                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JEFFREY A. RANDALL,                             DOCKET NUMBER
                   Appellant,                        CH-0752-13-1797-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: September 2, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jeffrey G. Letts, Esquire, Trenton, New Jersey, for the appellant.

           Neil Bloede, Esquire, Indianapolis, Indiana, 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
     sustained his removal. 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 judge’s rulings

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 appellant served as a GS-11 Staff Accountant with the agency’s
     Defense Finance and Accounting Service (DFAS). In connection with his duties,
     he volunteered to be a part of the Pandemic Response Group (PRG), a group of
     “critical function personnel” specifically designated to work during a pandemic
     event. Initial Appeal File (IAF), Tab 14. Members of the PRG were required to
     obtain High Speed Internet Access (HSIA) in their homes to enable them to be
     able to perform their jobs during a pandemic emergency. Consistent with the
     terms of Directive 3020.28-DV, High Speed Internet (HSI) Access in Support of
     Critical Functions During a Pandemic Event, issued on October 3, 2009, the
     agency agreed to reimburse these employees for such equipment and to pay their
     monthly usage fees and related charges upon their submission of an Standard
     Form    (SF)   1164,   Claim   for   Reimbursement   of   Expenditures,   and   the
     substantiating bill. IAF, Tab 7 at 102-12 of 142.
¶3          On three different occasions between November 2009 and August 2011, the
     appellant submitted SF-1164s and substantiating bills for HSIA at his father’s
     house, although he resided in a condominium elsewhere. The appellant’s father
     paid the bills, the appellant submitted the paid receipts along with claims for
     reimbursement, the agency approved the claims, and the appellant received the
                                                                                     3

     reimbursed funds totaling $1,529.56. Id. at 32-89 of 142. However, he neither
     paid the internet company directly nor reimbursed his father. When confronted,
     and during the ensuing criminal investigation conducted by a Special Agent of the
     DFAS Internal Review, the appellant explained that he still maintains a room at
     his parents’ house and that, in the event of a pandemic, he anticipated staying
     there. Id. at 91-92 of 142. Notwithstanding, the investigation concluded that the
     appellant made false claims for reimbursement to DFAS under the PRG HSIA
     reimbursement program by submitting bills for internet service at his father’s
     home which his father paid, that the appellant listed his father’s address as his
     own on the reimbursement claims, and that he retained for himself the
     government funds paid pursuant to these claims. Id. at 15 of 142.
¶4        As a result, the agency removed the appellant based on three specifications
     of misuse of funds. Id. at 4-7 of 142, 39-41 of 142, 38 of 109. On appeal, he
     argued that the agency’s Directive was vague, that he was truthful in designating
     where the HSIA was received, that he maintained his HSIA availability which
     was the “clear intent of the policy,” that he had no personal gain any different
     from any other PRG participant, that he acted in good faith, that portions of the
     policy were unenforceable, and that removal was not warranted. IAF, Tab 12.
     He requested a hearing. Id., Tab 1 at 2.
¶5        Thereafter, the administrative judge issued an initial decision affirming the
     removal action. Id., Tab 23, Initial Decision (ID) at 1, 11. She found that the
     agency proved by preponderant evidence that the appellant misused agency funds,
     ID at 4-5, that discipline for the sustained charge promotes the efficiency of the
     service, ID at 5, and that removal is a reasonable penalty, ID at 5-11.
¶6        The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, to which the agency has responded in opposition, id., Tab 3.
¶7        On review, the appellant argues that the agency did not prove the misuse of
     funds charge because he was not a disbursing official and therefore was not in a
     position to spend or authorize agency funds for personal or inappropriate
                                                                                            4

     purposes. PFR File, Tab 1 at 3. The appellant has provided no support for his
     position that an agency may only bring a misuse of funds charge against a
     disbursing official, nor are we aware of any. If, in connection with his job, an
     employee comes to possess government funds, he may be charged with misuse if
     he does not abide by agency rules and regulations regarding such funds. It is true
     that the appellant was authorized to be reimbursed by the agency for HSIA at his
     home for which he paid. However, that is not what happened here. Rather, the
     appellant was reimbursed for HSIA at his father’s home for which his father paid.
     As such, the appellant has not shown that the administrative judge erred in
     sustaining the charge of misuse of funds.
¶8         The appellant also argues that he did not misuse agency funds because, as a
     member of the PRG, he was authorized to have the agency pay for the HSIA that
     he would use in the event of an emergency. Id. at 4. He asserts that, contrary to
     the administrative judge’s finding, HSIA was not available at his condominium
     during the time in question. Id. at 3; ID at 3. Even if true, the fact remains that
     the appellant claimed and received reimbursement from the agency for HSIA for
     which he did not pay 2 (testimony of appellant, Compact Disc (CD), August 19-20,
     2014). To the extent the administrative judge erred in her statement regarding the
     appellant’s ability during this time to secure HSIA in his condominium, any such
     adjudicatory error did not prejudice the appellant’s substantive rights and
     provides no basis for reversal of the initial decision. Panter v. Department of the
     Air Force, 22 M.S.P.R. 281, 282 (1984).




     2
       The administrative judge considered the appellant’s argument that, while he did not
     repay his father, the appellant nevertheless “reimburse[d] or compensate[s] his father in
     some fashion,” IAF, Tab 1 at 11, by occasionally paying for dinner and buying him a
     camera and other items (testimony of appellant, CD, August 19-20, 2014). The
     administrative judge found, and we agree, that, to the extent that any such arrangement
     existed, it did not detract from the fact that the appellant sought and received
     reimbursement from the government for HSIA for which he did not pay. ID at 5.
                                                                                        5

¶9         The appellant claims on review that his decision to work at his parents’
      home in the event of a pandemic was reasonable since, at the time in question, it
      was the only HSIA available to him. PFR File, Tab 1 at 4. Again, even if true,
      that decision did not form the basis for the agency’s action. Rather, it was the
      appellant’s request for and receipt of reimbursement for HSIA for which his
      father paid that accounted for the agency’s charge of misuse of funds.
¶10        The appellant challenges the administrative judge’s finding of nexus; that
      is, that the agency’s action promotes the efficiency of the service, ID at 5,
      claiming that, by volunteering to join the PRG, he “as always, wanted to help the
      Agency,” and that, by doing so, he demonstrated his commitment to the agency
      and its mission. PFR File, Tab 1 at 7. An agency bringing an adverse action
      must prove that there is a nexus, i.e., a clear and direct relationship between the
      articulated grounds for the adverse action and either the employee’s ability to
      accomplish his duties satisfactorily or some other legitimate government interest.
      Canada v. Department of Homeland Security, 113 M.S.P.R. 509, ¶ 10 (2010). An
      agency may establish nexus by showing that the employee’s conduct:
      (1) affected his or his coworkers’ job performance; (2) affected management’s
      trust and confidence in his job performance; or (3) interfered with or adversely
      affected the agency’s mission. Id., ¶ 11. Here, both the proposing and deciding
      officials emphasized that the appellant’s actions caused them to question his
      integrity and lose trust in him, particularly given his Accountant position with
      DFAS, whose function is to administer billions of dollars of defense program
      expenditures annually. IAF, Tab 7 at 5 of 142 (testimony of proposing official,
      CD, August 19, 2014); id. at 40 of 109 (testimony of deciding official, CD,
      August 19, 2014). The appellant has failed to show that the administrative judge
      erred in finding that his misconduct affected management’s trust and confidence
      in him, and that nexus was established.
¶11        Finally, as to the penalty, the appellant disputes the administrative judge’s
      finding in which she agreed with the deciding official that the appellant has little
                                                                                          6

      potential for rehabilitation. PFR File, Tab 1 at 6; ID at 9. In the appellant’s
      view, even before issuance of the proposal notice, he was always honest and
      professional in his dealings with the agency, requesting that the legal department
      review the situation and “hopefully” find that he was in compliance with agency
      policy. PFR File, Tab 1 at 6-7.
¶12         Where all of the agency’s adverse action charges are sustained, the Board
      will review the agency-imposed penalty only to determine if the agency
      considered all the relevant factors and exercised management discretion within
      the tolerable limits of reasonableness.         Ellis v. Department of Defense,
      114 M.S.P.R. 407, ¶ 11 (2010).      In reviewing an agency-imposed penalty, the
      Board must give due weight to the agency’s primary discretion in maintaining
      employee discipline and efficiency, recognizing that the Board’s function is not
      to displace management’s responsibility, but to ensure that managerial judgment
      has been properly exercised.      The Board will modify or mitigate an agency-
      imposed penalty only where it finds that the agency failed to weigh the relevant
      factors or the penalty clearly exceeds the bounds of reasonableness. Id.
¶13         The deciding official’s Douglas factors worksheet, submitted under penalty
      of perjury, establishes that he considered the relevant factors in determining the
      penalty. IAF, Tab 7 at 48-49 of 109.        The appellant’s disagreement with the
      weight given to a particular factor does not provide a basis for reversal of the
      initial decision.   The appellant engaged in serious misconduct that caused the
      agency to justifiably lose confidence in his integrity and judgment, particularly
      considering his position with DFAS is a position of public trust and fiduciary
      responsibility. We find that the deciding official reasonably determined that that
      factor and other aggravating factors outweigh any mitigating factors, including
      the fact that the appellant had no prior discipline during his 5 years of satisfactory
      job performance. See Jinks v. Department of Veterans Affairs, 106 M.S.P.R. 627,
      ¶ 17 (2007) (finding that, in assessing the appropriateness of the agency’s penalty
      selection, the most important factor is the nature and seriousness of the
                                                                                                7

misconduct    and     its   relation   to   the        employee’s      duties,   position,    and
responsibilities, including whether the offense was intentional or was frequently
repeated). The deciding official also considered that the removal penalty was
consistent with that imposed on others for similar offenses and with the table of
penalties, that the appellant had full access to and knowledge of the rules for
reimbursement of funds, and that his refusal to acknowledge any wrongdoing on
his part indicates that he is a poor candidate for rehabilitation. IAF, Tab 7 at 49
of 109.    The Board’s role is not to displace the judgment of senior agency
managers who must have confidence that employees will act appropriately at all
times. Batts v. Department of the Interior, 102 M.S.P.R. 27, ¶ 11 (2006). Under
the circumstances, we agree with the administrative judge that, given the
seriousness of the appellant’s misconduct, the nature of his position, and his lack
of   rehabilitative   potential,   removal        is    within   the     tolerable   limits    of
reasonableness. 3 ID at 10-11.

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


3
  The appellant argues for the first time on review that, to the extent the agency
believed that, by his actions, he owed a debt, it should have proceeded under 5 U.S.C.
§ 5514, Installment deduction for indebtedness to the United States, rather than
removing a “bright and promising employee for what is, at worst, a professional
disagreement.” PFR File, Tab 1 at 6. Because the appellant has not shown that this
argument is based on new and material evidence not previously available despite his
due diligence, the Board will not consider it. Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980).
                                                                                  8

      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
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.
