Jacqueline Brown v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACQUELINE D. BROWN, DOCKET NUMBER

Appellant, SF-0752-14-0816-A-1

v.

DEPARTMENT OF HOMELAND DATE: January 12, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stephen Goldenzweig, Esquire, Houston, Texas, for the appellant.

Wendy E. Musell, Esquire, Oakland, California, for the appellant.

William R. Fenner, Esquire, San Francisco, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Leavitt issues a separate dissenting opinion.

FINAL ORDER

¶1 The agency has filed a petition for review of the addendum initial decision,

which awarded the appellant $67,105.72 in attorney fees and costs. Generally, we

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

2

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 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 resultin g 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, 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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency removed the appellant from her Transportation Security

Inspector position based on charges of submitting false reports, failure to follow

directions, and failure to exercise due diligence. Brown v. Department of

Homeland Security, MSPB Docket No. SF-0752-14-0816-I-1, Initial Appeal File

(IAF), Tab 7 at 46-59. The appellant appealed her removal to the Board, and the

administrative judge issued an initial decision finding that the removal penalty

was not within the tolerable limits of reasonableness and mitigating the removal

penalty to a demotion to a Transportation Security Officer position and a 30-day

suspension. Brown v. Department of Homeland Security, MSPB Docket

No. SF-0752-14-0816-I-1, Initial Decision at 42-45 (June 26, 2015). The Board

affirmed the initial decision. Brown v. Department of Homeland Security, MSPB

Docket No. SF-0752-14-0816-I-1, Final Order (I-1 Final Order) (Jan. 19, 2016).

3

¶3 The appellant thereafter filed a motion for attorney fees and costs seeking

$104,173.02 for the two attorneys who represented her in the removal appeal:

Wendy Musell and Stephen Goldenzweig. Brown v. Department of Homeland

Security, MSPB Docket No. SF-0752-14-0816-A-1, Attorney Fees File, Tab 1.

The administrative judge issued an addendum initial decision partially granting

the motion, finding that the appellant was a prevailing party, an attorney-client

relationship existed, and fees were warranted in the interest of justice. Brown v.

Department of Homeland Security, MSPB Docket No. SF-0752-14-0816-A-1,

Addendum Initial Decision (AID) at 4-6 (July 14, 2016). After examining the

reasonableness of the fees requested, however, the administrative judge reduced

the award to $67,105.72. AID at 6-13.

¶4 The agency has filed a petition for review challenging the addendum initial

decision. Petition for Review (PFR) File, Tab 1. The appellant has responded in

opposition to the petition for review, and the agency has replied. PFR File,

Tabs 3-4.

¶5 To receive an award of attorney fees under 5 U.S.C. § 7701(g)(1), an

appellant must show that: (1) she was the prevailing party; (2) she incurred

attorney fees pursuant to an existing attorney-client relationship; (3) an award of

attorney fees is warranted in the interest of justice; and (4) the amount of attorney

fees claimed is reasonable. See Caros v. Department of Homeland Security, 122

M.S.P.R. 231, ¶ 5 (2015). The agency has not challenged the appellant’s

prevailing party status, her having incurred attorney fees pursuant to an existing

attorney-client relationship, or the reasonableness of the award, and we discern no

basis to disturb these findings. We accordingly limit our review of the addendum

initial decision to whether an award of attorney fees is warranted in the interest of

justice.

¶6 An award of attorney fees may be warranted under section 7701(g)(1) in the

interest of justice when: (1) the agency engaged in a prohibited personnel

practice; (2) the agency action clearly was without merit or wholly unfounded, or

4

the employee was substantially innocent of the charges; (3) the agency initiated

the action in bad faith; (4) the agency committed gross procedural error; or (5) the

agency knew or should have known that it would not prevail on the merits. See

Allen v. U.S. Postal Service, 2 M.S.P.R. 420, 434-35 (1980). An award of

attorney fees need only be premised on one category of entitlement under Allen.

See Payne v. U.S. Postal Service, 79 M.S.P.R. 71, 72 n.* (1998). The

administrative judge found that an award of attorney fees was warranted in this

case because the agency knew or should have known that it would not prevail on

the merits. AID at 5-6. As discussed below, we agree with the administrative

judge’s findings, and we need not consider whether the appellant established an

entitlement to an award of attorney fees under any of the other Allen categories.

See Payne, 79 M.S.P.R. at 72 n.*.

¶7 An agency’s penalty selection is part of the merits of a case. See Caryl v.

Department of the Treasury, 57 M.S.P.R. 76, 78 (1993). When the Board sustains

the charges in an adverse action appeal but mitigates the pe nalty based on

evidence before, or readily available to, the agency at the time it took the action,

an award of attorney fees is warranted in the interest of justice because the

agency knew or should have known that its choice of penalty would not be

upheld. See Del Prete v. U.S. Postal Service, 104 M.S.P.R. 429, ¶ 7 (2007),

overruled on other grounds by Driscoll v. U.S. Postal Service, 116 M.S.P.R. 662,

¶ 11 (2011). Penalty mitigation alone, however, does not create a presumption in

favor of satisfaction of any of the Allen factors. Dunn v. Department of Veterans

Affairs, 98 F.3d 1308, 1313 (Fed. Cir. 1996).

¶8 Here, we agree with the administrative judge’s finding that attorney fees are

warranted under the “knew or should have known” category because the Board

sustained the charges, but mitigated the penalty based on evidence before, or

readily available to, the agency at the time it took the action. AID at 5 -6. As the

administrative judge properly found, each of the factors set forth in Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305 (1981), that warranted mitigation

5

of the penalty in this case were known or readily available to the deciding official

when he made the decision to remove the appellant. AID at 5 (citing Del Prete,

104 M.S.P.R. 429, ¶ 11 (finding that fees were warranted under the fifth Allen

category when no new information was introduced at the hearing that was

unavailable to the agency before it removed the appellant) ). Further, as the

administrative judge properly explained, the Board agreed that the deciding

official’s evaluation of the Douglas factors was lacking and that the agency did

not prove the reasonableness of the penalty. AID at 5; I-1 Final Order, ¶ 9.

¶9 The Board in Allen described category 5 as including circumstances in

which the agency prepared or presented its case so negligently as to make it a

foregone conclusion that the action could not be sustained on the record. Allen, 2

M.S.P.R. at 435 n.37. Similarly, the U.S. Court of Appeals for the Federal

Circuit has held that if the agency never possessed trustworthy, admissible

evidence, or was negligent in its conduct of the investigation, then the agency

knew or should have known not to take the action and fees are warranted in the

interest of justice. Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454,

1457 (Fed. Cir. 1984); see also Dunn, 98 F.3d at 1313 (holding that a negligently

conducted investigation might give rise to an affirmative finding under Allen

category 5).

¶10 As indicated above, the Board found in its final decision on the merits that

the deciding official’s evaluation of the relevant Douglas factors was lacking

because he “appeared to admit in his testimony that he did not consider, in the

context of the proper penalty for the submitting of false reports charge, the

appellant’s job level, record of experience, length of service, lack of prior

discipline, ability to get along with her coworkers, and any stress, job tensi ons, or

personality issues.” I-1 Final Order, ¶ 9. The Board also agreed with the

administrative judge that the appellant did not engage in a deliberate pattern of

misconduct concerning the falsification charge, but found that the deciding

official failed to consider this in his Douglas factor analysis. Id., ¶¶ 7, 10. More

6

specifically, the deciding official testified that he “read” each of the Douglas

factors, Hearing Transcript 2 (HT 2) at 9, 18-19, and that he reviewed the

proposal and the appellant’s response to the proposal, id. at 10. He testified that

he “will look” at any mitigating or aggravating factors that may apply, id. at 10-

11, and that he reviewed the agency’s table of penalties, which he claimed called

for removal for a charge of making a false statement, id. at 13-14. Nevertheless,

the deciding official also testified that he did not consider the appellant’s job

level and experience in her position because “[h]aving length of service is not an

excuse for falsifying a report,” and “[w]hether you’re there a short period of time

or whether you’re a tenured or seasoned inspector, if you falsify a report, you

falsify a report.” Id. at 20-21. He testified that a lack of prior discipline would

not be a mitigating factor in this case because “it was a . . . removal” and the

table of penalties for a proposed removal did not provide for “mitigating action.”

Id. at 21. To the extent that the deciding official was strictly following the

agency’s table of penalties, which indicated that there is only a “recommended”

and “aggravated” penalty range of removal for falsification, with the “mitigated”

penalty range for that offense described as “N/A,” it appears that he did not

understand that the table of penalties also indicated that it “does not rep lace

supervisory judgment for determining appropriate penalties in individual cases,”

and that “[m]anagement officials have the discretion to go outside the ranges

listed in this guide if they determine that circumstances warrant.” IAF, Tab 7 at

383, 392. Under Douglas and the Board’s caselaw, consistency of the penalty

with any applicable table of penalties is only one of the factors relevant for

consideration in determining the penalty. See, e.g., Zazueta v. Department of

Justice, 94 M.S.P.R. 493, ¶ 8 (2003), aff’d, 104 F. App’x 166 (Fed. Cir. 2004).

¶11 The deciding official further testified that he did not consider the

appellant’s past work record, including length of service, performance in

Oakland, California, ability to get along with coworkers, and dependability “for

the same reasons, falsifying a report,” given that “[n]one of that would have any

7

bearing on falsifying a report.” HT 2 at 21-22. He testified that “having a stellar

work record is not cause to mitigate falsifying a report.” Id. at 22. All of the

above testimony was elicited on direct examination by the agency’s

representative. In fact, in response to the question from the agency’s

representative, “[d]id you consider any mitigating circumstances?,” the deciding

official testified, “[n]o, I did not.” Id. at 26; see also id. at 35. He testified that

such mitigating circumstances as unusual job tensions, personality problems,

mental impairment, harassment, bad faith, malice, or provocation on the part of

others were not considered because they did not “provide cause to falsify a

report.” HT 2 at 27. On cross-examination, the deciding official also testified

that he considered the notoriety of the offense to be an aggravating factor even

though the misconduct was not made known to the public or the airlines. Id. at

74-75. A review of the agency’s proposal and decision notices show that the

acting officials only considered the appellant’s length of service and lack of prior

discipline as mitigating factors. IAF, Tab 7 at 56, 92; see HT 2 at 39.

¶12 The Board’s Douglas factors have been in effect since 1981, yet the

deciding official did not apply them in this case. Fees are therefore warranted in

the interest of justice under Allen category 5 because the agency was negligent in

preparing and presenting its case, i.e., the deciding official negligent ly considered

the Douglas factors. A negligently conducted Douglas factor analysis, such as

occurred here, fits within Allen category 5’s description of a negligently prepared

or presented case, as well as the court’s references to a negligently conducted

investigation that warrants a finding that the agency knew or should have know n

that it would not prevail on the penalty aspect of its burden of proof. Moreover,

this case is distinguishable from Dunn and Adeleke v. Department of Homeland

Security, 551 F. App’x 1003 (Fed. Cir. 2014). In those cases, the court found that

the agency did not make its original judgment negligently or in disregard of

relevant facts. Similarly, Sims v. Department of the Navy, 711 F.2d 1578, 1579

(Fed. Cir. 1983), is distinguishable because the court held in that case that the

8

agency could not have known, nor should it have known when it took the action

in 1979, that the Board’s 1981 Douglas decision, which required agencies to

demonstrate consistency in the imposition of penalties on employees charged with

similar offenses, would be issued and applied retroactively.

¶13 Although the agency argues that much of the evidence relied on by the

administrative judge in mitigating the penalty was not known to the deciding

official prior to rendering his decision, PFR File, Tab 1 at 11-20, the standard is

whether the agency knew or should have known that it would not prevail on the

merits, Allen, 2 M.S.P.R. at 434-35. We find that the administrative judge

properly considered the evidence and reasonably concluded that the agency knew

or should have known—based on information readily available to it when it

brought the proceeding—that it would not prevail on the merits. AID at 5-6; see

Del Prete, 104 M.S.P.R. 429, ¶ 11. Accordingly, we affirm the initial decision.

ORDER

We ORDER the agency to pay attorney fees and costs in the amount of

$28,258 to the appellant’s former counsel, Wendy Musell, Esquire. The agency

must complete this action no later than 20 days after the date of this decision.

See generally Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.

§ 1204(a)(2)).

We ORDER the agency to pay attorney fees and costs in the amount of

$38,847.72 to the appellant’s counsel, Stephen Goldenzweig, Esquire. The

agency must complete this action no later than 20 days after the date of this

decision. See generally Title 5 of the United States Code, section 1204(a)(2)

(5 U.S.C. § 1204(a)(2)).

We also ORDER the agency to tell the appellant and the attorney promptly

in writing when it believes it has fully carried out the Board’s Order and of the

actions it took to carry out the Board’s Order. We ORDER the appellant and the

attorney to provide all necessary information that the agency requests to help it

9

carry out the Board’s Order. The appellant and the attorney, if not notified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant or the attorney

that it has fully carried out the Board’s Order, the appellant or the attorney may

file a petition for enforcement with the office that issued the initial decisi on on

this appeal, if the appellant or the attorney believes that the agency did not fully

carry out the Board’s Order. The petition should contain specific reasons why the

appellant or the attorney believes the agency has not fully carried out the Board’ s

Order, and should include the dates and results of any communications with the

agency. See 5 C.F.R. § 1201.182(a).

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 choice s of review

below to decide which one applies to your particular case. If you have questions

2

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.

10

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 particu lar

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

11

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. ____ , 137 S. Ct. 1975 (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

12

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 address:

3

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.

13

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.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

DISSENTING OPINION OF TRISTAN L. LEAVITT

in

Jacqueline D. Brown v. Department of Homeland Security

MSPB Docket No. SF-0752-14-0816-A-1

¶1 The Board “may” award attorney fees to “the prevailing party” when it

“determines that payment by the agency is warranted in the interest of justice.”

5 U.S.C. § 7701(g)(1). Both of these prerequisites must be fulfilled in order for

fees to be awarded. Sterner v. Department of the Army, 711 F.2d 1563, 1565-66

(Fed. Cir.), cert. denied, 462 U.S. 1122 (1983). An appellant may be deemed to

have prevailed, and thus be eligible for an award of attorney fees, where, as here,

the agency-imposed penalty is mitigated as a result of her appeal. See id. at 1567.

This is distinct from whether the appellant is entitled to such an award because

fees are warranted in the interest of justice. Id. at 1565-67; see also Allen v. U.S.

Postal Service, 2 M.S.P.R. 420, 428 (1980) (the “interest of justice” standard

cannot be coextensive with the “prevailing party” requirement). As to

entitlement, the question is not whether attorneys should be paid for their success,

but rather, whether the Government must bear the burden of payment. Sims v.

Department of the Navy, 711 F.2d 1578, 1583 (Fed. Cir. 1983).

¶2 The Board has held that an attorney fee award may be warranted in the

interest of justice under the following circumstances: (1) the agency engaged in a

prohibited personnel practice; (2) the agency action was clearly without merit or

wholly unfounded, or the employee was substantially innocent of the charges;

(3) the agency initiated the action in bad faith; (4) the agency committed a gross

procedural error; or (5) the agency knew or should have known that it would not

prevail on the merits. Allen, 2 M.S.P.R. at 434-35. The majority finds an award

of fees is warranted in this case under Allen category 5 because the agency

2

purportedly knew or should have known that it would not prevail on the merits.

For the reasons set forth below, I respectfully dissent.

¶3 Allen category 5 “may include circumstances in which the agency prepared

or presented its case so negligently as to make it a foregone conclusion that the

action could not be sustained on the record established before the Board.” Id.

at 435 n.37. In analyzing a request for fees under category 5:

[T]he appropriate procedure is to appraise the agency’s decision to

carry through the action against the employee. If the agency never

possessed trustworthy, admissible evidence, or if the agency was

negligent in its conduct of the investigation, then the agency ‘knew

or should have known’ not to take the action. Attorney’s fees are

then warranted in the interest of justice.

Yorkshire v. Merit Systems Protection Board, 746 F.2d 1454, 1457 (Fed. Cir.

1984); see Kent v. Office of Personnel Management, 33 M.S.P.R. 361, 367 (1987)

(“If it is found that the agency was negligent . . . or that it lacked a reasonable

and supportable explanation for its position, then it can be concluded that the

agency knew or should have known that it could not prevail”) (citing Yorkshire,

746 F.2d at 1457).

¶4 The fact that the Board finds a charge is not supported by preponderant

evidence does not establish that it was negligently brought. Wise v. Merit

Systems Protection Board, 780 F.2d 997, 999-1000 (Fed. Cir. 1985) (considering

whether it was “unreasonable for the deciding official to remove petitioner based

on the charges and information available to him at that time”) (citing

Batchelder v. Department of the Treasury, 14 M.S.P.R. 37, 39 (1982)). Similarly,

penalty mitigation alone does not establish that an award of fees is warranted in

the interest of justice. See Dunn v. Department of Veterans Affairs, 98 F.3d 1308,

1313 (Fed. Cir. 1996); Sims, 711 F.2d at 1582. For instance, in Dunn, the Federal

Circuit considered whether “the agency made its original judgment negligently or

in disregard of relevant facts.” Dunn, 98 F.3d at 1313. Although the penalty in

Dunn was mitigated, the petitioners were nonetheless found guilty of serious

3

offenses with tragic consequences, and the Federal Circuit agreed that an award

of fees was not warranted under Allen category 5, notwithstanding the arbitrator’s

lengthy disagreement with the agency’s penalty decision. Id. at 1312-13.

¶5 Here, the administrative judge found the agency proved its charge of

submitting false reports by preponderant evidence, sustaining two of the agency’s

seven specifications. Brown v. Department of Homeland Security, MSPB Docket

No. SF-0752-14-0816-I-1, Initial Decision (ID) at 6-17 (June 26, 2015). Notably,

the administrative judge concluded the appellant made two false statements on an

official inspection report—in both instances falsely claiming to have provided

airline employees with accurate information concerning securi ty procedures

despite knowing she had actually provided them with incorrect information—for

the purpose of “obtaining supervisory approval on her report and avoiding further

edits or performance counseling.” ID at 7-12. The Board affirmed these

findings, which the appellant did not challenge. See Brown v. Department of

Homeland Security, MSPB Docket No. SF-0752-14-0816-I-1, Final Order, ¶ 3 n.2

(Jan. 19, 2016).

¶6 The Board has frequently stated that the nature and seriousness of the

offense, and its relation to the employee’s duties, position, and responsibility, is

the most important factor in assessing the reasonableness of a penalty. Singh v.

U.S. Postal Service, 2022 MSPB 15, ¶ 18. It is well-settled that falsification is a

serious offense that affects an employee’s reliability, veracity, trustworthiness,

and ethical conduct. O’Lague v. Department of Veterans Affairs, 123 M.S.P.R.

340, ¶ 20 (2016), aff’d per curiam, 698 F. App’x 1034 (Fed. Cir. 2017). In my

view, the fact that not all of the falsification specifications were sustained does

not substantially diminish the gravity of the sustained charge. All Federal

employees are expected to be trustworthy and to maintain high standards of

integrity. Parsons v. Department of the Air Force, 21 M.S.P.R. 438, 446 (1984).

Although falsification will not invariably result in removal, as the circumstances

of each individual case must be considered, see id., the Board has found removal

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to be a reasonable penalty for a first offense of falsification with no prior

discipline. See, e.g., O’Lague, 123 M.S.P.R. 340, ¶ 20 (upholding the penalty of

removal for a first offense of falsification with no prior discipline); Wheeler v.

Department of the Army, 47 M.S.P.R. 240, 246-47 (1991) (the appellant’s past

work record and lack of disciplinary history were insufficient to warrant

mitigation of the penalty of removal for falsification due to the seriousness of t he

offense); Delessio v. U.S. Postal Service, 33 M.S.P.R. 517, 521 n.4 (“removal is a

reasonable penalty for the sustained falsification charge with or without reference

to prior discipline”), aff’d, 837 F.2d 1096 (Fed. Cir. 1987) (Table).

¶7 The agency’s action comported with these well-established principles. As a

Transportation Security Inspector, the appellant was responsible for conducting

security inspections, “ensuring security compliance,” and “serv[ing] as a

technical expert and agency point of contact on transportation security

regulations.” Brown v. Department of Homeland Security, MSPB Docket

No. SF-0752-14-0816-I-1, Initial Appeal File (IAF), Tab 7 at 420. In light of the

appellant’s “failure to record [her] inspection activity, truthfully,” the deciding

official lost trust in the appellant’s “ability to carry out [her] responsibilities as a

Transportation Security Inspector in a trustworthy and credible manner.” Id.

at 55. The deciding official “felt that the seriousness of the offense did not

warrant a lesser penalty than removal.” Hearing Transcript 2 at 27. He testified,

“Having length of service is not an excuse for falsifying a report . . . having a

stellar work record is not cause to mitigate falsifying a report . . . . Stress,

tension, personality issues . . . does not justify falsifying a report.” Id. at 21-22,

27. He also relied on the agency’s Table of Penalties, which indicates removal is

appropriate for falsification, even for a first offense. Id. at 13-14; IAF, Tab 7

at 392.

¶8 Given the seriousness of the sustained falsification specifications alone, I

do not believe the agency acted negligently in deciding to remove the appellant.

This is simply not a case where the agency never possessed trustworthy,

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admissible evidence in support of its chosen penalty. Although the penalty was

ultimately mitigated, the agency had a reasonable, supportable basis for its action

when it was taken. Accordingly, I would find an award of fees is not warranted

in the interest of justice in this matter.

/s/

Tristan L. Leavitt

Member