The federal appeals court has ruled on a challenge to the Merit Systems Protection Board (MSPB)’s handling of a civilian employee’s removal appeal. The court’s decision is found at Bebley, III v. Department of the Air Force (CAFC No. 2018-2221 (nonprecedential), 8/2/19.
According to the decision, Mr. Bebley was an IT (Information (Network) Specialist employed at Joint Base San Antonio when he lost his temper in a meeting with his supervisor held for the purpose of talking about work. Bebley got angry, shouted obscenities at the boss for “several minutes,” and several coworkers who heard his shouting throughout the office jumped in. One led Bebley from the supervisor’s office. However, when Mr. Bebley kept displaying agitation and tried to go back into the office, the supervisor called the base police. This led to an investigation and report that contained 21 exhibits and statements of several witnesses. (Opinion p. 2)
After reviewing the report of this incident, the agency proposed removal on the basis of “conduct unbecoming a federal employee.” (p. 2)
Once Bebley replied and the proposing official re-opened the record to consider a few additional documents as well as Bebley’s additional reply to those documents, the final decision was made to remove Bebley “based on the reasons and evidence identified in the notice of proposed removal, the notice of additional information, and Mr. Bebley’s written responses.” (p. 3)
The issue of Exhibit 21 became contentious during Bebley’s appeal to the MSPB. What was Exhibit 21? It was included as the last exhibit in the investigation report and it contained Mr. Bebley’s criminal history. The agency provided evidence that it did not consider this exhibit in proposing and deciding the removal action. Further, this exhibit was redacted by the agency from the Report of Investigation (ROI) submitted to the MSPB as part of the appeal process; however the agency stated that the redacted exhibit 21 contained Bebley’s criminal history. (p. 3)
Bebley’s attorney raised objections to the use of Exhibit 21 as “prejudicial and not relevant…” but he did not request a copy of the exhibit during prehearing procedures. At the hearing, however, Bebley’s representative requested that Exhibit 21 be made part of the record. The Administrative Judge granted the request and left the hearing record open so the agency could submit it for the record. But, at no point did Bebley’s attorney question the deciding official about whether he considered Exhibit 21 in making his final decision to remove Bebley. (p. 4)
When Exhibit 21 was submitted for the record, Bebley claimed he had never seen it before and his counsel submitted a “declaration” explaining each of the prior criminal record incidents contained in it. The Air Force moved to strike the declaration.
The AJ sustained Mr. Bebley’s removal, largely crediting the testimony of coworkers and the supervisor who witnessed the incident, and finding that the Air Force had proved its case of conduct unbecoming. As to the now infamous Exhibit 21, the AJ denied the motion to strike the belated declaration submitted by Bebley. He went on to rule that there was no evidence this prior criminal record information had been considered by the deciding official nor was there a violation of due process rights in connection with the exhibit. (p. 4)
Mr. Bebley took his case to the appeals court arguing that (1) there was no substantial evidence to support his removal, and (2) his due process rights were violated because the deciding official considered Exhibit 21 without giving him a right to have the information and to respond to it before the decision was made to fire him.
The appeals court was not moved by the lack of substantial evidence argument. Essentially Bebley was arguing the too much credibility was given by the AJ to the agency witnesses and that his (Bebley’s) testimony was more credible. The court not surprisingly refused to get into witness credibility arguments, which are in the purview of the AJ and “virtually unreviewable on appeal. “Mr.Bebley essentially asks us to reassess the credibility of witnesses and to reweigh conflicting evidence presented at the hearing, but that is not the role of this court.” (p. 6)
As for Exhibit 21, the court finds Bebley had waived his due process argument by not raising his objections before the MSPB and by failing to question the deciding official about its role, if any, in Bebley’s removal. Further, the “declaration” filed on Bebley’s behalf responding to the contents of the exhibit did not ask for the hearing to be reopened. In fact, the AJ considered Bebley’s “declaration” and made it part of the record, “which was all the AJ was bound to do in this case.” (p. 8) The court pointed out it was Bebley’s burden to object to Exhibit 21 as “new and material evidence and to move to reopen the record if he desired to question the deciding official about the exhibit.” He failed to do this hence the court concluded the AJ did not abuse her discretion. (p. 8)
In short, Mr. Bebley has lost his appeal.