Geoffrey Butlak v. Department of Homeland Security

Opinion

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

GEOFFREY BUTLAK, DOCKET NUMBER Appellant, AT-0752-23-0120-I-1

v.

DEPARTMENT OF HOMELAND DATE: January 3, 2025 SECURITY, Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Steven M. Cohen , Esquire, and Tyler J. Eckert , Esquire, Amherst, New York, for the appellant.

Travlaus Clark , New Orleans, Louisiana, for the agency.

BEFORE

Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which affirmed his removal from his Customs and Border Protection Officer position based on the charges of conduct unbecoming a Customs and Border Protection

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).

Officer and lack of candor. On petition for review, the appellant argues, among other things, that the administrative judge violated his due process rights by reinterpreting the conduct unbecoming charge, erroneously conducted an independent penalty review instead of a harmful error analysis after finding that the agency deciding official failed to properly consider a mitigating factor in his penalty assessment, and erred in the penalty analysis. 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).

Regarding the conduct unbecoming charge, the agency specification explained that the appellant asked another Customs and Border Protection Officer to relay false information to the office director regarding the reason the appellant was tardy. Initial Appeal File (IAF), Tab 4 at 21-24, 37-40. The appellant argues on review that the administrative judge misinterpreted the charge to include allegations that he attempted to influence a coworker to lie, solicited a coworker to further his deceit, and attempted to involve another law enforcement officer in his deception. Petition for Review (PFR) File, Tab 1 at 7-12. There is no material difference between the appellant “asking” a coworker to relay false

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information on his behalf to a manager and the administrative judge’s characterization of the specification. Asking an individual to do something is an attempt to influence, a solicitation, and an attempt to involve the individual in whatever is being asked. Thus, contrary to the appellant’s arguments, the administrative judge’s characterization is not outside the matters covered by the proposal notice. 2

2 The appellant also argues that the administrative judge’s purported misinterpretation of the charge constituted a due process violation under the U.S. Court of Appeals for the Federal Circuit’s decisions in Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 20 11), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1378 (Fed. Cir. 1999). Those cases address an agency deciding official considering material not set forth in the proposal notice; they do not address the findings by a Board administrative judge. Thus, the appellant’s argument is misplaced. The appellant also argues that, pursuant to Ward, 634 F.3d. at 1274, having found that the agency deciding official failed to properly consider a mitigating factor, the administrative judge was precluded from assessing the reasonableness of the agency’s penalty, and instead should have evaluated whether the agency’s actions constituted harmful error. PFR File, Tab 1 at 15-16. As the initial decision correctly explained, when the agency has failed to consider a mitigating factor, the agency’s determination of an appropriate penalty is not entitled to deference, and the Board may determine how the agency’s decision should be corrected to bring the penalty within the parameters of reasonableness. IAF, Tab 28 at 7; see Thomas v. Department of the Army, 2022 MSPB 35, ¶ 19 (stating that the Board will modify or mitigate an agency-imposed penalty only when it finds that the agency failed to weigh the relevant factors or the penalty clearly exceeds the bounds of reasonableness); Chin v. Department of Defense, 2022 MSPB 34, ¶¶ 24-32 (mitigating the appellant’s removal to a 90-day suspension when the agency deciding official failed to properly consider mitigating factors); Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 133 (1997) (stating that, when the agency deciding official fails to considered relevant mitigating factors, the Board will independently evaluate the reasonableness of the penalty). Accordingly, we find no error in the administrative judge assessing the reasonableness of the penalty. ID at 7-9. Regarding the penalty, we have carefully considered the appellant’s arguments, including those related to his prior discipline and potential Giglio-impairment, and we discern no basis to disturb the administrative judge’s finding that removal was within the tolerable limits of reasonableness. ID at 9-11.

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NOTICE OF APPEAL RIGHTS 3 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 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).

3 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.

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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

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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

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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 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 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

4 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.

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Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board

Washington, D.C.