Opinion

Jacob Day v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Feb 27, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

noting that the Board’s failure to consider a significant mitigating circumstance constituted an abuse of discretion, and remanding for the Board to determine an appropriate lesser penalty

How later courts described this case

noting that the Board’s failure to consider a significant mitigating circumstance constituted an abuse of discretion, and remanding for the Board to determine an appropriate lesser penalty
requiring an administrative judge to ascertain whether the agency responsibly balanced the relevant factors in the individual case and 3 selected a penalty within the tolerable limits of reasonableness

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACOB B. DAY, DOCKET NUMBER

Appellant, DA-0752-19-0078-I-3

DEPARTMENT OF AGRICULTURE, DATE: February 27, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joshua A. Verde, Houston, Texas, for the appellant.

Stephanye Snowden, Washington, D.C., 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 initial decision, which

mitigated the appellant’s removal from his Consumer Safety Inspector position to

a 60-day suspension without pay. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous a pplication 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 affec ted 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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 The administrative judge’s findings regarding the charges, nexus, and

affirmative defenses are unchallenged on review, and we discern no reason to

disturb them. On review, the agency argues that the administrative judge erred in

finding that the deciding official did not properly consider the relev ant factors set

forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), and

also erred in finding that the agency’s penalty determination was not entitled to

deference. Petition for Review (PFR) File, Tab 8 at 5. Among other things, the

agency asserts that, absent more, the fact that the agency did not receive

complaints from an entity the appellant was charged with inspecting and that said

entity wrote a letter praising the appellant are not mitigating factors. Id. at 22.

¶3 Before undertaking our review of the penalty, we note that, since the

issuance of Douglas over 40 years ago, the Board and the U.S. Court of Appeals

for the Federal Circuit have held that the Board’s statutory power includes the

authority to modify or reduce a penalty imposed on an employee by an agency’s

adverse action. See, e.g., Mitchum v. Tennessee Valley Authority, 756 F.2d 82, 84

(Fed. Cir. 1985) (requiring an administrative judge to ascertain whether the

agency responsibly balanced the relevant factors in the individual case and

selected a penalty within the tolerable limits of reasonableness); Van Fossen v.

Department of Housing and Urban Development, 748 F.2d 1579, 1581 (Fed. Cir.

1984) (noting that the Board’s failure to consider a significant mitigating

circumstance constituted an abuse of discretion, and remanding for the Board to

determine an appropriate lesser penalty). That authority is derived from 5 U.S.C.

§ 1205(a)(1), as enacted by the Civil Service Reform Act of 1978, which provides

that the Board is authorized and directed to “take final action” on any m atter

within its jurisdiction. Douglas, 5 M.S.P.R. at 284, 296. Such authority is also

consistent with the same broad authority that the former Civil Service

Commission had, dating back to at least 1947, and that Congress wanted to

“remain with the Board” upon its creation. Id. at 285-86, 290-94. Congress

“clearly intended the Board to function in an independent, nonpartisan,

quasi-judicial role,” id. at 287, and exercise a “degree of independent

discretionary judgment,” id. at 298. In essence, and after briefing on the issue

from a dozen Federal departments and agencies, four Federal employee unions,

and the parties, the Board held that, although its authority to mitigate must be

exercised with appropriate deference to agency management, it nevertheless has

the authority to “mitigate penalties when the Board determines that the

agency-imposed penalty is clearly excessive, disproportionate to the sustained

charges, or arbitrary, capricious, or unreasonable.” Id. at 284, 301-02 (further

holding that the Board, like its predecessor Civil Service Commission, “will

consider whether a penalty is clearly excessive in proportion to the sustained

charges, violates the principle of like penalties for like offenses, or is otherwise

unreasonable under all the relevant circumstances.”). Thu s, the Board’s role “is

essentially to assure that the agency did conscientiously consider the relevant

factors and did strike a responsible balance within tolerable limits of

reasonableness.” Id. at 306. The ultimate burden is upon the agency to persuad e

the Board of the appropriateness of the penalty imposed. Id. at 307.

¶4 We understand the agency’s argument that the views of an entity an

employee is charged with inspecting are not mitigating factors and thus, the

deciding official’s failure to consider them did not warrant the administrative

judge not deferring to the agency’s penalty determination. Nonetheless, we do

not agree that the nature and seriousness of the appellant’s misconduct outweighs

the mitigating factors under the circumstances of this case. In particular, we note

the de minimus nature of the appellant’s misuse of the Government fuel card

($6.16 in a single incident), 2 and the small number of overtime hours improperly

reflected on the appellant’s time card (5 hours on two separate days). We also

note the appellant’s 11 years of service, his fully successful or exceeds fully

successful performance ratings, 3 and the lack of any prior discipline of record.

¶5 Thus, we find that the maximum reasonable penalty for the appellant’s

misconduct is a 60-day suspension. See, e.g., Ludlum v. Department of Justice,

87 M.S.P.R. 56, ¶ 13 (2000) (mitigating a removal of an FBI Special Agent for

lack of candor during an administrative inquiry to a 120 -day suspension,

considering his satisfactory performance, lack of a prior disciplinary record, and

letters of character reference), aff’d, 278 F.3d 1280 (Fed. Cir. 2002); Banez v.

For reasons that are unclear, the agency brought three specifications of misuse of the

fuel card, alleging each snack item improperly purchased by the appellant as a separate

specification, even though the purchases occurred as part of the same transaction.

The agency argues that the record does not support that the appellant received exceeds

fully successful performance ratings. PFR File, Tab 1 at 22-23. Although the agency

only provided the appellant’s fully successful performance evaluations, the appellant

testified that he received fully successful and exceeds fully successful per formance

ratings in prior years. Day v. Department of Agriculture, MSPB Docket No. DA-0752-

19-0078-I-2, Appeal File (I-2 AF), Tab 11 at 5-15, Tab 40, Hearing Recording

(testimony of the appellant). The administrative judge apparently credited the

appellant’s testimony regarding this matter. Day v. Department of Agriculture, MSPB

Docket No. DA-0752-19-0078-I-3, Appeal File, Tab 7, Initial Decision at 2, 27.

Regardless of whether the appellant’s performance ratings were fully successful and/or

exceeds fully successful, it is undisputed that the appellant’s performance was, at

minimum, an acceptable level and the deciding official testified that she considered the

appellant’s acceptable performance to be a mitigating factor. I-2 AF, Tab 45, Hearing

Transcript at 52.

Department of Defense, 69 M.S.P.R. 642, 650-51 (1996) (mitigating a removal

for misappropriation of Government property valued at $13.99 to a 60-day

suspension based on the de minimis nature of the theft, the fact that it was the

appellant’s first offense in 26 years of service, his satisfactory performance, and

his lack of custody and control over the item); Stein v. U.S. Postal Service,

57 M.S.P.R. 434, 441 (1993) (mitigating removal for falsification of production

reports arising out of an “isolated incident” to a 60-day suspension based on the

appellant’s rehabilitation potential and the fact that it was the appellan t’s first

offense in 16 years of service), overruled on other grounds by White v. U.S.

Postal Service, 71 M.S.P.R. 521, 525-28 (1996). Thus, we affirm the initial

decision.

ORDER

¶6 We ORDER the agency to cancel the removal and substitute in its place a

60-day suspension without pay. 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.

¶7 We also ORDER the agency to pay the appellant 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 appellant 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, in terest due,

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

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

¶8 We further ORDER the agency to tell the appellant 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 appellant, if not notified, should ask

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

¶9 No later than 30 days after the agency tells the appellant that it has fully

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

with the office that issued the initial decision on this appeal if the appel lant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant 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(a).

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

Center of the Department of Agriculture (NFC) or the Def ense 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.

NOTICE TO THE APPELLANT 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). The

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 office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 4

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 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:

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.

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. ma il, 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. 5 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 App eals for

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