NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3135
TODD J. SCHOENROGGE,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
___________________________
DECIDED: September 13, 2005
___________________________
Before CLEVENGER, RADER, and DYK, Circuit Judges.
RADER, Circuit Judge.
The Merit Systems Protection Board affirmed the Department of Justice’s
(Agency) removal of Mr. Todd J. Schoenrogge from Federal service. Because
substantial evidence supports the Board’s decision, this court affirms.
BACKGROUND
Mr. Schoenrogge was a legal assistant at the Eloy Immigration Court in Eloy,
Arizona. Schoenrogge v. Dep’t of Justice, DE-0752-03-0465-I-1, slip op. at 2 (M.S.P.B.
Apr. 16, 2004) (Initial Decision). On July 17, 2003, Immigration Judge Owens proposed
Mr. Schoenrogge’s removal for disorderly conduct, disrespectful conduct, and
inappropriate conduct. Id. After reviewing several written replies from Mr.
Schoenrogge, Chief Immigration Judge Creppy issued a decision effecting Mr.
Schoenrogge’s removal on August 26, 2003. Id., slip op. at 2-3.
Mr. Schoenrogge appealed the Agency’s decision to the Board. During
proceedings before the administrative judge, Mr. Schoenrogge challenged the Agency’s
decision, in part, as reprisal for filing discrimination complaints in violation of the
Whistleblower Protection Act. Id., slip op. at 9-12. Mr. Schoenrogge attempted to prove
these allegations primarily through the testimony of thirty-three witnesses. However,
the administrative judge did not allow Mr. Schoenrogge to call all thirty-three proposed
witnesses, but instead limited Mr. Schoenrogge to the five witnesses also on the
Agency’s witness list, plus two additional witnesses. Schoenrogge v. Dep’t of Justice,
DE-0752-03-0465-I-1 (M.S.P.B. Nov. 21, 2003) (Witness Order) Unsatisfied with this
decision, Mr. Schoenrogge moved the administrative judge to certify to the full Board
the issue of the propriety of limiting witnesses at the hearing. Apparently the
administrative judge did not act on that request.
After the hearing, the administrative judge concluded that the Agency proved the
charges against Mr. Schoenrogge and that the penalty of removal was an appropriate
penalty. Id., slip op. at 15. The administrative judge further concluded that Mr.
Schoenrogge did not show that the Agency’s action was in violation of the
Whistleblower Protection Act, Pub L. No. 101-12, 103 Stat. 16, codified in scattered
sections of 5 U.S.C. Id. The Board sustained this decision. Schoenrogge v. Dep’t of
Justice, DE-0752-03-0465-I-1 (M.S.P.B. Mar. 15, 2005). Mr. Schoenrogge then filed the
present appeal for review before this court. This court has jurisdiction under 28 U.S.C.
§ 1295(a)(9).
05-3135 2
DISCUSSION
This court affirms a decision of the Board unless it is arbitrary, capricious, an
abuse of discretion, not in accordance with the law, or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers. Mgmt., 243 F.3d
1375 (Fed. Cir. 2001).
The Three Charges
In the present case, substantial evidence supports the administrative judge’s
findings regarding all three of the charges against Mr. Schoenrogge. The first charge,
disorderly conduct, involves a June 26, 2003 incident where Mr. Schoenrogge appeared
uninvited at the home of his second-level supervisor, Mr. Meehan, and attempted to
provoke a physical altercation with him. See Initial Decision, slip op. at 3-5. The record
shows that Mr. Schoenrogge was arrested for the incident and subsequently pleaded
guilty to a charge of disorderly conduct. See State v. Schoenrogge, M-1142-CR-
2003001084 (Casa Grande Mun. Ct. 2003).
While Mr. Schoenrogge acknowledges the incident, he challenges the Meehans’
testimony that he was intoxicated at the time. Specifically, Mr. Schoenrogge argues
that the Meehans lack credibility due to prior statements that allegedly contradict their
testimony before the Board. The administrative judge, however, made specific findings
on the Meehans’ credibility, finding their testimony both internally consistent and
consistent with each other. Initial Decision, slip op. at 5. In contrast, the administrative
judge found Mr. Schoenrogge’s testimony to be wholly inconsistent and unexplainable.
Id. These well reasoned credibility findings, which are virtually unreviewable on appeal,
are fully supported by the record. See Hambsch v. Dep’t of Treasury, 796 F.2d 430,
05-3135 3
436 (Fed. Cir. 1986) (citing DeSarno v. Dep’t of Commerce, 761 F.2d 657, 661 (Fed.
Cir. 1985); Griessenauer v. Dep’t of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985);
Anderson v. City of Bessemer, 470 U.S. 564 (1985)) (commenting that, given the highly
deferential standard for reviewing a deciding official’s credibility determination, such
determinations are “virtually unreviewable” on appeal).
The second charge, disrespectful conduct, involves exchanges between
Mr. Schoenrogge and Immigration Judge Keenan. Initial Decision, slip op. at 5-6.
Specifically, while employed at the Agency, Mr. Schoenrogge worked with Immigration
Judge Keenan as a court clerk, starting July 1, 2003. Id. However, on June 25, 2003,
Mr. Schoenrogge sent Judge Keenan an email informing him that certain instructions
regarding tasks Mr. Schoenrogge was to perform simply would not be followed and that
anything Judge Keenan wanted to say to him should be sent through
Mr. Schoenrogge’s chain of command. Id. Proof of this incident includes
Mr. Schoenrogge’s email, in addition to the testimony of Judge Keenan and
Mr. Schoenrogge’s first-line supervisor, Shirley Coolbaugh.
Again, while acknowledging the incident, Mr. Schoenrogge challenges the
credibility of Shirley Coolbaugh and Judge Keenan. The administrative judge, however,
made specific findings on the credibility of Mrs. Coolbaugh and Judge Keenen, in which
he noted their testimonies were uniformly consistent with each other’s testimonies and
with the email itself. Id., slip op. at 6. The record supports these well reasoned
credibility findings.
The third and final charge against Mr. Schoenrogge, inappropriate conduct,
involves fifty seven phone calls made by Mr. Schoenrogge after duty hours to various
05-3135 4
individuals at the Agency’s headquarters. Id., slip op. at 7-9. These messages were
rambling and occasionally incoherent, suggesting that Mr. Schoenrogge was intoxicated
while leaving them. Id., slip op. at 8. The record includes transcripts of the calls,
though Mr. Schoenrogge challenges the accuracy of these transcripts.
Once again, while acknowledging the calls, Mr. Schoenrogge attempts to justify
these calls as protected whistleblowing activities and/or work-related in nature. Id., slip
op. at 9. The record, however, indicates the calls were exclusively made after hours to
individuals randomly selected. Id. This supports the administrative judge’s finding that
“it was far more likely that the telephone calls were made by [Mr. Schoenrogge] for the
purpose of venting when he could be certain that no one would answer his or her
telephone.” Id.
On the basis of the record, this court detects no reversible error. See 5 U.S.C.
§ 7703(c) (2000); McLaughlin v. Office of Pers. Mgmt., 353 F.3d 1363, 1367 (Fed. Cir.
2004).
The Affirmative Defenses
Mr. Schoenrogge also asserts two affirmative defenses against his removal. The
first affirmative defense asserts that the dismissal was taken in reprisal for filing
discrimination complaints in violation of 5 U.S.C. § 2302(b)(9). Initial Decision, slip op.
at 9-10. However, while the Agency concedes Mr. Schoenrogge did engage in
protected activity (i.e., filing discrimination complaints), the record does not show any
causal connection between the protected activity and the removal action other than
Mr. Schoenrogge’s own testimony. Thus, the administrative judge properly determined
that Mr. Schoenrogge did not prove this defense by preponderant evidence. See
05-3135 5
Warren v. Dep’t of Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986) (discussing petitioner’s
burden to prove a genuine nexus between the retaliation and petitioner’s removal in
establishing this defense).
Mr. Schoenrogge’s second and final affirmative defense involves a purported
violation of the Whistleblower’s Protection Act. Specifically, Mr. Schoenrogge alleged
six “protected” disclosures:
(1) Immigration Judges bringing unopened bottles of wine as Christmas
gifts into the Eloy Immigration Court, in [Mr. Schoenrogge’s] opinion, a
secure facility; (2) Immigration Judges allegedly allowing attorneys
appearing before them to make false statements on certificates of service;
(3) the agency’s alleged misuse of immigration detainees to perform
menial labor; (4) the alleged misuse of funds by allowing contract
interpreters to wait around, and thus be paid, while tape-recorded
advisories were being played; (5) Immigration Court employees allegedly
not working 8 hours for 8 hours pay by leaving work when Immigration
Court business was finished; and (6) Immigration Judges ‘padding’ their
statistics by entering the computer code ‘A’ instead of code ‘S.’
Initial Decision, slip op. at 11. The administrative judge dismissed these purported
disclosures as unprotected, finding instead that they “concern trivial materials that
reflect [Mr. Schoenrogge’s] subjective vision of how the Eloy Immigration Court ought to
operate rather than how, by policy, it actually operates.” Id. The administrative judge
further opined that these allegations “simply do not rise to the level of a violation of law,
rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health” as contemplated by the
statute. Id. (citing 5 U.S.C. § 2302(b)(8)(A)) (other citations omitted).
Before this court, Mr. Schoenrogge complains that the Board erroneously held
that the allegation of employees bringing wine into the Immigration Court was not
protected. As to this disclosure this court concludes that, based on the evidence of
record, the Board found that Mr. Schoenrogge could not reasonably have believed that
05-3135 6
the bringing of wine was illegal. Mr. Schoenrogge has not shown that this finding was
not supported by substantial evidence. Mr. Schoenrogge has not pursued item (2) on
appeal, and has explicitly disavowed item (3). Mr. Schoenrogge has not shown that the
Board committed reversible error in characterizing items (4) and (5) as trivial or
debatable matters of policy. And with respect to item (6), Mr. Schoenrogge has failed to
call this court’s attention to any testimony that would support a finding that he
reasonably believed that the events had occurred to the extent that they would be
considered non trivial.
Removal As A Penalty
Mr. Schoenrogge challenges as well the appropriateness of removal as a penalty
for the misconduct. This court upholds a penalty determination unless it is clearly
excessive or an abuse of discretion. See Coleman v. U.S. Secret Serv., 749 F.2d 726,
729 (Fed. Cir. 1984) (citations omitted). Mr. Schoenrogge asserts the administrative
judge did not consider mitigating factors including his history of past work performance
and letters from Immigration Judges attesting to his outstanding work performance.
See Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981) (discussing mitigating
factors for consideration in determining an appropriate penalty for misconduct). To the
contrary, the administrative judge’s Initial Decision expressly noted “there are no
mitigating circumstances present here except for the presumptive acceptance or better
quality of [Mr. Schoenrogge’s] performance.” Initial Decision, slip op. at 14 (emphasis
added). Thus, the administrative judge did consider Mr. Schoenrogge’s work
performance.
05-3135 7
Mr. Schoenrogge also asserts that the penalty of removal is inconsistent with
other cases in which individuals were merely suspended for striking their supervisor.
This argument simply has no merit, as the inconsistency of a penalty with other cases is
not dispositive where the penalty is appropriate to the sustained misconduct as this
court perceives it to be in this case. See Rackers v. Dep’t of Justice, 79 M.S.P.R. 262,
283-84 (1998), aff'd,194 F.3d 1336 (Fed. Cir. 1999) (Table). Thus, this court need not
address other cases in which individuals have merely been suspended for various
instances of misconduct. Hence, for the foregoing reasons, this court finds that the
penalty of removal was not clearly excessive or an abuse of discretion.
Motion To Certify
The final issue raised by Mr. Schoenrogge’s appeal involves his motion to certify
to the full Board the limitation on witnesses. Specifically, Mr. Schoenrogge argues that,
without any indication that the motion was ever formally granted or denied, the
administrative judge instead must have simply ignored the motion altogether. According
to Mr. Schoenrogge, ignoring a motion constitutes a clear abuse of discretion, because
the administrative judge has a duty to either grant or deny the motions before him. See
5 C.F.R. § 1201.92 (current through Aug. 2, 2005) (governing certification of
interlocutory appeals to the Board). Even assuming that the administrative judge
abused his discretion in ignoring the motion, however, this court perceives no prejudice
to Mr. Schoenrogge.
As previously noted, Mr. Schoenrogge requested the administrative judge’s
permission to have thirty-three witnesses testify in his defense. The administrative
judge, however, only allowed Mr. Schoenrogge to call two witnesses beyond those the
05-3135 8
Agency also sought to have testify. Witness Order, slip op. at 2. These two witnesses
were approved for the sole purpose of giving testimony regarding an absence of past
misconduct. Id. As to the remaining witnesses:
[They] were not approved because their testimonies uniformly go to
matters which are not reviewable in the instant appeal or are not relevant
at all or go to matters which the appellant is not required to defend against
such as loose language in the proposal and decision letters which does
not concern either the charges of misconduct or the propriety of the
penalty.
Id. In response, Mr. Schoenrogge asserts only that these witnesses were “vital” to his
defense. Without any reason to question the administrative judge’s decision not to
admit these witnesses, a decision subject to considerable deference on review, this
court perceives no error or prejudice to Mr. Schoenrogge. See 5 C.F.R. §1201.41(b)(8);
Tiffany v. Dep’t of Navy, 795 F.2d 67, 70 (Fed. Cir. 1986); Keefer v. Dep’t of Agriculture,
92 M.S.P.R. 476, 480 (2002) (discussing Board review of an administrative judge’s
certification decision under an abuse of discretion standard)
Conclusion
In brief, this court finds that substantial evidence supports the three charges
against Mr. Schoenrogge. In addition, this court finds that Mr. Schoenrogge did not
prove his affirmative defenses by a preponderance of the evidence, and that any
purported error in failing to grant or deny the certification motion did not unduly
prejudice Mr. Schoenrogge from presenting his case. The decision of the Board is
affirmed.
05-3135 9