Filed: Nov. 05, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD HAMDY A. ABOU-HUSSEIN, DOCKET NUMBER Appellant, AT-0752-13-6851-I-1 v. DEPARTMENT OF THE NAVY, DATE: November 5, 2014 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Hamdy A. Abou-Hussein, Paw Creek, North Carolina, pro se. Stacy J. Pintar-Mantey, North Charleston, South Carolina, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for re
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD HAMDY A. ABOU-HUSSEIN, DOCKET NUMBER Appellant, AT-0752-13-6851-I-1 v. DEPARTMENT OF THE NAVY, DATE: November 5, 2014 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Hamdy A. Abou-Hussein, Paw Creek, North Carolina, pro se. Stacy J. Pintar-Mantey, North Charleston, South Carolina, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for rev..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAMDY A. ABOU-HUSSEIN, DOCKET NUMBER
Appellant, AT-0752-13-6851-I-1
v.
DEPARTMENT OF THE NAVY, DATE: November 5, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Hamdy A. Abou-Hussein, Paw Creek, North Carolina, pro se.
Stacy J. Pintar-Mantey, North Charleston, South Carolina, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his 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 the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The agency removed the appellant from his Engineer position based on the
following charges: (1) disrespectful conduct; (2) failure to carry out instructions;
and (3) failure to cooperate in a Preaction Investigative Discussion. In charge
(1), the agency cited the appellant’s refusal to meet with his supervisor on three
occasions to discuss work matters, and his challenging the supervisor’s honesty
and integrity. In charge (2), the agency alleged that, on March 5, 2013, when
asked, the appellant refused to agree to support a task that would require him to
travel overseas; that, on April 3, 2013, he refused to submit a signed Personal
Electronics Device waiver in order to keep his assigned laptop; and that on
June 7, 2013, when questioned during a Preaction Investigative Discussion
convened to address the first two matters, he refused to confirm or deny having a
recording device. In charge (3), the agency alleged that the result of the
appellant’s failure to confirm or deny having a recording device was a total lack
of meaningful discussion regarding his misconduct. In taking this action, the
agency considered the appellant’s past record consisting of a September 2012
Letter of Reprimand for failure to cooperate in another Preaction Investigative
Discussion and a 14-day suspension, effective December 19, 2012, to January 1,
3
2013, for disrespectful conduct, failure to carry out instructions, and failure to
cooperate in another Preaction Investigative Discussion. Initial Appeal File
(IAF), Tab 7 at 11, 12-17, 24-28.
¶3 On appeal, the appellant argued that the agency committed prohibited
personnel practices involving retaliation for whistleblowing and a continuing
hostile work environment. Id., Tab 1 at 5. He sought an order to subpoena all
of his personnel records from the Office of Personnel Management (OPM) to
prove his “Board recognized” hostile work environment claims. Id., Tab 5. The
administrative judge denied the appellant’s motion and his request for an order to
subpoena his records. 2 Id., Tab 6.
¶4 During the prehearing conference, the administrative judge directed the
appellant to set forth with specificity the nature of his alleged protected
disclosures. Id., Tab 20. He failed to do so and rather challenged virtually all of
the administrative judge’s rulings and moved for her recusal. Id., Tab 23. She
denied the motion. Id., Tab 25.
¶5 In her initial decision based on the written record, the administrative judge
affirmed the agency’s action. She considered the evidence submitted by the
agency, id., Tab 39, and unrebutted by the appellant,
id., Tab 40, Initial Decision
(ID) at 2, 7. She found that the agency proved two of the three specifications of
charge (1), and the charge itself, ID at 2-3, two of the three specifications of
charge (2), and the charge itself, ID at 3-4, and charge (3), ID at 4-5. Because the
appellant had failed to clarify his claim that the agency retaliated against him for
his whistleblowing activities and had failed to submit any evidence to support his
assertion, the administrative judge found that he had not established his claim.
ID at 5. Finally, the administrative judge found that discipline for the sustained
charges promoted the efficiency of the service, ID at 5-6, and that removal was a
2
The administrative judge reasoned that the appellant was free to request the
information and had not established the need for a subpoena and/or had not identified
the records sought or explained why they were relevant to his appeal. IAF, Tab 6.
4
reasonable penalty, ID at 6-7. In that regard, she found that the deciding official
had considered the appellant’s 8 years of satisfactory performance but determined
that his offenses were serious and that his past record, which resulted from
misconduct very similar to the conduct at issue in this case, rendered him a poor
candidate for rehabilitation. ID at 7. Persuaded that the deciding official
conscientiously considered all the relevant factors and, given the appellant’s
previous significant discipline for similar offenses, the administrative judge
concluded that removal for the sustained charges did not exceed the bounds of
reasonableness. ID at 7.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, id., Tab 3.
¶7 On review, the appellant does not specifically challenge the administrative
judge’s findings that all three charges were sustained, that the agency established
a nexus between the sustained charges and the efficiency of the service, and that
the penalty of removal was reasonable. In the absence of such a challenge, and
because we discern no basis upon which to disagree with the administrative
judge’s findings, we will not further address these matters. The appellant does
argue that the administrative judge failed to consider any of the “facts” alleged in
the Board’s final order on one of his earlier individual right of action (IRA)
appeals, specifically, Abou-Hussein v. Department of the Navy, MSPB Docket
No. AT-1221-11-0850-W-1, Final Order at 2-3 (Aug. 1, 2013). PFR File, Tab 1
at 4. In that Order, the Board related actions that the appellant alleged the agency
took against him because of his alleged protected disclosures, including ordering
him to undergo a psychiatric evaluation, denying him basic pay increases, giving
him poor performance evaluations, initiating a criminal investigation against him,
significantly changing his duties and responsibilities, subjecting him to a hostile
work environment, placing him in absence without leave status, prohibiting OPM
from releasing his personnel records, making death threats against him, “targeting
his livelihood and employability,” and making false allegations accusing him of
5
espionage, terrorist connections, substance abuse, and having a mental disorder.
The Board dismissed the appellant’s appeal for lack of jurisdiction, however,
based on his failure to show that any of his alleged disclosures were raised to the
Office of Special Counsel.
¶8 In the instant case, the administrative judge noted the appellant’s
allegations of retaliation for whistleblowing, but found that his disclosures were
not set forth with sufficient clarity; she ordered him to further explain his
allegations by a date certain, IAF, Tab 21, but he failed to make a substantive
response, id., Tab 23. To the extent the appellant claims on review that, based on
“facts” set forth in the earlier IRA appeal, the administrative judge erred in
finding in this case that he did not establish his affirmative defense of retaliation
for whistleblowing, the Board made no findings in that earlier Order and
therefore he has not shown error.
¶9 On review, the appellant argues that he was denied a hearing. PFR File,
Tab 1 at 4. When he filed his appeal, he stated that he faced renewed death
threats since filing his IRA appeals and that, on advice from the Federal Bureau
of Investigation, he had relocated from South Carolina to North Carolina. IAF,
Tab 1 at 5. He moved that his appeal be heard in the Board’s Washington
Regional Office or at the Board’s headquarters. Id. The administrative judge
denied the appellant’s motion, id., Tab 6, and scheduled the hearing for a
to-be-determined location in Charleston, South Carolina, id., Tab 12. The
administrative judge subsequently set out the precise location for the hearing, the
Hollings Judicial Center in Charleston, id., Tab 24, and then corrected the address
(from 85 Meeting Street to 83 Meeting Street), id., Tab 27. The appellant moved
for a postponement and a designated safe location, claiming that he was unable to
attend the hearing in the “new changed address” or elsewhere in Charleston,
explaining that, because the agency had falsely reported his potential terrorist
attack on the federal court compound, he was not permitted to enter the court
house except by armed escort of deputy U.S. Marshals. Id., Tab 28. He further
6
alleged that he feared either a “repeat terrorism frame-up” or a “criminal hit” if
he remained in the Charleston area. 3 Id.
¶10 The appellant did not appear at the hearing. In response to the
administrative judge’s order, id., Tab 32, the appellant explained that he had
driven to the Atlanta Regional Office on the morning of the hearing “to preempt
the conspiracy against my litigation in both the [U.S.] Court[] of Appeals for the
Federal Circuit and the District of Columbia,” suggesting that the assigned
administrative judge may have had a conflict of interest because of her alleged
involvement with his other litigation, id., Tab 33. The administrative judge found
that the appellant failed to establish good cause for his failure to appear at the
hearing, and she advised the parties that the case would be decided on the written
record. Id., Tab 35.
¶11 On review, the appellant argues that the administrative judge unreasonably
insisted on a particular location for the hearing, and he repeats his claim that, if
he had appeared, he would have had to have been escorted by deputy U.S.
Marshals, thereby rendering his opportunity for a hearing not meaningful. PFR
File, Tab 1 at 4. An administrative judge has the authority to convene a hearing,
as appropriate. 5 C.F.R. § 1201.41(b)(6), and to grant a request for postponement
only upon a showing of good cause, 5 C.F.R. § 1201.51(c). We agree with the
administrative judge that the appellant failed to make such a showing below. He
did not support his claim that he would have been in danger if he had participated
in the hearing in Charleston 4 at the site selected by the administrative judge.
Accordingly, we find that the administrative judge did not abuse her discretion in
denying the appellant’s request to move the site of the hearing, or in adjudicating
3
It is unclear whether the administrative judge received this motion before she traveled
to the hearing as it was filed the day before Thanksgiving, and the hearing was
scheduled for the following Monday.
4
Charleston, South Carolina, is an approved hearing location for hearings arising out of
the Board’s Atlanta Regional Office. www.mspb.gov.
7
the appeal on the written record after the appellant failed to establish good cause
for his failure to appear.
¶12 The appellant argues that the administrative judge exhibited bias against
him by refusing to make an audio recording of the prehearing conference. PFR
File, Tab 1 at 6. The administrative judge denied the appellant’s motion and
instructed him to turn off any recording device he might have. IAF, Tab 20. An
administrative judge is required to prepare a summary of the prehearing
conference when any rulings are made. In the alternative, in the administrative
judge’s discretion, a prehearing conference may be tape recorded if she so
informs the parties. AJ Handbook, Chapter 9, section 5. Here, the administrative
judge prepared a written summary of the prehearing conference, which included
all of her rulings. IAF, Tab 20. The appellant challenged her denial of his
request for an audio tape of the conference, arguing that “a hearing must have a
transcript.” Id., Tab 23. However, a prehearing conference is not a hearing. The
appellant has not shown that the administrative judge committed an error or
otherwise abused her discretion by the manner in which she prepared a summary
of the prehearing conference. In any event, an administrative judge’s conduct
during the course of a Board proceeding evidences bias warranting a new
adjudication only if the administrative judge’s actions evidence deep-seated
favoritism or antagonism that would make fair judgment impossible. Young v.
U.S. Postal Service, 115 M.S.P.R. 424, ¶ 19 (2010). The appellant has not, by his
claim, made such a showing.
¶13 The appellant also claims that the administrative judge exhibited bias
against him based on her spoliation of a docket entry. PFR File, Tab 1 at 8. He
contends that, on December 12, 2013, she issued an order closing the record but
that order was erased from the e-Appeal portal and replaced by another order’s
text several days later. According to the appellant, the original order’s deleted
text has a “harsh tone.” The record reflects that, on December 12, 2013, the
administrative judge issued an order denying the appellant’s request to reschedule
8
the hearing and closing the record. IAF, Tab 35. On December 18, 2013, the
administrative judge issued another order in which she explained that, although
the earlier order appeared in the Board’s e-Appeal repository, it “was not issued
in a manner that notified the parties that the order had been issued” and stating
that she was therefore reissuing the close of record notice that day, granting the
parties an extension of time to submit their final submissions, and extending the
close of record date. Id., Tab 36. And, on that date, she reissued the
December 12, 2013 order, noting that it was “reissued on December 18, 2013.” 5
Id., Tab 37. The appellant has not shown that the administrative judge committed
any act of spoliation of evidence or in that regard otherwise exhibited bias against
him.
¶14 These claims of bias are insufficient to overcome the presumption of
honesty and integrity that accompanies administrative adjudicators. Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). That is so,
notwithstanding that the appellant previously complained about the actions of this
administrative judge in another appeal. Neither is bias shown by the fact that the
administrative judge may have failed to rule on a particular motion the appellant
filed. The appellant also argues that the administrative judge exhibited bias by
denying all of his witnesses. The appellant did not file a prehearing submission,
as directed. Notwithstanding, at the prehearing conference, the administrative
judge allowed him to name the witnesses he wished to call at the hearing. IAF,
Tab 20. He named the Deputy General Counsel of the Navy, a legal assistant, and
the Secretary of the Navy, as well as other “unknown agents of [the Naval
Criminal Investigative Service],” all of whom the administrative judge disallowed
on the basis that the appellant failed to make a case that they had probative
5
For some reason, the reissued order of December 18, 2013, did not include the
extended dates, IAF, Tab 37, as they were clearly set forth in the administrative judge’s
other order, issued that same date, id., Tab 36. Neither party, however, expressed any
confusion as to this matter.
9
evidence relevant to the matters at issue. Id. The appellant has not, on review,
made any contrary argument. An administrative judge has wide discretion to
control the proceedings, including authority to exclude testimony she believes
would be irrelevant or immaterial. Miller v. Department of Defense, 85 M.S.P.R.
310, ¶ 8 (2000). Moreover, as noted, an administrative judge’s conduct during
the course of a Board proceeding does not demonstrate bias warranting a new
adjudication unless her actions evidence a deep-seated favoritism or antagonism
that would make fair judgment impossible. Young, 115 M.S.P.R. 424, ¶ 19. The
appellant has failed to make any such showing.
¶15 Lastly, the appellant argues that the administrative judge issued the initial
decision prematurely because the discovery process was “non-existent.” PFR
File, Tab 1 at 9. The record reflects that the appellant timely served a discovery
request on the agency. IAF, Tab 10 at 7. The agency asked the administrative
judge for permission not to respond to the appellant’s discovery request on the
basis that it was not relevant to the instant case but rather rehashed issues from
his previous IRA appeals. Id., Tab 10. The appellant filed a motion to compel
discovery. Id., Tab 11. The administrative judge denied the appellant’s motion,
because he did not explain, in accordance with the Board’s regulations, why the
agency should be compelled to produce the requested discovery and because it
was not otherwise readily apparent. Id., Tab 20. Nonetheless, at the prehearing
conference, the administrative judge afforded the appellant an opportunity to
explain why he needed the requested information. He indicated that he would rest
on the statement he provided in his original appeal. In the absence of any reason
why the appellant needed the requested information, the administrative judge
again denied his motion to compel. 6 Id. The appellant has not on review
provided any reason for the requested information or explained how it would have
6
The administrative judge noted that some of the information the appellant requested
was, in fact, provided to him in the agency’s prehearing submission. IAF, Tab 20 at 6
n.2.
10
changed the result in his appeal. Therefore, he has failed to establish that the
administrative judge erred in issuing the initial decision prematurely or that she
abused her broad discretion in regulating discovery. See Russell v. Equal
Employment Opportunity Commission, 110 M.S.P.R. 557, ¶ 15 (2009).
¶16 With his petition for review, the appellant has submitted what he alleges is
new and material evidence, specifically, a September 2009 psychological
evaluation prepared by a clinical psychologist. PFR File, Tab 1 at 12. We have
not considered this evidence because it is neither new nor material to the
dispositive issues in this appeal. See Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980); Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
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).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
11
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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 about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, 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 Federal Circuit. The Merit Systems Protection Board
12
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.
