Ricky W. Manning v. Department of Defense
Background
- Appellant Ricky W. Manning, a Lead Police Officer, was removed by the Department of Defense for conduct unbecoming and making false statements tied to misuse of CLETS (California Law Enforcement Telecommunications System) checks of a fellow officer’s motorcycle.
- Agency alleged Manning repeatedly requested CLETS checks and coached the officer to state the motorcycle was on agency property; later investigation found Manning made three false statements to the Deputy Chief.
- Manning appealed to the MSPB asserting defenses including due process violations, denial of representation, age discrimination, harmful procedural error, and whistleblower retaliation; a multi-day hearing was held and the removal was sustained in the initial decision.
- On petition for review the Board largely denied relief, upheld credibility findings and both charges, but modified the initial decision to discuss whistleblower and procedural-error claims more fully.
- The Board concluded Manning failed to prove (1) he had an official purpose or need-to-know for the CLETS checks, (2) his statements were not knowingly false as judged by the AJ’s credibility findings, and (3) his alleged whistleblower disclosure was not a contributing factor in the personnel action.
Issues
| Issue | Manning's Argument | DoD's Argument | Held |
|---|---|---|---|
| Conduct unbecoming (CLETS misuse) | He had an "official purpose" / routine practice and a need-to-know to supervise a fellow officer | Requests were not for legitimate law-enforcement reasons; facts showed coaching and misuse | Sustained: AJ credibility findings support that Manning lacked official purpose or need-to-know |
| Making false statements during investigation | Statements lacked deceptive intent; challenges AJ credibility findings | Deputy Chief proved three false statements; AJ credited witnesses | Sustained: AJ credibility upheld; agency proved the false statements |
| Whistleblower reprisal (protected disclosure) | He reported falsified training records; removal was retaliation (timing and omissions) | Deciding official lacked knowledge of any disclosure; agency’s reasons strong | Denied: Manning failed to prove contributing factor; Board found no knowledge and no circumstantial evidence of retaliation |
| Due process / harmful procedural error (ex parte contacts & added factors) | Deciding official considered new/material evidence, additional charges, and aggravating factors not in notice | Deciding official only relied on record, clarified issues, and did not consider new material info | Denied: AJ found no new/material ex parte info; even if some factors considered, error not shown to be harmful |
Key Cases Cited
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (deference to credibility findings based on witness demeanor)
- Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999) (due process violated only where deciding official receives new and material ex parte information)
- Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011) (no constitutionally relevant distinction between ex parte communications about charge and penalty)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) (nature and seriousness of offense as key penalty factor)
- Carey v. Department of Veterans Affairs, 93 M.S.P.R. 676 (2003) (knowledge/timing test for whistleblower contributing-factor showing)
- Ayers v. Department of the Army, 123 M.S.P.R. 11 (2015) (standard for proving protected disclosure contributed to personnel action)
- Mastrullo v. Department of Labor, 123 M.S.P.R. 110 (2015) (personnel action within 1–2 years can satisfy timing component)
- Blank v. Department of the Army, 247 F.3d 1225 (Fed. Cir. 2001) (post‑reply interviews to confirm/clarify record do not necessarily violate due process)