Alex M. Crofoot v. United States Government Printing Office
761 F.2d 661
Fed. Cir.
1985
Check Treatment

*1 (Green) expressly found a witness reliance Sulli- and Carter’s DeSarno credible, this court cannot substitute a con- In misplaced. van, is supra, issue, trary credibility determination based on a the offi- and no dual-role there was paper cold record. with the parte contacts made ex cial that seeking “vengeance”. deciding official The official determined here adduced has been No evidence supported charges its else, ven- Green, was bent on anyone or preponderance of the evidence. 5 Camero, supra, in- Ryder geance. § 7701(c)(1)(B). evidence, That U.S.C. proceedings trial-type adversarial volved testimony ele formed of and circumstantial regulations not here by agency provided ments, preclude a determina is such as involved. See Welcker that the Board’s decision tion this court (Fed.Cir.1985). 1577, 1582-83 752 F.2d evidence. 5 was not based on substantial § 7703(c). pre-termina U.S.C. We conclude require case met all steps taken in this tion We have considered each of DeSarno and statutory due ments of constitutional arguments other and find them Carter’s process. merit. without AFFIRMED. Evidence Substantial present an extensive and Carter DeSarno testimony and evidence which of the

review In the superficial plausability.

bears argument, each minute jury of a

manner inconsistency is

“inconsistency” possible must de- depth. Because we

discussed Board’s decision was whether the

termine CROFOOT, Petitioner, re- evidence we have Alex M. based on substantial That review the record detail. viewed attractiveness of De- the surface shatters STATES GOVERNMENT UNITED argu- The assertions. Sarno Carter’s OFFICE, Respondent. PRINTING ment, credibility and cit- attacking Green’s Appeal checks, No. 84-1603. (bank receipts, affi- ing documents davits) unpersua- refuting the is as Appeals, United States Court appel- governing rules light sive Federal Circuit. late review. 2,May Department En- Griessenauer (Fed.Cir.1985),this court ergy, 754 F.2d 361 presiding offi- second-guess a refused to determination, based as it credibility

cial’s during cross- direct and

was on demeanor Griessenauer, 754 F.2d at

examination. in this similar case decline

364. We im- approach, which that sensible

abandon agencies

partially serves

alike. parts of a witness’ tes

That some phe is a common

timony may be attacked basis, however, supplies no It

nomenon. enti the fact-finder is not holding that parts of that witness’ to credit other

tled Where, here,

testimony.

Davis, Judge, part Circuit dissented opinion.

and filed Kaiser, Brudney,

James J. Bredhoff & Washington, D.C., argued petitioner. With him on Jeffrey the brief was R. Freund, Washington, D.C. Spooner, Director,

Sandra P. Asst. Com- Branch, Litigation Justice, mercial Dept, of D.C., Washington, argued respondent. With her on the brief were Richard K. Willard, Acting Atty. Asst. Gen. and David Cohen, Director, M. Washington, D.C. DAVIS, Before RICH Circuit WEN, Judges, and CO Judge. Senior Circuit COWEN, Judge. Senior Circuit Petitioner seeks a review of a final order Systems of the Merit Protection Board (MSPB Board), MSPB Docket Number DC07528211510, up- M.S.P.R. ground held his removal on the of notori- ously disgraceful conduct. For the reasons forth, to be set the decision of the Board is part, part, affirmed in reversed in and re- manded. found,

I. for the dent basis removal. She however, that the GPO had established its position from his was removed Petitioner disgraceful conduct Operator Photocomposition Keyboard preponderance the evidence. (GPO) Printing Office for the Government rea- The cited three July The sustained the also ab- for its action: Unauthorized sons agency’s ground falsehood *3 work; (2) Notoriously dis- from sences estoppel, of stating petition- collateral conduct; Falsehood. The graceful pretenses preclud- er’s conviction for false a claim charges stemmed from latter two denying ed him from he had submitted in workmen’s by petitioner 1981 for filed Relying a claim. on false MSPB decisions allegedly after he sustained compensation, in employee which fraudulent an conduct of job. of its injury on the As a result was either admitted established the petition- investigation, concluded that GPO MSPB, hearing presiding before the the injury intoxicated er suffered the while that the charges official held two sustained fraud home and criminal near his filed presumption raised a that the against him. charges impaired the efficiency conduct of the ser- presented vice and that he had not suffi- felony of was indicted for the Petitioner presumption. cient evidence rebut the against the United States Govern- fraud footnote, However, in presiding a the offi- trial, ment, but his the United States that if the cial added doctrine of collateral Columbia, the District Court for District of apply, estoppel did not find the she would hung jury. Shortly there- resulted a proof not met its of burden after, plea bargain to a with the pursuant respect charge with to the of falsehood. prosecutor, petitioner a of entered charge pre- lesser “false guilty appeal, to the of the Board On determined tenses,” petitioner estopped a misdemeanor in District of not collaterally the was contesting agency’s This was entered and ac- from the falsehood Columbia. charge, of the cepted by judge the court under the doctrine because district court 25, Alford, v. 91 no factual Carolina 400 U.S. had made determination with North 160, (1970). respect underlying 27 L.Ed.2d 162 The Al- to the conduct his con- S.Ct. upheld provides may presiding a It then offi- doctrine court viction. the ford finding in knowing voluntary plea of factual her footnote that accept cial’s defendant, sup- guilty though agency’s charge from a the the falsehood was not even Thus, innocence, ported preponderant his provid- by maintains evidence. defendant only sus- judge the trial determines that there is a the Board found GPO’s ed plea. charge the was of dis- basis for Petitioner and tainable factual Nonetheless, graceful the Board counsel stated district court that his plea, upheld finding entering deny- this the official’s of he was even while nexus, great- stating that the the ing guilt, his because of the risk of a nature of (he jury against petitioner presump- penalty er was informed that the raised a petitioner 11 to 1 for tion nexus and that had ad- had voted of trial, felony), expense of a and the insufficient evidence to rebut the the new duced job It the retaining presumption. likelihood of at therefore sustained increased petitioner. if removal of only the convicted a misdemean- GPO’s GPO or. finding of apparent It that the Board’s is largely unproven the

Petitioner was removed the GPO nexus was based falsification, the Board shortly guilty plea accepted after his because fraud- present “in the the Upon petitioner’s the district court. stated that perpetrated against is official ulent conduct appeal appellant is employing agency, and the upheld the removal. She determined that on-the-job alleged for an charge, claiming a benefit agency’s first of unauthorized absences, indepen- injury.” could not as an stand

664 Service,

II. Postal 6 MSPB 6 M.S.P.R. (1982). 578 cases, however, § these it 7513(a), 5 federal Under U.S.C. was found that the committed agencies may discharge employees only for promote underlying such cause as will fraudulent conduct the con- Ordinarily, the burden is viction. placed on the to demonstrate that We think that the Phillips holding

such a “nexus” exists. Board’s Berg land, (4th Cir.1978); F.2d on the nexus issue constituted an error of Hampton, Young requires pursuant law which reversal to 5 (7th Cir.1977); Department Merritt v. § 7703(c)(1). In pertinent U.S.C. cases Justice, (1981). In in MSPB found, presumption we have was raised employee’s stances where conduct is so factually where it was established that the itself,” egregious speaks that “it how employee had committed the offense with ever, presumption of nexus is raised and *4 See, he charged. was e.g., Hayes, employee the Hayes must rebut it. v. De 727 F.2d at (employee 1536 tried and found partment Navy, the 727 F.2d of guilty Masino, of assault battery); and (Fed.Cir.1984); States, Masino v. United (customs inspector F.2d at 1054 admitted 1048, 1055, (1978). 589 F.2d 218 Ct.Cl. 531 subsequently smoking never denied petition If it had been found that marijuana); Gueory Hampton, v. 510 F.2d defrauding er committed the offense of the 1222, 1224 (D.C.Cir.1974)(employee found Government, United States the Board by Civil Service Commission to have “killed drawing pre would have been correct in being”). a fellow human Since the Board sumption See, of nexus from this offense. petitioner did not find that had committed 1011; e.g., Phillips, 586 F.2d at Jones v. the underlying charge against offense the Priebe, (6th Cir.1973). Also, 489 F.2d 709 him, and since he consistently has denied premise if upon presiding the which the so, doing we think that reliance on this line applying presumption official relied in the misplaced. of cases would be i.e., of petitioner was collat nexus — Raising presumption aof nexus erally estopped challenging from the merits places extraordinary burden on an em- valid, charge of the falsehood peti —were ployee, prove for it him to nega- forces ground tioner would have no on which to proposition tive that his retention would challenge raising presumption of this adversely not affect the of the by the Board. Moreover, the unusual circum- However, presented we are with a diffi- stances of this case raise doubts which we question, cult deciding because after cannot resolve on the basis of the record estoppel apply, collateral did not the Board principal problem before us. The we are upheld presiding official’s alternative confronted closely with is the contested finding agency did not meet its whether, issue of any presumption absent proof burden of charge. on the falsehood GPO, in favor of the there was a nexus doing, so the Board eliminated a crucial between the sole sustained of noto- component employed by of the basis riously disgraceful conduct and the effi- applying presump- official for tion of ciency nexus. of the service. Because neither the any Board nor the official made apply The Board’s pre decision to question, of fact on the we believe sumption of largely a nexus was based a remand of this case to the Board for its upon precedents its own in cases where only appropriate determination is the reme- employees have been convicted of an of dy. Cooper See 639 F.2d involving against fense fraud the Federal (1980) (remand required 226 Ct.Cl. 75 See, Government. e.g., Gordon v. Govern finding for factual of misconduct before a ment Printing Office, MSPB 9 M.S.P.R. - (1982); drawn). presumption Gamble v. United States of nexus could be Service, Naturalization 519 F.2d 1174 III. (nolo (5th Cir.1975) conviction as basis for hold, however, that substantial We aliens); Saxbe, deportation of finding the Board’s supports Sakoloff evidence (nolo (2d Cir.1974) 501 F.2d 571 conviction case, peti of this the circumstances under physician’s grounds for revocation of a as subsequent con guilty of tioner’s registration reg to distribute certificate pretenses false on the viction Black, drugs); George ulated Spe notoriously disgraceful was (8th Cir.1984) (nolo conviction as testimony of various cifically, the conducting health officials, grounds a civil com credible found 11(b) proceeding); mitment Fed.R.Crim.P. showed (nolo and was con throughout advisory committee note con known disgraceful by the GPO particularly grounds imposition sidered of multi viction high unusually number statutes). because ple offender claims, many of compensation workers’ agen false found to be which were IV. cy. we find that the Board’s decision Since Assuming that a nexus is estab ambiguous on the nexus issue is both guilty lished, on a a conviction inadequate, the case is remanded may, doctrine under the Alford to make new find- MSPB with instructions discretion, as the be considered Board’s ings of fact and conclusions of law on the Al employee’s removal. for the

basis question whether a nexus existed between *5 dearth of case law which though there is a notoriously dis- the sustained consequences of a delineates the collateral and the graceful conduct plea, to an we pursuant conviction Alford respects, In all the decision other consequences think that at least the same of the Board is affirmed. as to a to such a conviction should attach PART, AFFIRMED IN REVERSED IN plea, under a nolo contendere conviction PART, REMANDED. plea by analogous to the considered Alford 37, 91 400 U.S. at Supreme Court.1 DAVIS, Judge, dissenting part: in Circuit 11(f) 167; Fed.R.Crim.P. at see also S.Ct. (1974). In an note Al I II of advisory disagree committee I not with Parts do plea, the ordering in contendere plea, (except a nolo opinion the court’s for ford “voluntarily, knowingly, and remand), defendant reject I the conclusion of a but imposi to the understandingly that, consents] substantial evi- Part III in this if he is penalty] even tion of a finding that supports [criminal the Board’s dence participa to admit his unwilling or unable plea-and-convietion petitioner’s Alford constituting crime.” tion in the acts disgraceful conduct. For show 37, at 167. at 91 S.Ct. 400 U.S. (a) me, factors here are that the critical held, after the expressly that the fact of courts have held Several conviction, not that the a conten- pursuant to nolo a conviction Alford actually com- proven that Crofoot fact variety to a of collat- plea gives rise dere underlying his the offense mitted subsequent proceed- consequences eral Alford he evidence that Qureshi plea rather that his See, Immigration but ings. e.g., here, Georgia, 608 v. State reversible error. Willett Although not resolve the issue we need 1. Cir.1979); (5th States ex arguably United guilty might warrant F.2d plea an Alford (2d Cir.1974). Casscles, Dunn v. 494 F.2d 397 consequences than a nolo rel. Indeed, more severe collateral petitioner was which in the circuit in plea, that receives because a court contendere convicted, requirement latter, has former, basis” indepen- the "factual must but not the showing requiring construed as dently plea factual been has a determine -type pleas. guilt” "high probability of Alford, at n. 8 and 38 n. basis. 400 U.S. Alford States, F.2d factual and 167 n. 10. If a 91 S.Ct. at 167 n. 8 Griffin (D.C.Cir.1968); United Bruce v. is not set forth basis for Alford (D.C.Cir.1967). record, 119 n. 19 acceptance can be of such a credible, did not commit the offense was (b) specifically upheld the full MSPB MASSACHUSETTS MUTUAL LIFE so, being

those determinations. That I can- COMPANY, INSURANCE prior not see how the plea-and-con- Appellant, Alford notoriously disgraceful viction could show If the MSPB had not made the STATES, Appellee. The UNITED findings it making findings did—either no at all on the accepting facts or the Alford Appeal No. 84-1526. plea as conclusive1 —an conviction Alford might notoriously disgraceful indicate United con- States Court of Appeals, findings duct. But the MSPB show that Federal Circuit. plea-and-conviction this now stands Alford 7,May simply wrongful fears of plus unwillingness go to through another trial. That cannot amount “notoriously disgraceful conduct.” If it

be said that his fellow would not

know of findings the MSPB and would

therefore believe he had in fact committed offense, that, the answer is on Cro- reinstatement,

foot’s he and the Govern- Printing

ment publicize Office should findings.

MSPB In entering his Alford

plea petitioner had denied he had commit- offense,

ted the accordingly he would continuing

be consistent in deny; routinely could bow to the MSPB’s (as offense)

factual

this court does not overturn. *6 holding plea-and-con- that the Alford enough by

viction is itself show notori-

ously conduct, disgraceful the court seems wholly disregard

to me pres- the crucial

ence in this case of the MSPB’s factual

findings that Crofoot has not been shown

to have committed the offense. Because of

those I would reverse and direct only signifi- reinstatement because the

cant sustained the MSPB—noto-

riously disgraceful conduct—has no sub- support.

stantial conviction, today's 1. It must be majority remembered that here the full does not over- apply principles MSPB refused to ruling. of former turn that adjudication (collateral estoppel) to the Alford