Opinion

Marvin Smith v. Department of the Army

Court: Merit Systems Protection Board
Filed: Sep 29, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARVIN R. SMITH, DOCKET NUMBER

Appellant, SF-0752-21-0090-I-1

DEPARTMENT OF THE ARMY, DATE: September 29, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shawn A. Luiz, Esquire, Honolulu, Hawaii, for the appellant.

John H. Stephenson, II, Esquire, Tripler Army Medical Center, Hawaii, for

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

which affirmed his removal for conduct unbecoming a Police Officer. On review,

he reasserts that the agency failed to prove the charge and argues that the

administrative judge erred in concluding the penalty of removal was within the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

tolerable limits of reasonableness. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains erron eous

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 resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to address the appellant’s assertion that he had 20 years of Federal

service and to recognize that the administrative judge erred in determining that

the deciding official did not consider the appellant’s prior discipline as

an aggravating factor in electing the penalty of removal, we AFFIRM the initial

decision.

¶2 On review, the appellant asserts that he had 20 years of service for which

the agency gave him “no credit” when determining the reasonableness of the

penalty under the relevant factors set forth in Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-06 (1981). Petition for Review (PFR) File, Tab 1 at 8. The

appellant alleged below that he had over 19 years of service with the Department

of Defense, including military service as a combat Marine. Initial Appeal File

(IAF), Tab 1 at 14. An employee’s military service is relevant when analyzing

length of service under Douglas. Tartaglia v. Department of Veterans Affairs,

858 F.3d 1405, 1409 (Fed. Cir. 2017). It is unclear from the record exactly how

many years of military and civilian service the appellant had; however, a

Standard Form 50 in the record reflects a service computation date in

September 2000. IAF, Tab 1 at 34. Thus, it appears the appellant had 20 years of

service at the time of his September 2020 removal. IAF, Tab 5 at 77 -78.

¶3 In reviewing the deciding official’s penalty assessment, the administrative

judge noted that the deciding official stated in his decision that he considered the

appellant’s service as a Police Officer for over 10 years and that he subsequently

testified that he considered the appellant’s 16 years in law enforcement against

him because he was a seasoned officer who “should have known better.”

IAF, Tab 26, Initial Decision (ID) at 28-29; IAF, Tab 5 at 77. The administrative

judge correctly found error in the deciding official’s determination that the

appellant’s length of service was an aggravating factor. IAF, Tab 5 at 77;

ID at 28-29; see Shelly v. Department of the Treasury, 75 M.S.P.R. 677, 684

(1997) (finding that the agency erred in determining the appellant’ s 23 years of

service was an aggravating factor because a longtime employee “should have

known better” and instead finding that 23 years of service with no prior discipline

was a factor supporting leniency). She reweighed his 16 years of service,

considering it a mitigating factor but nonetheless sustaining the removal. I D at

28-29.

¶4 However, the administrative judge did not address the appellant’s claim

that, instead of 16 years of service, he had over 19 years of service. We modify

her decision to address that claim but nevertheless agree that removal is

appropriate. In Tartaglia, 858 F.3d at 1407, 1409-10, the U.S. Court of Appeals

for the Federal Circuit held that the Board abused its discretion in sustaining the

penalty of removal when it miscalculated the appellant’s length of service by not

crediting him for an additional 15 years of military and civilian service and then

discounted other Douglas factors, including his lack of prior discipline and

outstanding work record, based on his purportedly short tenure of 4 years. Here,

there is no evidence that the administrative judge discounted mitigating Douglas

factors when she only credited the appellant for 16 years of service, instead of 19

or 20 years of service. ID at 28. Also, unlike in Tartaglia, in which the

miscalculation resulted in 15 years of lost credit, here the appellant only lost

credit for 4 years of service.

¶5 Further, it appears that the administrative judge erroneo usly found “no

evidence that the deciding official considered any particular disciplinary history,

much less that he treated it as aggravating.” ID at 28; IAF, Tab 5 at 77.

On review, the appellant states that he had “no serious prior incidents or

discipline,” other than a written warning. PFR File, Tab 1 at 9. This statement is

consistent with the administrative judge’s observation that the deciding official

testified that he considered the appellant’s prior discipline and also referred to a

letter of reprimand. ID at 28. To the extent that the administrative judge found

that the deciding official did not “consider[] any particular disciplinary history”

because he did not specify that the prior discipline he considered was the

reprimand, we disagree. Consistent with his testimony, the record reflects that

the appellant was issued a prior suspension for conduct unbecoming a Police

Officer, which was reduced to a formal reprimand in 2019. IAF, Tab 14 at 5.

Further, the appellant’s acknowledgment that he had a prior written warning is

also consistent with this testimony. Therefore, we find that the deciding official

considered the appellant’s prior reprimand to be an aggravating factor.

¶6 While we credit the appellant’s statement that he had 20 years of service

and assume for purposes of our analysis that he had no prior discipline , we still

find that removal is within the parameters of reasonableness. Chavez v. Small

Business Administration, 121 M.S.P.R. 168, ¶ 8 (2014) (explaining that when the

Board sustains all of the agency’s charges but finds errors in the agency’s

consideration of the relevant penalty factors, it will mitigate only the extent

necessary to bring the penalty within the parameters of reasonableness) .

The appellant’s misconduct was serious, and included slamming a patient into a

wall and violating the agency’s local security regulation by carrying a firearm

with live ammunition in the chamber, particularly in light of his position as a

Police Officer held to a higher standard. IAF, Tab 5 at 72-73; see O’Lague v.

Department of Veterans Affairs, 123 M.S.P.R. 340, ¶¶ 2, 18-21 (2016) (upholding

the appellant’s removal for falsification and sleeping on duty notwithstanding his

lack of prior discipline and explaining that law enforcement officers may be held

to a higher standard of conduct than other Federal employees) aff’d per curiam,

698 F. App’x 1034 (Fed. Cir. 2017); Tate v. Department of Defense, 57 M.S.P.R.

180, 189-90 (1993) (affirming a removal for absence without leave and

threatening to inflict bodily harm upon a supervisor despite such mitigating

factors as 24 years of service and the lack of prior discipline); MacCormac v.

Department of the Air Force, 26 M.S.P.R. 611, 612, 614 (1985) (upholding the

appellant’s removal for intimidating conduct toward a subordinate and violating

agency security regulations concerning possession of weapons); MacDonald v.

Department of the Navy, 4 M.S.P.R. 403, 404-05 (1980) (sustaining the removal

of a police officer for carrying a loaded firearm in a paper bag in an agency

installation while off-duty). Thus, any miscalculation by the agency and the

administrative judge in the appellant’s length of service did not prejudice his

substantive rights because even after properly weighing that factor and crediting

the appellant’s 20 years of service, we find that removal was reasonable. See

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that

an adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for reversal of an initial decision). Accordingly, we affirm the

administrative judge’s finding sustaining the appellant’s removal for conduct

unbecoming a Police Officer.

NOTICE OF APPEAL RIGHTS 2

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

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.

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 appr opriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

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

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

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

§ 7703(b)(1)(A).

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

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

following address:

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 s ection

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