Filed: Jan. 02, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LEWIS A. HICKS, DOCKET NUMBER Appellant, AT-0752-13-7338-I-1 v. DEPARTMENT OF THE NAVY, DATE: January 2, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Lewis A. Hicks, Americus, Georgia, pro se. Denise Gillis, Quantico, Virginia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LEWIS A. HICKS, DOCKET NUMBER Appellant, AT-0752-13-7338-I-1 v. DEPARTMENT OF THE NAVY, DATE: January 2, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Lewis A. Hicks, Americus, Georgia, pro se. Denise Gillis, Quantico, Virginia, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the a..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEWIS A. HICKS, DOCKET NUMBER
Appellant, AT-0752-13-7338-I-1
v.
DEPARTMENT OF THE NAVY, DATE: January 2, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lewis A. Hicks, Americus, Georgia, pro se.
Denise Gillis, Quantico, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, 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 by this Final Order, which addresses matters relating to
interim relief and new evidence submitted by the appellant on review that
supports the administrative judge’s findings, we AFFIRM the initial decision.
¶2 The agency removed the appellant from his Engineer Technician position
based on a charge of “Criminal Charge,” with a specification that the appellant
pled guilty to four counts of Electronic Child Exploitation. Initial Appeal File
(IAF), Tab 4 at 19, 27. The agency alleged that the appellant was sentenced due
to his guilty plea to 10 years of probation, and that, as a first-time offender, the
appellant was required to report to a probation officer, register as a sex offender,
and adhere to numerous conditions of probation. Id. at 27-28. On appeal to the
Board, the appellant asserted that the action was based on harmful error and that
the agency did not prove a nexus between the off-duty misconduct and the
efficiency of the service. IAF, Tab 1 at 5.
¶3 Based on the written record, because the appellant did not request a hearing,
IAF, Tab 1 at 2, the administrative judge reversed the removal action, id., Tab 13,
Initial Decision (ID) at 1, 11. The administrative judge found that the agency
proved its charge because it proved that the appellant was charged with and pled
guilty to a criminal charge under North Carolina v. Alford, 400 U.S. 25,
37 (1970), which allows a criminal defendant to consent to the imposition of a
3
sentence without admitting that he committed the acts constituting the crime, in
order to obtain first offender treatment under Georgia law. ID at 3. The
administrative judge found, however, that the agency did not prove a nexus
between the misconduct and the efficiency of the federal service. ID at 3-11.
The administrative judge held that no rebuttable presumption of nexus should be
applied because the agency presented no evidence of the underlying facts and
circumstances of the charge, including no affidavits, declarations, or police
reports showing the factual basis for the appellant’s guilty plea, such that a
determination could be made as to whether the misconduct involved “egregious”
circumstances. ID at 4-5. He also found that the appellant’s behavior did not rise
to the same level as cases where a rebuttable presumption of nexus had been
applied because the Georgia Superior Court afforded the appellant first offender
treatment, which by state statute does not apply to such offenses as sexual
exploitation of a minor, electronically furnishing obscene material to a minor, and
computer pornography and child exploitation. ID at 5-7. The administrative
judge noted that, as reflected in a transcript, the Georgia Superior Court judge did
not view the appellant’s criminal offense as a serious infraction. ID at 7.
¶4 The administrative judge further found that the agency did not otherwise
prove a nexus between the misconduct and the efficiency of the service by
showing that the misconduct adversely affected the appellant’s or his coworkers’
job performance or the agency’s trust and confidence in the appellant’s job
performance; or by presenting preponderant evidence that the misconduct
interfered with or adversely affected the agency’s mission. ID at 7-11. The
administrative judge found that Department of the Navy OPNAV (Office of the
Chief of Naval Operations) Instruction 1752.3 did not require an absolute bar on
all sex offender access to Navy installations but instead required such a bar only
to the maximum extent permitted by law and allowed for waiver of the bar by
competent authority. ID at 8. He also noted that the appellant’s conditions of
probation had been relaxed to permit him to be in the presence of minors provided
4
a third party was present and that the agency’s legitimate interest in keeping the
appellant away from family housing areas or places on the installation where
children might congregate could be satisfied by issuance of a limited bar letter
precluding the appellant from doing anything and going anywhere other than
directly to and from his place of duty for work. ID at 9. Finally, the
administrative judge found that, although the deciding official indicated that he
would find it difficult to trust a registered sex offender, this did not mean that the
deciding official would be unable to trust the appellant in particular to
accomplish his assigned tasks, and the appellant had been performing his work
satisfactorily for years. ID at 9. The administrative judge ordered the agency to
provide interim relief if a petition for review was filed. ID at 12.
¶5 On petition for review, 2 the agency merely asserts that “[d]ue to the nature
of Appellant’s misconduct, along with the requirement that he register as a sex
offender, the presumption of nexus should stand in this case.” Petition for
Review (PFR) File, Tab 1 at 10. It also contends that, if a rebuttable presumption
of nexus does not apply in this case, the agency has established a nexus between
the misconduct and the efficiency of the service because of the OPNAV
Instruction and the deciding official’s statement, in his review of the penalty
factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
(1981), that he “would find it difficult to trust a registered sex offender.” Id.
at 10-11; see IAF, Tab 10 at 18.
2
The agency filed its petition for review on January 22, 2014, 1 day after the
January 21, 2014 deadline. Petition for Review File, Tab 1 at 1; ID at 13. Because the
federal government in Washington, D.C., was closed on January 21, 2014, see
http://www.opm.gov/policy-data-oversight/snow-dismissal-procedures/status-
archives/14/1/21/Federal-Offices-are-Closed---Emergency-and-Telework-ready-
Employees-Must-Follow-Their-Agencys-Policies_577/, we find that the agency timely
filed its petition for review, see Slaughter v. Department of Agriculture, 56 M.S.P.R.
349, 351 n.2 (1993), overruled on other grounds by Stabile v. Department of Defense,
85 M.S.P.R. 253 (2000); cf. 5 C.F.R. § 1201.23 (if the date that ordinarily would be the
last day for filing falls on a Saturday, Sunday, or federal holiday, the filing period will
include the first workday after that date).
5
The agency has complied with the administrative judge’s interim relief order.
¶6 The agency submitted a certification of compliance with the interim relief
order, asserting that the appellant had been placed back on the agency’s rolls in a
paid leave status because his return or presence would be unduly disruptive to the
work environment, and that “[b]ackpay determinations are currently being
made . . . and will be paid to Appellant shortly.” PFR File, Tab 1 at 13.
However, the appellant asserted in his response to the petition for review that the
agency provided interim relief by placing him on administrative leave with pay as
of January 15, 2014, rather than as of the December 17, 2013 date of the initial
decision. Id., Tab 2 at 4. The Office of the Clerk of the Board issued an Order to
Show Cause on Interim Relief requiring the agency to submit evidence
responding to the appellant’s assertions. Id., Tab 6 at 2. In its response, the
agency contends that the appellant has received “all backpay and benefits to
which he is entitled.” Id., Tab 8 at 4. The appellant does not dispute this
account, asserting that “[a]ll backpay has been received.” Id., Tab 9 at 4.
¶7 Interim relief provisions do not require the agency to grant the appellant
back pay or other benefits to make him whole at the interim relief stage of the
proceedings. Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 6 n.2 (2012).
Rather, the agency is only required to give the appellant an interim appointment
with pay and benefits effective as of the date of the initial decision. See Dunn v.
Department of the Air Force, 96 M.S.P.R. 166, ¶ 8 n.3 (2004), aff’d, 139 F.
App’x 280 (Fed. Cir. 2005). Because it appears that the agency has actually
exceeded the requirements of the interim relief order by awarding the appellant
back pay, we find that it has complied with the interim relief order and that there
is no basis for dismissing the agency’s petition for review. See Lavette v. U.S.
Postal Service, 96 M.S.P.R. 239, ¶¶ 14-15 (2004).
6
The appellant’s new evidence supports the initial decision in this case.
¶8 After the close of the record on review the appellant filed a motion for leave
to submit new evidence. PFR File, Tab 4 at 4. The Office of the Clerk of the
Board granted the request. Id., Tab 6. The appellant thereafter submitted an
April 17, 2014 “Order Terminating Probation” from the Superior Court of Barrow
County, Georgia, finding that the appellant had successfully met all conditions of
probation and that the probation was terminated effective April 17, 2014. Id.,
Tab 7 at 7. He also submitted an April 24, 2014 “Order of Discharge” from the
same court finding that, in accordance with the Georgia Probation of First
Offenders Act, the appellant was charged without court adjudication of guilt, the
discharge “shall completely exonerate” the appellant of any criminal purpose, the
discharge shall not affect any of his civil rights or liberties, he shall not be
considered to have a criminal conviction, and the discharge may not be used to
disqualify him in any application for employment or appointment to office in
either the public or private sector. Id. at 8. The “Order of Discharge” further
ordered and directed that the Georgia Crime Information Center be notified of the
discharge, id., and the appellant asserted that he has been removed from the
Georgia Sex Offender Registry, id. at 4; see IAF, Tab 7 at 4-8 (transcript of the
disposition of the Superior Court of Barrow County, Georgia, in which the
prosecutor and the judge agreed that the appellant would be required to register as
a sex offender only for the term of his probation).
¶9 Under OPNAV Instruction 1752.3, the agency’s policy is that, “[t]o the
maximum extent permitted by law, unless waived by competent authority, sex
offenders are to be identified and prohibited from accessing Navy facilities.”
IAF, Tab 10 at 12. OPNAV Instruction 1752.3 defines a sex offender as “a
person convicted of a criminal offense per guidelines in reference (c) [relating to
Department of Justice, Office of Attorney General, National Guidelines for Sex
Offender Registration and Notification] and all persons who are required to be
registered as sex offenders according to this same reference.” Id. at 12-13.
7
Although afforded an opportunity to do so, PFR File, Tab 6 at 3, the agency has
not addressed on review the new evidence submitted by the appellant, see PFR
File, Tab 8 at 4-7. Thus, it appears that the criteria for prohibiting the appellant
from accessing Navy facilities may no longer be present in this case. The
administrative judge’s finding that OPNAV Instruction 1752.3 was not an
absolute bar on access to Navy installations therefore appears to be correct, at
least as far as it applies to the appellant’s situation in this case.
The agency’s petition for review does not meet the criteria for review.
¶10 A petition for review states a party’s objections to the initial decision and
must be supported by references to applicable laws or regulations and by specific
references to the record. 5 C.F.R. § 1201.114(b). Here, the agency’s petition for
review merely reiterates in a conclusory fashion contentions raised below without
addressing the detailed rationale set forth by the administrative judge for
rejecting those contentions and reversing the removal action. The agency’s bare
allegation that a rebuttable presumption of nexus should be applied in this case
and that the deciding official did not have trust and confidence in a registered sex
offender does not establish error in the initial decision, especially in light of the
new evidence submitted by the appellant on review suggesting that he is no
longer a registered sex offender. Accordingly, the agency has not established a
basis for granting its petition for review, see 5 C.F.R. § 1201.115, and we
otherwise discern no reason to disturb the initial decision in this case.
ORDER
¶11 We ORDER the agency to cancel the appellant’s removal and to restore the
appellant effective July 31, 2013. 3 See Kerr v. National Endowment for the Arts,
3
The December 17, 2013 initial decision incorrectly ordered the agency to restore the
appellant effective December 13, 2013. ID at 11. The administrative judge
subsequently issued an erratum decision that correctly ordered the agency to restore the
appellant effective July 31, 2013. IAF, Tab 14; see IAF, Tab 11 at 5.
8
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶12 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency's
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶13 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶14 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶15 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
9
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
10
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc., with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
