Opinion

Francisco Prince v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FRANCISCO E. PRINCE, DOCKET NUMBER

Appellant, CH-0731-18-0192-I-1

OFFICE OF PERSONNEL DATE: February 22, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Eustace A. Prince , Waukegan, Illinois, for the appellant.

Steve Newman , Esquire, New York, New York, for the appellant.

Darlene M. Carr , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed the Office of Personnel Management (OPM)’s decision to find the

appellant unsuitable for Federal employment, direct his employing agency to

terminate him from his Federal position, cancel his reinstatement eligibilities and

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

other eligibilities, and debar him from Federal employment in covered positions

for a period of 3 years. On petition for review, the appellant challenges the

administrative judge’s decision to affirm OPM’s negative suitability

determination, arguing that OPM failed to prove charges 1 and 2.

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

address the appellant’s request to present new argument, supplement the

administrative judge’s discussion of the evidence in support of charge 1, and

VACATE her analysis of the Board’s jurisdiction to review suitability actions

taken against tenured Federal employees, we AFFIRM the initial decision.

We decline to consider the appellant’s new arguments that he raises on review.

On review, the appellant requests that the Board consider his new

arguments because his attorney representative was unable to submit a closing

brief due to unforeseen “technological” and “computer hardware” problems.

Petition for Review (PFR) File, Tab 1 at 2, 8. A substantial portion of the

appellant’s arguments are raised below and based on evidence already in the

record; therefore, they are not a basis for granting the petition for review.

See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (providing

that evidence that is already a part of the record is not new).

As to the appellant’s new arguments, the Board 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. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271

(1980). He has not made such a showing. Further, the error of his representative

does not excuse his failure to raise his arguments below. The appellant has not

explained the nature of the technological problems or how they prevented his

representative from requesting an extension or submitting his brief before the

initial decision’s issuance, especially considering that the administrative judge

extended the close of the record several times. Initial Appeal File (IAF), Tab 7

at 6, Tabs 12, 15, 17; see, e.g., Strickler v. Office of Personnel Management,

51 M.S.P.R. 354, 357 (1991) (declining to consider the agency’s arguments raised

for the first time on review because it failed to sufficiently explain why its

representative was unable to raise those arguments below). The appellant is

responsible for the errors of his chosen representative . Sofio v. Internal Revenue

Service, 7 M.S.P.R. 667, 670 (1981). Accordingly, we decline to consider the

appellant’s arguments raised for the first time on review. 2

The appellant also appears to raise an affirmative defense of race discrimination.

PFR File, Tab 1 at 11-12. We find that the appellant, who has been represented by both

an attorney and non-attorney, waived or abandoned this claim because he did not raise

any substantive arguments below on this issue in his pleadings; he did not object to the

administrative judge’s order that did not include this affirmative defense as an issue on

appeal, despite being apprised of the consequences of such failure; and he offers no

more substantive argument on this issue on review. PFR File, Tab 1 at 11-12; IAF,

Tab 1 at 37, Tab 7; See Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18

(setting forth the factors for considering whether the appellant waived or abandoned his

affirmative defense, such as the thoroughness and clarity with which the appellant

raised his affirmative defense, the degree to which the appellant continued to pursue his

affirmative defense in the proceedings below after initially raising it, and whether the

appellant objected to a summary of the issues to be decided that failed to include the

potential affirmative defense when he was specifically afforded an opportunity to object

and the consequences of his failure were made clear).

The administrative judge properly sustained charge 1.

On review, the appellant reasserts that the signed statement he made during

the Navy Exchange (NEX)’s investigation into his misconduct was coerced;

denies that he received or assisted his coworker in receiving unauthorized

discounts; and argues that the agency’s circumstantial evidence, which consisted

of inadmissible hearsay, was insufficient to prove the charge. 3 PFR File, Tab 1

at 6-11. We find these arguments unavailing.

The Board has found that when an appellant repudiates, under oath, his

unsworn extrajudicial statement made in a custodial situation, due process

requires the agency to submit independent evidence in support of the charge.

Wohlwend v. Department of Health and Human Services , 16 M.S.P.R. 458, 461

(1983); cf. Cole v. Department of the Air Force, 120 M.S.P.R. 640, ¶ 9 (2014)

(finding that an appellant’s unrecanted admissions may suffice as proof of a

charge without additional proof from the agency). Here, however, the appellant

swore under penalty of perjury that he engaged in the misconduct. IAF, Tab 6

at 96. Even so, OPM submitted corroborating evidence in support of the charge.

See Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 549 (1994) (explaining that,

when the agency submits corroborative evidence in support of its charge, the

Board may properly consider an appellant’s unsworn recanted admission,

including whether the recantation is credible or not, as one of the pieces of

evidence against him), aff’d, 56 F.3d 1375 (Fed. Cir. 1995).

In addition to the NEX statement, OPM submitted the NEX report prepared

by the Loss Prevention Officer (LPO) assigned to the matter. 4 IAF, Tab 6

The appellant reasserts that NEX violated his constitutional rights, including his First

and Fifth Amendment rights, and “E.E.O. [r]ights” when it interviewed him. PFR File,

Tab 1 at 11; IAF, Tab 1 at 37. Absent further clarification as to the nature of those

claims, we construe the appellant’s argument as a general assertion that his due process

rights were violated.

While some of the evidence in support of charge 1 is hearsay, as the appellant argues,

PFR File, Tab 1 at 8, hearsay evidence is admissible in Board proceedings, and the

assessment of the probative value of such evidence depends on the circumstances of

each case. See Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶15

at 88-96. The report included a printout from NEX’s system reflecting the sale

and the application of the unauthorized discount on the boots and indicated that,

during a separate interview, the appellant’s coworker identified him as a

participant in the discount scheme. Id. at 92. Contrary to the appellant’s

argument otherwise, there is no indication his coworker benefited from his

statement implicating the appellant, as he admitted to engaging in the misconduct

and apparently was removed as a result. PFR File, Tab 1 at 8; IAF, Tab 1 at 38.

The record reflects that the appellant made a verbal statement to the NEX Loss

Prevention/Safety Supervisor (LP/S), which the LP/S memorialized in the written

statement that the appellant signed and swore, under penalty of perjury, was

accurate. Id. at 90, 96, 106. Later that day, the appellant confirmed to another

management official, the NEX Softline Divisional Manager, that his statement

was accurate. Id. at 3. Although the appellant now denies that he had any

participation in creating the signed statement, the accuracy of the statement, and

engaging in the misconduct, PFR File, Tab 1 at 6-12, he does not contest the two

verbal statements. We therefore find that those verbal statements are credible and

corroborate his signed statement.

When compared to the consistent statements the appellant made during the

NEX investigation, his subsequent repudiations are not credible. See generally

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (explaining that

an administrative judge may consider a witness’s prior inconsistent statements in

resolving credibility issues). The appellant did not respond to NEX’s

January 2015 termination action, but rather began denying that he stole from NEX

and challenging the reliability of his NEX statement in submissions to OPM in

(2014) (citing Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981)).

Less than 1 week after NEX interviewed the appellant and he submitted his signed,

sworn statement, the LPO prepared his report and signed a statement attesting to its

accuracy. IAF, Tab 6 at 89, 97. There is no evidence that the LPO had a motive to lie

or otherwise fabricate his report or statement.

2017 and in statements to the Board in this appeal. 5 IAF, Tab 1 at 2, 33-38, Tab 6

at 54, Tab 11 at 10-11. These claims of coercion were inconsistent with each

other and became more elaborate with each telling; therefore, we do not find them

credible. Id. Because the voluntariness of the appellant’s extrajudicial sworn

statement was not seriously at issue and given the corroborating evidence, we

find no due process concerns raised by his statement. Cf. Wohlwend, 16 M.S.P.R.

at 461. Consequently, we discern no error in the administrative judge’s decision

to credit the NEX statement admitting to the misconduct over the appellant’s

subsequent repudiations, and affirm her finding that OPM proved the appellant

engaged in the misconduct as specified in charge 1.

The Board lacks authority to review OPM’s decision to direct the

appellant’s termination.

The administrative judge found that the Board could not review the

reasonableness of OPM’s decision to direct the appellant’s separation because he

was not a tenured Federal employee. Initial Decision (ID) at 7-8. Although the

administrative judge was correct in that the Board lacked jurisdiction to review

OPM’s suitability actions taken against the appellant, her reasoning and analysis

was erroneous. We therefore vacate those aspects of the initial decision.

Pursuant to the National Defense Authorization Act for Fiscal Year 2016,

Pub. L. No. 114-92, § 1086(h), 129 Stat. 726, 1010 (2015), when OPM makes a

suitability determination pursuant to its regulations, the Board does not have the

authority to adjudicate the matter as a chapter 75 adverse action, even if the

appellant is a tenured Federal employee. Odoh v. Office of Personnel

Management, 2022 MSPB 5, ¶ 16; see 5 U.S.C. § 7512(F). Instead, the Board’s

jurisdiction over a negative suitability determination is limited to that provided

under 5 C.F.R. § 731.501, which does not extend to reviewing or modifying the

ultimate action taken as a result of a suitability determination. Odoh, 2022 MSPB

Although the appellant asserts that he had only 1 day to respond to the termination

letter, he had “three calendar days after receipt of this letter” to respond. PFR File,

Tab 1 at 9; IAF, Tab 6 at 107.

5, ¶ 16 (citing Folio v. Department of Homeland Security, 402 F.3d 1350, 1353,

1355-56 (Fed. Cir. 2005)).

Nevertheless, the administrative judge’s error is not a basis for granting the

petition for review because she ultimately reached the correct conclusion.

ID at 8; see Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)

(explaining that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

We therefore affirm, as modified, the administrative judge’s finding that the

Board lacks jurisdiction to review the suitability actions taken by OPM.

ID at 7-8.

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 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

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.

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 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).

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

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.