U.S. Merit Systems Protection Board 
Case Report for December 9, 2011 

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Appellant:  Jeffrey R. Prather
Agency:  Department of Justice
Decision Number:  2011 MSPB 100
Docket Number:  NY-0752-09-0118-I-2
Issuance Date:  December 7, 2011
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges - Falsification

     The appellant petitioned for review from an initial decision that affirmed his removal for misconduct.  The agency removed the appellant from his position as a Criminal Investigator (Special Agent) with the Drug Enforcement Administration (DEA) based on 5 charges of misconduct:  (1) unauthorized outside employment; (2) unauthorized use of an official government vehicle; (3) misuse of government property; (4) providing false, misleading, or inaccurate information; and (5) conduct unbecoming a DEA Special Agent.  The appellant stipulated that the agency proved charges 2 and 3.  The administrative judge sustained the agency's action, finding that it proved all of the charges and specifications, that there was a nexus between the appellant's misconduct and the efficiency of the service, and that the penalty of removal was within the bounds of reasonableness.  The judge also determined that the appellant failed to prove his affirmative defense of religious discrimination.
Holdings:  The Board affirmed the initial decision as modified, still affirming the appellant's removal.  After an extensive review of the evidence, the Board found that the agency proved all of its charges and specifications, that there was a nexus between the charged conduct and the efficiency of the service, that the appellant failed to prove his affirmative defense of religious discrimination, and that the removal penalty was within the bounds of reasonableness.


Petitioner:  Ahmed M. Younies
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3031
Issuance Date:  December 5, 2011

Jurisdiction - Probationary Employment

     Younies, a former employee of the Department of Labor, sought review of a Board decision that dismissed his appeal for lack of jurisdiction.  Younies was terminated during his probationary period for making untruthful statements.  In his application for the position, Younies answered "no" to the question whether he had been convicted of a crime or put on probation during the preceding 10 years.  After Younies was selected for the position, he signed the same application form, certifying for a second time that his answers to the questions were truthful.  It came to light during a background check, however, that Younies had a prior conviction for disturbing the peace under California law, for which he served 1 year on probation.  Younies admitted that he had been arrested, but maintained that he had never been convicted, and stated that because the incident had occurred more than 5 years earlier, he had forgotten about it.  Further inquiry determined that Younies had pled guilty to disturbing the peace.  The court's Order for Relief provided that "the plea, verdict, or finding of guilty . . . [would] be set aside and vacated and a plea of not guilty be entered, and that the accusatory filing is dismissed . . . ."  The Order for Relief further provided that it "does NOT relieve the defendant of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office . . . ."  

     The legal issue in the case was whether Younies's employment had been terminated for pre-appointment reasons or for post-appointment reasons.  If Younies's employment was terminated for pre-appointment reasons, he would be entitled to the procedures of 5 C.F.R. 315.805, which requires an advance written notice of the proposed adverse action, an opportunity to respond, and a written notice of the adverse action.  These termination procedures are only available to probationary employees who are dismissed "in whole or in part" based on pre-appointment reasons.
Holdings:  The court affirmed the Board's dismissal of Younies's appeal for lack of jurisdiction because substantial evidence supports the Board's determination that the agency did not rely on pre-appointment reasons in terminating his employment:

1.  Younies answered the pertinent question twice.  The first time was prior to his appointment as part of the application; the second time was after his appointment.  The first and second signatures constitute separate events, notwithstanding the fact that the two representations were based on the same underlying facts.

2.  Substantial evidence supports the Board's determination that the agency relied solely on the second misrepresentation in terminating Younies's employment.  The termination letter expressly mentions the second date on which Younies signed the application form and makes no mention of the first.  The termination letter also points to Younies's persistence in maintaining that he had never been convicted, even after the agency brought his criminal record to his attention.

The court issued a nonprecedential decision in the following case:

Rodriguez v. Department of State, No. 2011-3115 (Dec. 7, 2011) (MSPB Docket No. DC-0752-10-0305-I-1) (affirming the Board's decision, which dismissed an appeal for lack of jurisdiction on the ground that the appellant had waived her right to appeal under a valid last-chance settlement agreement)

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