Opinion

Dennis Chiappetta v. Dennis Chiappetta, Jr.

Court: Merit Systems Protection Board
Filed: Dec 2, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEPARTMENT OF VETERANS DOCKET NUMBERS

AFFAIRS, CB-7521-16-0014-N-1

Agency, CB-7521-16-0014-T-1

CB-7521-18-0011-T-1

DENNIS CHIAPPETTA, JR.,

Respondent. DATE: December 2, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christina Knott, Esquire, Kimberly D. McLeod, Esquire, Richard Johns and

Hansel Cordeiro, Esquire, Washington, D.C., for the agency.

Jeffrey L. Whiting, Esquire, Buffalo, New York, for the agency.

Peter B. Broida, Esquire, Arlington, Virginia, for the respondent.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER AND ORDER DENYING REQUEST FOR A STAY 2

¶1 The respondent has filed a petition for review of the initial decision finding

good cause for his removal from the position of Chief Veterans Law Judge (VLJ).

Department of Veterans Affairs v. Chiappetta, MSPB Docket No. CB-7521-16-

0014-T-1. The respondent also has filed a motion for a protective order and to

stay the implementation of his removal. Department of Veterans Affairs v.

Chiappetta, MSPB Docket No. CB-7521-16-0014-N-1. Finally, the agency has

filed a petition for review of a subsequent initial decision ordering corrective

action for the respondent’s complaint of unlawful removal. 3 Department of

Veterans Affairs v. Chiappetta, MSPB Docket No. CB-7521-18-0011-T-1. These

cases are hereby JOINED under 5 C.F.R. § 1201.36. For the following reasons,

both petitions for review and the respondent’s motion are DENIED. Except to

MODIFY the administrative law judge’s reliance on Model Rule 2.15 in findin g

good cause in MSPB Docket No. CB-7521-16-0014-T-1, we AFFIRM the initial

decisions, which are now the Board’s final decisions in these matters. 5 C.F.R.

§ 1201.113(b).

BACKGROUND

¶2 The respondent was a Chief VLJ for the agency. Chiappetta, MSPB Docket

No. CB-7521-16-0014-T-1, Complaint File (0014 CF), Tab 25 at 55. VLJs,

including Chief VLJs, are members of the Board of Veterans’ Appeals. 38 C.F.R.

This is a Final Order in MSPB Docket Nos. CB-7521-16-0014-T-1 and CB-7521-18-

0011-T-1 and an Order Denying Request for a Stay in MSPB Docket No. CB -7521-16-

0014-N-1.

Because of the different postures in which the joined cases came to the Board, the

Department of Veterans Affairs was the petitioner in one case and the respondent in the

other, and likewise with Mr. Chiappetta. For ease of reference, this Final Order will in

all contexts refer to the Department of Veterans Affairs as “the agency” and

Mr. Chiappetta as “the respondent.”

§ 20.101. 4 As such, they may be removed subject to the same requirements as

administrative law judges (ALJ) under 5 U.S.C. § 7521. 38 U.S.C.

§ 7101A(e)(2). Under that section, a removal may be taken “ only for good cause

established and determined by the Merit Systems Protection Board. ” 5 U.S.C.

§ 7521(a), (b)(1).

¶3 On February 1, 2016, the agency filed a complaint with the Board under

5 C.F.R. § 1201.137(b), seeking the respondent’s removal based on two charges:

(1) conduct unbecoming a VLJ; and (2) misuse of Government resources.

0014 CF, Tab 1 at 4-9. The conduct unbecoming charge was supported by nine

specifications, all related to the respondent’s participation with four other agency

employees in an email group, which they had dubbed the “Forum of Hate” (FOH)

Id. at 5-9, 131. Essentially the FOH exchanged a large number of bigoted or

otherwise inappropriate emails on Government time and with G overnment

equipment. Id. at 5-9. The misuse of Government resources charge was

supported by one specification alleging that the respondent misused Government

resources when he used his Government email account to participate in the FOH.

Id. at 9.

¶4 After a hearing, on November 9, 2017, the ALJ assigned to hear the

complaint issued an initial decision finding good cause for the respondent’s

removal. 0014 CF, Tab 40, Initial Decision (0014 ID). The ALJ found it

undisputed that good cause existed for the agency to initiate some level of

disciplinary action. 0014 ID at 12-16. The parties did, however, dispute the

appropriate level of discipline, and so the ALJ conducted a detailed analysis of

the penalty issue, ultimately concluding that removal was the appropriate

sanction. 0014 ID at 16-31. The respondent has filed a timely petition for

review, disputing the ALJ’s penalty analysis. Department of Affairs v.

During the pendency of this appeal, effective February 19, 20 19, the agency

redesignated 38 C.F.R. § 19.2 to 38 C.F.R. § 20.101. VA Claims and Appeals

Modernization, 84 Fed. Reg. 138-01, 177 (Jan. 18, 2019).

Chiappetta, MSPB Docket No. CB-7521-16-0014-T-1, Petition for Review File

(0014 PFR File), Tab 1. The agency has filed a response in opposition to the

petition for review, and the respondent has filed a reply to the agency’s response.

0014 PFR File, Tabs 4-5.

¶5 Meanwhile, on November 20, 2017, despite the fact that the initial decision

authorizing the respondent’s removal had not yet become final, the agency issued

the respondent a memorandum notifying him that he would be removed from

service effective November 24, 2017. Department of Veterans Affairs v.

Chiappetta, MSPB Docket No. CB-7521-16-0014-N-1, Stay File, Tab 2 at 5. On

November 22, 2017, the respondent filed a motion for protective order and stay of

the removal decision. Id. at 1-3. After the agency responded, the Clerk of the

Board issued an order notifying the parties that the Board was operating with only

one member and that it therefore lacked a quorum of two members as required to

rule on the respondent’s motion. Stay File, Tab 7. The Clerk of the Board

informed the parties that a decision on the respondent’s motion could not be

issued until a quorum was restored. Id. at 2. Meanwhile, the agency removed the

respondent, effective November 24, 2017. Department of Veterans Affairs v.

Chiappetta, MSPB Docket No. CB-7521-18-0011-T-1, Complaint File (0011 CF),

Tab 8 at 8.

¶6 On January 5, 2018, the respondent filed a petition for writ of mandamus

with the United States Court of Appeals for the Federal Circuit, asking the court

to order the Board to rule on his motion. 0011 CF, Tab 1 at 126-56. Ultimately,

the court dismissed the petition in light of the parties’ stipulation that the

respondent would file a complaint for unlawful removal, under 5 C.F.R.

§ 1201.142, raising the same matters presented by his motions, and that the Clerk

of the Board would refer the matter to an ALJ for adjudication. Id. at 195-202.

¶7 As stipulated, the respondent filed a complaint alleging that his

November 24, 2017 removal was unlawful on the basis that it was taken not in

accordance with the procedures of 5 U.S.C. § 7521 because there was not yet a

final decision by the Board authorizing the removal. Id. at 6-16. After further

development of the written record, the assigned ALJ issued an initial decision

granting the respondent’s request for corrective action, ordering the a gency to

restore the respondent to his position retroactively, and directing the agency to

provide him interim relief. 0011 CF, Tab 12, Initial Decision (0011 ID).

¶8 The agency has filed a petition for review of the initial decision, along with

a motion to stay interim relief. Department of Veterans Affairs v. Chiappetta,

MSPB Docket No. CB-7521-18-0011-T-1, Petition for Review File (0011 PFR

File), Tabs 1-2. The respondent opposes the petition on substantive grounds and

for failure to provide interim relief. 0011 PFR File, Tabs 3, 5. The agency has

filed a response to the respondent’s opposition, and the respondent has filed a

reply to the agency’s response. 0011 PFR File, Tabs 6-7.

ANALYSIS

The respondent’s petition for review is denied.

¶9 Under 5 U.S.C. § 7521 and 38 U.S.C. § 7101A(e)(2), the agency may take

an adverse action against a VLJ only for good cause established and determined

by the Board. Here, the respondent does not dispute that good cause exists to

discipline him. Rather, “[t]he question is what, if any, penalty should be

imposed.” 0014 CF, Tab 29 at 44.

¶10 In determining the appropriate penalty in an original jurisdiction case filed

under 5 U.S.C. § 7121, the Board is guided by the principles set forth in

Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). 5 Social Security

Administration v. Burris, 39 M.S.P.R. 51, 64 (1988), aff’d, 878 F.2d 1445 (Fed.

Cir. 1989) (Table). In Douglas, the Board established a totality of the

circumstances approach to the issue of penalty and set forth a list of

12 nonexhaustive factors that are generally relevant to such a determination.

5 M.S.P.R. at 305-06. The Board will consider whatever evidence of record

Neither party to this case contends that a different standard should apply.

affects the charge and penalty. Social Security Administration v. Glover,

23 M.S.P.R. 57, 79 (1984).

American Bar Association Model Code of Judicial Conduct

¶11 Although he found that the issue of good cause was not in dispute, the ALJ

nevertheless found it appropriate to review the facts establishing good cause.

0014 ID at 12. In doing so, he considered the American Bar Association’s (ABA)

Model Code of Judicial Conduct, upon which the agency also relied in

establishing good cause in its complaint. 0014 ID at 11, 15; 0014 CF, Tab 1

at 11-13; see Social Security Administration v. Long, 113 M.S.P.R. 190, ¶ 41

(2010) (finding the ABA Model Code of Judicial Conduct to be an appropriate

guide for evaluating the conduct of ALJs), aff’d, 635 F.3d 526 (Fed. Cir. 2011).

He found that the respondent’s actions and inactions violated ABA Model

Rule 1.2, which provides that “[a] judge shall act at all times in a manner that

promotes public confidence in the independence, integrity, and impartiality of the

judiciary, and shall avoid impropriety and the appearance of impropriety. ”

0014 ID at 12, 15. He further found that the respondent’s failure to report

offensive emails sent by other FOH members violated Model Rule 2.15, which

sets forth requirements to report certain misconduct by other judges and

attorneys. Id.

¶12 On review, the respondent objects to the ALJ’s use of Model Rule 2.15 on

the basis that the agency did not rely on it in the complaint. 0014 PFR File,

Tab 1 at 15. We agree. Our review of the record reveals no mention of Model

Rule 2.15 until the issuance of the initial decision. Therefore, in arriving at our

decision, we have not considered whether the respondent violated th is rule.

¶13 Although the respondent’s arguments concerning the Model Code pertain

chiefly to Model Rule 2.15, he also appears to argue that the ALJ treated his

violation of Model Rule 1.2 as an aggravating factor in the penalty analysis, and

that the ALJ erred in doing so. 0014 PFR File, Tab 1 at 14-16. We are not

convinced by this argument. First, the respondent does not explain why he

believes that his violation of Model Rule 1.2 should not have figured into the

penalty determination. See Weaver v. Department of the Navy, 2 M.S.P.R. 129,

133-34 (1980). Second, the ALJ does not appear to have considered the violation

of Model Rule 1.2 as an aggravating factor, although he did mention it in

assessing the nature and seriousness of the offense. 0014 ID at 17. The ALJ

considered this matter primarily in connection with his good cause determination,

and we find that it was completely appropriate for him to do so. 0014 ID

at 11-12, 15; see Long v. Social Security Administration, 635 F.3d 526, 535 (Fed.

Cir. 2011). Nevertheless, we find that the respondent’s violation of Model

Rule 1.2 is far less instructive on the issue of penalty than it is on good cause

because the Model Rule is written so broadly that nearly any sort of actionable

misconduct could fall within its purview. Although t his fits well with the good

cause standard, which is itself quite broad, see Long, 635 F.3d at 535-36, the

mere fact that the respondent violated Model Rule 1.2 tells us almost nothing

about the particular circumstances of his case, cf. McGowan v. Department of the

Air Force, 28 M.S.P.R. 314, 317 (1985) (explaining that the Board tailors its

penalty analysis to the unique circumstances of each case). We therefore find

that the respondent’s violation of Rule 1.2 of the ABA Model Code of Judicial

Conduct carries little weight in the penalty analysis.

Nature and Seriousness of the Offense and the Nature of the Respondent’s

Employment

¶14 In making its penalty determination, the Board will consider first and

foremost the nature and seriousness of the offense, and its relation to the

employee’s duties, position, and responsibilities, including whether the offense

was intentional or technical or inadvertent, or was committed maliciously or for

gain, or was frequently repeated. Social Security Administration v. Steverson,

111 M.S.P.R. 649, ¶ 18 (2009), aff’d, 383 F. App’x 939 (Fed. Cir. 2010);

Douglas, 5 M.S.P.R. at 305. The Board has traditionally placed primary

importance on this penalty factor. Vaughn v. U.S. Postal Service, 109 M.S.P.R.

469, ¶ 15 (2008), aff’d, 315 F. App’x 305 (Fed. Cir. 2009).

¶15 In this case, the respondent attempts to downplay the nature a nd seriousness

of his misconduct. He argues that out of the 103 emails at issue in the compl aint,

he sent only 9 of them and, of these, only 1 contained objectionable material–an

email referencing the Ku Klux Klan, stating that a particular youth baseball team

should be called “The Maryland White Sheets.” 6 0014 PFR File, Tab 1 at 5-7;

0014 CF, Tab 1 at 6-9. The remainder of the offensive emails were sent by the

other FOH members, and the respondent maintains that his replies to these were

either innocuous or nonresponsive. 0014 PFR File, Tab 1 at 4-8. The respondent

further argues that he was never a supervisor or manager of the other FOH

members, but he did counsel them numerous times to stop sending objectionable

emails. Id. at 4, 8-13, 21-22.

¶16 We agree that the respondent was not a particularly active member of the

FOH and that he sent one offensive and racist email. However, the complaint

pertains chiefly to the respondent’s failure to take appropriate action to put a stop

to his colleagues’ conduct. 0014 CF, Tab 1 at 6-9. Although the respondent may

not have been in any of the other FOH members’ direct chain of command, he

was the highest ranking member of the FOH (the others being staff attorneys and

a VLJ) and his tacit participation in the group fostered an environment that

This email exchange read as follows after one FOH member emailed the others a

picture of an all Caucasian children’s baseball team:

Attorney CH: First baseball practice. Not a Charo [Hispanic], Adrian

[African-American], or BD [Asian] in the bunch. Yes, Americana.

VLJ JM: Nice but where are the white sheets? Gotta start them when

they are young.

Respondent: Come on James, that is the name of the kids team: “The

Maryland White Sheets.”

VLJ JM: Of course my bad, [bonfire] after every victory.

0014 CF, Tab 24, VA Ex. 1 at 261; Hearing Transcript, Volume 2 at 228-29.

allowed it to persist. 0014 CF, Tab 1 at 138. Furthermore, we agree with the

ALJ that the respondent’s counseling of the other FOH members appears to have

been more about not getting caught than about supporting a cul ture of respect and

propriety. 0014 ID at 19; 0014 CF, Tab 25 at 33-37. In fact, the respondent

advocated for carrying out FOH activities over private email accounts—a

suggestion that the other FOH members apparently declined to adopt. 0014 CF,

Tab 25 at 35. In addition, at least some of the respondent’s emails were

calculated to urge the others on: “OUTSTANDING” in response to a series of

racist or otherwise offensive jokes, and “Ohhh. How’s that funny or hateful?

This ain’t the forum of yawn.” 0014 CF, Tab 1 at 418, Tab 25 at 10-13.

¶17 Considering the evidence as a whole, we find that the respondent’s

participation in the FOH exhibited a marked lack of judgment over a significant

period of time. He sent inconsistent messages to the group by occasionally

counseling them against their offensive emails while at the same time doing

nothing effective to stop them, and sometimes expressing approbation. We

acknowledge that the respondent had misgivings about the FOH email traffic and

that doing something concrete to stop it would risk him alienating some friends

and colleagues. 0014 PFR File, Tab 1 at 9, 11-12. However, this is exactly the

kind of situation that agency leadership is expected to face with resolve and

fortitude. The respondent’s position, Chief VLJ, is one of great importance and

prominence; a Chief VLJ not only issues final agency decision s on important

veterans’ benefit cases, he manages a staff consisting of dozens of attorneys and

VLJs, and he is appointed to his position by the Presiden t of the United States.

Hearing Transcript (Tr.), Volume (Vol.) 1 at 81-92 (testimony of the Director of

Management, Planning, and Analysis). The respondent had dozens of

opportunities over the course of several years to confront this situation properly,

yet he failed to do so. For these reasons, we agree with the ALJ that the

respondent’s offense was serious as it pertains to his position. 00 14 ID at 20-21.

Respondent’s Past Disciplinary and Work Record

¶18 In his initial decision, the ALJ acknowledged the respondent’s long and

unblemished work history with the agency. 0014 ID at 21. On petition for

review, the respondent emphasizes this work history and argues that it weighs

strongly in favor of mitigation. 0014 PFR File, Tab 1 at 17 -20. We agree.

Instant misconduct aside, the respondent has been an exemplary agency employee

for 20 years, well-liked by his colleagues, with a spotless disciplinary record and

consistently outstanding work performance. 0014 CF, Tab 24 at 17-46, Tab 25

at 55-92; Tr., Vol. 1 at 27 (testimony of the Deputy Secretary), Vol. 2 at 21

(testimony of the respondent); see Gill v. Department of Defense, 92 M.S.P.R. 23,

¶ 27 (2002) (considering 20 years of service and good performance as a

mitigating factor); Douglas, 5 M.S.P.R. at 305. The nature of the respondent’s

history with the agency is not in dispute, and we find that it is an important factor

to consider in the penalty analysis.

The Respondent’s Ability to Perform and his Supervisors’ Confidence in

Him

¶19 In his initial decision, the ALJ found that, although the charges do not bear

on the respondent’s technical ability to perform his job duties, his supervisors

have lost trust and confidence in him. 0014 ID at 22-23. In particular, he noted

the testimony of the respondent’s second-line supervisor, who stated that even

one inappropriate email from someone in the respondent’s position would be

enough for him to lose all credibility. 0014 ID at 22; Tr., Vol. 1 at 123 -24

(testimony of the second-line supervisor). He also noted the testimony of the

respondent’s first-line supervisor, who stated that the respondent’s actions have

completely broken his trust and that he is concerned about the respondent’s

ability to handle matters appropriately and maintain good relationships with his

coworkers. 0014 ID at 22; Tr., Vol. 1 at 198, 215 (testimony of the first-line

supervisor).

¶20 On petition for review, the respondent points out that, after the events

surrounding the FOH came to light, the agency had him work on a detail

assignment to compile stock language for VLJs to use in addressing common

veterans’ benefit issues. 0014 PFR File, Tab 1 at 24-25. He argues that the

assignment has gone well and that it demonstrates his continued ability to

perform at an acceptable level. Id. The respondent also argues that there is no

basis for his first-line supervisor’s stated concern about his relationship with

other employees; no employees ever raised any concerns to him, but to the

contrary they support the respondent’s continued employment. Id. at 25.

¶21 We have considered these arguments, but we find that they do not warrant a

lesser penalty under all the circumstances. Regarding the detail assignment,

although it appears to be undisputed that the respondent’s performance in it was

generally successful, this evidence goes chiefly to his technical skills to perform

his job, which are not in doubt. 0014 ID at 22. However, the agency proved that,

despite the respondent’s technical skills and ability, his misconduct raises serious

questions about his ability to handle matters appropriately as a VLJ and his

relationships with other employees. Regarding the supervisor’s concerns about

the respondent’s relationships with his coworkers, it is true that these are not

grounded in any coworker complaints. Tr., Vol. 1 at 221 (testimony of the

first-line supervisor). However, we still find that these concerns are reasonable,

especially considering that the very misconduct at issue grew out of a

dysfunctional relationship between the respondent and several of his coworkers.

Beyond that, we find that the supervisors’ loss of trust in the respondent is

reasonable in light of the marked and continuous lack of judgment that he

exhibited for the full duration of his participation in the FOH. Loss of trust and

confidence is a significant aggravating factor in a penalty determination.

Talavera v. Agency for International Development , 104 M.S.P.R. 445, ¶ 12

(2007).

Table of Penalties

¶22 In his initial decision, the ALJ found that removal was consistent with the

agency’s table of penalties, which provides a penalty range of reprimand to

removal for a first offense of using disrespectful, insulting, abusive, insolent, or

obscene language to or about supervisors or other employees. 0014 ID at 24-25;

0014 CF, Tab 1 at 149. On petition for review, the respondent argue s that the

table of penalties is “of no use” because a range of reprimand to removal applies

for a first offense in any applicable category of misconduct. 0014 PFR File,

Tab 1 at 29. We agree with the respondent that the table of penalties is of limited

use to the Board in arriving at a penalty determination, but we also agree with the

ALJ’s finding that it did not foreclose removal. 0014 ID at 25.

Consistency of the Penalty

¶23 The respondent proffered one of the other FOH members as a comparator

for penalty purposes, arguing that this individual, like him, sent a minimal

number of offensive emails and was given a 2-week suspension. 0014 CF, Tab 29

at 49, Tab 30. The ALJ found that this employee was a staff attorney and

therefore not comparable to the respondent, who is a Chief VLJ. 0014 ID

at 23-24. The respondent does not challenge this finding on review, and we agree

with the ALJ’s analysis of this issue. Moreover, even if the proffered comparator

were similarly situated to the respondent, consistency of the penalty is only one

factor among many for the Board to consider, and we find that it would not be of

sufficient weight under the facts of this case to warrant mitigation. Singh v. U.S.

Postal Service, 2022 MSPB 15, ¶ 18.

Notoriety of the Offense

¶24 In his initial decision, the ALJ found that the facts of the respondent’s case

were public knowledge and that the story had been covered by several news

outlets. 0014 ID at 25-26; 0014 CF, Tab 24 at 476-513. He further found that

there was the potential for additional adverse publicity as the respondent’s appeal

progressed. 0014 ID at 26. On petition for review, the respondent argues that at

least some of the publicity—that from the Wall Street Journal—was of the

agency’s own making and that the agency did not rely on publicity or notoriety in

bringing its complaint. 0014 PFR File, Tab 1 at 29.

¶25 We disagree. First, we find that the agency’s actions did not occasion the

Wall Street Journal article. As the ALJ correctly found, the agency issued a press

release only after learning that the paper was about to run the story and receiving

a request for comment about it. 0014 ID at 24; 0014 CF, Tab 24 at 481, 508-10;

Tr., Vol. 1 at 35 (testimony of the Deputy Secretary). We also find that the

agency did, in fact, rely on the notoriety of the offense in bringing the complaint.

The Douglas factor checklist attached to the complaint indicates that the notoriety

of the offense and its effect on the reputation of the agency would be considered

an aggravating factor. 0014 CF, Tab 1 at 19; cf. Alvarado v. Department of the

Air Force, 97 M.S.P.R. 389, ¶ 15 (2004) (stating that the notice requirement is

satisfied when the proposal and any attachments to it, taken together, provide the

employee with specific notice of the charges against him so that he can make a n

informed and meaningful reply). We find that the significant publicity that this

case has garnered is an aggravating factor. See Bilger v. Department of Justice,

33 M.S.P.R. 602, 611 (1987), aff’d, 847 F.2d 842 (Fed. Cir. 1988) (Table).

Clarity with which the Respondent Was on Notice

¶26 On petition for review, the respondent argues that he was not clearly on

notice of any obligation to report the inappropriate FOH email s because the

agency has no policy on the matter. 0014 PFR File, Tab 1 at 20. We agree with

the respondent that the agency does not appear to have any written policy

covering this specific situation, but we also agree with the ALJ that the

respondent knew all along that the FOH email traffic was improper. 0014 ID

at 26-28. The respondent not only completed numerous trainings touching on

these issues, 0014 CF, Tab 24 at 189-94; Tr., Vol. 2 at 269-77 (testimony of the

respondent), we find that no specific instruction should have been required for the

respondent to understand how to handle this matter appropriately. This is not a

situation wherein the respondent ran afoul of an idiosyncratic and nonobvious

agency rule. Cf. Gunn v. U.S. Postal Service, 13 M.S.P.R. 576, 578-79 (1982).

Potential for Rehabilitation

¶27 In his initial decision, the ALJ briefly acknowledged that the respondent

was unlikely to commit a similar offense in the future. 0014 ID at 28 -29. By

contrast, the respondent’s petition for review places great emphasis on his

potential for rehabilitation. PFR File, Tab 1 at 10, 16-17, 21-22, 28. The

respondent’s rehabilitative potential is not the only factor for the Board to

consider in arriving at its penalty determination. Social Security Administration

v. Davis, 19 M.S.P.R. 279, 283, aff’d, 758 F.2d 661 (Fed. Cir. 1984). It is,

however, an important factor, and we find that rehabilitative potential in this case

is present. During agency proceedings, the respondent expressed remorse and

acknowledged that he should have handled things differently. Tr., Vol. 1 at 32

(testimony of the Deputy Secretary); see Williams v. Government Printing Office,

7 M.S.P.R. 183, 185 (1981) (finding that the appellant’s numerous apologies,

among other things, augured well for his rehabilitative potential). Furthermore,

the Deputy Secretary opined that the respondent would be very unlikely to repeat

the same misconduct in the future. 0014 ID at 28; Tr., Vol. 1 at 33; see Wentz v.

U.S. Postal Service, 91 M.S.P.R. 176, ¶ 24 (2002). Nevertheless, we find that the

evidence of rehabilitative potential is tempered by the respondent’s continued

efforts to deflect the blame to other FOH members and his apparent failure to

recognize that his own participation, however tacit, fostered the conditions for the

group’s existence. Tr., Vol. 2 at 101-57; see Betz v. General Services

Administration, 55 M.S.P.R. 424, 428, 431 (1992).

Lesser Alternative Sanctions

¶28 In his initial decision, the ALJ found that, if the respondent were to return

work at the agency, he probably would amend his email behavior, and that a

lengthy suspension would be sufficient to deter such misconduct by the

respondent and others. 0014 ID at 30. He further found, however, that the

penalty of removal would be even more effective in deterring other s from

committing similar misconduct. Id. On petition for review, the respondent

argues that the ALJ is attempting to make an example of him and that the Board

has traditionally frowned upon exemplary punishment. 0014 PFR File, Tab 1

at 25-27. He argues that, in light of the nature of his misconduct, his

rehabilitative potential, and the agency’s policy of progressiv e discipline,

demotion to a nonsupervisory position would be more appropriate. Id. at 21-22,

27-29.

¶29 We agree with the respondent that exemplary punishment is generally

contrary to the principles set forth in Douglas, which call for the Board to focus

on the individual circumstances and offenses of the employee being disciplined.

Perez v. U.S. Postal Service, 48 M.S.P.R. 354, 357-58 (1991). Nevertheless, it is

appropriate under Douglas to consider the deterrent effect that a lesser penalty

would have on others. Harper v. Department of the Air Force, 61 M.S.P.R. 446,

448 (1994); Douglas, 5 M.S.P.R. at 305-06. This means simply that deterrence is

one of the factors that may be considered in selecting a penalty but that the Board

may not decide to make an example of an individual irrespective of the other

Douglas factors. See Harper, 61 M.S.P.R. at 448. Reviewing the initial decision

as a whole, we find that the ALJ considered all of the appropriate penalty factors

in arriving at his decision. 0014 ID at 16-32. In any event, even excluding

deterrence as a factor entirely, upon consideration of all the relevant Douglas

factors and the particular circumstances, we find that removal is the appropriate

penalty for the respondent’s misconduct.

¶30 The respondent’s misconduct is severe and, as explained in the initial

decision, raises serious questions about his capability to render fair, impa rtial,

and unbiased decisions as an administrative adjudicator. 0014 ID at 20, 31.

Given the bigoted overtones of the FOH activity, the respondent’s unwillingness

to stop it despite his position of prominence, the negative publicity that this case

has already garnered, and the deleterious effect that the respondent’s retention

would have on the agency’s reputation if he continued on in any sort of

adjudicatory role, we find that the agency has shown good cause for his removal.

The respondent’s motion to stay his removal and for a protective order is denied

as moot.

¶31 As set forth above, the agency removed the respondent during the pendency

of his petition for review of the initial decision that found good cause for his

removal, and the respondent filed a motion to stay the removal and for a

protective order to prevent the agency from removing him absent final

authorization from the Board. Supra ¶ 5; see Stay File, Tab 1. Such a motion is

not contemplated by the Board’s regulations. See 5 C.F.R. §§ 1201.114(a),

.140(a)(2). The proper method for seeking relief under these circumstances

would be to file a complaint with the Board under 5 C.F.R. § 1201.142. As

explained below, the respondent did file such a complaint, and pursuant to that

complaint he is receiving all of the relief that he was seeking with his motion.

Accordingly, the motion to stay and for a protective order is denied as moot.

The agency’s petition for review is denied.

¶32 As set forth above, the respondent filed a complaint against the agency for

removing him from his position on November 24, 2017 without authorization.

Supra ¶ 7; 0011 CF, Tab 1, Tab 8 at 8. The ALJ granted corrective action and

ordered the agency to restore the respondent to his position retroactively and to

grant him interim relief in the event that either party petitioned for review.

0011 ID. The agency has not provided the respondent with interim relief, but it

has filed a petition for review. 0011 PFR File, Tab 2.

Agency’s Motion to Stay Interim Relief

¶33 Prior to filing its petition for review, the agency filed a motion to stay

interim relief. 0011 PFR File, Tab 1. Although the propriety of interim relief

may be challenged, neither the applicable statute nor the Board’s regulations

contemplate that the Board may stay interim relief or entertain an agency’s

motion for such a stay. Erickson v. U.S. Postal Service, 120 M.S.P.R. 468, ¶ 10

(2013). The agency’s motion is denied. Id.

Respondent’s Motion to Dismiss the Petition for Review

¶34 When, as here, the respondent was the prevailing party in the initial

decision and interim relief was ordered, a petition for review filed by the agency

must be accompanied by a certification that the agency has complied with the

interim relief order, either by providing interim relief or by making a

determination that returning the respondent to the place of employment would

cause undue disruption to the work environment. 5 C.F.R. § 1201.116(a). When

an agency fails to submit the required certification with its petition, the petition

may be dismissed with prejudice. See 5 C.F.R. § 1201.116(e).

¶35 In this case, it is undisputed that the agency has not complied with the

interim relief order, and the respondent has moved to dismiss the petition for

review on that basis. 0011 PFR File, Tab 2 at 15, Tab 3 at 22 -23. The agency

does, however, challenge the propriety of interim relief. 0011 PFR File, Tab 2

at 8-14. Although the Board could dismiss the petition due to the agency’s

noncompliance with the interim relief order, we exercise our discretion not to do

so both because the agency’s challenge to interim relief is intertwine d with its

challenge to the merits of the initial decision and because the respondent will not

be prejudiced if we consider the petition on the merits; as explained below, the

petition does not meet the criteria for review under 5 C.F.R. § 1201.115. See

Thome v. Department of Homeland Security, 122 M.S.P.R. 315, ¶ 16 (2015)

(explaining that the Board’s authority to dismiss an agency petition under

5 C.F.R. § 1201.116(e) is discretionary, not mandatory). The respondent’s

motion to dismiss is denied.

The Agency’s Petition for Review

¶36 In his initial decision, the ALJ found that the respondent’s November 24,

2017 removal was an action covered under 5 U.S.C. § 7521, for which the agency

was required to obtain prior authorization from the Board. 0011 ID at 13. He

further found that the agency took the removal action without receiving prior

authorization from the Board, i.e., a final Board decision authorizing the removal.

0011 ID at 13-19. He therefore reversed the removal and ordered the agency to

retroactively restore the respondent to his position. 0011 ID at 19. On petition

for review, the agency argues that its removal action was authorized under

5 U.S.C. § 7521 and that the ALJ erred in finding that the removal occurred prior

to authorization under that section. 0011 PFR File, Tab 2 .

¶37 The agency makes several arguments on review, but the essence of all of

them is that the ALJ’s initial decision finding good cause for removal constituted

sufficient authorization for it to remove the respondent. Id. at 6-14. We disagree.

Section 7521 of Title 5 of the United States Code provides that the agency may

remove a VLJ “only for good cause established and determined by the Merit

Systems Protection Board on the record after opportunity for hearing before the

Board.” No such determination had been made at the time the agency effected the

respondent’s removal. The ALJ’s initial decision may become the final decision

of the Board if neither party petitions for review within 35 days or if a petition

for review is timely filed and the Board denies the petition. 5 C.F.R.

§§ 1201.113, .140(a)(2). Alternatively, the Board may reach a final decision by

granting a petition for review or reopening or dismissing the case. 5 C.F.R.

§ 1201.113(c). Unless and until one of these conditions is met, the Board has not

issued a final decision, and it has therefore not made a determination of good

cause. Here, the agency effected the respondent’s removal only 20 days after the

issuance of the initial decision, before it could have become final, and the

respondent subsequently filed a timely petition for review. Thus, the agency

lacked the requisite final Board decision to take an action pursuant to

section 7521 procedures.

¶38 As for some of the agency’s more specific arguments, it points out the

Board’s regulations previously provided that an ALJ would issue a

“recommended” initial decision, but the regulations have since been amended to

remove the word “recommended.” 0011 PFR File, Tab 2 at 6 -7. Compare

5 C.F.R. § 1201.135(a) (1997), with 5 C.F.R. § 1201.140(a)(2) (1998). The effect

of this amendment was to allow initial decisions in section 7521 cases to become

final without further action from the Board. In other words, section 7521 cases

were made subject to the normal petition for review process applicable to cases

within the Board’s appellate jurisdiction. See Social Security Administration v.

Carr, 78 M.S.P.R. 313, 318 n.1 (1998), aff’d, 185 F.3d 1318 (Fed. Cir. 1999).

Compare 5 C.F.R. §§ 1201.135-.136 (1997), with 5 C.F.R. § 1201.140(a)(2)

(1998). Nothing about that process suggests that initial decisions become the

decisions of the Board before the conditions of 5 C.F.R. § 1201.113 are satisfied.

¶39 The agency also argues that the respondent’s complaint is a collateral attack

on the initial decision finding good cause for his removal. 0011 PFR File, Tab 1

at 8. This is simply not true. The respondent is not contesting the ALJ’s

previous good cause determination in this complaint; he is merely contesting the

agency’s decision to remove him before that initial decision became final.

Furthermore, contrary to the agency’s assertion, the controlling issues in the

respondent’s complaint are not determined by the outcome of the agency’s

original complaint, as should be evident from reading the respective initial

decisions. 0011 PFR File, Tab 2 at 8.

¶40 The agency further argues that, by the logic of the initial decision, “the

filing of a petition for review could act as an automatic stay for any decisions or

orders made by [Merit Systems Protection Board] ALJs - - an untended [sic]

consequence.” 0011 PFR File, Tab 2 at 13. The agency offers no support for its

assertion that this consequence is unintended. Indeed, this consequence is

intended, and it is explicitly recognized in the Board’s enforcement regulations,

which provide that the Board will only enforce an order after it becomes final.

5 C.F.R. § 1201.182(b); see Dean v. Department of the Army, 57 M.S.P.R. 296,

300 (1993).

¶41 Finally, the agency argues that, as the prevailing party in the initial

decision, it should be entitled to the relief provided in the initial decision

effective the date it is issued. 0011 PFR File, Tab 2 at 13 -14. Although there

might be policy reasons to support the agency’s argument, the agency’s policy

preferences do not permit us to ignore the plain language of the statute, which as

explained above, requires the agency to await a good cause determination “by the

Board” before removing the respondent. 5 U.S.C. § 7521; see Garza v. Office of

Personnel Management, 83 M.S.P.R. 336, ¶ 17 (1999) (citing Commissioner v.

Lundy, 516 U.S. 235, 251-52 (1996)), aff’d, 250 F.3d 763 (Fed. Cir. 2000)

(Table). The agency is essentially arguing that the favorable initial decision

entitled it to interim relief, but Congress explicitly limited the availability of

interim relief to employees and applicants for emplo yment. 7 5 U.S.C.

§ 7701(b)(2).

Given the respondent’s misconduct in this case, we appreciate the agency’s interes t in

removing him from its employment rolls as soon as practicable. But the Federal

Government cannot operate outside the law. The respondent may ultimately be entitled

to a significant amount of back pay and benefits in this case, but this is due solely to the

strictures of the operative statute and the circumstances of a lack of Board quorum for a

prolonged period of time. Ordinary adverse actions taken under 5 U.S.C. chapter 75,

subchapter II, are effective immediately regardless of any subsequent Boa rd appeal, but

adverse actions against ALJs and VLJs are governed by 5 U.S.C. chapter 75,

subchapter III, which requires final Board approval before they can become effective.

Any award of back pay and benefits may be attributed to this Board’s commitment to

the Merit Systems and to the rule of law—not to any sympathy with the respondent’s

conduct.

ORDER

CB-7521-18-0011-T-1

¶42 We ORDER the agency to cancel the respondent’s November 24, 2017

removal and to restore him to duty retroactive to that date . See Kerr v. National

Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must

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

¶43 We also ORDER the agency to pay the respondent the correct amount of

back pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the respondent to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the respondent the

undisputed amount no later than 60 calendar days after the date of this decision.

¶44 We further ORDER the agency to tell the respondent promptly in writing

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

taken to carry out the Board’s Order. The respondent, if not notified, should ask

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

¶45 No later than 30 days after the agency tells the respondent that it has fully

carried out the Board’s Order, the respondent may file a petition for enforcement

with the Office of the Clerk of the Board, if the respondent believes that the

agency did not fully carry out the Board’s Order. The petition should contain

specific reasons why the respondent believes that the agency has not fully carried

out the Board’s Order, and should include the dates and results of any

communications with the agency. 5 C.F.R. § 1201.182(b).

¶46 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defens e Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

CB-7521-16-0014-T-1

¶47 The Board authorizes the agency to remove the respondent for good cause

shown, pursuant to 5 U.S.C. § 7521. Such removal shall be effective on or after

the date of this Final Order.

NOTICE TO THE RESPONDENT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). T he

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the Clerk of the

Board.

NOTICE OF APPEAL RIGHTS FOR

MSPB DOCKET NOS. CB-7521-16-0014-T-1 AND CB-7521-18-0011-T-1 8

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

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.

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:

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. ____ , 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

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. 9 The court of appeals must receive your

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.

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