NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
M. SHANE HERNANDEZ,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2019-1817
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-19-0053-I-1.
______________________
Decided: January 17, 2020
______________________
M. SHANE HERNANDEZ, Kailua Kona, HI, pro se.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JOSEPH H.
HUNT, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.;
JOHN SCHETTLER CHAMBLEE, Office of the General Counsel,
United States Department of Defense Education Activity,
Peachtree City, GA.
______________________
2 HERNANDEZ v. DEFENSE
Before PROST, Chief Judge, MOORE and HUGHES, Circuit
Judges.
PER CURIAM.
The Merit Systems Protection Board affirmed the De-
partment of Defense Education Activity’s decision to re-
move pro se appellant M. Shane Hernandez from his
position. Mr. Hernandez appeals the Board’s final deci-
sion, arguing that he was improperly removed. Because we
find no error in the Board’s decision, we affirm.
I
Mr. Hernandez worked as a teacher for the Depart-
ment of Defense Education Activity (DODEA). He taught
as a United States citizen at the Yokosuka Naval Base in
Japan. On January 20, 2018, Mr. Hernandez crashed his
car near the Base. Japanese police, responding to the acci-
dent, arrested him after they determined his blood alcohol
level was over the Japanese legal limit. The Japanese po-
lice notified the Naval Police, who then notified the
DODEA.
In response to this misconduct, the DODEA entered
into a Last Chance Agreement (LCA) with Mr. Hernandez.
The agreement required that the DODEA suspend Mr.
Hernandez for 30 days, after which the DODEA would re-
tain his employment provided that he did not engage in
“similar or other misconduct” for the ensuing three-year
period. Resp. App. 38. 1
After entering the agreement, Mr. Hernandez pleaded
guilty in Japanese court to criminal charges stemming
from driving under the influence. The Japanese court con-
victed him on those charges, and he received a suspended
sentence. The Navy subsequently ordered his removal
1Resp. App. refers to the Supplemental Appendix in-
cluded with the Respondent’s brief.
HERNANDEZ v. DEFENSE 3
from Japan based on Commander Naval Forces, Japan, In-
struction 5820.16E (Navy Instruction). See Resp. App.
40–49. That instruction generally requires that individu-
als in positions like Mr. Hernandez’s be removed to the
United States after they are convicted in Japanese court
for a criminal offense and returned to U.S. custody after
receiving a suspended sentence. See id. at 48.
Once removed from Japan, Mr. Hernandez could not
report for duty at his DODEA teaching position. The prin-
cipal of Mr. Hernandez’s school in Japan, a DODEA official,
then proposed his removal based on his inability to report
for duty. The DODEA sustained his proposed removal over
Mr. Hernandez’s opposition. Mr. Hernandez then appealed
the DODEA’s removal action to the Board.
In an Initial Decision, the Administrative Judge af-
firmed the DODEA’s removal action. Mr. Hernandez ar-
gued that his 30-day suspension as part of the agreement
barred his removal because both disciplinary measures
were based on the same misconduct—the drunk driving in-
cident. But the Administrative Judge disagreed, finding
that the DODEA entered the agreement based on Mr. Her-
nandez’s drunk driving incident, and then removed him
based on his later inability to report for duty. The Admin-
istrative Judge also rejected Mr. Hernandez’s argument
that the agreement required the DODEA to maintain his
employment, possibly by transferring him to a different
work location if he could not stay in Japan.
The Administrative Judge’s decision became final on
April 11, 2019. Resp. App. 27. Mr. Hernandez appeals
from the final decision. We have jurisdiction under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
II
Congress requires that we uphold Board decisions un-
less they are “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
4 HERNANDEZ v. DEFENSE
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial ev-
idence . . . .” 5 U.S.C. § 7703(c). We review the Board’s le-
gal determinations de novo. Johnston v. Merit Sys. Prot.
Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). “Underlying fac-
tual determinations are reviewed for substantial evidence.”
McMillan v. Depʼt of Justice, 812 F.3d 1364, 1371 (Fed. Cir.
2016). And we review the rulings of an Administrative
Judge on evidentiary issues for abuse of discretion.
Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1368 (Fed. Cir.
2012). As the petitioner, Mr. Hernandez bears the burden
of proving that the Board erred. Jones v. Dep’t of Health &
Human Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016).
First, Mr. Hernandez argues that the DODEA’s remov-
ing him from his position constituted constructive suspen-
sion and that the Board erred in not considering it as such.
Thereby, he argues that the Board needed to apply the le-
gal standards applicable to constructive suspension. These
include advising him of the applicable burden of proof and
applying the legal test for constructive suspension. See
Wynn v. U.S. Postal Serv., 115 M.S.P.R. 146, 150 (M.S.P.B.
Nov. 2, 2010) (holding that “it was incumbent on the ad-
ministrative judge to advise the appellant of applicable
burdens of proving a particular affirmative defense, as well
as the kind of evidence the appellant is required to produce
to meet his burden”). But constructive suspension requires
“an [employee’s] involuntary absence from an agency for
more than 14 days,” as the Board can find when an em-
ployee is on medical leave and an agency prevents them
from returning to work. Rosario–Fabregas v. Merit Sys.
Prot. Bd., 833 F.3d 1342, 1346 (Fed. Cir. 2016) (emphasis
removed). A removal action is not a constructive suspen-
sion. See id. And to the extent that Mr. Hernandez argues
that the Administrative Judge generally failed to explain
the burden of proof, we disagree. The Administrative
Judge issued a Hearing Order on November 20, 2018 list-
ing the applicable burdens of proof. Resp. App. 55–60.
HERNANDEZ v. DEFENSE 5
Mr. Hernandez next argues, as he did before the Board,
that the DODEA improperly disciplined him twice for the
same misconduct: first his 30-day suspension as part of the
agreement and then his outright removal, both premised
on the drunk driving incident. “Where an agency has im-
posed disciplinary or adverse action because of an em-
ployee’s misconduct, it is barred from subsequently taking
another adverse action for the same reason.” Adamek v.
U.S. Postal Serv., 13 M.S.P.R. 224, 226 (M.S.P.B. Sept. 3,
1982). Substantial evidence supports the Administrative
Judge’s finding that these disciplinary measures were
based on different incidents of misconduct. Mr. Hernan-
dez’s suspension was a disciplinary measure for the drunk
driving incident. Resp. App. 36–39. The DODEA’s later
removal action was based on Mr. Hernandez’s inability to
report for duty following his extradition from Japan. Thus,
unlike in Adamek, the DODEA did not discipline Mr. Her-
nandez twice for the same misconduct, as “the act of driv-
ing drunk is separate and distinct from the act of being
unable to report for duty.” Resp. App. 14.
Third, Mr. Hernandez continues to argue that the
Board failed to enforce the agreement in his favor. Partic-
ularly, paragraph 7(a) of the agreement states that the
DODEA “[a]grees to afford the EMPLOYEE an oppor-
tunity, during the time frame of this agreement, to become
a cooperative and productive member of the AGENCY’s
workforce.” Resp. App. 38. Mr. Hernandez argues that this
language requires that the DODEA employ him anywhere
in its workforce, not just in Japan, as the DODEA has
many schools outside Japan where the agency could have
transferred him. Yet paragraph 7(b) of the agreement next
states that the DODEA “[a]grees not to propose removal to
the EMPLOYEE for the misconduct described above so
long as the EMPLOYEE does not engage in similar or other
misconduct for a period of three years beginning on the
date of this signed agreement.” Resp. App. 38. And Mr.
Hernandez’s inability to report for duty following the
6 HERNANDEZ v. DEFENSE
signing of the agreement is “other misconduct” as contem-
plated in paragraph 7(b). Thus, we agree with the Admin-
istrative Judge that, contrary to Mr. Hernandez’s
arguments, the DODEA was “not obligated under the set-
tlement agreement to continue to employ the appellant or
to transfer him” regardless of future misconduct. Resp.
App. 25.
Lastly, Mr. Hernandez argues that the Administrative
Judge improperly denied his request to call Mr. Frison as
a witness. Mr. Frison “reviewed the settlement agreement
for legal sufficiency and provided legal advice on the
agency’s subsequent removal action.” Resp. App. 16 n.5.
Because Mr. Frison had factual knowledge of the agree-
ment, Mr. Hernandez argues that he was a witness that
the Administrative Judge should have permitted him to de-
pose. And, thereby, Mr. Hernandez argues that Mr.
Frison’s potential role as a witness conflicted him from con-
tinuing to act as agency counsel during the removal action.
See 5 C.F.R. § 1201.31(b) (“A party may choose any repre-
sentative as long as that person is willing and available to
serve. The other party or parties may challenge the desig-
nation, however, on the ground that it involves a conflict of
interest or conflict of position.”). We disagree; Mr. Hernan-
dez’s desire to call Mr. Frison as a witness does not create
a conflict as contemplated by 5 C.F.R. § 1201.31(b). Mr.
Frison was only performing his role as agency counsel and,
as the Administrative Judge held, “reviewing such actions
before issuance to determine legal sufficiency is not some-
how inconsistent with agency policy or the law, or nefarious
as a general matter.” Resp. App. 16 n.5. Thus, the Board
did not abuse its discretion in denying Mr. Hernandez’s re-
quest to call Mr. Frison as a witness and in finding no con-
flict.
III
We have considered Mr. Hernandez’s remaining argu-
ments and find them unpersuasive. Because the Board did
HERNANDEZ v. DEFENSE 7
not abuse its discretion during the proceedings, properly
applied the law, and substantial evidence supports its find-
ings, we affirm the Board’s final decision.
AFFIRMED
No costs.