Opinion

Clarence Roden v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jun 7, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CLARENCE J. RODEN, DOCKET NUMBER

Appellant, SF-0752-18-0661-I-1

DEPARTMENT OF HOMELAND DATE: June 7, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Clarence J. Roden, Gainesville, Georgia, pro se.

Nicholas R. Hankey, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

reversed the appellant’s indefinite suspension. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial dec ision is based on an 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 reverse the indefinite suspension for failure to prove the charge

rather than for a due process violation, we AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was employed as a physical security specialist with the

Federal Protective Service. Initial Appeal File (IAF), Tab 9 at 19. He was

arrested in March 2013 for brandishing a weapon in a motor vehicle, a felony

under California law. Upon learning of the arrest, the agency initially placed the

appellant on administrative leave, then returned him to work performing

administrative duties. Id. at 69-72.

¶3 The State of California filed a felony criminal complaint against the

appellant on October 7, 2013. Id. at 63. The appellant was arraigned the same

day and pled not guilty. Id. at 58. The court scheduled a preliminary hearing for

November 12, 2013. Id.

¶4 By letter dated October 9, 2013, the agency proposed to indefinitely

suspend the appellant based on the pending criminal charges. IAF, Tab 9

at 52-53. In proposing the indefinite suspension, the agency cited the criminal

complaint filed against the appellant 2 days earlier. The agency also indicated

that the court had found probable cause to believe that the appellant had

committed the charged offense during the proceedings on October 7, 2013. Id.

The appellant replied to the proposed indefinite suspension both orally and in

writing. Id. at 38-51. By letter dated October 31, 2013, the agenc y issued a

decision suspending the appellant indefinitely pending the outcome of the

criminal case against him and any subsequent agency investigation and adverse

action. Id. at 20-30.

¶5 The appellant filed an equal employment opportunity complaint challeng ing

his suspension. IAF, Tab 7 at 15-21. In April 2018, the Equal Employment

Opportunity Commission returned the appellant’s mixed-case complaint to the

agency for issuance of a Final Agency Decision. IAF, Tab 6 at 54 -56. The

appellant filed this appeal on July 16, 2018. IAF, Tab 3.

¶6 After holding the appellant’s requested hearing, the administrative judge

issued an initial decision reversing the appellant’s indefinite suspension. IAF,

Tab 41, Initial Decision (ID). He found that the agency had violat ed the

appellant’s due process rights by considering aggravating factors relating to its

penalty determination without giving the appellant notice of and an opportunity to

respond to those factors. ID at 4-6. The administrative judge found that the

appellant failed to prove his affirmative defenses of discrimination based on race

or uniformed service. ID at 6-13.

¶7 The agency has petitioned for review of the initial decision. Petition for

Review (PFR) File, Tab 3. On review, the agency argues that the ad ministrative

judge erred in finding a due process violation. The appellant did not file a

response to the petition for review. 2

The deadline to respond to the petition for review or file a cross petition for review

was June 22, 2019. PFR File, Tab 4. The appellant filed a request for an extension of

time on August 7, 2019, more than a month after the filing deadline. PFR File, Tab 6.

The Office of the Clerk of the Board rejected the extension request as untimely. PFR

File, Tab 7. The appellant subsequently requested leave to file an additional pleading.

PFR File, Tab 8. The appellant’s request fails to describe the nature of and need for the

additional pleading, and therefore it is DENIED. See 5 C.F.R. § 1201.114(a)(5).

¶8 Among the limited circumstances in which the Board and its reviewing

court have approved the use of indefinite suspensions is w hen the agency has

reasonable cause to believe an employee has committed a crime for which a

sentence of imprisonment could be imposed. Gonzalez v. Department of

Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010). The Board has defined

“reasonable cause” as “probable cause,” or “[a]n apparent state of facts found to

exist upon reasonable inquiry (that is such inquiry as the given ca se renders

convenient and proper) which would induce in a reasonably intelligent and

prudent man to believe, in a criminal case, that the accused person had committed

the crime charged. . . .” Martin v. Department of the Treasury, 12 M.S.P.R. 12,

18 (1982) (quoting Black’s Law Dictionary, Revised 4th Ed., 1968, at 1365), aff’d

in part, rev’d in part sub nom. Brown v. Department of Justice, 715 F.2d 662

(D.C. Cir. 1983), and aff’d sub nom. Otherson v. Department of Justice, 728 F.2d

1513 (D.C. Cir. 1984); apparent inconsistency between Martin and another Board

decision recognized in Dunnington v. Department of Justice, 956 F.2d 1151, 1155

(Fed. Cir. 1992); Martin modified by Barresi v. U.S. Postal Service, 65 M.S.P.R.

656, 663 n.5 (1994). Applying this standard, the Board in Martin determined that

an indictment is sufficient to establish reasonable cause, whereas an investigation

alone is insufficient to establish reasonable cause. Martin, 12 M.S.P.R. at 19.

The Board further determined that an arrest accompanied by certain other

circumstances could suffice. It cited as one example of such circumstances the

employee being held for further legal action by a magistrate. Id.

¶9 In proposing and effecting the appellant’s suspension, the agency indicated

that a judicial officer had found probable cause to detain the appellant on the

felony charge initiated against him on October 7, 2013. IAF, Tab 9 at 21, 53.

However, the record does not support the agency’s characterization of the

proceedings on that date. According to the criminal docket records submitted by

the agency, the appellant appeared in court on October 7, 2013, pled not guilty to

the felony charge against him, and was ordered to appear for a preliminary

hearing the following month. Id. at 58.

¶10 Under California criminal law, the state can initiate a felony prosecution

through an indictment or an information. Cal. Penal Code § 737. When seeking a

criminal information, the state first files a criminal complaint, Cal. Penal Code

§ 738, as it did here, IAF, Tab 9 at 63. There is then a preliminary examination

of the case against the defendant to determine whether he should be held to

answer the charges. Cal. Penal Code § 738. On preliminary examination, the

magistrate must determine whether there is sufficient cause to believe the

defendant is guilty. Cal. Penal Code § 872(a). If sufficient cause is found, the

district attorney may then formally charge the defendant. Cal. Penal Code § 739.

Thus, because the appellant had not yet had his preliminary hearing, there wa s no

independent finding of probable cause at the time the agency proposed the

indefinite suspension.

¶11 The Board has held under similar circumstances that the filing of a criminal

complaint is not itself sufficient to establish reasonable cause to believe an

employee committed a crime. In Phillips v. Department of Veterans Affairs,

58 M.S.P.R. 12, 14-15 (1993), aff’d, 17 F.3d 1443 (Fed. Cir. 1994) (Table), the

Board held that an agency could not base an indefinite suspension on the mere

filing of a felony criminal complaint where the appellant had not yet been granted

a preliminary hearing, which was a prerequisite to the filing of a criminal

information. Although Phillips arose under Missouri law, the procedure for

felony prosecution by information appears to be functionally identical to the

California procedures at issue here. We therefore hold that the filing of a felony

criminal complaint alone was not sufficient to establish reasonable cause to

believe the appellant had committed a crime.

¶12 In Hernandez v. Department of the Navy, 120 M.S.P.R. 14, ¶¶ 10-16 (2013),

the Board held that a misdemeanor criminal complaint under California law is

sufficient to establish reasonable cause. The Board distinguished Phillips on the

grounds that a misdemeanor criminal prosecution does not require a preliminary

hearing. Id., ¶ 13 (equating a misdemeanor criminal complaint under California

law to an indictment). Thus, the present case is distinguishable from Hernandez

because the prosecution in this case required a preliminary determination of

probable cause before it could proceed further. Cal. Penal Code §§ 738, 739.

¶13 Although the Board in Phillips held that the criminal complaint was

insufficient to establish reasonable cause, it nevertheless sustained the appellant’s

indefinite suspension because the agency in that case had sufficient evidence

beyond the criminal complaint to support its action. Phillips, 58 M.S.P.R. at 15.

Here, we find that the criminal complaint was the central basis for the agency’s

action. IAF, Tab 9 at 20 (“The reason for the Proposed Indefinite Suspension is

that you are the defendant in . . . a criminal case.”). We find that the agency did

not otherwise cite sufficient evidence to establish reasonable cause to believe the

appellant committed the crime alleged in the complaint. 3 Thus, we find that the

agency failed to prove its charge. Because this finding is sufficient to warrant

reversal of the indefinite suspension, we need not address and VACATE the

administrative judge’s findings regarding due process.

¶14 The appellant did not file a cross petition for review to challenge the

administrative judge’s findings that he failed to prove his affirmative defenses of

discrimination based on race or uniformed service. We have nevertheless

reviewed those findings and we see no reason to disturb them. 4

Our finding as to the agency’s charge does not mean that reasonable cause did not

exist to believe the appellant committed the crime. Rather, we find only that the agency

did not cite a sufficient basis to find reasonable cause. See Fargnoli v. Department of

Commerce, 123 M.S.P.R. 330, ¶ 7 (2016) (The Board is required to review the agency’s

decision on an adverse action solely on the grounds invoked by the agency; the Board

may not substitute what it considers to be a more adequate or proper basis .).

Because we affirm the administrative judge’s finding that the appellant failed to meet

his initial burden to prove that his race was a motivating factor in the agency’s action,

we need not resolve the issue of whether the appellant proved that discrimination was a

ORDER

¶15 We ORDER the agency to cancel the appellant's indefinite suspension and

reinstate him and to restore the appellant effective November 1, 2013. 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.

¶16 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, interest 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.

¶17 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).

¶18 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 appellant

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).

“but-for” cause of the agency’s decision. Pridgen v. Office of Management and Budget,

2022 MSPB 31, ¶¶ 20-22, 40-42.

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

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resu lting 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 ca n 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 5

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

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 indicat ed in the notice, the

Board cannot advise which option is most appropriate in any matter.

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

provide legal advice on which option is most appropriat e 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 applica ble 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. 420 (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 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 revi ew either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

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

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