Mark Weidhase v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARK WEIDHASE, DOCKET NUMBER

Appellant, SF-0752-17-0153-I-1

v.

DEPARTMENT OF HOMELAND DATE: July 17, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

Jennifer R. Hong, Esquire, Los Angeles, California, for the agency.

Stanislaus A. Gonsalves, Esquire, Oak Brook Terrace, Illinois, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

sustained the removal action. Generally, we grant petitions such as this one only

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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 and AFFIRM the initial decision,

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

BACKGROUND

¶2 Prior to his removal, the appellant was a Criminal Investigator, GS -14, with

the agency’s Immigration and Customs Enforcement division in the Los Angeles

Field Office. Initial Appeal File (IAF), Tab 1 at 1. On August 31, 2014, he was

involved in a traffic collision when the driver of another vehicle rear-ended his

personal vehicle. Hearing Transcript (HT) at 100:16-101:8 (testimony of the

appellant). Following the collision, the appellant observed that the suspect was

Hispanic, spoke limited English, had a Mexican voter identification card in his

wallet, and seemed reluctant to involve law enforcement. HT at 102:2-103:2.

The appellant asked the suspect where he was from and the suspect responded “de

alla” (which translates to “from over there”). HT at 103:23-104:12. The

appellant obtained his agency law enforcement credentials from his vehicle and

identified himself as a law enforcement officer. HT at 104:24-105:5. The

suspect immediately took flight and the appellant pursued and detained him until

local law enforcement could arrive. HT at 104:24-105:5, 107:20-22. In the

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course of these events, the appellant suffered an inj ury to his knee. IAF, Tab 8

at 178-79.

¶3 The appellant subsequently left two voicemail messages for his supervisor.

HT at 169:25-170:12, 170:23-171:6 (testimony of the appellant). On

September 1, 2014, the appellant sent an email to his supervisors recounting the

incident. IAF, Tab 8 at 236. On September 2, 2014, the appellant submitted a

Form CA-1 (“Federal Employee’s Notice of Traumatic Injury and Claim for

Continuation of Pay/Compensation”) to the Office of Workers’ Compensation

Programs (OWCP) in which he attested that he sustained a work-related injury to

his knee during the incident. Id. at 178-79. The appellant was asked to submit

additional information to OWCP and, on September 23, 2014, the appellant

submitted a detailed statement regarding the incident. IAF, Tab 9 at 194-95. The

appellant’s supervisor reported his belief that the appellant had filed a false

OWCP claim and the Office of Professional Responsibility (OPR) conducted an

investigation. IAF, Tab 8 at 135.

¶4 On March 15, 2016, the agency proposed to remove the appell ant based on

the following charges: (1) Misuse of Law Enforcement Authority (three

specifications); and (2) Lack of Candor (four specifications). Id. at 127-33. The

agency charged the appellant with misuse of his law enforcement authority when

he displayed his law enforcement credentials, engaged in a foot pursuit, and

detained an individual while off duty and without the proper authority. Id. at 128.

The agency also charged the appellant with lack of candor when he gave

incomplete or incorrect information in voicemails and emails to his supervisor, on

forms related to his workers’ compensation claim, and during his OPR interview.

Id. at 128-29. On November 15, 2016, the agency issued a decision letter

sustaining the charges and finding that removal was an appropriate penalty. Id.

at 21-31. The appellant was removed effective immediately upon receipt of the

decision letter. Id. at 22.

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¶5 The appellant timely filed an appeal of his removal with the Board. IAF,

Tab 1. Following a hearing, the administrative judge issued an initial decision

sustaining the removal action. IAF, Tab 27, Initial Decision (ID) at 23. The

administrative judge found that the agency did not prove any of the three

specifications underlying the charge of misuse of law enforcement authority, and

accordingly, did not sustain the charge. ID at 12-13. Of the four lack of candor

specifications, the administrative judge found that the agency did not prove

specifications 1 and 4 but she sustained specifications 2 and 3. ID at 13-20. She

thus sustained the lack of candor charge. ID at 20. She also found that the

removal penalty was within the parameters of reasonableness and was the

maximum reasonable penalty for the sustained charge. ID at 21-23.

¶6 On petition for review, the appellant challenges the administrative judge’s

findings on the two lack of candor specifications that were sustained. Petition for

Review (PFR) File, Tab 3. The appellant argues that the agency failed to meet its

burden to prove the remaining two lack of candor specifications. Id. at 12. The

agency has filed a response, to which the appellant has replied. PFR File,

Tabs 6-7.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly sustained the lack of candor charge.

¶7 Lack of candor “is a broader and more flexible concept” than falsification.

Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002).

Although lack of candor does not require an affirmative misrepresentation, it

involves an element of deception. Id. at 1284-85. An agency alleging lack of

candor must prove the following elements: (1) that the employee gave incorrect

or incomplete information; and (2) that he did so knowingly. Fargnoli v.

Department of Commerce, 123 M.S.P.R. 330, ¶17 (2016).

¶8 Under specification 2 of the lack of candor charge, the agency stated the

following:

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On September 2, 2014, you completed and submitted the Form CA -1

for an injury that occurred on August 31, 2014 following a traffic

collision where you were rear-ended. On the form, you stated that

you were rear-ended by a suspect and that the “suspect stated he did

not have a driver’s license and stated he was unlawfully present, then

fled the scene” after you identified yourself as an [Homeland

Security Investigations (HSI)] Special Agent. You were less than

truthful in your statement on the Form CA-1 because you did not

mentioned [sic] the fact that the suspect who rear-ended you stated

he was unlawfully present in your previous communications to your

supervisor Assistant Special Agent in Charge (ASAC) . . . .

Specifically, you left two voicemail messages for ASAC . . . on the

night of August 31, 2014. In your voicemail messages, you did not

inform ASAC . . . that [the suspect] said he was unlawfully present

in the United States. Additionally, on September 1, 2014, you sent

ASAC . . . an email detailing the circumstances surrounding the

traffic collision and the subsequent detention of [the suspect] and

you did not indicate that the suspect stated he was unlawfully

present. Your statement on the Form CA-1 constitutes a lack of

candor.

IAF, Tab 8 at 129.

¶9 Here, the administrative judge found that the agency proved that the

appellant made an incorrect statement on the Form CA-1 and that he did so

knowingly. ID at 16. Importantly, the administrative judge noted that the

appellant testified during the hearing that, in his encounter with the suspect on

August 31, 2014, the suspect did not state that he was unlawfully present or an

illegal alien. HT at 159:2-4, 173:8-11 (testimony of the appellant). Thus, the

administrative judge found that, at the time the appellant completed the

Form CA-1 and wrote that “the suspect . . . stated he was unlawfully present,” the

appellant was knowingly providing incorrect information. ID at 16 ; IAF, Tab 8

at 178-79. The administrative judge acknowledged that the suspect’s statements

to the appellant may have created a reasonable suspicion that the s uspect was

unlawfully present. ID at 16. However, the administrative judge properly noted

that a reasonable suspicion that the suspect was unlawfully present is not the

same as the suspect stating he was unlawfully present. Id. We thus discern no

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basis for disturbing the administrative judge’s findings that the appellant

knowingly provided incorrect information on the Form CA-1. See Fargnoli,

123 M.S.P.R. 330, ¶ 17. Based on the foregoing, we find that the administrative

judge properly sustained specification 2 of the lack of candor charge.

¶10 Specification 3 of the lack of candor charge states as follows :

On or about September 23, 2014, you submitted correspondence to

the claims examiner . . . with the Office of Workers’ Compensation

Program. In that correspondence, you stated that an accident

occurred as described in the Riverside Sheriff’s Department Incident

Report. You further stated, “Based on his demeanor, body language

and evasive response to my question regarding his immigration

status,” you identified yourself as a Special Agent for the

Department of Homeland Security, at which time [the suspect] took

flight. However, in your September 1, 2014, email to your

supervisor ASAC . . . you did not mention questioning [the suspect]

about his immigration status or the fact that he gave an evasive

response. During your March 26, 2015, interview with the Special

Agent from the Office of Professional Responsibility, you stated that

you did not question [the suspect] about his immigration status

because he fled before you had a chance to do so. Your statement in

your September 23, 2014 correspondence to the claims examiner

constitutes a lack of candor.

IAF, Tab 8 at 129.

¶11 Here, the administrative judge found that the agency proved that the

appellant made incorrect or incomplete statements in the September 23 , 2014

letter to OWCP when he stated that, during the August 31, 2014 incident, the

suspect gave an “evasive response to my question regarding his immigration

status.” ID at 18. In addition, the administrative judge found that this incorrect

statement was made knowingly. Id. Specifically, after reviewing all of the

appellant’s statements, the administrative judge found no evidence that the

appellant ever asked the suspect a question “regarding his immigration status”

and that, accordingly, there was also no evidence that the suspect provided any

“evasive response” to said question. Id. Moreover, the administrative judge

correctly noted that the appellant testified under oath during his interview with

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OPR that he did not question the suspect about his immigration status or ask him

where he was from. ID at 18; IAF, Tab 9 at 79-80. We thus discern no basis for

disturbing the administrative judge’s findings that the appellant knowingly

provided incorrect information in the September 23, 2014 letter to OWCP. See

Fargnoli, 123 M.S.P.R. 330, ¶ 17. Based on the foregoing, we find that the

administrative judge properly found that the agency proved specification 3 of the

lack of candor charge. Because the administrative judge correctly sustained

specifications 2 and 3, we find that she correctly sustained the lack of candor

charge. See Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.

1990) (explaining that, when there is one charge with multiple factual

specifications set out in support of the charge, proof of one or more, but not all,

of the supporting specifications is sufficient to sustain the charge).

The administrative judge correctly found that the agency established the nexus

requirement and that the penalty of removal was reasonable under the

circumstances.

¶12 In addition to proving the charge by preponderant evidence, the agency

must also establish the existence of a nexus between the misconduct and the

efficiency of the service, and that the penalty of removal is reasonable. 5 U.S.C.

§ 7513(a); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 18 (2013);

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306-07 (1981). The nexus

requirement, for purposes of determining whether an agency has shown that its

action promotes the efficiency of the service, means there must be a clear and

direct relationship between the articulated grounds for an adverse action and

either the employee’s ability to accomplish his duties satisfactorily or some other

legitimate Government interest. Scheffler v. Department of the Army,

117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). We

agree with the administrative judge’s findings that the agency has met the nexus

requirement here. ID at 21; see Ludlum v. Department of Justice, 87 M.S.P.R. 56,

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¶ 28 (2000) (finding that lack of candor strikes at the very heart of the

employer-employee relationship), aff’d, 278 F.3d 1280 (Fed. Cir. 2002).

¶13 Regarding the penalty, when, as here, not all of the charges are sustained,

the Board will consider carefully whether the sustained charges merit the penalty

imposed by the agency. Suggs v. Department of Veterans Affairs, 113 M.S.P.R.

671, ¶ 6 (2010), aff’d, 415 F. App’x 240 (Fed. Cir. 2011). In such circumstances,

the Board may mitigate the agency’s penalty to the maximum reasonable penalty

so long as the agency has not indicated in either its final decision or in

proceedings before the Board that it desires a lesser penalty be imposed on fewe r

charges. Id. In doing so, the Board may not disconnect its penalty determination

from the agency’s managerial will and primary discretion in disciplining

employees. Id.

¶14 In the initial decision, the administrative judge discussed the deciding

official’s consideration of the seriousness of the offense and its relation to the

appellant’s duties as a law enforcement officer. ID at 21 -22; IAF, Tab 8 at 27-31;

HT 14:25-16:8 (testimony of the deciding official). Specifically, she relied on his

testimony that “the ability to provide credible and factual testimony and recounts

of events is central to the law enforcement position which [the appellant] holds as

he may be called to testify in court.” ID at 22; IAF, Tab 8 at 27.

Additionally, the administrative judge credited the deciding official’s testimony

that the appellant’s lack of candor presented an integrity issue that resulted in a

loss in the appellant’s ability to perform his duties. ID at 22. She, like the

deciding official, considered mitigating factors such as the appellant’s many years

of service, lack of disciplinary history, and good performance, but concluded that

they do not outweigh the seriousness of the offense. Id.; IAF, Tab 8 at 27-28;

HT 16:12-17:6, 20: 11-25 (testimony of the deciding official). Finally, she

observed that the deciding official did not testify regarding what penalty he

would have imposed if only the lack of candor charge was sustained. ID at 23.

As such, she found that removal was still the appropriate penalt y. ID at 22-23.

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¶15 The appellant does not challenge the administrative judge’s finding s on

review, PFR File, Tab 1, and we discern no reason to disturb them, ID at 21 -23.

The Board has long placed particular emphasis on the nature and seriousness of

the misconduct and its relationship to the employee’s duties, position, and

responsibilities. See Arena v. U.S. Postal Service, 121 M.S.P.R. 125, ¶ 6 (2014)

(stating that, in evaluating the penalty, the Board will consider, first and

foremost, the nature and seriousness of the misconduct and its relationship to the

employee’s duties, position, and responsibilities), aff’d, 617 F. App’x 996 (Fed.

Cir. 2015) (Table); see Gaines v. Department of the Air Force, 94 M.S.P.R. 527,

¶ 9 (2003) (same). Further, it is well settled that law enforcement officers are

held to a higher standard of honesty and integrity. Prather v. Department of

Justice, 117 M.S.P.R. 137, ¶ 36 (2011). Thus, the seriousness of the appellant’s

lack of candor, as explained by the deciding official, particularly in light of his

position as a law enforcement officer, is of paramount consideration. Based on

the foregoing, we agree with the administrative judge that removal is the

maximum reasonable penalty for the sustained charge. ID at 23; see Carlton v.

Department of Justice, 95 M.S.P.R. 633, ¶¶ 7-9 (finding that the removal penalty

was reasonable when a law enforcement officer demonstrated lack of candor and

conduct unbecoming).

¶16 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 2

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

2

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.

10

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 choice s 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 particu lar

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

11

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,

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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 competent jurisdiction. 3 The court of appeals must receive your

3

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.

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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 war rants that

any attorney will accept representation in a given case.

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.