administrative judge’s review of the penalty decision is very
thorough and reasonably explained and we agree with his determination that the
penalty of removal is within the bounds of reasonableness for the sustained
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misconduct. Specifically, the administrative judge found that the appellant’s
misconduct—“using and transacting in cocaine with coworkers—was intentional
and repeated, and it was extremely serious, particularly because his job required
him to work with heavy machinery in dangerous conditions.” ID at 10. In
considering the appellant’s work history, the administrative judge treated the
appellant as if he had no prior disciplinary record and he did not consider a
separate suspension for unrelated misconduct because it occurred after the
sustained misconduct here. ID at 10-11. The administrative judge also
considered the fact that the appellant was charged with illegal drug activity that
occurred 5 years earlier at the beginning of his employment with the agency and
that there was no evidence that he had used drugs since. Additionally, the
administrative judge considered the agency’s evidence that it has a consistent
practice of removing employees who have engaged in illegal drug activities and
that it removed at least two other employees for off-duty drug use, even though
they had more seniority than the appellant, less recent drug use, and no prior
discipline. ID at 11. After considering the relevant factors and Board case law
upholding removal for similar misconduct, the administrative judge gave due
deference to the agency’s penalty and found the appellant’s removal to be within
the tolerable limits of reasonableness. Id.
¶9 As shown above, the administrative judge thoroughly reviewed the
seriousness of the sustained misconduct, the record evidence, the relevant
Douglas factors, and the pertinent case law in balancing his penalty
determination. ID at 10-11. We find no basis upon which to disturb these
findings and determinations. See Cole v. Department of the Air Force,
120 M.S.P.R. 640, ¶¶ 14-18 (2014); Patterson v. Department of the Air Force,
77 M.S.P.R. 557, 564, aff’d, 168 F.3d 1322 (Fed. Cir. 1998) (Table).
¶10 Thus, while the appellant disagrees with the administrative judge’s
determination to sustain his removal from the rigger apprentice position, the
appellant’s assertions on review fail to show any error by the administrative
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judge. Moreover, the applicable law and the record evidence support the
administrative judge’s findings that the agency proved the specification related to
the appellant’s illegal drug activity and that the penalty of removal is reasonable
for the sustained misconduct. See ID at 5-11. Thus, we discern no reason to
disturb these explained findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 106 (1997) (finding no reason to disturb the administrative judge’s findings
where she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
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Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.