Kevin Brown v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEVIN BROWN, DOCKET NUMBER

Appellant, NY-0752-17-0108-I-1

v.

DEPARTMENT OF VETERANS DATE: April 21, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kevin Brown, Bronx, New York, pro se.

Christopher P. Richins, Esquire, Brooklyn, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

FINAL ORDER

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

affirmed his indefinite suspension. On petition for review, the appellant argues

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

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that the administrative judge improperly imposed sanctions that dismissed his

affirmative defenses as abandoned. He also argues that the administrative judge

erred in finding that the agency established that it had reasonable cause to believe

that he had committed a crime for which a term of imprisonment could be

imposed. Generally, we grant petitions such as this one only in the 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 MODIFIED to

clarify the reasonable cause analysis, we AFFIRM the initial decision.

¶2 The appellant challenges the imposition of sanctions, claiming that he failed

to comply with the administrative judge’s orders due to technica l difficulties with

e-Appeal Online. Even if the appellant experienced the technical difficulties he

describes, however, he has not explained how these alleged difficulties prevented

him from complying with her orders. Significantly, the appellant succes sfully

uploaded a pleading in response to the show cause orders on May 9, 2017, and the

administrative judge considered this pleading prior to dismissing his affirmative

defenses. Initial Appeal File (IAF), Tabs 9-10. The appellant has not explained

how his alleged technical difficulties with e-Appeal Online prevented him in any

way from substantively responding to the administrative judge’s show cause

orders in his successfully uploaded pleading, and he did not mention these alleged

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difficulties at the time he filed the pleading. Moreover, the administrative

judge’s first show cause order contained an explicit warning that a failure to

substantively respond to her order with the requested information could result in

the dismissal of his affirmative defenses as abandoned. IAF, Tab 7. Under these

circumstances, we find no abuse of discretion. See Heckman v. Department of the

Interior, 106 M.S.P.R. 210, ¶ 16 (2007) (finding that the administrative judge did

not abuse her discretion by dismissing the appellant’s aff irmative defenses for

failure to prosecute when the appellant did not comply with multiple orders over

a period of 2 1/2 months).

¶3 As to the appellant’s challenge to the administrative judge’s finding that the

agency established that it had reasonable cause to believe that he had committed a

crime for which a term of imprisonment could be imposed, we modify the initial

decision as follows, still concluding that the agency met its burden. In the initial

decision, the administrative judge based her conclusion that the agency

established reasonable cause largely on the fact that the appellant was arrested

and arraigned on several criminal charges, one of which was punishable by

imprisonment up to 7 years. IAF, Tab 24, Initial Decision at 6-7. However,

relying on an arrest and arraignment alone is insufficient to establish reasonable

cause in the context of an indefinite suspension. See Barresi v. U.S. Postal

Service, 65 M.S.P.R. 656, 662-63, 666 (1994). Rather, the agency must take

some affirmative action on its own to satisfy itself that there was reasonable

cause to believe that a crime was committed for which imprisonment could be

imposed. Id. at 666 (citing Dunnington v. Department of Justice, 956 F.2d 1151

(Fed. Cir. 1992)).

¶4 Here, the record demonstrates that the agency conducted its own

investigation of the appellant’s conduct that led to his arrest and arraignment and

that it considered this evidence in proposing and sustaining the appellant’s

indefinite suspension. In reaching his decision to sustain the indefinite

suspension, the deciding official considered the materials contained in the

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evidence file. IAF, Tab 6, Subtab 4c at 1. In addition to evidence related to the

appellant’s arrest and arraignment, the materials included a sworn statement from

the agency’s own Criminal Investigator summarizing his investigation of the

appellant’s alleged conduct, including statements from several witnesses, a

confession from the appellant’s alleged coconspirator that implicated the

appellant, and a description of video footage that subs tantiated the confession.

IAF, Tab 6, Subtab 4e. At the hearing, the deciding official testified that he read

the Criminal Investigator’s report and the witness statements included in the

report. Hearing Recording (testimony of the deciding official). He further

testified that he believed that the statements from the witnesses interviewed by

the Criminal Investigator were reliable, including the confession from the

appellant’s alleged coconspirator. Id. He concluded, based on all the evidence

presented to him, that there was reasonable cause to believe that the appellant had

committed the crimes for which he was arrested and arraigned and for which a

term of imprisonment could be imposed. Id. Under these circumstances, we find

that the agency’s consideration of the appellant’s arrest and arraignment, in

conjunction with the results of its own investigation, is sufficient to establish

reasonable cause. See Dunnington, 956 F.2d at 1156-58 (finding the reasonable

cause standard met when, in addition to four arrest warrants, the agency

considered factual material culled from four criminal complaints and statements

from complaining witnesses supporting the criminal complaints ). Accordingly,

we deny the petition for review.

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

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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.

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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:

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

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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 war rants 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.

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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

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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 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.

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The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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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.