UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK WEIDHASE, DOCKET NUMBER
Appellant, SF-0752-17-0153-I-1
v.
DEPARTMENT OF HOMELAND DATE: July 17, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.
Jennifer R. Hong, Esquire, Los Angeles, California, for the agency.
Stanislaus A. Gonsalves, Esquire, Oak Brook Terrace, Illinois, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the removal action. Generally, we grant petitions such as this one only
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 Prior to his removal, the appellant was a Criminal Investigator, GS -14, with
the agency’s Immigration and Customs Enforcement division in the Los Angeles
Field Office. Initial Appeal File (IAF), Tab 1 at 1. On August 31, 2014, he was
involved in a traffic collision when the driver of another vehicle rear-ended his
personal vehicle. Hearing Transcript (HT) at 100:16-101:8 (testimony of the
appellant). Following the collision, the appellant observed that the suspect was
Hispanic, spoke limited English, had a Mexican voter identification card in his
wallet, and seemed reluctant to involve law enforcement. HT at 102:2-103:2.
The appellant asked the suspect where he was from and the suspect responded “de
alla” (which translates to “from over there”). HT at 103:23-104:12. The
appellant obtained his agency law enforcement credentials from his vehicle and
identified himself as a law enforcement officer. HT at 104:24-105:5. The
suspect immediately took flight and the appellant pursued and detained him until
local law enforcement could arrive. HT at 104:24-105:5, 107:20-22. In the
3
course of these events, the appellant suffered an inj ury to his knee. IAF, Tab 8
at 178-79.
¶3 The appellant subsequently left two voicemail messages for his supervisor.
HT at 169:25-170:12, 170:23-171:6 (testimony of the appellant). On
September 1, 2014, the appellant sent an email to his supervisors recounting the
incident. IAF, Tab 8 at 236. On September 2, 2014, the appellant submitted a
Form CA-1 (“Federal Employee’s Notice of Traumatic Injury and Claim for
Continuation of Pay/Compensation”) to the Office of Workers’ Compensation
Programs (OWCP) in which he attested that he sustained a work-related injury to
his knee during the incident. Id. at 178-79. The appellant was asked to submit
additional information to OWCP and, on September 23, 2014, the appellant
submitted a detailed statement regarding the incident. IAF, Tab 9 at 194-95. The
appellant’s supervisor reported his belief that the appellant had filed a false
OWCP claim and the Office of Professional Responsibility (OPR) conducted an
investigation. IAF, Tab 8 at 135.
¶4 On March 15, 2016, the agency proposed to remove the appell ant based on
the following charges: (1) Misuse of Law Enforcement Authority (three
specifications); and (2) Lack of Candor (four specifications). Id. at 127-33. The
agency charged the appellant with misuse of his law enforcement authority when
he displayed his law enforcement credentials, engaged in a foot pursuit, and
detained an individual while off duty and without the proper authority. Id. at 128.
The agency also charged the appellant with lack of candor when he gave
incomplete or incorrect information in voicemails and emails to his supervisor, on
forms related to his workers’ compensation claim, and during his OPR interview.
Id. at 128-29. On November 15, 2016, the agency issued a decision letter
sustaining the charges and finding that removal was an appropriate penalty. Id.
at 21-31. The appellant was removed effective immediately upon receipt of the
decision letter. Id. at 22.
4
¶5 The appellant timely filed an appeal of his removal with the Board. IAF,
Tab 1. Following a hearing, the administrative judge issued an initial decision
sustaining the removal action. IAF, Tab 27, Initial Decision (ID) at 23. The
administrative judge found that the agency did not prove any of the three
specifications underlying the charge of misuse of law enforcement authority, and
accordingly, did not sustain the charge. ID at 12-13. Of the four lack of candor
specifications, the administrative judge found that the agency did not prove
specifications 1 and 4 but she sustained specifications 2 and 3. ID at 13-20. She
thus sustained the lack of candor charge. ID at 20. She also found that the
removal penalty was within the parameters of reasonableness and was the
maximum reasonable penalty for the sustained charge. ID at 21-23.
¶6 On petition for review, the appellant challenges the administrative judge’s
findings on the two lack of candor specifications that were sustained. Petition for
Review (PFR) File, Tab 3. The appellant argues that the agency failed to meet its
burden to prove the remaining two lack of candor specifications. Id. at 12. The
agency has filed a response, to which the appellant has replied. PFR File,
Tabs 6-7.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly sustained the lack of candor charge.
¶7 Lack of candor “is a broader and more flexible concept” than falsification.
Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002).
Although lack of candor does not require an affirmative misrepresentation, it
involves an element of deception. Id. at 1284-85. An agency alleging lack of
candor must prove the following elements: (1) that the employee gave incorrect
or incomplete information; and (2) that he did so knowingly. Fargnoli v.
Department of Commerce, 123 M.S.P.R. 330, ¶17 (2016).
¶8 Under specification 2 of the lack of candor charge, the agency stated the
following:
5
On September 2, 2014, you completed and submitted the Form CA -1
for an injury that occurred on August 31, 2014 following a traffic
collision where you were rear-ended. On the form, you stated that
you were rear-ended by a suspect and that the “suspect stated he did
not have a driver’s license and stated he was unlawfully present, then
fled the scene” after you identified yourself as an [Homeland
Security Investigations (HSI)] Special Agent. You were less than
truthful in your statement on the Form CA-1 because you did not
mentioned [sic] the fact that the suspect who rear-ended you stated
he was unlawfully present in your previous communications to your
supervisor Assistant Special Agent in Charge (ASAC) . . . .
Specifically, you left two voicemail messages for ASAC . . . on the
night of August 31, 2014. In your voicemail messages, you did not
inform ASAC . . . that [the suspect] said he was unlawfully present
in the United States. Additionally, on September 1, 2014, you sent
ASAC . . . an email detailing the circumstances surrounding the
traffic collision and the subsequent detention of [the suspect] and
you did not indicate that the suspect stated he was unlawfully
present. Your statement on the Form CA-1 constitutes a lack of
candor.
IAF, Tab 8 at 129.
¶9 Here, the administrative judge found that the agency proved that the
appellant made an incorrect statement on the Form CA-1 and that he did so
knowingly. ID at 16. Importantly, the administrative judge noted that the
appellant testified during the hearing that, in his encounter with the suspect on
August 31, 2014, the suspect did not state that he was unlawfully present or an
illegal alien. HT at 159:2-4, 173:8-11 (testimony of the appellant). Thus, the
administrative judge found that, at the time the appellant completed the
Form CA-1 and wrote that “the suspect . . . stated he was unlawfully present,” the
appellant was knowingly providing incorrect information. ID at 16 ; IAF, Tab 8
at 178-79. The administrative judge acknowledged that the suspect’s statements
to the appellant may have created a reasonable suspicion that the s uspect was
unlawfully present. ID at 16. However, the administrative judge properly noted
that a reasonable suspicion that the suspect was unlawfully present is not the
same as the suspect stating he was unlawfully present. Id. We thus discern no
6
basis for disturbing the administrative judge’s findings that the appellant
knowingly provided incorrect information on the Form CA-1. See Fargnoli,
123 M.S.P.R. 330, ¶ 17. Based on the foregoing, we find that the administrative
judge properly sustained specification 2 of the lack of candor charge.
¶10 Specification 3 of the lack of candor charge states as follows :
On or about September 23, 2014, you submitted correspondence to
the claims examiner . . . with the Office of Workers’ Compensation
Program. In that correspondence, you stated that an accident
occurred as described in the Riverside Sheriff’s Department Incident
Report. You further stated, “Based on his demeanor, body language
and evasive response to my question regarding his immigration
status,” you identified yourself as a Special Agent for the
Department of Homeland Security, at which time [the suspect] took
flight. However, in your September 1, 2014, email to your
supervisor ASAC . . . you did not mention questioning [the suspect]
about his immigration status or the fact that he gave an evasive
response. During your March 26, 2015, interview with the Special
Agent from the Office of Professional Responsibility, you stated that
you did not question [the suspect] about his immigration status
because he fled before you had a chance to do so. Your statement in
your September 23, 2014 correspondence to the claims examiner
constitutes a lack of candor.
IAF, Tab 8 at 129.
¶11 Here, the administrative judge found that the agency proved that the
appellant made incorrect or incomplete statements in the September 23 , 2014
letter to OWCP when he stated that, during the August 31, 2014 incident, the
suspect gave an “evasive response to my question regarding his immigration
status.” ID at 18. In addition, the administrative judge found that this incorrect
statement was made knowingly. Id. Specifically, after reviewing all of the
appellant’s statements, the administrative judge found no evidence that the
appellant ever asked the suspect a question “regarding his immigration status”
and that, accordingly, there was also no evidence that the suspect provided any
“evasive response” to said question. Id. Moreover, the administrative judge
correctly noted that the appellant testified under oath during his interview with
7
OPR that he did not question the suspect about his immigration status or ask him
where he was from. ID at 18; IAF, Tab 9 at 79-80. We thus discern no basis for
disturbing the administrative judge’s findings that the appellant knowingly
provided incorrect information in the September 23, 2014 letter to OWCP. See
Fargnoli, 123 M.S.P.R. 330, ¶ 17. Based on the foregoing, we find that the
administrative judge properly found that the agency proved specification 3 of the
lack of candor charge. Because the administrative judge correctly sustained
specifications 2 and 3, we find that she correctly sustained the lack of candor
charge. See Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
1990) (explaining that, when there is one charge with multiple factual
specifications set out in support of the charge, proof of one or more, but not all,
of the supporting specifications is sufficient to sustain the charge).
The administrative judge correctly found that the agency established the nexus
requirement and that the penalty of removal was reasonable under the
circumstances.
¶12 In addition to proving the charge by preponderant evidence, the agency
must also establish the existence of a nexus between the misconduct and the
efficiency of the service, and that the penalty of removal is reasonable. 5 U.S.C.
§ 7513(a); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 18 (2013);
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306-07 (1981). The nexus
requirement, for purposes of determining whether an agency has shown that its
action promotes the efficiency of the service, means there must be a clear and
direct relationship between the articulated grounds for an adverse action and
either the employee’s ability to accomplish his duties satisfactorily or some other
legitimate Government interest. Scheffler v. Department of the Army,
117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). We
agree with the administrative judge’s findings that the agency has met the nexus
requirement here. ID at 21; see Ludlum v. Department of Justice, 87 M.S.P.R. 56,
8
¶ 28 (2000) (finding that lack of candor strikes at the very heart of the
employer-employee relationship), aff’d, 278 F.3d 1280 (Fed. Cir. 2002).
¶13 Regarding the penalty, when, as here, not all of the charges are sustained,
the Board will consider carefully whether the sustained charges merit the penalty
imposed by the agency. Suggs v. Department of Veterans Affairs, 113 M.S.P.R.
671, ¶ 6 (2010), aff’d, 415 F. App’x 240 (Fed. Cir. 2011). In such circumstances,
the Board may mitigate the agency’s penalty to the maximum reasonable penalty
so long as the agency has not indicated in either its final decision or in
proceedings before the Board that it desires a lesser penalty be imposed on fewe r
charges. Id. In doing so, the Board may not disconnect its penalty determination
from the agency’s managerial will and primary discretion in disciplining
employees. Id.
¶14 In the initial decision, the administrative judge discussed the deciding
official’s consideration of the seriousness of the offense and its relation to the
appellant’s duties as a law enforcement officer. ID at 21 -22; IAF, Tab 8 at 27-31;
HT 14:25-16:8 (testimony of the deciding official). Specifically, she relied on his
testimony that “the ability to provide credible and factual testimony and recounts
of events is central to the law enforcement position which [the appellant] holds as
he may be called to testify in court.” ID at 22; IAF, Tab 8 at 27.
Additionally, the administrative judge credited the deciding official’s testimony
that the appellant’s lack of candor presented an integrity issue that resulted in a
loss in the appellant’s ability to perform his duties. ID at 22. She, like the
deciding official, considered mitigating factors such as the appellant’s many years
of service, lack of disciplinary history, and good performance, but concluded that
they do not outweigh the seriousness of the offense. Id.; IAF, Tab 8 at 27-28;
HT 16:12-17:6, 20: 11-25 (testimony of the deciding official). Finally, she
observed that the deciding official did not testify regarding what penalty he
would have imposed if only the lack of candor charge was sustained. ID at 23.
As such, she found that removal was still the appropriate penalt y. ID at 22-23.
9
¶15 The appellant does not challenge the administrative judge’s finding s on
review, PFR File, Tab 1, and we discern no reason to disturb them, ID at 21 -23.
The Board has long placed particular emphasis on the nature and seriousness of
the misconduct and its relationship to the employee’s duties, position, and
responsibilities. See Arena v. U.S. Postal Service, 121 M.S.P.R. 125, ¶ 6 (2014)
(stating that, in evaluating the penalty, the Board will consider, first and
foremost, the nature and seriousness of the misconduct and its relationship to the
employee’s duties, position, and responsibilities), aff’d, 617 F. App’x 996 (Fed.
Cir. 2015) (Table); see Gaines v. Department of the Air Force, 94 M.S.P.R. 527,
¶ 9 (2003) (same). Further, it is well settled that law enforcement officers are
held to a higher standard of honesty and integrity. Prather v. Department of
Justice, 117 M.S.P.R. 137, ¶ 36 (2011). Thus, the seriousness of the appellant’s
lack of candor, as explained by the deciding official, particularly in light of his
position as a law enforcement officer, is of paramount consideration. Based on
the foregoing, we agree with the administrative judge that removal is the
maximum reasonable penalty for the sustained charge. ID at 23; see Carlton v.
Department of Justice, 95 M.S.P.R. 633, ¶¶ 7-9 (finding that the removal penalty
was reasonable when a law enforcement officer demonstrated lack of candor and
conduct unbecoming).
¶16 Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 2
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
2
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.
10
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 choice s 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).
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 particu lar
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
11
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
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,
12
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
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. 3 The court of appeals must receive your
3
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.
13
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
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.