NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEITH E. BROWN,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2017-1687
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-15-0761-I-1.
______________________
Decided: August 10, 2017
______________________
KEITH E. BROWN, Stockton, CA, pro se.
ANDREW W. LAMB, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., FRANKLIN
E. WHITE, JR.
______________________
Before NEWMAN, O’MALLEY, and TARANTO, Circuit
Judges.
2 BROWN v. DEFENSE
PER CURIAM.
In July 2015, the Department of Defense removed
Keith Brown from his position as a police officer at the
Defense Logistics Agency. The Department charged Mr.
Brown with conduct unbecoming a police officer, giving
multiple specifications, and failure to provide accurate
information. Mr. Brown appealed his removal to the
Merit Systems Protection Board, which affirmed the
Department’s decision. For the reasons discussed below,
we affirm.
I
Mr. Brown worked for the Department as a police of-
ficer at a Defense Logistics Agency facility in California.
On November 17, 2012, the California Highway Patrol
stopped him while he was driving his personal vehicle
near his duty station. During the stop, the patrol officer
learned that the vehicle’s license plates did not match the
vehicle’s registration. Mr. Brown admitted that he had
switched the license plates of two of his vehicles because
the vehicle he was driving was not registered in Califor-
nia. The patrol officer arranged for the unregistered
vehicle to be towed away and issued Mr. Brown a citation
for driving with illegally tinted windows and with an
expired registration. Upon contacting the tow yard, Mr.
Brown learned that an insurance company had claimed
the vehicle because it had been reported stolen.
On December 3, 2012, the State of California filed a
criminal complaint against Mr. Brown. See Complaint,
People v. Brown, No. MF035545A (Cal. Super. Ct. Dec. 3,
2012). The complaint charged Mr. Brown with commit-
ting three felony offenses: (1) unlawful driving or taking
of a vehicle, (2) receiving stolen property, and (3) certifi-
cate-of-ownership or license forgery. See Cal. Penal Code
§ 496d(a); Cal. Veh. Code §§ 4463(a)(1), 10851(a). In June
2013, Mr. Brown pleaded no contest to the misdemeanor
offense of displaying on a vehicle a license plate not
BROWN v. DEFENSE 3
issued for that vehicle, see Cal. Veh. Code § 4462(b), and
the State dismissed the felony charges.
In January 2013, while the criminal case against Mr.
Brown was pending, the Department proposed to suspend
him indefinitely from his job. The Department stated
that the filing of the complaint gave it “reasonable cause”
to conclude that he had committed a crime for which a
sentence of imprisonment might be imposed. In March
2013, the Department indefinitely suspended Mr. Brown.
Mr. Brown appealed the suspension to the Board, and
in July 2013, the administrative judge reversed the
suspension. See Initial Decision, Brown v. Dep’t of Def.,
No. SF-0752-13-0336-I-1 (M.S.P.B. July 17, 2013). The
administrative judge concluded that the filing of the
complaint, without more, did not provide “reasonable
cause” to conclude that Mr. Brown had committed the
charged offenses. The Board affirmed the administrative
judge’s decision, see Final Order, Brown v. Dep’t of Def.,
No. SF-0752-13-0336-I-1, 2014 WL 7146582 (M.S.P.B.
Dec. 16, 2014), and the Department placed Mr. Brown on
paid administrative leave.
In September or October 2013, after the administra-
tive judge had reversed Mr. Brown’s suspension, but
before the Board had affirmed that decision, the Depart-
ment proposed to remove Mr. Brown for conduct unbe-
coming a federal police officer. In February 2014, the
Department removed Mr. Brown from his position. Carl
Eskew was the deciding official.
Mr. Brown appealed, and the administrative judge re-
versed the removal. See Initial Decision, Brown v. Dep’t
of Def., No. SF-0752-14-0310-I-1 (M.S.P.B. Nov. 4, 2014).
The administrative judge determined that the Depart-
ment did not provide Mr. Brown with adequate notice of
the grounds for his removal because, although the Re-
moval Decision emphasized Mr. Brown’s failure to regis-
ter his vehicle for more than two and a half years, the
4 BROWN v. DEFENSE
Notice of Proposed Removal had not mentioned that
allegation. The administrative judge noted that the
reversal did “not preclude the agency from reinitiating”
removal proceedings based on the same charge. Gov’t’s
App’x 58–59.
The Department petitioned the Board for review of
the administrative judge’s decision, but the Board dis-
missed the petition as having been filed too late. See
Final Order, Brown v. Dep’t of Def., No. SF-0752-14-0310-
I-1 (M.S.P.B. Feb. 25, 2015). The Board determined that
the petition was filed one day after the applicable dead-
line, see 5 C.F.R. § 1201.114(e), and that the Department
had not shown good cause for excusing the tardiness.
In May 2015, the Department again proposed to re-
move Mr. Brown, and in July 2015, the Department
removed him for the second time. The Department stated
six specific grounds for the charge of conduct unbecoming
a federal police officer and three specific grounds for the
charge of failing to provide accurate information on his
Form SF 86, an Office of Personnel Management (OPM)
questionnaire filled out by applicants for national security
positions. Before the removal, the Department notified
Mr. Brown that Kenneth Warrinton would replace Mr.
Eskew as the deciding official.
Mr. Brown appealed. In February 2016, the adminis-
trative judge affirmed the removal. See Initial Decision,
Brown v. Dep’t of Def., No. SF-0752-15-0761-I-1 (M.S.P.B.
Feb. 10, 2016). The administrative judge held that the
Department had proven three of the six specifications of
conduct unbecoming a federal police officer and one of the
three specifications of failing to provide accurate infor-
mation. The administrative judge rejected Mr. Brown’s
argument that the Department’s removal action was
untimely.
After the administrative judge issued his initial deci-
sion, Mr. Brown filed with the Board a “Motion to Submit
BROWN v. DEFENSE 5
an Additional Pleading” under 5 C.F.R. § 1201.114(a)(5).
See Motion To Submit Additional Pleading, Brown v.
Dep’t of Def., No. SF-0752-15-0761-I-l (M.S.P.B. Mar. 21,
2016). The motion requested leave to submit affidavits
from John Vieira, the Department official who had pro-
posed Mr. Brown’s July 2016 removal, and Mr. Eskew.
Mr. Brown had obtained the affidavits in a parallel race-
and age-discrimination action. See Brown v. Mattis, No.
2:15-cv-26-JAM-EFB (E.D. Cal.). Mr. Brown argued that
the affidavits established that the Department had al-
ready decided to terminate his employment at the time
that it proposed his removal and the Department’s stated
reasons for proposing his removal were not the actual
reasons.
In December 2016, the Board affirmed the adminis-
trative judge’s decision after modifying the decision to
analyze certain due-process allegations. See Final Order,
Brown v. Dep’t of Def., No. SF-0752-15-0761-I-1 (M.S.P.B.
Dec. 29, 2016). The Board held that the administrative
judge had erred by failing to address those allegations,
but that the error was harmless because Mr. Brown had
not proven a due-process violation. The Board affirmed
the administrative judge’s decision in all other respects.
The Board also denied Mr. Brown’s motion to submit
the affidavits of Mr. Vieira and Mr. Eskew. The Board
concluded that the affidavits were not material to the only
points for which Mr. Brown argued they should be added.
Specifically, the Board explained, there was no evidence
that the actual deciding official, Mr. Warrinton, allowed
his decision on the merits of the specific grounds for
removal to be improperly influenced by the views of Mr.
Vieira and Mr. Eskew.
Mr. Brown petitions for review of the Board’s Decem-
ber 2016 decision. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
6 BROWN v. DEFENSE
II
Mr. Brown argues that the Board erred because: (1)
the Department’s removal decision was improperly con-
ducted, as established by the additional affidavits; (2) the
removal was untimely; and (3) the removal was barred by
Department of Defense Directive 5200.2-R on access to
classified information. In reviewing the record, we must
“hold unlawful and set aside any agency action, findings,
or conclusions found to be . . . (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” 5 U.S.C. § 7703(c). Mr.
Brown has the burden to establish prejudicial error. See
Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140
(Fed. Cir. 1986).
A
We reject Mr. Brown’s argument that the Board erred
by failing to consider the affidavits of Mr. Vieira, who
proposed the removal, and Mr. Eskew, who made the first
removal decision. Mr. Brown argues that the affidavits
establish that the belief of those two affiants that he
should be removed meant that the Department had
improperly predetermined the result of the second remov-
al proceeding and that the Department did not provide
him with adequate notice of and opportunity to respond to
the Department’s actual reasons for removing him. The
Board determined that the affidavits were not material.
It explained that there simply was no evidence that the
actual deciding official for the second removal, Mr. War-
rinton, failed to make his own decision based on the
specific grounds stated in the removal proposal, but
instead was improperly influenced by the views of the
proposing official, Mr. Vieira, or of the initial deciding
official, Mr. Eskew.
BROWN v. DEFENSE 7
We see no error in that determination. Mr. Warrinton
replaced Mr. Eskew as the deciding official before Mr.
Brown’s ultimate removal, and Mr. Brown does not identi-
fy any evidence that supports the inference that Mr.
Vieira or Mr. Eskew influenced Mr. Warrinton’s decision.
Mr. Brown argues that Mr. Vieira and Mr. Eskew must
have improperly influenced Mr. Warrinton’s decision
because of their close working relationships. But the
Board could reasonably demand something more before
questioning whether Mr. Warrinton properly made his
own decision on the merits. See United States v. Chem.
Found., 272 U.S. 1, 14–15 (1926) (‘”The presumption of
regularity supports the official acts of public officers, and,
in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official
duties.”). Moreover, the only identified facts that Mr.
Brown sought to add to the record—that the proposing
official and the official that had previously decided to
remove him believed that he should be removed—were
plain to Mr. Warrinton, to Mr. Brown, to the administra-
tive judge, and to the Board. Mr. Brown has not shown
how the affidavits at issue would add anything to what
was already evident. We therefore see no reason to dis-
turb the Board’s decision regarding the additional affida-
vits.
B
We also reject Mr. Brown’s argument that the De-
partment’s removal action was untimely. Assuming, for
the sake of argument, that the Board may reverse an
agency’s removal decision based on an unreasonable delay
in initiating or effectuating the removal, Mr. Brown has
not presented any evidence, either to the Board or to this
court, that the Department acted unreasonably during his
removal. The California Highway Patrol stopped Mr.
Brown in November 2012, and the Department first
proposed to remove him in September or October 2013. In
the interim, the Department had attempted to indefinite-
8 BROWN v. DEFENSE
ly suspend him. The Board rejected that attempt, and
then also reversed the first removal in February 2015.
Very shortly thereafter, in May 2015, the Department
again proposed to remove Mr. Brown, adding grounds to
those presented in the first removal action. Mr. Brown
has not shown that any delay between these events was
unnecessary, much less unreasonable.
Although the Department failed to timely petition the
Board for review in the first removal action, Mr. Brown
does not argue that the Department’s non-compliance
with the Board’s filing deadlines in that proceeding is the
kind of unreasonable delay that would justify reversing
his removal here. See Pet’r’s Br. 5–10. In any event, the
Department missed the applicable deadline by only one
day. We do not see how that default makes the Depart-
ment’s decision to re-initiate removal proceedings in May
2015 reversible for undue delay.
Mr. Brown is also incorrect in arguing that the De-
partment’s removal action was untimely under 5 C.F.R.
§ 1201.113(e). Under that regulation, a private party’s
administrative remedies “are exhausted” once an admin-
istrative judge’s decision becomes final. Id. Contrary to
Mr. Brown’s contention, that regulation only clarifies
when a party may seek judicial review of a Board deci-
sion. It does not preclude an agency from taking further
action against an employee where, as here, a Board
decision does not address the merits of the agency’s
action.
C
Finally, we reject Mr. Brown’s argument that De-
partment of Defense Directive 5200.2-R barred his re-
moval while the Department was reviewing his eligibility
for a security clearance. At the time of Mr. Brown’s
BROWN v. DEFENSE 9
removal, 1 Directive 5200.2-R provided guidance on the
Department’s internal operating procedures regarding
access to classified information. The directive barred the
Department from taking an “unfavorable administrative
action,” defined as an adverse action resulting from a
“personnel security determination” or “unfavorable per-
sonnel security determination,” without affording the
affected employee certain specified “protections.” Dep’t of
Def. Directive 5200.2-R, at C8.1.1, C8.1.2, DL1.1.29. An
“unfavorable personnel security determination” included,
among other things, the “denial or revocation” of a securi-
ty clearance. Id. at DL1.1.30.
The government correctly argues that Directive
5200.2-R did not bar the Department from removing Mr.
Brown. His removal was not an “unfavorable administra-
tive action” within the meaning of the directive because it
was not based on the denial, revocation, or suspension of
his security clearance or any other action to which the
directive applied. Rather, the Department removed Mr.
Brown because, it determined, he had engaged in conduct
unbecoming a federal police officer and failed to provide
accurate information in response to a federal question-
naire. Although the Department also appears to have
suspended Mr. Brown’s security clearance based on
similar allegations, that does not mean that Mr. Brown’s
removal was an “unfavorable administrative action”
1 While this appeal was pending before this court,
the Department revoked 32 C.F.R. § 154, the regulation
corresponding to Directive 5200.2-R. See Department of
Defense Personnel Security Program Regulation, 82 Fed.
Reg. 1192 (Jan. 5, 2017). The Department also appears to
have removed Directive 5200.2-R from the list of pub-
lished directives on its website. See Exec. Servs. Direc-
torate, DoD Issuances, Dep’t of Def. (June 29, 2017),
http://www.esd.whs.mil/Directives/issuances/dodd.
10 BROWN v. DEFENSE
covered by the directive. The Department suspended Mr.
Brown’s security clearance and removed him from his
position in independent proceedings, the latter not tied to
the former. Only Mr. Brown’s removal is at issue in this
appeal.
III
For the foregoing reasons, we affirm the Board’s
judgment.
No costs.
AFFIRMED