                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN MCCULLOCH,                                 DOCKET NUMBER
                 Appellant,                          SF-0752-15-0353-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 25, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           John McCulloch, Waimea, Hawaii, pro se.

           Andrea Maglasang-Miller, Pearl Harbor, Hawaii, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed his indefinite suspension. Generally, we grant petitions such as this one
     only when: 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

     ∗
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. See 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, and based on the following points and authorities, 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).
¶2        The following facts are undisputed.          The appellant is a GS-12 Civil
     Engineer for the agency, stationed at the Pacific Missile Range Facility in Kauai,
     Hawaii.   Initial Appeal File (IAF), Tab 6 at 4, 51.         On June 26, 2014, Kauai
     police arrested the appellant at work on suspicion of firearms violations. Id. at 5.
     Based on this arrest, the agency barred the appellant from entering the Pacific
     Missile Range Facility and all other Naval installations in Hawaii, and it placed
     him on administrative leave. Id. at 32-38. On September 10, 2014, the appellant
     was indicted by a Hawaii grand jury on 1 count of possession of a prohibited
     magazine inserted into a pistol, 13 counts of failure to register a firearm, and
     1 count of alteration of firearm identification marks.           Id. at 39-44.       The
     indictment   concerning   the   magazine    was    for   a    felony,   punishable    by
     imprisonment for 5 years without probation. IAF, Tab 6 at 39-40; Haw. Rev.
     Stat. § 134-8(c), (d). The remaining indictments were for petty misdemeanors.
     IAF, Tab 6 at 39-44; Haw. Rev. Stat. §§ 134-3(b), 134-10, 134-17(c). Effective
     January 23, 2015, the agency indefinitely suspended the appellant pending final
     adjudication of the criminal charges and any resulting administrative action. IAF,
     Tab 6 at 13-15.
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¶3         The appellant filed a Board appeal and waived his right to a hearing. IAF,
     Tab 1 at 3, Tab 15 at 1. He argued that the criminal charges were false, his
     barment was improper, he would be unlikely to face prison even if convicted, and
     that he should be allowed to return to duty pending the outcome of the criminal
     proceedings. IAF, Tab 1 at 6, Tabs 18-19. The administrative judge issued an
     initial decision affirming the indefinite suspension. IAF, Tab 21, Initial Decision
     (ID) at 1-5.
¶4         The appellant has filed a petition for review, disputing some of the
     administrative judge’s fact findings as well as some of the criminal charges.
     Petition for Review (PFR) File, Tab 1 at 3. The agency has filed a response. PFR
     File, Tab 3. For the following reasons, we find that the appellant has failed to
     provide a basis for disturbing the initial decision.
     The agency had reasonable cause to believe that the appellant committed a crime
     for which a sentence of imprisonment might be imposed.
¶5         An indefinite suspension is valid where: (1) there is reasonable cause to
     believe that the employee committed a crime for which a sentence of
     imprisonment may be imposed; (2) the suspension has an ascertainable end;
     (3) there is a nexus between the criminal charge and the efficiency of the service;
     and (4) the penalty is reasonable. Albo v. U.S. Postal Service, 104 M.S.P.R. 166,
     ¶ 6 (2006).
¶6         The administrative judge found, based on the grand jury indictment, that the
     agency had reasonable cause to believe that the appellant committed a crime for
     which a sentence of imprisonment might be imposed. ID at 3. On review, the
     appellant appears to dispute this finding.        He argues that possession of a
     prohibited magazine is not a felony, and he is unaware of any cases in which an
     individual has gone to prison for possession of a prohibited magazine. PFR File,
     Tab 1 at 3. He also argues that failure to register a firearm is not a misdemeanor
     but a petty misdemeanor, and that alteration of an identification mark on a toy gun
     is not a crime of any sort. Id.
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¶7        Regarding the charge of possessing a prohibited magazine, the appellant is
     correct that simple possession of such a magazine is not a felony. Haw. Rev.
     Stat. § 134-8(c), (d). However, the appellant was charged with possession of a
     prohibited magazine inserted into a pistol, which is a class C felony under Hawaii
     law, subject to 5 years’ imprisonment. IAF, Tab 6 at 39-40; Haw. Rev. Stat.
     §§ 134-8(c), (d), 706-660(1)(b).    As for the appellant’s contention that he is
     unaware of anyone who actually served jail time for possession of a prohibited
     magazine, we find that the operative question is not whether he is likely to go to
     prison, but whether the agency has reasonable cause to believe that he committed
     a crime for which a sentence of imprisonment might be imposed. See Albo,
     104 M.S.P.R. 166, ¶ 6. For the reasons explained in the initial decision, we agree
     with the administrative judge that the felony indictment was sufficient to satisfy
     this standard. ID at 3-4; see Dunnington v. Department of Justice, 956 F.2d 1151,
     1157 (Fed. Cir. 1992) (finding that an indictment following an investigation and
     grand jury proceedings generally will provide more than enough evidence of
     possible misconduct to meet the threshold requirement of reasonable cause to
     suspend).
¶8        Regarding the appellant’s argument that failure to register firearms is only a
     petty misdemeanor under Hawaii law, we agree. IAF, Tab 6 at 39-44; Haw. Rev.
     Stat. §§ 134-3(b), 134-17(c). However, given the appellant’s felony indictment
     described above, we find this fact immaterial. We also find that, regardless of the
     classification of the charged offense, it still is punishable by imprisonment for up
     to 30 days.   See Haw. Rev. Stat. § 706-663 (a court may sentence a person
     convicted of a petty misdemeanor to imprisonment for up to 30 days); Hernandez
     v. Department of the Navy, 120 M.S.P.R. 14, ¶¶ 10, 16 (2013) (upholding an
     indefinite suspension based on misdemeanor indictments carrying penalties of
     6 months or more imprisonment).
¶9        Regarding the appellant’s argument that he altered the identification
     markings on a toy gun and therefore committed no crime, we find that this is
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      essentially a challenge to the strength of the evidence underlying the criminal
      charge at issue. As the administrative judge correctly explained, the Board has
      never held that an agency must independently evaluate the strength of the
      underlying evidence against the appellant in an indefinite suspension case based
      on a criminal indictment; instead, the agency may rely solely on a grand jury
      indictment to prove that there is reasonable cause to believe that the employee is
      guilty of a crime for which a sentence of imprisonment may be imposed.            ID
      at 3-4; Dalton v. Department of Justice, 66 M.S.P.R. 429, 436 (1995).
      The indefinite suspension had an ascertainable end.
¶10         The administrative judge found that the indefinite suspension had an
      ascertainable end, i.e., the final resolution of the criminal proceedings against the
      appellant and any related administrative action that the agency decided to take
      against him. ID at 4. The appellant does not appear to challenge this finding and,
      based on our review of the agency’s notice and decision letters, we agree with the
      administrative judge. IAF, Tab 6 at 13-14.
      The agency established a nexus between the charge and the efficiency of the
      service.
¶11         The administrative judge found that the agency established a nexus between
      the efficiency of the service and the appellant’s alleged conduct underlying the
      criminal charges because that conduct led the agency to bar him from his duty
      station so that he was unable to perform his essential job functions. ID at 4. On
      review, the appellant argues that his barment was based on charges of possession
      of automatic weapons and explosives and that these charges were later dropped.
      PFR File, Tab 1 at 3; IAF, Tab 6 at 32-37.
¶12         We find that this argument provides no basis to disturb the initial decision.
      The agency issued the barment shortly after the appellant’s arrest, and well before
      the state formulated its charges and presented them to the grand jury. IAF, Tab 6
      at 5, 32, 39. Thus, there appears to be some disconnect between the stated basis
      for the barment and the legal bases for the final indictment. However, we find
                                                                                       6

      that the barment was based on the same general alleged criminal conduct
      underlying the indictment, and there is no indication in the record that the
      barment might be lifted before the criminal charges were resolved. We therefore
      agree with the administrative judge that there is a nexus between the appellant’s
      alleged criminal conduct and the performance of his duties. ID at 4; see Kruger
      v. Department of Justice, 32 M.S.P.R. 71, 74 (1987) (determining that an agency
      may establish a nexus between off-duty conduct and the efficiency of the service
      by showing that it affects the employee’s job performance). To the extent that the
      appellant is arguing that the barment order itself was erroneous, we find that
      military commanders have broad authority to exclude civilians from their areas of
      control and that the Board lacks authority to review such national security
      determinations.   Department of Navy v. Egan, 484 U.S. 518, 529-30 (1988)
      (holding that, unless Congress specifically has provided otherwise, courts
      traditionally have been reluctant to intrude upon the authority of the executive in
      military and national security affairs); see United States v. Albertini, 472 U.S.
      675, 690 (1985) (finding that a commanding officer has broad authority to issue a
      barment letter, as long as the letter is not patently arbitrary or discriminatory);
      Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy,
      367 U.S. 886, 893-96 (1961) (determining that commanding officers traditionally
      have exercised unfettered discretion in excluding civilians from their area of
      control).
      The agency established that the indefinite suspension penalty was reasonable.
¶13         The administrative judge found that the penalty of indefinite suspension
      was reasonable because the appellant had been barred from his duty station and
      all other Naval facilities in Hawaii, and the charges against him were “extremely
      serious.” ID at 4-5. On review, the appellant argues that his conduct was not a
      crime under Federal law or “in 90% of the States,” and therefore the
      administrative judge erred in finding that the criminal charges were extremely
      serious. PFR File, Tab 1 at 3. He also argues that the Department of Defense
                                                                                            7

      has allowed other individuals facing up to 7 years of jail time for possession of
      illegal magazines to continue to work on base. Id.
¶14        Regarding the seriousness of the criminal charges, we find that the
      characterization of their seriousness is somewhat subjective, but we see no
      manifest error in the administrative judge’s opinion that a felony charge carrying
      a penalty of 5 years’ imprisonment is “extremely serious.” ID at 5. Regarding
      the other employees whom the appellant alleges continue to work despite facing
      up to 7 years in prison for similar criminal charges, this appears to be an
      argument that the agency imposed disparate penalties. See Douglas v. Veterans
      Administration, 5 M.S.P.R. 280, 306 (1981) (noting that consistency of the
      penalty with those imposed upon other employees for the same or similar offenses
      is a relevant factor for the Board to consider in assessing the reasonableness of a
      penalty). We take it that the appellant is referring to the case of the individual
      that he discussed in his May 21, 2015 filing below.       IAF, Tab 19.     We find,
      however, that this individual was not similarly situated to the appellant because
      he worked for a different agency—the Department of Defense, not the
      Department of the Navy.         See Lewis v. Department of Veterans Affairs,
      113 M.S.P.R. 657, ¶ 15 (2010) (pointing out that, to prove disparate penalties, an
      appellant must show that there is enough similarity between both the nature of the
      misconduct and the other factors to lead a reasonable person to conclude that the
      agency treated similarly situated employees differently).         For the reasons
      explained in the initial decision, we agree with the administrative judge that there
      is not a sufficient basis to disturb the agency’s penalty determination. ID at 4-5.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                                                                  8

                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

      The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,   at   our   website,    http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
      If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
                                                                                9

provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
