                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SCOTT B. FOSTER,                                DOCKET NUMBER
                   Appellant,                        SF-0752-14-0589-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: August 19, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Michael P. Balaban, Esquire, Las Vegas, Nevada, for the appellant.

           Shari C. Mauney, Esquire, Phoenix, Arizona, 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 demotion. 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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, 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         The agency demoted the appellant from his position as a Supervisory Civil
     Engineer, GS-13, to that of a Civil Engineer, GS-12, on based on three charges:
     (1) failure   to   follow    instructions;   (2) unauthorized     purchases;    and
     (3) inappropriate conduct.   Initial Appeal File (IAF), Tab 4 at 10-14, 208‑13.
     The administrative judge found jurisdiction over the appeal and, after holding a
     hearing, affirmed the agency’s action. Initial Appeal File (IAF), Tab 15, Initial
     Decision (ID).
¶3         In his initial decision, the administrative judge sustained the two
     specifications under the charge of failure to follow instructions. ID at 2-5; IAF,
     Tab 4 at 208‑09. He rejected the appellant’s argument that the instructions at
     issue in the first specification were insufficiently clear, instead finding that the
     February 14, 2013 email message transmitting those instructions, combined with
     contemporaneous     verbal   reinforcement   from    the   appellant’s   supervisor,
     established by preponderant evidence that the appellant both received and
     understood the instruction that he was not to permit one of his subordinates to
     purchase items using his Government credit card without prior approval.
     ID at 4‑5. As to the second specification, the administrative judge found that the
                                                                                       3

     agency similarly established that the appellant failed to follow an instruction to
     forward the invitation to a meeting he had with officials in another agency
     component concerning a potential detail position to their office. ID at 5.
¶4        On the unauthorized purchases charge, the administrative judge found that,
     regardless of the appellant’s explanations and justifications for doing so, the
     record reflected that he had not received specific approval for the emergency
     medical technician (EMT) or scuba expenditures set forth in the two
     specifications even though he understood that such advance approval was
     required. The administrative judge sustained both specifications on that basis.
     ID at 6-7; IAF, Tab 4 at 209-10.      With respect to the inappropriate conduct
     charge, the administrative judge cited both the appellant’s acknowledgment that
     he made the statements set forth in the agency’s proposal, along with the
     consistent testimony of the other two individuals involved in the incident as to his
     demeanor when making those statements, to sustain the remaining two
     specifications and find that the agency established the charge. ID at 2 n.1, 7-8;
     IAF, Tab 4 at 210-11.
¶5        The administrative judge also found that the agency established a nexus
     between the sustained misconduct and the efficiency of the service, and he
     determined that the penalty was reasonable. ID at 9-10.
¶6        The appellant filed a timely petition for review of the initial decision.
     Petition for Review (PFR) File, Tab 1.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7        To prove a charge of failure to follow instructions, an agency must establish
     that the employee: (1) was given proper instructions; and (2) failed to follow the
     instructions, regardless of the employee’s intent.    E.g., Powell v. U.S. Postal
     Service, 122 M.S.P.R. 60, ¶ 5 (2014). Even where there is substantial reason to
     believe that an order is improper, an employee first must obey the order and then
     challenge its validity, except in “extreme or unusual circumstances” in which he
                                                                                         4

     would be placed in a clearly dangerous situation or which would cause him
     irreparable harm.     Pedeleose v. Department of Defense, 110 M.S.P.R. 508,
     ¶¶ 16‑17, aff’d, 343 F. App’x 605 (Fed. Cir. 2009).            This rule reflects the
     fundamental management right to expect that its decisions will be obeyed and its
     instructions carried out. Id., ¶ 16. Exceptions to the rule are not based on the
     correctness of the employee’s objections to the order but instead apply in
     situations in which there could be a significant adverse impact on him from
     cooperation with an order that might be improper.          Id., ¶ 18.   None of these
     exceptions apply in this matter, however, as the appellant did not contest the
     propriety of either of the instructions at issue in this appeal.
¶8         Concerning the first specification of failure to follow instructions, the
     appellant contends on review that his supervisor’s February 2013 instruction was
     unclear, and he claims that, after an October 2013 email which made the
     instruction more clear, he followed it. PFR File, Tab 1. Although he asserts that
     the agency failed to provide the February email as evidence, the appellant cites
     his reply to it, which is not only a part of the record, but also contains the text of
     the email in question. Id. at 4; IAF, Tab 5 at 6. Importantly, the appellant’s reply
     to that email indicates not only that he understood the instruction that his
     subordinate was not to use his Government credit card, but also indicates his
     explicit agreement to follow the instruction. IAF, Tab 5 at 6. Moreover, in a
     colloquy with the administrative judge at the end of the hearing, the appellant
     testified that his supervisor verbally followed up with him soon after the
     February 2013 email. IAF, Tab 11, Hearing Compact Disc (HCD). Contrasting
     this evidence with the appellant’s assertion in his post‑hearing statement that he
     was “not aware for certain” that his subordinate was not allowed to use his
     Government credit card without permission, IAF, Tab 14 at 6, we agree with the
     administrative judge that, under these circumstances, the appellant “fully
     understood that he needed such approval, yet went ahead with the charges
                                                                                           5

      anyway,” ID at 6-7. The appellant provides new evidence with his petition for
      review, a screen shot of his email inbox sorted to show emails sent to him from
      the agency officials involved in this matter.       PFR File, Tab 1 at 9.       Under
      5 C.F.R.§ 1201.115, the Board will not consider evidence submitted for the first
      time with the petition for review absent a showing that it was unavailable before
      the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
      Service, 3 M.S.P.R. 211, 214 (1980). The appellant makes no such showing, and,
      in any event, the evidence fails to make the point that the appellant seeks to
      establish, i.e., that he did not receive the instruction for his subordinate not to use
      his Government credit card until October 2, 2013.        PFR File, Tab 1 at 4-5, 9.
      Thus, we agree with the administrative judge’s finding that the appellant received
      a proper instruction and he did not follow it.
¶9          Regarding the second specification under the first charge, the appellant
      argues that he could not have followed this instruction because it was not possible
      for him to have forwarded the invitation to the meeting as instructed because
      someone else created it and that, regardless of his actions, the individual who had
      instructed him to do so would not have been able to attend the meeting involved
      anyway. PFR File, Tab 1 at 5. Again, the appellant did not contest the propriety
      of this instruction, and he explicitly acknowledged that he failed to follow it.
      ID at 5. Further, even if it were not possible for the appellant to forward the
      invitation electronically, he could have simply printed the invitation to the
      meeting and handed it to the individual who requested it. Whether that individual
      was available to attend the meeting is not pertinent to the analysis. Thus, we
      agree with the administrative judge’s determination to sustain this specification
      and the charge. ID at 5.
¶10         As for the unauthorized purchases charge, the appellant claims that the
      initial decision misidentifies the actual credit card on which the alleged
      unauthorized charges were made as an Engineering Services Office credit card
      rather than the employee’s own Government credit card. PFR File, Tab 1 at 5-6;
                                                                                        6

      ID at 5-6. He further argues that his supervisor knew of the purchases of training
      and supplies for EMT (specification 1) and scuba (specification 2) operations in
      advance but did not object to them. Id. He also reiterates his arguments from
      below that the expenditures were justified.        PFR File, Tab 1 at 6.        The
      administrative judge found that, regardless of the appellant’s justifications for
      making the purchases at issue, the record reflected that he failed to get approval
      before allowing his subordinate to use his Government credit card as instructed,
      and he sustained the charge. ID at 5-7. The appellant provides what appears to
      be new evidence, two email messages dated after the close of the record below
      commending his subordinate for using his EMT skills to assist a colleague injured
      at a remote site. PFR File, Tab 1 at 10-14. Nevertheless, even if the expenditures
      were arguably laudable, the fact remains that they were not authorized. Because
      we agree that the instruction for the appellant to get prior approval for the
      expenditures involved was proper and that he understood it, and in light of his
      admission that he did not do so with these two expenditures, we agree that the
      agency established this charge.
¶11        As to the inappropriate conduct charge, the appellant contrasts statements in
      the record attesting to his character with the contrary description set forth in the
      specifications for this charge, and he claims that he had witnesses who were to
      testify as to his demeanor. Id. at 6; IAF, Tab 4 at 66-69, 210-11. As discussed
      below, our review of the hearing CD reflects that the appellant did not seek to call
      these witnesses at the hearing.    The administrative judge determined that the
      agency proved its first two specifications of inappropriate conduct, 2 finding that
      the credible hearing testimony of the other two individuals involved in the
      meeting at issue was consistent with the agency’s specifications. ID at 7-8; IAF,
      Tab 4 at 210-11.      Considering the administrative judge’s finding that the
      appellant’s testimony “basically acknowledged that he made the statements
      2
        At the hearing, the agency withdrew the third specification of the third charge.
      ID at 8 n.2.
                                                                                         7

      attributed to him in these specifications” in response to what he perceived as
      agency officials’ attempt to make him “squirm,” we agree that the agency
      established its charge. ID at 8. The administrative judge also found that the
      agency established a nexus between the sustained misconduct and the efficiency
      of the service, that the deciding official considered the relevant Douglas factors,
      and that the penalty was within the tolerable bounds of reasonableness.
      ID at 9‑10; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
      (1981) (providing a nonexhaustive list of factors relevant to determining the
      appropriateness of a penalty for misconduct).
¶12         The appellant argues on review that his office is being investigated for
      corruption and implies that the agency demoted him because of questions he
      raised about money that was intended but not used for bridge inspections, rather
      than for the charged misconduct. PFR File, Tab 1 at 6-7. With his petition for
      review, he provides a copy of several newspaper stories concerning a Federal
      criminal investigation of alleged financial misconduct in his agency and a
      memorandum from the agency’s commissioner regarding the agency’s ethical
      culture in light of those allegations, all of which date from after the close of the
      record below. Id. at 15-18. The appellant bases his argument here in part on
      documents already in the record and partly on events occurring after the hearing,
      id. at 7, but he did not make this argument below, nor did he indicate in his initial
      appeal that he had filed a whistleblowing complaint with the Office of Special
      Counsel, IAF, Tab 1.
¶13         The Board generally 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). Even though some of
      the appellant’s evidence dates from after the close of the record and is therefore
      new, it is not material because he admits that he does not know how the money
      involved was spent. PFR File, Tab 1 at 7. Importantly, the documents that he
                                                                                         8

      proffers on review show no motive for the agency officials involved in this matter
      to engage in reprisal against him.
¶14         The appellant also challenges the penalty as too severe, and he contrasts the
      “fully superior” performance rating given him by his supervisor in January 2013
      and a June 2013 cash award with hearing testimony indicating that he was
      reckless and displayed poor judgment.       Id. at 7-8.   However, the appellant’s
      successful performance rating and awards do not preclude him from having
      committed the misconduct found in this matter. Moreover, as the administrative
      judge found, the record reflects that the deciding official considered the relevant
      Douglas factors in making his determination.          We note, for instance, the
      indifference toward established processes and disregard for instructions along
      with the lack of potential for rehabilitation that the deciding official found are
      significant aggravating factors, particularly in light of the appellant’s status as a
      supervisor.   Hill v. Department of the Army, 120 M.S.P.R. 340, ¶ 15 (2013)
      (observing that it is appropriate for agencies to hold supervisors to a higher
      standard of conduct than nonsupervisory employees).
¶15         The appellant also argues that the administrative judge allowed the agency
      to present its case first, which did not leave him enough time to call all of his
      witnesses, particularly those who would have corroborated his testimony. PFR
      File, Tab 1 at 4. However, our review of the hearing CD does not reveal that the
      appellant objected to any of the administrative judge’s rulings as to witnesses nor
      does it appear that the appellant unsuccessfully sought to call any further
      witnesses at the hearing. The appellant’s failure to timely object to rulings on
      witnesses precludes his doing so on petition for review. Tarpley v. U.S. Postal
      Service, 37 M.S.P.R. 579, 581 (1988).
¶16         The appellant notes that the Board’s e-Appeal Repository incorrectly
      labeled part of one of his submissions as part of the agency’s response and that
      the initial decision erroneously identifies an individual as his supervisor. PFR
      File, Tab 1 at 4-5. Regardless, there is no evidence that any such error affected
                                                                                    9

the administrative judge’s decision. An adjudicatory error that is not prejudicial
to a party’s substantive rights provides no basis for reversal of an initial decision.
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).               The
appellant also claims that the administrative judge failed to address all of his
evidence. PFR File, Tab 1 at 5. However, the administrative judge’s failure to
mention all of the evidence of record does not mean that he did not consider it in
reaching his decision.    Marques v. Department of Health & Human Services,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

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

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 U.S. 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 U.S. 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
                                                                                 10

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 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
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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
