                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSHUA D. HOLMES,                               DOCKET NUMBER
                  Appellant,                         SF-0752-13-0752-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 17, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John R. Setlich, Rancho Cucamonga, California, for the appellant.

           Emily A. Jackson-Hall Jennifer Gazzo, and Camp Pendleton, California,
             for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     found that the agency proved the charges of possession of drugs and drug
     paraphernalia and being under the influence of drugs, concluded that there was a
     nexus between the sustained misconduct and the efficiency of the service, and

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     affirmed the removal penalty. 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
     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. We MODIFY
     the initial decision to clarify the administrative judge’s nexus analysis, but we
     agree with the administrative judge that there is a nexus between the sustained
     misconduct and the efficiency of the service. Except as expressly modified by
     this Final Order, we AFFIRM the initial decision.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        Effective   June   12,   2013,   the   appellant   was   removed    from    his
     telecommunications mechanic position based on charges of: (1) possession of
     drugs and drug paraphernalia; and (2) being under the influence of drugs. Initial
     Appeal File (IAF), Tab 6, Subtabs 4b (removal Standard Form 50), 4c (proposal
     notice), 4d (decision letter). The appellant filed a Board appeal. IAF, Tab 1. He
     did not assert any affirmative defenses. IAF, Tab 18 at 5. A hearing was held.
     Hearing Compact Diskette (CD).        The administrative judge issued an initial
     decision, which sustained both charges, found that there was a nexus between the
     misconduct and the efficiency of the service, and affirmed the removal penalty.
     IAF, Tab 38, Initial Decision (ID).
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¶3        The appellant filed a petition for review, the agency filed a response, and
     the appellant appears to have filed two reply briefs.     See Petition for Review
     (PFR) File, Tabs 1, 4-6. On review, the appellant states that he does not agree
     with the initial decision, and asserts that the administrative judge was “biased”
     and “one[-]sided.” PFR File, Tab 1 at 3. He generally disputes the charges and
     argues that the penalty was too harsh. Id.
¶4        We have considered the documentary and testimonial evidence, and we
     agree with the administrative judge that the agency proved by preponderant
     evidence that the appellant committed the charged misconduct. ID at 3-5; see
     IAF, Tab 6, Subtabs 4c (proposal notice), 4d (decision letter), 4e (incident
     report); IAF, Tab 25 (toxicology report); Hearing CD. The appellant asserts on
     review that the administrative judge erred when he stated that the appellant did
     not respond to the proposal notice and the appellant did not perform well on the
     field sobriety tests. PFR File, Tab 1 at 3. He also states that, during the hearing,
     “both officers denied smelling any marijuana coming from [his] vehicle.”         Id.
     These arguments do not warrant a different outcome.
¶5        Despite the appellant’s contention, there does not appear to be a response to
     the proposal notice in the file.   Moreover, the deciding official stated in the
     decision letter that the appellant did not respond to the proposal notice. See IAF,
     Tab 6, Subtab 4d at 1.        Additionally, the administrative judge noted the
     appellant’s testimony that he performed well on the field sobriety tests; however,
     the administrative judge credited the officer’s testimony that the appellant’s
     performance on the tests was consistent with being under the influence of alcohol
     or drugs, and he noted that the officer’s testimony was “corroborated” by the
     urine and blood tests and the testimony of the toxicologist. ID at 5. We discern
     no error with the administrative judge’s assessment in this regard. See Hillen v.
     Department of the Army, 35 M.S.P.R. 453, 458 (1987) (explaining that, to resolve
     credibility issues, an administrative judge may consider the consistency of the
     testimony with other evidence). Even if both officers testified that they did not
                                                                                          4

     smell marijuana coming from the appellant’s vehicle, 2 such evidence does not
     change our disposition. Indeed, there is ample other evidence in the record to
     support the charges, including the toxicology report and the testimony of the
     toxicologist, who credibly testified that the results were consistent with the
     appellant’s ingestion of marijuana approximately 12-24 hours before the samples
     were collected, and the testimony of the officers regarding the appellant’s
     behavior, the drug-detecting dog’s behavior around the appellant’s vehicle, the
     drug paraphernalia collected from inside the appellant’s vehicle, and the fact that
     the items collected from the appellant’s vehicle tested positive for cannabis
     (marijuana). See, e.g., IAF, Tab 6, Subtab 4e, Tab 25 at 6; Hearing CD.
¶6         In the initial decision, the administrative judge found that the agency
     established the required nexus because it had a legitimate interest in disciplining
     an employee for possession of drugs on a military depot even when the employee
     was not on duty at the time of the misconduct.          See ID at 6.    Although the
     appellant does not appear to challenge the administrative judge’s nexus analysis
     on review, we modify the initial decision to discuss the proper standard for
     evaluating nexus when off-duty misconduct is involved. An agency may show a
     nexus between off-duty misconduct and the efficiency of the service by three
     means: (1) a rebuttable presumption in certain egregious circumstances;
     (2) preponderant evidence that the misconduct adversely affects the appellant’s
     job performance or the agency’s trust and confidence in his job performance; or
     (3) preponderant evidence that the misconduct interfered with or adversely
     affected the agency’s mission. Kruger v. Department of Justice, 32 M.S.P.R. 71,
     74 (1987). We find that the decision letter and the deciding official’s unrebutted
     testimony, taken together, are sufficient to establish nexus under the second
     prong. See IAF, Tab 6, Subtab 4d (explaining that the use and possession of
     drugs can affect the appellant’s judgment, reliability, and productivity, and could
     2
      The record reflects that the depot gate sentry, who did not testify, smelled marijuana
     coming from the appellant’s vehicle. See IAF, Tab 6, Subtab 4e at 5.
                                                                                       5

     “seriously jeopardize” the appellant’s safety and the safety of others); Hearing
     CD; see also Adams v. Defense Logistics Agency, 63 M.S.P.R. 551, 555-56 (1994)
     (the deciding official’s unchallenged testimony that the appellant’s off-duty
     possession of marijuana adversely affected the agency’s trust and confidence in
     his job performance was sufficient to establish nexus).
¶7        Regarding the penalty, the appellant asserts on review that he can be
     rehabilitated and that the range of penalties for a first-time offense is a 14-day
     suspension to removal. PFR File, Tab 1 at 3. The Board has articulated factors to
     be considered in determining the propriety of a penalty, such as the nature and
     seriousness of the offense, the employee’s past disciplinary record, the potential
     for rehabilitation, and the supervisor’s confidence in the employee’s ability to
     perform his assigned duties.    Douglas v. Veterans Administration, 5 M.S.P.R.
     280, 305-06 (1981). Not all of the factors will be pertinent in every instance, and
     so the relevant factors must be balanced in each case to arrive at the appropriate
     penalty. Id. The seriousness of the appellant’s offense is always one of the most
     important factors in assessing the reasonableness of an agency’s penalty
     determination. Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 7 (2013).
¶8        The appellant’s arguments regarding the penalty analysis do not warrant a
     different outcome. Although the deciding official did not explicitly consider the
     appellant’s potential for rehabilitation in the decision letter, he considered other
     relevant aggravating and mitigating factors, including the nature and seriousness
     of the offenses, the appellant’s length of service, his prior performance, and the
     impact of the appellant’s use and possession of illegal drugs in the workplace.
     See IAF, Tab 6, Subtab 4d.      The administrative judge also acknowledged the
     appellant’s argument, made below, that the Board is a “court of equity” and that
     the administrative judge could mitigate the removal penalty to a suspension;
     however, the administrative judge informed the appellant that his role was to
     decide whether the removal exceeded the maximum reasonable penalty for the
     sustained misconduct. See ID at 7. We discern no error with the administrative
                                                                                        6

      judge’s explanation of his role as it relates to the penalty.     See Lachance v.
      Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999) (finding that when the Board
      sustains all of an agency’s charges, the Board may mitigate the agency’s original
      penalty to the maximum reasonable penalty when it finds the agency’s original
      penalty too severe); Douglas, 5 M.S.P.R. at 306 (explaining that the Board will
      review an agency-imposed penalty only to determine if the agency considered all
      the relevant factors and exercised management discretion within tolerable limits
      of reasonableness). We also agree with the administrative judge that the charged
      misconduct was serious, the deciding official’s penalty analysis was appropriate,
      and the Board has upheld removals in similar circumstances.          See ID at 6-8
      (citing Coleman v. Department of Defense, 100 M.S.P.R. 574, ¶ 15 (2005)). For
      these reasons, we affirm the removal penalty.
¶9         We have considered the appellant’s remaining arguments.          In making a
      claim of bias or prejudice against an administrative judge, a party must overcome
      the presumption of honesty and integrity that accompanies administrative
      adjudicators.   Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386
      (1980).   An administrative judge’s conduct during the course of a Board
      proceeding warrants a new adjudication only if the administrative judge’s
      comments or actions evidence “a deep-seated favoritism or antagonism that would
      make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
      1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
      555 (1994)).    We have reviewed the record, and we discern no evidence of
      administrative judge bias.
¶10        Finally, the appellant alleges, for the first time in his reply brief, that the
      agency’s military attorney was prejudiced against him due to his race and age.
      PFR File, Tab 5 at 3. Generally, the Board will not consider an argument raised
      for the first time in a petition for review absent a showing that it is based on new
      and material evidence not previously available despite the party’s due diligence.
      Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant
                                                                                7

did not make a claim of race or age discrimination below, see IAF, Tab 18 at 5,
and he has not shown that such a claim is based on any new or material evidence.
Therefore, we need not address this assertion on review.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
                                 Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
                                                                                    8

discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.




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