Covington v. Dep't of the Interior

• Decision Date: 13 January 2023
• Docket Number: DE-0752-15-0169-I-1
• Parties: Cathy Covington, Appellant, v. Department of the Interior, Agency.
• Court: Merit Systems Protection Board

1

2023 MSPB 5

Cathy Covington, Appellant, v. Department of the Interior, Agency.

No. DE-0752-15-0169-I-1

United States of America Merit Systems Protection Board

January 13, 2023

Nina Ren, Esquire, Washington, D.C., for the appellant.

Frank Lupo, Esquire, and Jared M. Slade, Albuquerque, New Mexico for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member Member Limon recused himself and did not participate in the adjudication of this appeal.

OPINION AND ORDER

¶1 The appellant has filed a petition for review of an initial decision that sustained her removal. For the reasons set forth below, we GRANT the appellant's petition, VACATE the initial decision, and REMAND this matter for further adjudication consistent with this Opinion and Order.

BACKGROUND

¶2 The appellant was employed as a Forester in the agency's Bureau of Indian Affairs (BIA), Trust Services, Navajo Region, in Fort Defiance, Arizona. Initial Appeal File (IAF), Tab 4 at 15-17, Tab 6 at 137. The Navajo Region serves the Navajo Nation, which it considers its "sole customer." Hearing Transcript (HT) at 167 (testimony of the appellant's first-level supervisor). The Navajo Region is concerned with maintaining a good relationship between the BIA and the Navajo Nation. Id.

¶3 Consistent with the Federal Government's move toward greater autonomy for Indian tribes, the BIA's Navajo Region and the Navajo Nation have entered into what are commonly known as "638 contracts" concerning timber and other trust assets. HT at 116 (testimony of a BIA Tribal Operations Specialist), 156-57, 173-74, 209-10 (testimony of the appellant's first-level supervisor). Trust assets are assets that the Federal Government holds "in trust for Indian tribes and individual Indians." 25 C.F.R. § 115.002. The term 638 contracts refers to contracts that are entered into under the Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-638, § 102, 88 Stat. 2203, 2206 (1975) (codified as amended, at 25 U.S.C § 5321); HT at 156 (testimony of the appellant's first-level supervisor). Under these self-determination contracts, tribal organizations are permitted to self-administer certain programs that would otherwise be administered on their behalf by the Federal Government. HT at 156-57, 173-74; see 25 U.S.C. § 5321(a); Hinsley v Standing Rock Child Protective Services, 516 F.3d 668 670 (8th Cir. 2008).

¶4 The Navajo Region has a 638 contract with the Navajo Nation Forestry Department. HT at 157 (testimony of the appellant's first-level supervisor). Pursuant to a self-determination agreement with the BIA, the Navajo Nation Forestry Department self-administers aspects of its forestry management operations, including issuing permits for harvesting and selling timber products on Navajo Nation lands. HT at 157, 169 (testimony of appellant's first-level supervisor); IAF, Tab 5 at 26-33. Nevertheless, the BIA's Navajo Region is responsible for reviewing and approving permits for harvesting timber. IAF, Tab 5 at 96-97; 25 C.F.R. §§ 163.1, 163.3, 163.10, 163.26. The BIA Navajo Region's self-determination officer oversees these 638 contracts with the assistance of awarding officials, who in turn are assisted by awarding official's technical representatives (AOTRs) and sub-awarding technical representatives. HT at 157-58 (testimony of the appellant's first-level supervisor).

¶5 In May 2013, while the appellant was serving a 1-year probationary period as a Supervisory Forester, the agency designated her as the AOTR for the BIA's 638 contract with the Navajo Nation Forestry Department. IAF, Tab 5 at 36, 51. On December 2, 2013, she received a telephone call from a Navajo Nation Forestry Department official. IAF, Tab 5 at 19. He expressed concern that "timber . . . was being harvested along right-of-way [for Arizona State Highway] 264 . . . [without a] timber sale contract." Id. at 19; HT at 378-79 (testimony of the appellant). Highway 264 runs through the Navajo Nation. HT at 163 (testimony of the appellant's first-level supervisor).

¶6 Two days later, the appellant visited the identified location and observed the Arizona Department of Transportation (ADOT) cutting down trees along Highway 264 and loading them onto trailers. IAF, Tab 5 at 19-23, 34. She interviewed two individuals who advised her that the trees were "being hauled to the Navajo Nation Forestry Department to be processed and cut into rough cut lumber."^[1] Id. at 20. She obtained a copy of a "Transportation Permit" issued by the Navajo Nation Forestry Department that allowed for removal of the timber at issue along the right-of-way. Id. at 19, 24.

¶7 The following day, the appellant wrote two memoranda notifying her first-level supervisor, the Regional Director, who was her second-level supervisor, and the awarding official, that she had shut down this project, which she described as a "timber permit sale." Id. at 19-20. The appellant was under the impression that the right-of-way along Highway 264 was subject to a 638 contract between the BIA and the Navajo Nation. IAF, Tab 5 at 24; HT at 380 (testimony of the appellant). Such an agreement would require the Navajo Nation to follow BIA regulations. IAF, Tab 5 at 22; HT at 380, 418 (testimony of the appellant). She believed that the Navajo Nation Forestry Department had violated these regulations by failing to have a timber sale contract in place. HT at 380 (testimony of the appellant). She shut the project down on that basis. Id.

¶8 In her December 5, 2013 memoranda, the appellant asserted that the Navajo Nation Forestry Department was not authorized to retain any revenues from the timber sale absent a tribal resolution to that effect and that it was a conflict of interest for the Navajo Nation Forestry Department to have obtained the timber sale permit for its own benefit because it distributed the permits. IAF, Tab 5 at 19-21, 51. It is undisputed that shutting down work was outside the scope of the appellant's authority as the AOTR. HT at 160-61, 166-67 (testimony of the appellant's first-level supervisor), 417-18 (testimony of the appellant); IAF, Tab 5 at 47-49, 52. By shutting down the Highway 264 project, she caused tensions between the BIA and the Navajo Nation. HT at 168, 172-73, 245 (testimony of the appellant's first-level supervisor).

¶9 The Navajo Region later determined that the land from which trees were being cut was not subject to a 638 contract. HT at 170-71 (testimony of the appellant's first-level supervisor). Instead, the agency, with the concurrence of the Navajo Nation, had provided ADOT with a right-of-way, giving it "rights and claims" within the area at issue along the highway, which apparently included the right to dispose of timber located along the right-of-way as they saw fit. HT at 170 (testimony of the appellant's first-level supervisor); IAF, Tab 5 at 34. The Regional Director determined that "[t]he [Navajo Nation] forestry department ha[d] partnered with ADOT to collect and remove all timber to be utilized for local community needs at no cost" and advised the appellant that "BIA supports this arrangement" between the two parties. IAF, Tab 5 at 38.

¶10 By letter dated March 11, 2014, the Regional Director returned the appellant to her prior nonsupervisory position based on the appellant's actions in stopping ADOT's work along Highway 264. Id. at 36. She faulted the appellant for making a "premature decision" and demonstrating a "lack of expert guidance" by interfering in the arrangement between ADOT and the Navajo Nation Forestry Department. Id. According to the Regional Director, the appellant's action resulted in an "unnecessary delay of the project" and "forced [BIA] to enter into an unnecessary [memorandum of understanding] with [ADOT]." Id. The appellant returned to her prior position effective March 16, 2014.^[2] Id.

¶11 Between late December 2013 and early January 2014, as well as on or around June 18, 2014, the appellant reported additional alleged agency wrongdoing to the agency's Office of Inspector General (OIG). IAF, Tab 6 at 27-29, Tab 33 at 10. She also sent a September 11, 2014 email to the Navajo Nation Forest Manager raising concerns that certain Navajo Nation-proposed tree harvesting projects did not comply with the National Environmental Policy Act (NEPA) and other Federal laws. IAF, Tab 5 at 39. The awarding official and the appellant's first-level supervisor learned of this email to the Navajo Nation later that month. Id. at 43, 45.

¶12 On November 6, 2014, the appellant's first-level supervisor proposed her removal based on a charge of "Failure to Safeguard Government Records." IAF, Tab 6 at 47-48. In its first specification, the agency asserted that on July 22, 2014, despite receiving instructions requiring her to complete an inventory of documents and get approval before moving those documents from her former duty station in Fort Defiance, Arizona, to her new office in Gallup, New Mexico, the appellant "removed and disposed of confidential [G]overnment records in a public dumpster that contain[ed] the PII [Personally Identifiable Information] of individuals [such as] names and social security numbers, date[s] of birth, and [F]ederal records including Indian [Fiduciary Trust] Documents" (e.g., maps). Id. at 47-49, 158-60. The agency noted that other documents the appellant had placed in her vehicle were not recovered and it was unknown which of those files were missing because she did not complete the required inventory. Id. at 49. In its second specification, the agency alleged that on July 25, 2014, the appellant loaded inventoried records into a Government vehicle and transported them to her new office on her own, despite an instruction to travel...