David M. Mullins v. Department of Commerce

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
06-3284
DAVID M. MULLINS,
Petitioner,
v.
DEPARTMENT OF COMMERCE,
Respondent.
David M. Mullins, of Avon, Indiana, pro se.
John S. Groat, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and
Brian M. Simkin, Assistant Director.
Appealed from: United States Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
06-3284
DAVID M. MULLINS,
Petitioner,
v.
DEPARTMENT OF COMMERCE,
Respondent.
___________________________
DECIDED: May 4, 2007
___________________________
Before LOURIE, RADER, and BRYSON, Circuit Judges.
PER CURIAM.
The Merit System Protection Board (Board) affirmed the Department of
Commerce’s (Agency’s) decision to remove petitioner David Mullins from his position of
Facilities Engineering Technician at the National Ocean and Atmospheric
Administration’s Weather Forecast Office in Indianapolis, Indiana. Mullins v. Dep’t of
Commerce, Docket No. CH-0752-05-0686-I-1 (M.S.B.P. Feb. 8, 2006) (Initial Decision);
Mullins v. Dep’t of Commerce, Docket No. CH-0752-05-0686-I-1 (M.S.B.P. June 14,
2006) (Final Decision). Finding the decision supported by substantial evidence and in
accordance with the law, this court affirms.

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I
The Agency removed Mr. Mullins for misuse of a government vehicle, misuse of
official time, misuse of a government travel card, and falsification of official travel
documents. In a 23-page “Notice of Proposed Removal,” Mr. Mullins’ supervisor, Mr.
Kirt Grahl, gave 78 occasions when the Agency suspected Mr. Mullins had misused a
government vehicle. Mr. Mullins worked in Indianapolis, Indiana, but his government-
issued credit card showed purchases of gasoline in locations like Smyrna, Tennessee,
and Ohio. He had no authorization to travel to those places. The Notice of Proposed
Removal also comprehensively described 16 alleged occasions of misuse of official
time. Based on the government-issued credit card records, the Agency found Mr.
Mullins repeatedly traveled in a single day tens to hundreds of miles from his assigned
duty location. The Notice of Proposed Removal also detailed four unauthorized cash
withdrawals on the government-issued travel credit card, and five falsifications of official
travel documents. Mr. Mullins, in one transaction, withdrew $500, and on five occasions
turned in forged hotel receipts. Mr. Mullins also obtained mileage reimbursement from
the Agency claiming use of his personal vehicle when he was actually driving a
government vehicle.
Mr. Mullins admitted misuse of the government vehicle and unauthorized cash
withdrawals on the government-issued travel card. In his response, he also claimed
that he didn’t “quite understand th[e] charge” of falsification of official travel documents,
but defended by stating that everyone in the Weather Service that has traveled “has
included false information on their travel vouchers.” Following review of the Notice of
Proposed Removal and Mr. Mullins’ response, the Deciding Official, Ms. Valeria Capell,
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found that Mr. Mullins violated many rules, regulations, and most importantly, the
public’s trust. Ms. Capell found that Mr. Mullins’ misconduct cost the Agency $6,419.83.
She also concluded that Mr. Mullins’ position required trust. Accordingly, she
authorized the removal.
Before the Board, Mr. Mullins did not deny that he purchased gasoline for the
government vehicle in the multiple locations detailed by the Agency outside his duty
area. He explained his detours as time when he was on duty without justifying the
purpose of the trips. Furthermore, when confronted with the Agency’s evidence of
misuse of official time in the form of far-ranging travel outside of his duty location, Mr.
Mullins could not adequately explain his use of time. For example, he claimed that he
traveled to pick up a “contractor” in Ohio, who was a buddy named “Steve”; or to watch
his son play football.
When confronted with evidence of falsification of travel documents, Mr. Mullins
testified that he legitimately “made money on Government travel” by sleeping in his
government vehicle and submitting fabricated hotel receipts. He admitted only a simple
mistake.
The Administrative Judge (AJ) concluded that Ms. Capell properly considered all
relevant factors, properly exercising her decision to remove Mr. Mullins. The
administrative proceeding showed by preponderant evidence, that Mr. Mullins misused
a government vehicle, sustaining 68 of the 78 specifications of government vehicle
misuse. The Administrative Judge also sustained 10 of the 16 specifications of official
time misuse, all of the misuse of government travel card specifications, and all of the
falsification of official travel document specifications. The Board denied Mr. Mullins’
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petition for review, adopting the AJ’s Initial Decision as final. Final Decision, slip op. at
1-2.
II
The standard of review for appeals from a final order of the Board states:
the court shall . . . hold unlawful and set aside any agency action, findings
and conclusions found to be (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)(1)-(3) (2000). On appeal, Mr. Mullins argues that the Board did not
“see that an ex-parte communication” occurred when Ms. Capell discovered Mr. Mullins’
two prior job losses. He argues that his guaranteed right to fundamental fairness was
seriously violated when Ms. Capell “’google searched’ my name . . . and came across . .
. my alleged prior removal from Federal Service by the Air Force.” He asserts that Ms.
Capell “pergured[sic] herself” when she stated that she was not influenced by his two
prior job losses.
No ex-parte communication occurred when the Deciding Official, Ms. Capell,
discovered for herself that “in 1996, the Department of the Air Force removed the
appellant from a civil service position and that in 1997, the Smithsonian Institution told
[Mr. Mullins] to ‘look for a new job.’” Indeed, the only “communication” that occurred
was when Mr. Mullins communicated with Ms. Capell to bring to her attention the
negative information about himself “by suggesting he had been subject to Board
proceedings before.” Ex-parte communications are procedural defects only when they
cause prejudice that undermines due process guarantees. Because Mr. Mullins’ two
prior job losses did not affect Ms. Capell’s decision to remove Mr. Mullins, the record
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shows no prejudice. Indeed, on April 22, 2005, before Ms. Capell discovered Mr.
Mullins’ two prior job losses, Mr. Grahl had already outlined 102 specifications to
support the four charges of misuse and misconduct against Mr. Mullins.
Furthermore, as clearly stated in the Initial Decision, the AJ knew the “removal”
from federal service actually involved a settlement agreement where the Air Force
agreed to pay Mr. Mullins in exchange for withdrawing his removal appeal. The AJ
even noted that the Air Force was reluctant to expunge Mr. Mullins’ employment
records. Thus, this record shows no violations of due process guarantees. As a result,
this court finds the Board’s decision to affirm Mr. Mullins’ removal is supported by
substantial evidence, and substantively and procedurally in accordance with the law.
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