2022 MSPB 25
MSPB2022Background
- Appellant Daniel Moncada was a competitive-service employee (appointed 2002; promoted to GS-11 supervisory position in 2013) in the Office of Administration (OA), EOP.
- On Dec. 26, 2013, while Moncada was backup for money-mail processing, $2,091.18 in money mail went missing; the Secret Service investigated and interviewed Moncada in Feb. and May 2014.
- Additional allegations: Jan. 31, 2014 subordinate sent graphic images by email (Moncada counseled the subordinate); Feb. 19, 2014 Moncada deviated his government-vehicle route to drop off lunch for his girlfriend (no authorization).
- OA removed Moncada effective June 23, 2015, charging Failure to Follow Procedures; Inappropriate Conduct by a Supervisor; Lack of Candor; and Unauthorized Use of a Government Vehicle.
- The Administrative Judge sustained only the Unauthorized Use charge, found Board jurisdiction, and mitigated removal to a 60-day suspension; OA petitioned for review and argued lack of Board jurisdiction and that other charges were proven.
- The Board denied OA’s motion to dismiss and petition for review, affirmed the AJ’s findings, ordered rescission of the removal and substitution of a 60-day suspension, and directed back pay and restoration steps.
Issues
| Issue | Moncada's Argument | OA's Argument | Held |
|---|---|---|---|
| Board jurisdiction under 5 U.S.C. ch. 75 | Moncada is an "employee" under §7511(a)(1)(A); thus he has chapter 75 appeal rights | OA: OA is not an "agency" for chapter 75 (relying on CREW) and Moncada was effectively a presidential appointee | Board has jurisdiction: jurisdiction depends on employee status and covered action; Moncada meets §7511(a)(1)(A) and was not a presidential appointee excluded by §7511(b)(3) |
| Failure to Follow Procedures charge (money mail safe/keys) | Moncada complied with the established office practice for securing money mail and keys | OA: Missing money mail proves failure to secure containers per MSOD 6.2 | Not proven: MSOD language was general and record showed an established practice of leaving the safe unlocked during the day; agency failed to identify a specific procedure violated |
| Inappropriate Conduct by Supervisor (failure to ensure subordinates followed procedures; handling of offensive email) | Moncada counseled the subordinate about the offensive email and followed supervisory guidance; no evidence he directed or knew of subordinate theft | OA: Moncada should be responsible for subordinate misconduct and failed to report/delete the offensive email | Not proven: agency did not show Moncada knew or acquiesced in theft; counseling comported with supervisory guidance; no policy required reporting/deletion or written record of verbal counseling |
| Lack of Candor (delayed disclosure to Secret Service about subordinate’s comment) | Moncada did not knowingly give incomplete/misleading information; he had no reason to know the subordinate’s comment was significant to the investigation until investigators elicited details | OA: Moncada was told to report related information and should have volunteered the subordinate’s statement earlier | Not proven: lack of candor requires knowing omission; record showed Moncada lacked reason to know the comment was material, so the omission was not knowing |
| Penalty mitigation (was removal appropriate?) | Moncada argued removal was too severe for the sustained act (route deviation) and his clean record/long service warrant mitigation | OA: All charged misconduct together justified removal; if not, at least demotion plus suspension is appropriate given supervisory status | Mitigated to 60-day suspension: only one charge sustained; 60 days was the maximum reasonable penalty given supervisory status, warning from coworker, statutory minimums, and favorable performance record |
Key Cases Cited
- Citizens for Responsibility & Ethics in Washington v. Office of Administration, 566 F.3d 219 (D.C. Cir. 2009) (held OA was not an “agency” for FOIA purposes)
- Elgin v. Department of the Treasury, 567 U.S. 1 (2012) (CSRA jurisdiction depends on the nature of the employee and the personnel action)
- Lal v. Merit Systems Protection Board, 821 F.3d 1376 (Fed. Cir. 2016) (title 5 limits Board jurisdiction by employee status and action type)
- Todd v. Merit Systems Protection Board, 55 F.3d 1574 (Fed. Cir. 1995) (burden on employee to show Board jurisdiction)
- King v. Briggs, 83 F.3d 1384 (Fed. Cir. 1996) (Congress can exempt positions from chapter 75 protections by statute)
- Soliman v. Gonzales, 419 F.3d 276 (4th Cir. 2005) (distinct statutory terms should be given different meanings)
- Vesser v. Office of Personnel Management, 29 F.3d 600 (Fed. Cir. 1994) (statutory interpretation must give effect to each word)
- Myers v. Department of Agriculture, 88 M.S.P.R. 565 (2001) (agency must show how conduct deviated from specified procedures)
- Prouty v. General Services Administration, 122 M.S.P.R. 117 (2014) (supervisor responsibility requires actual direction, knowledge, or acquiescence)
- Fargnoli v. Department of Commerce, 123 M.S.P.R. 330 (2016) (lack of candor requires knowing falsehood or omission)