Opinion

Michelle Zweede v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Apr 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.7%

stating that the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so

How later courts described this case

stating that the Board may overturn such determinations only when it has “sufficiently sound” reasons for doing so

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHELLE A. ZWEEDE, DOCKET NUMBER

Appellant, DC-0752-21-0370-I-1

DEPARTMENT OF AGRICULTURE, DATE: April 3, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christopher R. Landrigan , Esquire, and Sara A. Buchholz , Esquire,

Washington, D.C., for the appellant.

Julie Nelson , Golden, Colorado, for the agency.

Kevin Sitler , Esquire, Albuquerque, New Mexico, for the agency.

Shannon L. Swaziek , Esquire, Menomonee Falls, Wisconsin,

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, which

sustained the appellant’s 30-day suspension and reassignment based on the charge

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

of “Appearance of Conflict of Interest.” 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 and AFFIRM the initial

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

The agency did not charge the appellant with violating 5 C.F.R. § 2635.502(a).

On petition for review, the appellant argues that the administrative judge

erred in finding that the agency was not required to prove that the appellant

violated the ethics regulation at 5 C.F.R. § 2635.502(a). Petition for Review

(PFR) File, Tab 1 at 8; Initial Appeal File (IAF), Tab 36, Initial Decision (ID)

at 6-7. The administrative judge instead applied the elements of an “Appearance

of Conflict of Interest” charge as established by our case law. ID at 7-8. We find

that the administrative judge correctly construed the agency’s charge: the agency

chose the charge of “Appearance of Conflict of Interest” without reference to the

violation of any specific statute, regulation, or rule. ID at 7; IAF, Tab 10 at 73.

The appellant accurately notes that the proposing official included a statement

that the appellant violated 5 C.F.R. § 2635.502(a) under Douglas 1 factor 1, the

nature and seriousness of the offense, in her penalty analysis attached to the

proposal notice. PFR File, Tab 1 at 8; IAF, Tab 10 at 77. However, based on our

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305 (1981).

well-established precedent, we find that the agency was only required to prove

the “Appearance of Conflict of Interest,” the label it affixed to the charge in the

proposal notice. IAF, Tab 10 at 73; see Alvarado v. Department of the Air Force,

103 M.S.P.R. 1, ¶ 19 (2006), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d,

490 F. App’x 932 (10th Cir. 2012); see also Diaz v. Department of the Army,

56 M.S.P.R. 415, 418-20 (1993) (distinguishing between the actual charges and

the factual narratives outlining those charges in determining the elements of the

charges).

The administrative judge applied the correct standard for the agency’s charge.

The appellant also argues that 5 C.F.R. § 2635.502(a) creates objective

criteria that the Board should apply in evaluating whether an “Appearance of

Conflict of Interest” existed. PFR File, Tab 1 at 11-14. The administrative judge

correctly rejected this argument in the initial decision. ID at 6 n.6, 7 n.7. We

find no legal error in the administrative judge’s definition of “Appearance of

Conflict of Interest.” ID at 7-8 (citing Fontes v. Department of Transportation,

51 M.S.P.R. 655, 663-64 (1991); Special Counsel v. Nichols, 36 M.S.P.R. 445,

455 (1988)).

The agency proved its charge.

We find no errors of law or erroneous findings of material fact in the

administrative judge’s conclusion that the agency proved its charge. ID at 6-18.

The appellant challenges the administrative judge’s decision not to credit her

claim that she believed that there was no actual or apparent conflict of interest.

PFR File, Tab 1 at 14; ID at 15. We observe no reason to disturb the credibility

determinations of the administrative judge in this case. See Haebe v. Department

of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the Board may

overturn such determinations only when it has “sufficiently sound” reasons for

doing so).

The agency did not violate the appellant’s due process rights.

Lastly, the appellant appears to be raising for the first time on review a due

process violation based on the vagueness of the agency’s charge. PFR File, Tab 1

at 9 n.1. She argues that, if violating 5 C.F.R. § 2635 was not the agency’s

charge, then the agency did not set forth a different charge of sufficient

specificity to satisfy due process requirements. Id. Because the appellant has not

shown that this argument is based on new and material evidence not previously

available despite the party’s due diligence, it is not a basis for disturbing the

initial decision. See Pridgen v. Office of Personnel Management and Budget ,

2022 MSPB 31, ¶ 34 n.10; Banks v. Department of the Air Force, 4 M.S.P.R. 268,

271 (1980). Moreover, the appellant has not established a due process violation.

The appellant’s detailed written response to the charge and specifications

indicated that she understood the agency’s charge. IAF, Tab 10 at 31-46, 73-74.

Although she argued that her relationship with her father was not a relationship

described under 5 C.F.R. § 2635.502(a), she also argued more broadly that “no

reasonable person” would have had a concern about her impartiality in the matters

described in the agency’s specifications. Id. at 39-40. Therefore, as the appellant

responded directly to the agency’s charge, we find no due process violation. See

Ingram v. Department of Defense, 118 M.S.P.R. 149, ¶ 7 (2012); Pinto v.

Department of Labor, 11 M.S.P.R. 422, 424 (1982) (determining that the charges

were sufficiently specific because the employee’s reply indicated that he

understood them).

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).

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.

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

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. 3 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