The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICK A. JENKINS, DOCKET NUMBER
Appellant, DC-0752-19-0349-I-2
v.
DEPARTMENT OF DEFENSE, DATE: April 25, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas J. Gagliardo, Esquire, Silver Spring, Maryland, for the appellant.
Richard Saviet, Fort Belvoir, Virginia, 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 removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
2
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 argument regarding the appointment of the administrative
judge, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant was employed by the agency as a General Supply Spec ialist
in Virginia. Jenkins v. Department of Defense, MSPB Docket No. DC-0752-19-
0349-I-1, Initial Appeal File (IAF), Tab 5 at 12. In April 2018, the appellant
travelled to Houston, Texas, for a work-related event. IAF, Tab 20 at 7, Tab 26
at 4-5. On the first night of that trip, the appellant was shot by a Houston police
officer after the appellant allegedly attempted to enter the officer’s house.
Jenkins v. Department of Defense, MSPB Docket No. DC-0752-19-0349-I-2,
Refiled Appeal File (RAF), Tab 7 at 14-15, 21. The appellant was hospitalized
for a week and unable to attend the work event that was the purpose of his trip.
IAF, Tab 20 at 10, Tab 26 at 4-5. He was charged with attempted burglary and
jailed upon his release from the hospital, but the criminal charges were later
dismissed. IAF, Tab 6 at 23, Tab 20 at 10, 12, Tab 26 at 4 -5.
¶3 In November 2018, the agency proposed the appellant’s removal on charges
of conduct unbecoming a Federal employee and failure to report criminal charges
3
to the agency. IAF, Tab 6 at 6-12. The conduct unbecoming charge related to the
appellant’s conduct during the trip to Houston. Id. at 6-8. The charge of failure
to report criminal charges related to a prior criminal charge that the agency
discovered during its investigation of the Houston incident. Id. at 8. In
February 2019, after the appellant responded to the proposed removal, the agency
issued a decision removing him. IAF, Tab 5 at 13-17. The deciding official
sustained only the conduct unbecoming charge but concluded that the single
sustained charge nevertheless justified the appellant’s removal. Id.
¶4 The appellant filed a timely Board appeal challenging his removal. IAF,
Tab 1. He raised affirmative defenses of discrimination based on race and
disability as well as harmful procedural error. Id. at 3. The appellant initially
requested a hearing, id. at 2, but he later withdrew that request, RAF, Tab 3 . 3
¶5 The administrative judge issued an initial decision on the written record
affirming the appellant’s removal. RAF, Tab 13, Initial Decision (ID). He found
that the agency proved the conduct unbecoming charge by preponderant evidence
and that the appellant failed to prove his claims of discrimination or harmful
procedural error. ID at 10-25. He further found that the agency established a
nexus between the appellant’s misconduct and the efficiency of the service. ID
at 25-26. Finally, the administrative judge found that the agency considered the
relevant factors and that the penalty of removal was within the tolerable limits of
reasonableness. ID at 27-29.
¶6 The appellant has filed a timely petition for review of the initial decision.
Jenkins v. Department of Defense, MSPB Docket No. DC-0752-19-0349-I-2,
Petition for Review (PFR) File, Tab 5. On petition for review, he r aises the
following arguments: (1) the administrative judge lacked authority to issue the
initial decision because he was not properl y appointed consistent with the
3
The administrative judge dismissed the appeal without prejudice for a period of
40 days. IAF, Tab 40, Initial Decision. The Board automatically refiled the appeal
upon the expiration of that period. RAF, Tab 1.
4
Appointments Clause of the U.S. Constitution; (2) the administrative judge erred
in his credibility determinations; and (3) the administrative judge erred in
rejecting his discrimination claims. Id. at 5. The agency has responded in
opposition to the petition for review, and the appellant has filed a reply. PFR
File, Tabs 7-8.
The appellant did not timely raise his argument regarding the appointment of the
administrative judge.
¶7 For the first time on petition for review, the appellant argues that the
administrative judge was not properly appointed under the Appointments Clause.
PFR File, Tab 5 at 9-11. He cites the U.S. Supreme Court’s decision in Lucia v.
Securities and Exchange Commission, 138 S. Ct. 2044 (2018), in support of his
argument that the administrative judge is an inferior officer of the United States
who was not appointed in compliance with the Appointments Clause. Id. at 9-10.
He argues that, under Lucia, he is entitled to a new adjudication before a properly
appointed officer. Id. at 10-11.
¶8 The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R. § 1201.115(d).
The appellant offers no justification for his failure to raise his Appointments
Clause claim before the administrative judge. We note that the Lucia decision on
which the appellant relies was issued before the appellant filed his initial appeal
in 2019. The Board recently held that it would not consider an Appointments
Clause claim raised for the first time on petition for review, even when the Lucia
decision was issued after the close of the record before the administrative judge.
McClenning v. Department of the Army, 2022 MSPB 3, ¶¶ 5-15. Consistent with
McClenning, we hold that the appellant forfeited his Appointments Clause claim
by failing to raise it before the administrative judge.
5
The appellant has not shown any error in the administrative judge’s credibility
determinations.
¶9 The appellant challenges the administrative judge’s credibility
determinations, particularly his failure to credit the appellant’s assertion that his
actions on the night in question “were involuntary because he had been beaten
and robbed, and was disoriented.” PFR File, Tab 5 at 11. If, as h ere, an
administrative judge’s findings are not based on the obse rvation of witnesses’
demeanor, the Board is free to reweigh the evidence and substitute its own
judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d 1288,
1302 (Fed. Cir. 2002); Elder v. Department of the Air Force, 124 M.S.P.R. 12,
¶ 21 (2016). We have reviewed the record, and we agree with the administrative
judge that the appellant’s claim is not credible.
¶10 The appellant first raised the claim of being beaten and robbed in an
October 2019 affidavit. RAF, Tab 8 at 33. However, he did not assert it as fact
based on his own recollection; to the contrary, he stated in the same affidavit that
he “remember[ed] almost nothing” about the events of that night. Id. Instead, the
appellant asserted in his affidavit that the police told him during an inter view in
the hospital that they suspected he had been beaten and robbed. Id. However,
even that assertion is inconsistent with the appellant’s deposition testimony,
given prior to the affidavit, in which he stated that he did not recall any
conversation with the police while he was in the hospital. IAF, Tab 21 at 31-34.
Additionally, as the administrative judge noted in the initial decision, the
appellant offered no evidence to support the assertion that he had been beaten and
robbed prior to the incident during which he was shot. ID at 15-16. We therefore
find no error in the administrative judge’s determination that the appellant failed
to establish that his actions on the night in question were involuntary due to being
beaten and robbed.
6
The appellant failed to prove his discrimination claims.
¶11 As to his discrimination claims, the appellant argues on petition for review
that the agency’s decision to charge him with failure to report criminal charges
and its decision to return him to work prior to proposing his removal are evidence
of discriminatory animus. PFR File, Tab 5 at 16 -17. He also cites the deciding
official’s “capricious restating of the specification in support of the charge of
conduct unbecoming” after criminal charges had been dropped a nd his record
expunged. Id. at 17. As to the failure to report criminal charges, the
administrative judge credited the proposing official’s explanation that he
proposed that charge because there was no official record that the appellant had
properly reported the earlier criminal charge to the agency. ID at 20 -21; RAF,
Tab 11 at 40. As to the decision to return the appellant to work, the
administrative judge credited the proposing official’s explanation that he returned
the appellant upon receiving medical clearance for the appellant to work and that
at the time he did so no disciplinary action had been initiated against the
appellant. ID at 21; RAF, Tab 11 at 38. We agree with the administrative
judge’s handling of those matters. The fact that the age ncy proposed a charge of
failure to report criminal charges but then did not sustain that charge upon receipt
of additional evidence does not support a finding of discrimination. ID at 20 -21;
RAF, Tab 11 at 40. Likewise, it was entirely appropriate for t he proposing
official to return the appellant to work upon receipt of medical clearance to do so
and then to initiate the disciplinary process based on the appellant’s misconduct.
¶12 As to the appellant’s argument regarding the deciding official’s “capricious
restating of the specification in support of the charge of conduct unbecoming,” he
provides no further context or support for that argument on petition for review.
PFR File, Tab 5 at 17. Before the administrative judge, the appellant raised the
same argument along with the following: “After [the appellant] demonstrated
clearly and convincingly that the criminal charges against him had been dismissed
and his record expunged, it became apparent that unless the specification was
7
changed the deciding official could not justify removing him.” RAF, Tab 8 at 27.
However, as the administrative judge correctly found, the agency based its
conduct unbecoming charge on the appellant’s actions, not on the existence of
criminal charges based on those actions. ID at 13. Therefore, the fact that the
criminal charges were dropped does not affect the validity of the agency’s charge
or establish discriminatory motive.
¶13 In the initial decision, the administrative judge relied on Southerland v.
Department of Defense, 119 M.S.P.R. 566, ¶¶ 23-25 (2013), to analyze the
appellant’s disparate treatment disability discrimination c laim, and he concluded
that the appellant failed to show that his disability was a motivating factor in the
removal action. ID at 22-23. In Southerland, the Board held that an appellant
bears the burden of proving by preponderant evidence that his disabi lity was a
motivating factor in the adverse action, but the agency can limit the appellant’s
remedy by showing by clear and convincing evidence that it would have taken the
same action in the absence of discriminatory motive. Southerland, 119 M.S.P.R.
566, ¶¶ 23-25. After the administrative judge issued the initial decision in this
appeal, the Board issued Pridgen v. Office of Management and Budget,
2022 MSPB 31. In Pridgen, we clarified the proper analytic framework for a
disability discrimination claim. Pridgen, 2022 MSPB 31, ¶¶ 35-42.
Nevertheless, under both Southerland and Pridgen, the appellant bears the initial
burden of proving by preponderant evidence that his disability was a motivating
factor in the agency’s removal action. Pridgen, 2022 MSPB 31, ¶ 40;
Southerland, 119 M.S.P.R. 566, ¶¶ 18, 23. Because we agree with the
administrative judge that the appellant failed to meet his initial burden, the
administrative judge’s reliance on Southerland, rather than Pridgen, is
8
immaterial. 4 We find no material error in the administrative judge’s
determination that the appellant failed to prove his discrimination claims. 5
NOTICE OF APPEAL RIGHTS 6
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 an d
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.
4
Because we discern no error with the administrative judge’s findings that neither his
race nor disability was a motivating factor in his removal, we do not reach the question
of whether his race or disability was a “but-for” cause of the removal. See Pridgen,
2022 MSPB 31, ¶¶ 40, 42.
5
The initial decision mentions direct evidence, types of circumstantial evidence, and
composing a convincing mosaic of discrimination. ID at 20. The Board has clarified
that administrative judges are not required to separate “direct” from “indirect” evidence
and to proceed as if such evidence were subject to different legal standards or to require
appellants to demonstrate a “convincing mosaic” of discrimination. Gardner v.
Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 30 (2016), clarified by Pridgen,
2022 MSPB 31, ¶¶ 23-24. However, insofar as we find no indication that the
administrative judge disregarded any evidence because of its direct or circumstantial
nature or held the appellant to too high a standard, a different outcome is not warranted.
6
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.
9
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 fo llowing
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 ou r 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
10
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 r egular U.S. mail, the
address of the EEOC is:
11
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. 7 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).
7
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.
12
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.
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.