Ricky W. Manning v. Department of Defense
Background
- Appellant Ricky W. Manning, a Lead Police Officer with the Department of Defense, was removed for conduct unbecoming (misuse of CLETS license-plate checks) and making false statements during an investigation. The agency alleged multiple CLETS queries about Officer E.R.’s motorcycle and instructions to E.R. to claim the motorcycle was on agency property.
- A hearing officer (administrative judge) credited dispatch logs, radio transmissions, and witness testimony, found Manning lacked a legitimate "need to know," and sustained both charges; removal was affirmed.
- Manning asserted affirmative defenses: due process violations (ex parte communications and consideration of new aggravating factors), denial of representation during the investigatory interview, age discrimination, harmful procedural error, and whistleblower reprisal for allegedly disclosing falsified training records.
- The Board denied Manning’s petition for review, largely deferring to the administrative judge’s credibility findings, and modified the decision to address whistleblower timing and harmful procedural error analyses but affirmed the removal.
- The Board found Manning failed to prove a contributing-factor prima facie for whistleblower reprisal (no knowledge by deciding official), and even assuming some procedural errors, Manning did not show they were likely to change the outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conduct unbecoming / CLETS misuse | Manning: had an "official purpose" or "need to know" to run CLETS checks; such checks are routine | Agency: CLETS checks were improper here; evidence shows queries were clandestine and not justified | Sustained: AJ credibility findings supported lack of official purpose; CLETS misuse established |
| Making false statements during investigation | Manning: lacked deceptive intent; challenged credibility findings | Agency: Manning made three false statements to Deputy Chief; proved by testimony and records | Sustained: AJ’s credibility determinations affirmed; charge proven |
| Whistleblower reprisal (protected disclosure) | Manning: disclosed falsified training records and was retaliated against; timing/circumstantial evidence shows contributing factor | Agency: Deciding official lacked knowledge of any disclosure; long delay weakens causation; even if contributing factor, agency would have removed him anyway | Denied: Manning failed to show deciding official knew of disclosure; contributing factor not proved; clear-and-convincing test need not be reached |
| Due process / harmful procedural error (ex parte contacts; new aggravating factors) | Manning: deciding official received new/material ex parte info and relied on additional charges/aggravating factors not in proposal | Agency: ex parte contacts did not introduce new/material information; proposal put Manning on notice about seriousness | Denied: AJ credited deciding official’s testimony that no new/material info was considered; any procedural error was not likely to change outcome |
| Right to representation at investigatory interview | Manning: limits on representatives’ participation and recording denied rights, prejudiced his defense | Agency: procedures followed; any defects were harmless relative to false-statements evidence | Denied: AJ assumed possible error but found harm not shown; responses central to charge would not have changed |
| Age discrimination | Manning: alleged age was motivating factor | Agency: no evidence that age motivated action; comparator evidence weak | Denied: AJ properly evaluated evidence; discrimination not proved |
Key Cases Cited
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir.) (deference to credibility findings based on witness demeanor)
- Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir.) (due process limit on deciding official considering new material information)
- Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir.) (ex parte communications and advance notice of aggravating factors)
- Canada v. Department of Homeland Security, 113 M.S.P.R. 509 (2010) (conduct unbecoming proven by underlying acts)
- Otero v. U.S. Postal Service, 73 M.S.P.R. 198 (1997) (narrative charges and efficiency of service standard)
- Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 (1997) (weighing evidence as a whole; affirming AJ credibility-based findings)
- Powers v. Department of the Navy, 69 M.S.P.R. 150 (1995) (relevance of motive and strength of agency reasons in whistleblower causation)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) (penalty determination factors)
- Mathis v. Department of State, 122 M.S.P.R. 507 (2015) (deciding official may reject arguments raised in employee’s response without violating due process)