remanding the appellant’s chapter 43 appeal because the parties did not have an opportunity to address the modified standard set forth in Santos
How later courts described this case
- remanding the appellant’s chapter 43 appeal because the parties did not have an opportunity to address the modified standard set forth in Santos
- finding that deference must be given to an administrative judge’s credibility findings that are based on the demeanor of witnesses
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OSCAR T. AGUIRRE, JR., DOCKET NUMBER
Appellant, DA-0432-18-0127-I-1
v.
DEPARTMENT OF HOMELAND DATE: May 22, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant.
Mary E. Garza , Edinburg, Texas, for the agency.
Grant Gardner , Laredo, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal for unacceptable performance. For the reasons discussed
below, we GRANT the petition for review, VACATE the initial decision , and
REMAND the case to the Dallas Regional Office for further adjudication in
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
accordance with this Remand Order and Santos v. National Aeronautics and
Space Administration, 990 F.3d 1355 (Fed. Cir. 2021).
DISCUSSION OF ARGUMENTS ON REVIEW
The agency established the elements of its chapter 43 action under the law when
the initial decision was issued.
We discern no basis to disturb the administrative judge’s conclusion that
the agency proved the elements it was required to establish in a chapter 43 action
under the law when the initial decision was issued. In his petition for review, the
appellant asserts that the administrative judge erred in finding that the agency
communicated the performance standards and critical elements of his position to
him and that the agency’s performance standards were valid. Petition for Review
(PFR) File, Tab 7 at 19-22. He also asserts that the administrative judge erred in
finding that the agency provided him with a reasonable opportunity to
demonstrate acceptable performance. Id. at 23-25. These arguments constitute
mere disagreement with the administrative judge’s well-reasoned findings and do
not provide a basis for review. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 106 (1997); Broughton v. Department of Health and Human Services,
33 M.S.P.R. 357, 359 (1987).
The appellant also contends that the administrative judge failed to make
credibility determinations as to any of the witnesses who testified. PFR File,
Tab 7 at 26. Although the administrative judge implicitly determined that
agency witnesses whose demeanor she observed testified credibly and the
appellant did not, she failed to make any explicit credibility findings under
Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). Notwithstanding
the administrative judge’s failure to cite to Hillen in the initial decision, the
administrative judge correctly resolved the credibility issues in accordance with
Hillen. Among other things, she identified the factual questions in dispute,
summarized the relevant testimony of witnesses regarding these issues, and
explained why she found the appellant’s testimony to be unpersuasive. Initial
3
Appeal File, Tab 41, Initial Decision at 9-10. This decisional process mirrors
closely the analytical steps mandated by Hillen, which provides that, to resolve
credibility issues, an administrative judge must identify the factual questions in
dispute, summarize the evidence on each disputed question, state which version
she believes, and explain in detail why she found the chosen version more
credible. Hillen, 35 M.S.P.R. 453, 458.
Under these circumstances, nothing compels abandonment of the
longstanding deference accorded the findings of an administrative judge
when they are based on the observation of the demeanor of witnesses. See
Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding
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; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so);
Jackson v. Veterans Administration, 768 F.2d 1325, 1331 (Fed. Cir. 1985)
(finding that deference must be given to an administrative judge’s credibility
findings that are based on the demeanor of witnesses). The appellant’s petition
for review does not identify an internal inconsistency or inherent improbability in
the fact findings of the administrative judge or other basis sufficient to overcome
the special deference that reviewing bodies must necessarily accord the factual
determinations of the original trier of fact. See Jackson, 768 F.2d at 1331.
Remand is required in light of Santos .
Though the appellant has identified no basis for us to disturb the initial
decision, we nonetheless must remand the appeal for another reason. During the
pendency of the petition for review in this case, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) held in Santos, 990 F.3d at 1360-61, that, in
addition to the five elements of the agency’s case set forth in the initial decision,
the agency must also justify the institution of a performance improvement plan
(PIP) by proving that the employee’s performance was unacceptable prior to the
4
PIP. The Federal Circuit’s decision in Santos applies to all pending cases,
including this one, regardless of when the events took place. Lee v. Department
of Veterans Affairs, 2022 MSPB 11, ¶ 16. We therefore remand this case for
further adjudication of the appellant’s removal under the standard set forth
in Santos. See id. (remanding the appellant’s chapter 43 appeal because the
parties did not have an opportunity to address the modified standard set forth
in Santos).
On remand, the administrative judge shall accept evidence and argument
regarding whether the agency proved by substantial evidence that the appellant’s
pre-PIP performance was unacceptable. The administrative judge shall hold a
supplemental hearing if appropriate. The administrative judge shall then issue a
new initial decision consistent with Santos. If the agency makes the additional
showing required under Santos on remand, the administrative judge may
incorporate her prior findings on other elements of the agency’s case in the
remand initial decision.
ORDER
For the reasons discussed above, we remand this case to the Dallas
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.