Brown v. Department of Defense, 705 F. App'x 966

Keith Brown, a Defense Logistics Agency police officer, was stopped in Nov. 2012 for mismatched license plates; he admitted swapping plates and the vehicle was claimed as stolen. California charged felony offenses; Brown pleaded no contest to a misdemeanor (displaying a plate not issued for that vehicle) and felonies were dismissed.
The Department proposed indefinite suspension (Jan. 2013) and then suspended him (Mar. 2013); an MSPB administrative judge reversed that suspension and the Board affirmed, so Brown was placed on paid administrative leave.
The Department first proposed removal (Sept/Oct 2013) and removed Brown in Feb. 2014; an administrative judge reversed that removal for lack of adequate notice and the Board later dismissed the agency’s petition for review as untimely.
The Department reinitiated removal proceedings (May 2015) and removed Brown (July 2015), alleging six specifications of conduct unbecoming and three specifications of false/inaccurate information on his SF-86. A new deciding official (Warrinton) replaced the earlier deciding official (Eskew).
An MSPB administrative judge upheld the second removal (Feb. 2016); the Board affirmed (Dec. 2016), denied Brown’s motion to add affidavits from the proposing and prior deciding officials (finding them immaterial), and rejected Brown’s claims of predetermination, undue delay, and that DoD Directive 5200.2-R barred removal. The Federal Circuit affirmed the Board.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Predetermination / admission of additional affidavits	Brown: affidavits from the proposer (Vieira) and prior decider (Eskew) show the agency had predetermined removal and Warrinton was influenced; denial of leave to add them was erroneous	Agency: Warrinton independently decided; affidavits add nothing material and there is no evidence he was influenced	Court: Affirmed Board — affidavits not material; presumption of regularity stands absent clear evidence of improper influence
Untimely removal / unreasonable delay	Brown: agency delayed unreasonably in pursuing removal and missed deadlines, so action is untimely	Agency: delay was explained by parallel proceedings (suspension, MSPB reversals) and reinitiating removal was timely; missed one-day filing was not prejudicial	Court: Affirmed — Brown failed to show unreasonable delay or prejudice; reinitiation in 2015 was permissible
Applicability of DoD Directive 5200.2-R (personnel security protections)	Brown: directive barred adverse/“unfavorable administrative action” while security-eligibility was under review, so removal was prohibited	Agency: removal was for conduct and false statements, not an adverse action tied to denial/revocation of clearance; clearance suspension and removal were separate proceedings	Court: Affirmed — directive did not bar removal because the action was not based on denial/revocation of clearance and was independent of security-suspension proceedings

United States v. Chem. Found., 272 U.S. 1 (1926) (presumption of regularity supports public officials’ acts absent clear evidence to the contrary)
Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138 (Fed. Cir. 1986) (burden on appellant to establish prejudicial error)