Opinion

Darin Nemerow v. Department of Justice

Court: Merit Systems Protection Board
Filed: Apr 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.7%

holding that lack of candor requires that information is conveyed “knowing” that such information is incomplete or incorrect

How later courts described this case

holding that lack of candor requires that information is conveyed “knowing” that such information is incomplete or incorrect

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DARIN NEMEROW, DOCKET NUMBER

Appellant, CH-0752-18-0202-I-1

DEPARTMENT OF JUSTICE, DATE: April 2, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

Katherine Stewart and Meredith Ann McHugh , Washington, D.C., for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

sustained his removal from the agency for various acts of misconduct. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant worked for the agency’s Bureau of Alcohol, Tobacco,

Firearms and Explosives as a GS-14 Supervisory Criminal Investigator.

Initial Appeal File (IAF), Tab 7 at 28. Effective January 10, 2018, the agency

removed the appellant under chapter 75 of title 5 of the United States Code based

on the charges of sexual misconduct, willful misuse of a government-owned

vehicle (GOV), and lack of candor. Id. at 28-39.

The appellant appealed his removal to the Board and withdrew his hearing

request. IAF, Tab 1, Tab 28 at 3. In his appeal, the appellant conceded that he

engaged in the charged sexual misconduct and willful misuse of a GOV, but

argued that he did not lack candor and that his removal penalty was too severe.

IAF, Tab 29 at 4-5, Tab 39 at 5-18. The administrative judge issued an initial

decision based on the written record, sustaining the two specifications included in

the sexual misconduct charge and the single specification of the willful misuse of

a GOV charge. IAF, Tab 41, Initial Decision (ID) at 6-8. The administrative

judge found that the agency proved one of the two specifications of the lack of

candor charge, but still sustained the overall charge. 2 ID at 8-11.

The administrative judge also found a nexus between the sustained charges and

the efficiency of the service and that the appellant’s removal penalty was

reasonable. ID at 11-16. The appellant’s petition for review followed. Petition

for Review (PFR) File, Tab 1. The agency responded in opposition and the

appellant filed a reply to the agency’s response. PFR File, Tabs 3, 5.

In an appeal before the Board of a removal taken under chapter 75, an

agency bears the burden to prove by preponderant evidence the charged

misconduct, a sufficient nexus between the charge and the efficiency of the

service, and that the imposed penalty is reasonable under the circumstances. See

5 U.S.C. §§ 7513(a), 7701(c)(1)(B); Gonzalez v. Department of Homeland

Security, 114 M.S.P.R. 318, ¶ 11 (2010) (quoting Pope v. U.S. Postal Service,

114 F.3d 1144, 1147 (Fed. Cir. 1997)). Upon review, we find that the

administrative judge correctly held that the agency met its burden in proving each

of these requisites. We discern no reason to disturb the initial decision, as the

administrative judge considered the parties’ arguments, applied the appropriate

legal standards, and drew proper conclusions that are supported by the evidence

of record. ID at 1-16.

On review, the appellant argues that the administrative judge erred when

holding that the agency proved the lack of candor charge. PFR File, Tab 1

at 5-12, Tab 5 at 4-5. In the single upheld specification under this charge, the

agency alleged that the appellant provided less than candid information regarding

his misuse of a GOV when during a sworn interview with agency investigators, he

denied driving a GOV to a bar while off-duty in March 2017. IAF, Tab 9 at 42,

44. In order to prove lack of candor, an agency must show: (1) the employee

gave incorrect or incomplete information, and (2) did so knowingly. Fargnoli v.

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

Specification 1 of the lack of candor charge was not sustained. ID at 9-11. Neither

party disputes this finding on review. Petition for Review (PFR) File, Tabs 1, 3, 5.

Department of Justice, 815 F.3d 757, 766 (Fed. Cir. 2016) (holding that lack of

candor requires that information is conveyed “knowing” that such information is

incomplete or incorrect), aff’d in part and rev’d in part by 874 F.3d 710, 712

(Fed. Cir. 2017) (en banc).

The appellant claims that he did not knowingly provide incorrect

information to the agency during his sworn interview; rather, he states that the

questions asked to him were unclear and that he was answering them in good

faith. PFR File, Tab 1 at 5-12, Tab 5 at 4-5. A review of the interview transcript

establishes that the agency’s investigators asked the appellant unambiguous

questions about the incident. IAF, Tab 12 at 25-27. Through his responses, the

appellant demonstrated an understanding of the topic that he was being

questioned about, as he provided details, including confirming that the evening in

question started at another establishment, the location of the second bar that he

went to, and the identity of the agency employee who accompanied him.

Id. at 25-26. The appellant told agency investigators twice during this interview

that he did not drive a GOV to the second bar. Id. at 27. Specifically, the

agency’s investigator asked the appellant, “[d]id you drive your GOV to that

bar?” Id. The appellant responded, “[n]o.” Id. In a follow-up to a related

question, the appellant stated, “I, I did not drive my GOV.” Id. Later in the same

day, the appellant then admitted to the agency’s investigators that he did in fact

drive a GOV to two bars while off-duty, contradicting his earlier responses.

Id. at 75-76. The appellant was asked, “[d]id you or did you not drive your

GOV? Please.” Id. at 75. The appellant responded with, “I believe I did, yes.

Yeah.” Id. The agency’s investigator followed-up by asking the appellant,

“. . . you were in your GOV when you left Cowboy Jack’s[?]” Id. at 76.

The appellant stated in reply, “[y]es.” Id.

The contradiction between the appellant’s initial responses to the agency’s

investigators denying his misuse of a GOV, and his admission of such misuse

later in the same day, indicate that he must have known that he was providing

inaccurate information at the onset. Furthermore, the interview with agency

investigators occurred approximately 3 months after the incident. Id. at 15, 25. It

is highly unlikely that the appellant was confused about the incident that he was

being questioned about or that he had forgotten that he drove a GOV given the

fact that he outlined other details about the evening. The appellant also stated

that he routinely drove his personal vehicle to off-duty events, which should have

made the occasion in which he drove a GOV to one even more memorable.

IAF, Tab 12 at 77, Tab 39 at 19. The appellant admitted that he knew that he

misused a GOV when he drove it to a bar and consumed alcohol, further

evidencing an understanding of why agency investigators sought information

from him on the matter. IAF, Tab 12 at 80-81. The evidence supports the

administrative judge’s finding that the agency proved by preponderant evidence

that the appellant lacked candor as alleged in the upheld specification. 3

See Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶ 17 (2000) (finding that

the agency proved that the appellant lacked candor because he did not respond

fully and truthfully in a statement made to agency investigators), aff’d, 278 F.3d

1280 (Fed. Cir. 2002).

In his petition for review, the appellant also claims that his removal was

not a reasonable penalty under the circumstances. PFR File, Tab 1 at 12-17,

Tab 5 at 5-6. The Board will review an agency-imposed penalty only to

determine if the agency considered the relevant factors and exercised

management discretion within the tolerable limits of reasonableness . Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 306 (1981). When all of the agency’s

charges are sustained, but some of the underlying specifications are not sustained,

The administrative judge found that the agency only proved one of the two lack of

candor specifications. ID at 8-11. When more than one event or factual specification

supports a single charge, proof of one or more, but not all, of the supporting

specifications is sufficient to sustain the charge. Burroughs v. Department of the Army,

918 F.2d 170, 172 (Fed. Cir. 1990). Here, as the administrative judge found, the record

is sufficiently developed to determine that the agency proved the overall charge.

ID at 8.

the agency’s penalty determination is entitled to deference and should be

reviewed only to determine whether it is within the parameters of reasonableness.

Parker v. U.S. Postal Service, 111 M.S.P.R. 510, ¶ 8, aff’d, 355 F. App’x 410

(Fed. Cir. 2009). This is because the agency has primary discretion in

maintaining employee discipline and efficiency. Thomas v. U.S. Postal Service,

96 M.S.P.R. 179, ¶ 4 (2004). The Board will not displace management’s

responsibility in this respect, but will instead ensure that managerial judgment

has been properly exercised. Id.

Here, the administrative judge appropriately found that the deciding

official took into account the relevant Douglas factors, including those of a

mitigating nature, when concluding that the appellant’s removal was a reasonable

penalty. ID at 12-16. In particular, the appellant’s 14 years of service with the

agency with no prior disciplinary history, his accomplished work performance,

and multiple positive character references weighed in his favor. IAF, Tab 7 at 36;

ID at 14. However, among the stronger aggravating factors were the serious

nature of the proven misconduct, the direct relationship between the proven

misconduct and the appellant’s job responsibilities, the appellant’s slim

rehabilitative potential, and the negative impact the appellant’s proven

misconduct had on the agency’s working relationship with another law

enforcement agency. IAF, Tab 7 at 36-37; ID at 13-16. In addition, removal was

in line with the agency’s table of penalties for the committed offenses.

IAF, Tab 12 at 115, 120, 124. As determined by the administrative judge, the

deciding official properly exercised his judgment when reaching the removal

decision. ID at 16; 4 see Penland v. Department of the Interior, 115 M.S.P.R. 474,

¶ 7 (2010).

The penalty of removal given the gravity of the proven misconduct

committed by the appellant, who was a law enforcement officer in a supervisory

The administrative judge referenced the position of the deciding official that the

appellant’s proven sexual misconduct was sufficient alone to justify removal.

IAF, Tab 7 at 37; ID at 14.

position, does not exceed the maximum limits of reasonableness. This holding

aligns with Board precedent, which has found removal as a reasonable penalty for

unauthorized use of a GOV. Garcia v. Department of the Air Force, 34 M.S.P.R.

539, 541-42 (1987). Relatedly, removal has been deemed reasonable where an

employee engaged in lack of candor and inappropriate conduct. Kamahele v.

Department of Homeland Security, 108 M.S.P.R. 666, ¶¶ 2, 15 (2008).

Similarly, the Board has concluded that removal was proper in view of, inter alia,

an employee’s supervisory position and the seriousness of proven sexual

misconduct. Cisneros v. Department of Defense, 83 M.S.P.R. 390, ¶¶ 19-20

(1999), aff’d, 243 F.3d 562 (Fed. Cir. 2000) (Table).

In closing, the appellant’s arguments on review mirror those that he set

forth before the administrative judge. IAF, Tab 39 at 5-18; PFR File, Tab 1

at 5-17, Tab 5 at 4-6. As outlined above, the administrative judge detailed these

arguments and considered each when reaching the appropriate conclusions of the

initial decision. ID at 11-16. We have long held that mere reargument of the

same issues heard and correctly decided by the administrative judge, with nothing

more, does not constitute a basis to grant a petition for review. See Hsieh v.

Defense Nuclear Agency, 51 M.S.P.R. 521, 524-25 (1991), aff’d, 979 F.2d 217

(Fed. Cir. 1992) (Table).

NOTICE OF APPEAL RIGHTS 5

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

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.

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

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. 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

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.

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