Connor v. Dep't of Veterans Affairs

• Decision Date: 12 August 2021
• Docket Number: 2021-1064
• Citation: 8 F.4th 1319
• Parties: Stephen CONNOR, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

8 F.4th 1319

Stephen CONNOR, Petitioner

v.DEPARTMENT OF VETERANS AFFAIRS, Respondent

2021-1064

United States Court of Appeals, Federal Circuit.

Decided: August 12, 2021

Joel J. Kirkpatrick, Joel J. Kirkpatrick, P.C., Plymouth, MI, argued for petitioner.

Galina I. Fomenkova, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by Brian M. Boynton, Elizabeth Marie Hosford, Robert Edward Kirschman, Jr.

Before Newman, Lourie, and Dyk, Circuit Judges.

Opinion concurring in part and dissenting in part filed by Circuit Judge Newman.

Dyk, Circuit Judge.

Petitioner Stephen Connor appeals a decision of the Merit Systems Protection Board ("Board") affirming his removal by the Department of Veterans Affairs ("VA"). We affirm.

BACKGROUND

I

On June 23, 2017, Congress passed the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, Pub. L. No. 115-41, 131 Stat. 862. The Act created an expedited procedure allowing the VA Secretary to remove, demote, or suspend VA employees for misconduct or substandard performance. See id. § 202, 131 Stat. at 869–73 (codified at 38 U.S.C. § 714 ). This created a "less rigorous" procedure than existing processes. Sayers v. Dep't of Veterans Affs. , 954 F.3d 1370, 1374–75 (Fed. Cir. 2020) (contrasting § 714 with adverse actions under title 5, chapter 75 and title 5, chapter 43). Section 714 limits review of disciplinary actions by administrative judges and the Board. Under § 714, a disciplinary decision must be upheld if "supported by substantial evidence," replacing the previous preponderance of the evidence standard. Id. at 1376 (citing § 714(d)(2)(A) and 5 U.S.C. § 7701(c)(1)(B) ). The statute also provides that the administrative judge and the Board "shall not mitigate the penalty prescribed by the Secretary." 38 U.S.C. § 714(d)(2)–(3) ; see also Sayers , 954 F.3d at 1376 (explaining that § 714(d)(2)(B) "prohibits the administrative judge from mitigating a penalty supported by substantial evidence").

The question is whether the enactment of § 714 changed the preexisting requirement that the so-called Douglas factors—used to assess the reasonableness of disciplinary agency actions—be applied both by the agency in its initial penalty decision and by the Board in reviewing that decision.

II

In October 2007, Mr. Connor began working as the Chief of Police Services for the Fayetteville, North Carolina VA Medical Center ("Fayetteville VAMC"). As the highest security authority at the Fayetteville VAMC, Mr. Connor was responsible for the direction and control of the Fayetteville VAMC police service, including oversight of over thirty officers and staff members. The Fayetteville VAMC was equipped with an armory, where the police service stored weapons and ammunition. The armory had various access controls, including a keypad lock, a camera, and a separately locked ammunition locker.

In November 2018, the Fayetteville VAMC police service took delivery of approximately 20,000 rounds of ammunition. Mr. Connor and his direct subordinate, Deputy Chief Dennis Bechtel, were able to store the 20,000 rounds in the ammunition locker after removing its shelves and reinforcing the bottom of the locker with bricks.

Shortly thereafter, the police service received a delivery of an additional 4,000 rounds of ammunition. Mr. Connor determined that the ammunition locker could not fit the additional rounds or accommodate their weight without collapsing. VA policy required ammunition to be secured with specified physical access controls. Without seeking a waiver of this policy, Mr. Connor authorized Mr. Bechtel to store the 4,000 rounds in a locked cabinet in Mr. Bechtel's office—which did not have the requisite access controls—until enough space opened in the ammunition locker. At the time, the Fayetteville VAMC police service was scheduled for quarterly firearms training at a shooting range about two weeks later; such trainings typically consumed at least 10,000 rounds of ammunition. Thus, after the training, space would be available to properly store the 4,000 rounds in the ammunition locker. Mr. Connor anticipated that when more space became available in the locker, the 4,000 additional rounds would be transferred to the locker. After the training, however, Mr. Connor never checked whether this had occurred.

Approximately three months later, in February 2019, Luis Arana became the police service Training Officer, taking over the position from Mr. Bechtel. On June 14, 2019, after a routine inventory, Mr. Arana notified Mr. Connor that 4,000 rounds of ammunition were missing. Mr. Connor and Mr. Arana inspected Mr. Bechtel's office, where they found the key to his cabinet in a mug on his desk. The 4,000 rounds were still in Mr. Bechtel's cabinet; Mr. Connor and Mr. Arana then transferred the rounds to the ammunition locker in the armory. After moving the 4,000 rounds to the ammunition locker, Mr. Connor filed a report explaining that he had temporarily authorized Mr. Bechtel to store the 4,000 rounds in his office cabinet, and that the 4,000 rounds were never transferred to the armory after space became available in the ammunition locker. Mr. Connor requested the assistance of Human Resources Employee and Labor Relations Specialist James Gaydos in taking disciplinary action against Mr. Bechtel.

III

On June 20, 2019, the VA began an investigation into allegations of mismanagement at the Fayetteville VAMC, including the failure to inventory ammunition, misuse of government vehicles, lack of training, unfair hiring and promotion practices, employee misconduct, and lack of leadership and oversight. Mr. Connor was reassigned from his position pending the investigation. After the investigation, the VA charged Mr. Connor with failure to provide management oversight, based on twenty-seven specifications, and proposed his removal.

Specifications 1–24 alleged that Mr. Connor had failed to provide performance plans and progress reviews to some members of the police services staff (one staff member per specification). Specification 25 alleged that Mr. Connor improperly authorized Mr. Bechtel to store the 4,000 rounds of ammunition in a location without the physical access controls required under VA regulations; the VA also found that Mr. Connor had failed to follow up to ensure the ammunition was transferred to the armory locker. Finally, specifications 26 and 27 respectively alleged that Mr. Connor failed to maintain current and accurate training records and failed to provide active threat response training.

In a decision letter dated December 20, 2019, Daniel Ducker, the Executive Director of the Fayetteville VAMC, sustained all twenty-seven specifications and the penalty of removal pursuant to § 714. In his decision letter, Mr. Ducker explained that removal was appropriate due to Mr. Connor's "position of significant trust and responsibility," "years of service," and "past record," as well as "the seriousness of the offense." J.A. 48. Mr. Ducker also represented that he had considered whether there were any mitigating or extenuating circumstances, concluding that Mr. Connor's offense was so grave that mitigation of the penalty was not warranted. At the time, the VA took the position that consideration of the Douglas factors (described below) was unnecessary. Agency's Resp. to Appellant's Initial Disc. Reqs., J.A. 355, 357 (asserting that the VA had no obligation to consider the Douglas factors in disciplinary actions under § 714 ).

On appeal, the Board determined that the VA had failed to prove twenty-six of the twenty-seven specifications by substantial evidence. With respect to specifications 1–24, the Board determined that Mr. Bechtel, not Mr. Connor, was responsible for issuing the performance plans and progress reviews, and that no evidence suggested that Mr. Connor should have known that Mr. Bechtel had not issued these items. Regarding specification 26, the Board concluded that although some training documentation was missing, the VA failed to prove that this was Mr. Connor's fault. As for specification 27, the Board found that police services employees were provided active threat response training as part of their regular firearms training, and that Mr. Connor was preparing such training for other Fayetteville VAMC employees before he was reassigned.

However, the Board upheld specification 25, regarding the improper storage of ammunition. The Board held that the Douglas factors remained applicable after the enactment of § 714. While recognizing that Mr. Ducker "did not conduct a formal ‘Douglas factor analysis’ at the time of his decision," J.A. 23, and that the VA's position was that § 714 abrogated the requirement to review the Douglas factors, the Board determined that Mr. Ducker had given due consideration to the relevant Douglas factors when deciding to remove Mr. Connor. The Board noted that Mr. Connor had failed to seek a waiver of the VA's access control policy before storing the ammunition outside of the armory locker, and never followed up to see if the 4,000 rounds had been transferred once space became available. The Board also credited Mr. Ducker's testimony that this specification was the most severe of Mr. Connor's alleged misconduct and was itself sufficient to warrant his removal. Accordingly, based on specification 25, the Board upheld the VA's charge and the penalty of removal.

Mr. Connor petitions for review. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

Our review of the Board's decisions is limited by statute. We shall "hold unlawful and set aside" only those decisions of the Board that are:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.

5 U.S.C. § 7703(c) ; see also 38 U.S.C. § 714(d)(5)(A) ; Brenner...