Opinion

Dallas Poole v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Apr 15, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

holding that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing

How later courts described this case

holding that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DALLAS C. POOLE, SR., DOCKET NUMBER

Appellant, DC-0752-18-0514-I-1

DEPARTMENT OF THE NAVY, DATE: April 15, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dallas C. Poole, Sr. , Havelock, North Carolina, pro se.

Denise Gillis , Esquire, and Evan Gordon , Quantico, Virginia, 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

affirmed the agency’s 20-day suspension action. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 clarify and supplement the administrative judge’s analysis of the

charge of failure to follow gift acceptance rules, we AFFIRM the initial decision.

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

findings regarding the agency’s charges of misconduct, the existence of nexus,

and the reasonableness of the imposed penalty. Petition for Review (PFR) File,

Tab 3. Further, he argues that the agency and the administrative judge

erroneously mixed up his case with that of the Command Advisor and that the

former Command Judge Advocate (CJA) Captain (Capt.) S.A. should not have

been allowed to testify as a witness. Id. at 6, 11.

After considering the appellant’s arguments on the merits of the appeal, we

find that they fail to provide a reason to disturb the initial decision. Initial

Appeal File (IAF), Tab 24, Initial Decision (ID) at 3-32. Specifically, we find

that the appellant has not provided a sufficiently sound reason to overturn the

administrative judge’s demeanor-based credibility determinations because they

are consistent with the record. ID at 11-12; see Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must give deference

to an administrative judge’s credibility determinations when they are based,

explicitly or implicitly, on the observation of the demeanor of witnesses

testifying at a hearing) .

We modify the initial decision, however, to clarify and supplement the

administrative judge’s analysis of the charge of failure to follow gift acceptance

rules, as follows. The administrative judge found that the agency proved the

overall charge without specifying which specifications she was sustaining. ID

at 13. Based on her analysis and factual findings, we interpret the initial decision

as implicitly finding that the agency proved specifications 1-2. ID at 4-13.

Further, the administrative judge did not address whether the appellant violated

gift acceptance rules by instructing donors to make checks out to a Marine Corps

Community Services (MCCS) account, as alleged in part of specification 1. IAF,

Tab 6, Subtab 4d at 1. SECNAV Instruction 4001.2J provides that donors should

make checks payable to the “Department of the Navy.” IAF, Tab 5 at 22. This

directive was communicated in a January 23, 2015 ethics training by the former

CJA Major (Maj.) M.E. IAF, Tab 6, Subtab 4e, Enclosure (Encl.) 16 at 1, 17. In

a December 13, 2016 signed statement, the appellant asserted that “supporters

desiring to send donations to the battalion are instructed to make donations to

[MCCS]” and that “[a]ll other donations that are not properly written to MCCS

will be returned to donor.” Id., Encl. 45 at 1. Therefore, we find that the agency

proved by preponderant evidence that the appellant instructed donors to make

checks out to “MCCS.” Because we agree with the administrative judge’s finding

that the agency proved the remaining allegations of specification 1, we find that

she properly sustained specification 1. ID at 13; IAF, Tab 6, Subtab 4d at 1.

Further, we find that the appellant’s allegations of errors involving the

Command Advisor and his objection to Capt. S.A. as a witness do not provide a

basis for review. Specifically, the appellant asserts the following errors: the

agency uploaded the Agency File for the Command Advisor’s appeal in his

appeal; the deciding official stated in his Douglas factors 2 worksheet that

specification 2 of charge 1 is proved because the Command Advisor facilitated

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of twelve factors that are relevant in assessing the

appropriateness of an agency-imposed penalty for an employee’s misconduct.

the acceptance of checks over $1,500; the initial decision described part of his

position title as “Command Advisor”; and the initial decision discussed

Maj. M.E.’s reference to the Command Advisor in a written statement. PFR File,

Tab 3 at 6; ID at 1-2, 8; IAF, Tab 6, Subtab 4e, Encl. 59 at 1-2, Tab 7, Tab 13

at 9, Tab 14 at 16. The appellant does not allege, and the record does not

indicate, that these alleged errors have harmed his substantive rights or affected

the outcome of the case. See Panter v. Department of the Air Force, 22 M.S.P.R.

281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a

party’s substantive rights provides no basis for reversal of an initial decision). In

particular, the record shows that the agency filed a corrected Agency File 1 month

after he filed the initial appeal. IAF, Tabs 1, 5-6. Moreover, we find that the

administrative judge did not abuse her discretion in approving Capt. S.A. as a

witness whose testimony would be relevant, material, and nonrepetitious. IAF,

Tab 20 at 3; see Fritz v. Department of Health and Human Services, 87 M.S.P.R.

287, ¶ 15 (2000) (observing that administrative judges have broad discretion in

regulating the proceedings before them); see also 5 C.F.R. § 1201.41(b)(8), (10).

Accordingly, we affirm the 20-day suspension action.

NOTICE OF APPEAL RIGHTS 3

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

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.

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. 4 The court of appeals must receive your

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.

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