                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     KEITH AIKEN,                                    DOCKET NUMBER
                         Appellant,                  DA-0752-14-0152-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: May 18, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

           Danny Peters, El Paso, Texas, 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 the agency’s removal action. 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        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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).

                                     BACKGROUND
¶2        The appellant allegedly made false statements to federal law enforcement
     officers regarding a coworker in January 2011 while serving as a civilian military
     employee stationed in Afghanistan. Initial Appeal File (IAF), Tab 4, Subtab 4c at
     35-36, Subtab 4e at 32-34, 46-50; see IAF, Tab 1 at 11, Tab 4, Subtab 4e at 12,
     14-16. He subsequently confessed that he had fabricated the statements but then
     alleged that the confession was obtained through coercion. IAF, Tab 4, Subtab 4c
     at 37, 39-41, Subtab 4e at 94-99.       He resigned from his position effective
     March 19, 2011. IAF, Tab 19, Exhibit (Ex.) 4J.
¶3        On December 5, 2011, the agency appointed him to his current position of a
     GS-12 Quality Assurance Specialist in Fort Bliss, Texas. IAF, Tab 19, Ex. 4L.
     The agency asserted that its management officials at Fort Bliss were unaware of
     the appellant’s activities regarding the alleged false statements until May 2013,
     when they learned that the appellant had been indicted and was scheduled for a
     criminal trial. IAF, Tab 15 at 2. On June 27, 2013, the appellant was convicted
     in the U.S. District Court for the Western District of Texas on two counts of
     making false statements to law enforcement under the criminal statute, 18 U.S.C.
                                                                                           3

     § 1001, and was sentenced on September 20, 2013. IAF, Tab 4, Subtab 4e at 1-6.
     The agency proposed his removal on October 17, 2013. IAF, Tab 1 at 11-13.
     Effective December 9, 2013, the agency removed the appellant based on the
     following two charges:      (1) making false statements to law enforcement; and
     (2) conduct unbecoming a federal employee.         Id. at 10, 14-16.     The appellant
     appealed his removal to the Board and requested a hearing.             Id. at 1-9.   He
     disputed both charges and asserted the affirmative defense of harmful error. Id.
     at 6; IAF, Tab 8.
¶4         After holding the requested hearing, the administrative judge issued an
     initial decision affirming the removal action. IAF, Tab 25, Initial Decision (ID)
     at 1, 11. The administrative judge sustained both charges, found a nexus between
     the sustained misconduct and the efficiency of the service, and determined that
     the penalty was within the bounds of reasonableness.               ID at 2-5, 7-11.
     Specifically, the administrative judge applied the doctrine of collateral estoppel
     to sustain the first charge. ID at 4-5. The administrative judge also found that
     the appellant failed to prove his affirmative defense of harmful error. ID at 5-7.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has responded in opposition. PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly applied the doctrine of collateral estoppel to
     sustain the first charge.
¶6         In his petition     for review, the appellant appears to dispute the
     administrative judge’s application of collateral estoppel to sustain the charge of
     making false statements to law enforcement. PFR File, Tab 1 at 4. In applying
     this doctrine, the administrative judge relied on the criminal trial that litigated the
     issue of whether the appellant made a false statement to law enforcement officers
     and the appellant’s subsequent conviction.        ID at 4.    Under the doctrine of
     collateral estoppel, a judgment on the merits in one lawsuit precludes the
     relitigation of the same issue in a second suit, regardless of whether the first and
                                                                                         4

     second suits were based on the same cause of action. Raymond v. Department of
     the Army, 34 M.S.P.R. 476, 480 (1987). Collateral estoppel, or issue preclusion,
     is appropriate when: (1) the issue is identical to that involved in the prior action;
     (2) the issue was actually litigated in the prior action; (3) the determination on the
     issue in the prior action was necessary to the resulting judgment; and (4) the party
     against whom issue preclusion is sought had a full and fair opportunity to litigate
     the issue in the prior action, either as a party to the earlier action or as one whose
     interests were otherwise fully represented in that action. McNeil v. Department of
     Defense, 100 M.S.P.R. 146, ¶ 15 (2005); see Kroeger v. U.S. Postal Service,
     865 F.2d 235, 239 (Fed. Cir. 1988).
¶7         The appellant has not provided evidence or argument to dispute the
     administrative judge’s findings regarding these four factors, which appear to be
     supported by the record. See ID at 2-5; see also 5 C.F.R. § 1201.115. To the
     extent that the appellant is arguing that collateral estoppel does not apply because
     he is appealing his criminal conviction to the U.S. Court of Appeals for the Fifth
     Circuit, we are not persuaded. See IAF, Tab 8 at 7. The pendency of an appeal
     does not suspend the operation of an otherwise final judgment as collateral
     estoppel unless the appeal removes the entire case to the appellate court and
     constitutes a proceeding de novo. Lively v. Department of the Navy, 31 M.S.P.R.
     318, 321 (1986). The appellant has not indicated that the appellate court review
     of his criminal conviction is de novo rather than on the record, and concurrent
     Board proceedings will not improperly interfere with the court’s review. See Rice
     v. Department of the Treasury, 52 M.S.P.R. 317, 321 (1992). Accordingly, we
     find that the administrative judge properly applied collateral estoppel to sustain
     the first charge.

     The administrative judge properly sustained the second charge.
¶8         The appellant also disputes the second charge of conduct unbecoming a
     federal employee. PFR File, Tab 1 at 5. He argues that the second charge should
     “fail” because, “if the agency is to be believed that it failed to take any
                                                                                      5

     disciplinary action when it learned of the alleged false statements, it cannot take
     action several years later.” Id. The Board has considered “stale charge” claims
     as raising the equitable defense of laches, which bars an action when an
     unreasonable delay in bringing the action has prejudiced the subject of the action.
     Salter v. Department of the Treasury, 92 M.S.P.R. 355, ¶ 10 (2002).             As
     explained below, infra ¶¶ 9, 13, the appellant resigned from his former position in
     March 2011 shortly after admitting that he made false statements, see IAF, Tab 4,
     Subtab 4e at 94-99, Tab 19, Ex. 4J, and the agency acted promptly following his
     conviction and sentencing in 2013. Thus, the record does not support a finding of
     delay. Further, the party asserting laches must prove both unreasonable delay and
     prejudice. Salter, 92 M.S.P.R. 355, ¶ 10. The appellant has not shown that any
     delay by the agency was unreasonable and has not asserted that any delay was
     prejudicial to his appeal. Accordingly, we find that the appellant has not proven
     the equitable defense of laches and we conclude that the administrative judge
     properly sustained the second charge.

     The appellant has failed to prove his affirmative defense of harmful error.
¶9        The appellant reiterates his argument below that the agency cannot
     discipline him twice for the same conduct. PFR File, Tab 1 at 4-6; see Cooper v.
     Department of Veterans Affairs, 117 M.S.P.R. 611, ¶ 5 (2012) (stating that the
     Board has long held that an agency cannot impose a disciplinary or adverse action
     more than once for the same misconduct), aff’d, 515 F. App’x 897 (Fed. Cir.
     2013). The administrative judge considered the appellant’s argument and found
     that he failed to establish that the agency imposed discipline or an adverse action
     more than once for the same misconduct. ID at 5-7; see IAF, Tab 1 at 6, Tab 8 at
     7-8. The administrative judge also found that, although the appellant may have
     resigned in anticipation of discipline in 2011 and felt the environment to be
     intolerable, there was no evidence in the record that the agency disciplined him
     based on the misconduct. ID at 6-7. The administrative judge emphasized that
     the appellant is appealing his removal, which was based on his 2013 conviction.
                                                                                          6

      ID at 7.   The appellant fails to provide a reason to disturb the administrative
      judge’s determination that the agency did not impose a disciplinary action more
      than once for the same misconduct. 2         See Crosby v. U.S. Postal Service,
      74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
      judge’s findings when she considered the evidence as a whole, drew appropriate
      references, and made reasoned conclusions).
¶10        The appellant also argues that the agency should have known about the
      allegations of misconduct when they rehired him at Fort Bliss and that “a failure
      to inquire into a prospective employee’s background should not be accepted by
      the Board.” PFR File, Tab 1 at 4-5. The administrative judge considered the
      testimony of the approving official for the appellant’s hiring at Fort Bliss and
      found that “the hiring authorities did not have knowledge of the incidents that
      occurred in Afghanistan in 2011.” ID at 8; see IAF, Tab 21, Hearing Compact
      Disc (HCD) (13:53-14:30).        The administrative judge also considered the
      testimonies of the approving official and the supervisor at the Civilian Personnel
      Advisory Center regarding the hiring procedures that applied to the appellant as
      the spouse of an active-duty military member. ID at 8; see HCD (16:50-42:50).
      The administrative judge concluded that “the fact that the agency hired the
      appellant upon his wife’s assignment to Fort Bliss, does not preclude the agency
      from taking disciplinary action based on the appellant’s 2013 conviction.” ID at
      8. We find no basis to disturb the administrative jud ge’s well-reasoned finding.
      See Crosby, 74 M.S.P.R. at 105-06.

      The appellant fails to provide a reason to address his new argument that the
      agency violated his constitutional right to due process.
¶11        The appellant argues for the first time on review that the agency denied him
      a meaningful opportunity to be heard in violation of the Constitution. PFR File,

      2
         Further, the administrative judge informed the parties in the summary of the
      telephonic prehearing conference that the appellant’s resignation in March 2011 is not
      part of the appeal except as it relates to his removal. IAF, Tab 17 at 4-5.
                                                                                        7

      Tab 1 at 3-4, 6. Specifically, he alleges that the agency denied him the ability to
      speak to the proposing official and submits evidence showing that the agency
      denied him access to the building and that the proposing official refused to speak
      with him. Id. at 3-4, 7-8. However, we decline to address this new argument
      further because the appellant has not shown that it is based on any material and
      previously unavailable evidence. See 5 C.F.R. § 1201.115(d).

      The agency has proven that the penalty of removal promoted the efficiency of the
      service.
¶12        The appellant argues that his removal did not promote the efficiency of the
      service because of the “delay” between his alleged misconduct and his removal.
      PFR File, Tab 1 at 6. We find that the lapse of time between the dates of the
      alleged incidents in January 2011 and the effective date of his removal in
      December 2013 does not preclude a determination that the penalty promotes the
      efficiency of the service on the facts of this case. See, e.g., Allred v. Department
      of Health & Human Services, 23 M.S.P.R. 478, 479-80 (1984) (finding that the
      presiding official’s reliance on the agency’s delay in initiating the adverse action
      as evidence that there was an absence of nexus is misplaced), aff’d, 786 F.2d
      1128 (Fed. Cir. 1986); Kumferman v. Department of the Navy, 19 M.S.P.R. 5, 6-7
      (1984) (finding that a sufficient nexus exists between the appellant’s misconduct
      and the efficiency of the service despite the agency’s 21-month delay in initiating
      the removal action), aff’d, 785 F.2d 286 (Fed. Cir. 1986).
¶13        Moreover, we find that the agency was unable to implement an earlier
      penalty because the appellant resigned in March 2011, just a few weeks after he
      admitted to making false statements. See IAF, Tab 4, Subtab 4e at 94-99, Tab 19,
      Ex. 4J. The appellant disputes the administrative judge’s finding that the Fort
      Bliss hiring authorities did not have knowledge of the incidents that occurred in
      Afghanistan in 2011. PFR File, Tab 1 at 4-6; see ID at 8. However, he does not
      provide any persuasive basis to disturb the administrative judge’s finding, which
      is supported by the record. ID at 8; HCD (13:53-14:30); see 5 C.F.R. § 1201.115.
                                                                                  8

We find that the agency acted promptly after the appellant was convicted in June
2013 and sentenced in September 2013 by proposing his removal in October
2013. See IAF, Tab 1 at 11-13. Therefore, we find that the appellant has not
shown any persuasive reason to disturb the administrative judge’s finding that his
removal promoted the efficiency of the service.

                  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

     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.
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     If you are interested in securing pro bono representation for your court
appeal, 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.
