DoD Succeeds in Removing a Police Officer the Second Time Around

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By on November 2, 2017 in Court Cases with 0 Comments

 

Judge's gavel

In Brown v. Department of Defense (CAFC No. 2017-1687, 8/10/17), according to the court’s decision Mr. Brown’s troubles began in late 2012 when a California Highway Patrol officer stopped then DoD officer Brown while driving his personal car. At the time Brown worked at the Defense Logistics Agency. This stop got very complicated. Brown’s plate did not match the vehicle registration; he admitted he had switched the plate with another vehicle he owned, the improperly registered car was towed, and Brown was cited. When Mr. Brown tried to recover the towed vehicle he found out an insurance company had claimed it because it was reported stolen. (p. 2)

California leveled criminal charges against Brown for three felonies. Eventually in mid 2013 Brown pled no contest to a misdemeanor offense, presumably the result of a plea bargain. (p. 2)

Meanwhile, the Department of Defense attempted first to indefinitely suspend Brown stemming from the California criminal charges. However, the suspension was thrown out by MSPB on appeal since the criminal charges “without more, did not provide ‘reasonable cause’ to conclude that Mr. Brown had committed the charged offenses.” (p. 3)

Next up, the Department initiated Brown’s removal for “conduct unbecoming a federal police officer.” (p. 3)  Batting 0 for 2 at the Merit Systems Protection Board (MSPB), the removal was tossed for failure to provide Mr. Brown with sufficient information on the grounds for his removal. The MSPB judge ruled that the notice of proposed removal did not contain one of the key grounds relied on in the final decision. The judge emphasized that the reversal of Brown’s removal did not prevent the Department from trying all over again based on the same charge. (pp. 3-4)

The third time around (or second time trying for removal of Mr. Brown), the Department came up with six instances of “conduct unbecoming a federal police officer” and three instances of “failing to provide accurate information” on a federal form. This time around the Department named a different deciding official. The new deciding official ruled that Brown’s removal was warranted and  Brown went back to the MSPB. This time, however, the Board affirmed removal, finding both charges were supported by the facts. (p. 4)

Not fully finished with the case, the full MSPB affirmed the administrative judge’s decision but modified it to deal with certain due process allegations made by Brown and involving evidence he tried to submit late in the proceedings, neither of which changed the outcome of Brown’s appeal as far as MSPB was concerned.

Brown went to the appeals court. Among other things, he argued that the department acted untimely to remove him and therefore his appeal should be sustained. The court has rejected that argument. In its decision the court points to the department’s various efforts to deal with Mr. Brown—the attempt at indefinite suspension that failed on appeal; the first removal action that also failed on appeal; and the second removal effort that finally stood up on appeal. As the court states, “Mr. Brown has not presented any evidence, either to the Board or to this court, that the Department acted unreasonably during his removal.” (p. 7)

None of Mr. Brown’s other arguments to the court worked either. The removal decision is affirmed.

Brown v. DOD (2017-1687)

© 2019 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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