The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN J. LEBEAU, DOCKET NUMBER
Appellant, PH-0752-20-0001-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 26, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Noelle Clapham, Esquire, Providence, Rhode Island, for the appellant.
Colleen M. Shook, Norfolk, Virginia, 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 based on the charges of unauthorized removal of
Government property, unauthorized sale of Government property, and misuse of a
Government vehicle. Generally, we grant petitions such as this one only in the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
following circumstances: 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 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 M ODIFIED to
find that the agency established a nexus between the appellant’s misconduct and
the efficiency of the service, we AFFIRM the initial decision.
¶2 On petition for review, the appellant challenges the administrative judge’s
fact and credibility findings regarding the charges of unauthorized removal and
unauthorized sale of Government property. Petition for Review (PFR) File, Tab 1
at 4-10. He largely repeats his arguments from his prehearing submission,
including his assertion that he never took and sold any Government-owned scrap
metal from the naval base. Id.; Initial Appeal File (IAF), Tab 27 at 4-5. He does
not challenge the misuse of an assigned Government vehicle (GOV) charge and
admits again to “negligible use” of his GOV for personal reasons to transport
scrap metal, which he maintains that he obtained off -base. PFR File, Tab 1 at 5,
8; IAF, Tab 27 at 5. Finally, regarding the penalty, he argues that misuse of a
GOV, the only misconduct to which he admits, warrants only a suspension and
not removal. PFR File, Tab 1 at 9.
¶3 The appellant’s arguments on review constitute mere disagreement with the
administrative judge’s findings and are unavailing. The administrative judge
thoroughly reviewed the record evidence and made reasoned credibility findings
3
in sustaining all three charges, 2 including the misuse of GOV charge that the
appellant does not challenge on review, and we find that the appellant has
presented no basis for disturbing the initial decision. IAF, Tab 38, Initial
Decision (ID) at 14-17; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
105-06 (1997) (finding no reason to disturb the administrative judge’s findings
when she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions on issues of credibility); Broughton v. Department of
Health & Human Services, 33 M.S.P.R. 357, 359 (1987). Although the appellant
raises an argument about the maximum reasonable penalty for his misuse of a
GOV, PFR File, Tab 1 at 5, 8-9, the administrative judge properly sustained all
three charges, ID at 14-17. The record supports the administrative judge’s
finding that the penalty of removal was reasonable and that the deciding official
had considered the relevant factors. ID at 17-18; see Pinegar v. Federal Election
Commission, 105 M.S.P.R. 677, ¶ 53 (2007) (stating that, when all of the
agency’s charges are sustained, the Board will review the agency -imposed penalty
only to determine if the agency considered all of the relevant factors and
exercised management discretion within the tolerable limits o f reasonableness);
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
2
The agency charged the appellant with 25 specifications of unauthorized sale of
Government property between August and December 2018, all concerning scrap metal
sold to the same private company. IAF, Tab 7 at 39-41. On review, the appellant
generally denies ever selling any Government property. PFR File, Tab 1 at 4-8. The
documentary evidence in the record contains detailed receipts from the company to
which the appellant sold the scrap metal, and he has not challenge d their authenticity.
IAF, Tab 36 at 4-23; PFR File, Tab 1 at 4-9. Rather, he disputes the origin of the scrap
metal, maintaining throughout his appeal that he did not obtain it on the naval base .
PFR File, Tab 1 at 4-5; IAF, Tab 27 at 4-5. The administrative judge considered this
argument below, and after assessing record and testimonial evidence including the
appellant’s own testimony, the administrative judge found that the weight of the
evidence was sufficient to support the deciding official’s finding that the scrap metal in
question had come from the naval base. IAF, Tab 38, Initial Decision at 16-17. The
appellant has not provided a basis for disturbing this well -reasoned finding on review.
4
¶4 In addition to the requirement that an agency prove its charges against the
appellant, the agency must also prove that there is a nexus, i.e., a clear and direct
relationship between the articulated ground for the adverse action and either the
appellant’s ability to accomplish his duties satisfactoril y or some other legitimate
interest. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 8 (2010); see
5 C.F.R. § 752.403(a) (stating that an agency may take an adverse action only for
such cause as will promote the efficiency of the service). Here, the
administrative judge did not make an explicit finding regarding the nexus
between the sustained misconduct and the efficiency of the service. ID at 14-19.
Neither party raised this issue on review. Nonetheless, we find that the appellant
was not prejudiced by the administrative judge’s omission because the record
clearly supports a finding of nexus. PFR File, Tab 1 at 4 -10, Tab 4 at 4-10; see
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
¶5 It is well established that a nexus exists between the efficiency of the
service and the charge of misuse of Government property. See Els v. Department
of the Army, 82 M.S.P.R. 27, ¶ 11 (1999). The Board has also found nexus for an
employee’s off-duty misuse of a GOV. See Hoofman v. Department of the Army,
118 M.S.P.R. 532, ¶ 16 (2012) (finding a nexus between the appellant’s use of a
Government-owned vehicle for other than official purposes while off duty), aff’d,
526 F. App’x 982 (Fed. Cir. 2013). Moreover, as the administrative judge
discussed, the deciding official found in his written Douglas factors analysis that
appellant’s position involved responsibility for over 350 pieces of equipment on
the base and that his multiple acts of serious misconduct “significantly erode[d]
the ability of the chain of command to trust” him. ID at 10; IAF, Tab 7 at 12; see
Doe v. Department of Justice, 113 M.S.P.R. 128, ¶ 20 (2010) (noting that one
method by which agency can prove nexus between noncriminal off-duty
misconduct and the efficiency of the service is to demonstrate that the misconduct
5
adversely affects the agency’s trust and confidence in the appellant’s job
performance). Therefore, we find that the agency established a nexus between the
sustained off-duty misconduct and the efficiency of the service.
NOTICE OF APPEAL RIGHTS 3
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
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 applic able 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
3
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.
6
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 particul ar
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
7
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
8
(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. 4 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:
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 th e 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.
4
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 jurisd iction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
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.