Alonzo Flournoy v. Department of Homeland Security
Background
- Appellant, a GS-12 CBP Officer, faced removal proposed for (1) conduct unbecoming (two specifications: found with a small bag containing a white crystal‑like substance and later charged with possession; and a conviction for malicious disturbance) and (2) failure to honor just financial obligations (unpaid government travel card balance of $13,354.23 after a PCS move).
- The deciding official sustained the charges but mitigated removal to a 30‑day suspension; appellant appealed to the MSPB and requested a hearing.
- At hearing the appellant denied drug use/possession, claimed medical issues and that some charges resulted from plea bargaining and reimbursement errors for relocation per diem.
- The administrative judge found the appellant not credible on denial of possession, sustained both charges, found nexus to the efficiency of the service, and upheld the 30‑day suspension as reasonable.
- On review the Board denied the petition, rejecting appellant’s challenges to evidentiary admissibility, per diem entitlement, and penalty proportionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conduct unbecoming was proved | Flournoy: no evidence proving the substance was methamphetamine; he denied use/possession | DHS: appellant was found with a bag containing a white crystal‑like substance, arrested and charged; conduct unbecoming proven by the acts alleged | Sustained: Board credited the factual basis and administrative judge’s adverse credibility findings; criminal‑level proof not required |
| Admissibility / relevance of forensic drug testing | Flournoy: test results wouldn’t be admissible in CA criminal court so cannot support discipline | DHS: MSPB proceeding is not a criminal trial; admissibility rules for state courts irrelevant | Rejected: Board noted different forum and standards; appellant did not dispute being found with the described bag and charged |
| Failure to honor just financial obligations (travel card) | Flournoy: agency reimbursed at wrong (CONUS vs SF locality) rate; he did not misuse card | DHS: appellant elected actual‑expense relocation method subject to 41 C.F.R. chapter 302; applicable per diem was standard CONUS rate; appellant overspent and failed to pay | Sustained: appellant knew applicable rate, chose to exceed it, and failed to repay; agency calculation upheld |
| Penalty reasonableness | Flournoy: 30‑day suspension is unreasonable given circumstances | DHS: considered Douglas factors, mitigated removal to 30 days, relied on seriousness, notoriety, notice of obligation, prior record and mitigating factors | Affirmed: Board found agency considered relevant factors and punishment within tolerable limits |
Key Cases Cited
- Alvarado v. Department of the Air Force, 103 M.S.P.R. 1 (2006) (conduct unbecoming charge proven by establishing underlying acts)
- Raco v. Social Security Administration, 117 M.S.P.R. 1 (2011) (elements for conduct unbecoming include status, conduct, and unsuitability)
- Otero v. U.S. Postal Service, 73 M.S.P.R. 198 (1997) (agency proves charged acts to sustain broad misconduct labels)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) (Douglas factors guide penalty assessment)
- Penland v. Department of the Interior, 115 M.S.P.R. 474 (2010) (Board defers to agency discretion unless penalty exceeds reasonableness)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (deference to administrative judge credibility findings based on demeanor)